Berger v. Copeland Corp., SD 34193
Decision Date | 05 October 2016 |
Docket Number | No. SD 34193,SD 34193 |
Citation | 505 S.W.3d 337 |
Parties | Philip H. BERGER, Appellant, v. COPELAND CORPORATION, LLC, Respondent. |
Court | Missouri Court of Appeals |
Appellant's attorneys: Kenneth B. McClain II, Andrew K. Smith, Jonathan M. Soper and Lauren E. McClain
Respondent's attorneys: John C. Holstein, Jennifer R. Growcock, John M. Tyner and Emma R. Schuering
Assessing damages at $5 million actual and $23 million punitive, jurors found for Philip Berger against his employer Copeland Corporation on workplace liability claims for exposure to contaminated metalworking fluids.1 Upon Copeland's motion, the trial court ordered a new trial "because this Court erred in submitting Instructions 6 and 10," respectively a negligence verdict director and a non-MAI inference instruction.
Berger appeals the new trial order, raising four points. We deny two without extended discussion2 and take up Point III, which challenges the grant of a new trial for error in giving the following non-MAI inference instruction on spoliation:
To win Point III, Berger must show Instruction 10 was not erroneous or it created no substantial risk of prejudice. MFA Oil Co. v. Robertson – Williams Transport, Inc., 18 S.W.3d 437, 439 (Mo.App.2000).
Since Hartman v. Hartman, 314 Mo. 305, 284 S.W. 488 (banc 1926), if not earlier, Missouri has prohibited adverse-inference jury instructions. Counsel can argue the inference to the jury, but no jury instruction should be given. Id. at 489.
The most recent case involved a spoliation claim. See Pisoni v. Steak ‘N Shake Operations, Inc. , 468 S.W.3d 922, 925–28 (Mo.App.2015), which directly supports the trial court's decision here and from which we quote:
Id. at 927–28. The Eastern District thus held, spoliation or not, that "Appellant was not entitled to any jury instruction addressing that issue." Id. at 928.
Berger's efforts to discredit Pisoni and distinguish Hartman led us to examine case law. After Hartman came Crapson v. United Chatauqua Co. , 37 S.W.2d 966, 967–68 (Mo.App.1931), which found "no room for doubt" from Hartman and other cases that an adverse-inference instruction would have been improper. Next citing Hartman to similar effect was Smith v. Kansas City Pub. Serv. Co. , 227 Mo.App. 675, 56 S.W.2d 838, 842 (1933). A decade later, cases moved to the criminal side until Pisoni last year. See State v. Damon , 350 Mo. 949, 169 S.W.2d 382, 384 (1943) ; State v. Parker , 543 S.W.2d 236, 245 (Mo.App.1976) ; State v. Brooks , 567 S.W.2d 348, 351 (Mo.App.1978) ; State v. Cameron , 604 S.W.2d 653, 661 (Mo.App.1980) ; State v. Dees , 631 S.W.2d 912, 916 (Mo.App.1982) ; State v. Eib , 716 S.W.2d 304, 309–10 (Mo.App.1986).
The gap in civil cases preceding Pisoni may be attributable in part to MAI's arrival in the 1960's. With case law already barring inference instructions, it was natural that MAI's austere philosophy of jury instruction would continue to prohibit these and other accurate but abstract statements of law:
MAI "Why and How to Instruct a Jury" CXLVI (3d ed. 1981, and replicated in 4th, 5th, 6th, and current 7th editions)("MAI Why and How"). This court has followed that guidance. See Criswell v. Short , 70 S.W.3d 592, 594–95 (Mo.App.2002) (quoting MAI Why and How). " ‘[R]ules of law, presumptions, inferences and the like are not to be set out in instructions.’ " Id. at 595 (quoting MAI Why and How).3
In summary, Missouri's longstanding rule against inference instructions runs from Hartman through Pisoni to the present. Berger cites no contrary Missouri case or secondary authority, either before or since MAI.4 These and our earlier observations defeat every Point III no-error argument worth mentioning. Therefore, and per Pisoni , we agree with the trial court's finding that it erred in submitting Instruction 10.
It is Berger's burden to establish nonprejudice. Murphy v. Land , 420 S.W.2d 505, 507 (Mo.1967) ; MFA Oil , 18 S.W.3d at 439.
He urges that Instruction 10 was an accurate and neutral statement of law, or enough so that "[i]t cannot be said to have constituted prejudice so great that a new trial should be given." This finds answer, first, in Berger's source for the instruction, which recognized such instruction's "gravity," that it "brands one party as a bad actor," and that it should not be given absent prior and explicit trial court findings not made in this case. Hallmark , 703 F.3d at 461.
Berger's counsel leveraged this gravity and bad-actor branding in summation by reading Instruction 10 verbatim and linking it to Copeland's own documentation:
We have often recognized that an instruction's prejudicial effect is primarily within the trial court's purview and we should look with liberality upon that court's action in granting a new trial. See McTeer v. Clarkson Const. Co. , 807 S.W.2d 174, 181 (Mo.App.1991) ; Jenkins v. Keller , 579 S.W.2d 166, 168 (Mo.App.1979) ; Wilkerson v. State Farm Mut. Auto. Ins. Co. , 510 S.W.2d 50, 56–57 (Mo.App.1974) ; Brittain v. Clark, 462 S.W.2d 153, 157 (Mo.App.1970). This record gives us no cause to depart from that practice. An experienced trial judge, upon reflection, determined that Instruction 10 was given in error. "While the trial court made no specific finding that it was prejudicial error, that is implicit in the order granting [Copeland] a new trial." McTeer , 807 S.W.2d at 181.
Point III fails. We need not reach Point II's challenge to the other finding of instructional error, which may not reoccur on retrial.
We affirm the trial court's judgment granting a new trial on Berger's claims for compensatory and punitive damages.5
1 There are no issues in this appeal regarding workers' compensation exclusivity or claims against other defendants. Rule references are to ...
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