Pisoni v. Steak 'N Shake Operations, Inc.

• Decision Date: 01 September 2015
• Docket Number: No. ED 101976,ED 101976
• Citation: 468 S.W.3d 922
• Parties: Betty Pisoni, Appellant, v. Steak 'N Shake Operations, Inc., Respondent.
• Court: Missouri Court of Appeals

468 S.W.3d 922

Betty Pisoni, Appellant

v.Steak 'N Shake Operations, Inc., Respondent.

No. ED 101976

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

Filed: September 1, 2015

Patrick R. Dowd, St. Louis, for Appellant.

John S. McCollough, Melissa R. Null, St. Louis, for Respondent.

Opinion

ROBERT M. CLAYTON III, Judge

Betty Pisoni (“Appellant”) appeals the trial court's denial of her motion for a new trial following a jury verdict in favor of Steak 'N Shake Operations, Inc. (“Respondent”) on Appellant's claim for personal injury, based on Respondent's alleged spoliation of evidence and the inclusion of certain expert medical testimony. We affirm.

I. BACKGROUND

On May 7, 2009, Appellant went to a Steak 'n Shake restaurant location (“the restaurant”). While in the restaurant, Appellant slipped and fell on a wet floor that had been recently mopped by Respondent's employee. Appellant completed a Steak 'n Shake incident report immediately following the fall. Appellant was taken from the restaurant to the emergency room by ambulance and the treating physician opined the fall contributed to a tear in Appellant's meniscus.

Appellant called Respondent on May 14, 2009 to ask why no one had contacted her regarding her incident report.

On January 19, 2012, Appellant filed a petition against Respondent, alleging negligence and premises liability. During discovery, Appellant submitted an interrogatory to Respondent regarding the existence of a surveillance system in the restaurant and further requested a copy of the system's video footage of Appellant's fall. In its initial answer dated March 22, 2012, Respondent answered that the footage in question was no longer available because Respondent did not receive notice of Appellant's claim within twelve days of the occurrence. Subsequently, on May 20, 2014, Respondent supplemented its interrogatory answers to state that no video of the accident was available because the footage was automatically recorded over a short time after the incident and a DVD copy was not made.

Respondent acknowledged that it maintained an automated video surveillance system in the restaurant, but the system was set up to automatically record over old footage after a set number of days.¹ Respondent's normal practice was to not maintain copies of old footage. Respondent's manager at the restaurant viewed the surveillance tape the day following the fall and, while Respondent could have made a DVD copy, it did not, resulting in the loss of the footage.

Also in the discovery phase of the case, Appellant submitted to an independent medical examination pursuant to Rule 60.01(a)(1)² by Respondent's retained medical expert, Dr. Richard Rende. Following his review of the available records and his examination, Dr. Rende prepared a Rule 60.01 report³ concluding Appellant's complaints of knee pain were caused by a longstanding degenerative process and that her complaints were not related to the slip and fall of May 7, 2009. Further, Dr. Rende noted his interest in supplementing his report by reviewing films from Appellant's treating physician concerning Appellant's knee as it would be “very easy by reviewing the intraoperative pictures to make a determination as to whether [the] meniscus tear

was as a result of the injury she described on May 7, 2009, or whether it preexisted this in the form of a degenerative meniscus tear.” Four days before Appellant's jury trial, Dr. Rende obtained the films from Appellant's treating physician and testified by video deposition that the films confirmed his earlier diagnosis.

At the start of and during the trial, Appellant made a number of requests of the trial court. First, she filed a timely motion in limine objecting to Dr. Rende's proposed testimony regarding the films as they had not been included in the initial Rule 60.01 report. The trial court denied Appellant's motion. Respondent presented the videotape deposition of Dr. Rende at trial, including his opinion that the films he received from Appellant's treating physician four days before trial were consistent with his prior opinions outlined in the initial Rule 60.01 report.

Secondly, because of Respondent's failure to preserve the videotape evidence, Appellant filed “Plaintiff's motion for relief based on the spoliation doctrine” requesting, (a) a jury instruction that Respondent be held to admit the floor where Appellant fell was wet, causing her fall, that the floor was wet from Respondent's employee mopping it, and that there were no wet floor signs present; and (b) to prohibit Respondent from offering testimony about the disputed facts the video would have shown. Following argument by Appellant and Respondent, the trial court refused to submit any adverse inference instruction to the jury. It also ruled that Respondent would not be able to present witness testimony regarding what they saw on the video, and that Respondent would be limited to present employees' testimony regarding what they witnessed in person at the time of Appellant's fall. As a result, one of Respondent's employees, Latrice Moore, testified at trial that wet floor signs were present at the time of the fall. Finally, the trial court also granted Appellant permission to argue the adverse inference from the missing videotape in closing argument, which Appellant did.

The jury returned a verdict in favor of Respondent, and the trial court entered a judgment consistent with the jury's verdict. Subsequently, Appellant filed a motion for new trial alleging the trial court erred in refusing to submit the adverse-inference instructions, permitting Respondent to testify about facts the video would have shown, and allowing Dr. Rende to offer opinion testimony that was not included in his Rule 60.01 report. The trial court denied Appellant's motion for new trial. This appeal followed.

II. DISCUSSION

Appellant brings two points on appeal. In her first point, Appellant asserts the trial court erred in denying her motion for a new trial because it misapplied the spoliation doctrine regarding the destroyed video evidence of her fall. In her second point, Appellant contends the trial court erred in denying her motion for a new trial because it allowed Dr. Rende to offer opinion testimony not included in his initial Rule 60.01 report.

A. Spoliation

In her first point on appeal, Appellant asserts the trial court erred in denying her motion for a new trial because it misapplied the spoliation doctrine regarding the destroyed video evidence of her fall. Specifically, Appellant argues Respondent's spoliation entitled her to a non-MAI adverse-inference instruction or to prevent Respondent from presenting other testimony about the fall. We disagree.

We review a trial court's denial of a motion for new trial as well as the refusal to submit a non-MAI instruction for an abuse of discretion. McCullough v. Commerce Bank, 349 S.W.3d 389, 396–97 (Mo.App.W.D.2011) ; Burrows v. Union Pacific R. Co., 218 S.W.3d 527, 533 (Mo.App.E.D.2007). A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. McC u llough, 349 S.W.3d at 396–97. The instructional error must be prejudicial, materially affecting the merits of the action, to warrant reversal. Id. at 397.

Spoliation is the intentional act of destruction or significant alteration of evidence. State ex rel. Zobel v. Burrell, 167 S.W.3d 688, 691 (Mo. banc 2005). The concealment or suppression of relevant evidence, or the failure to determine whether certain evidence exists may also constitute spoliation. DeGraffenreid v. H.L. Hannah Trucking Co., 80 S.W.3d 866, 874, 878 (Mo.App.W.D.2002) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223, 225 (Mo. banc 2003) ). The destructive act must be intentional; mere negligent destruction of evidence does not constitute spoliation. Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 527 (Mo.App.E.D.1998). The spoliator must destroy or alter the evidence under circumstances indicating fraud, deceit, or bad faith. Id. Under certain circumstances the spoliator's failure to adequately explain the evidence's destruction may give rise to an adverse inference. Id. at 527. The party seeking to invoke the doctrine bears the burden of making a prima facie showing of the spoliator's fraudulent intent. DeGraffenreid, 80 S.W.3d at 873.

If the trial court finds spoliation of evidence occurred and grants a party relief, the “spoliation doctrine” provides the trial court may grant an adverse evidentiary inference in favor of the opposing party as a remedy. Baldridge v. Director Of Revenue, 82 S.W.3d 212, 223 (Mo. App. W.D.2002). The adverse inference holds the spoliator to admit the missing evidence would have been unfavorable to its position. Garrett v. Terminal R. Ass'n of St. Louis, 259 S.W.2d 807, 812 (Mo.1953) ; Schneider, 976 S.W.2d at 526. “The adverse inference, however, does not prove the opposing party's case. Instead, the spoliator is left to determine whether any remaining evidence exists to support his or her claim in the face of the inference.” Id. at 526.

The Western District addressed the extent of the remedy for spoliation in DeGraffenreid. In that case, a truck driver suffered a stroke in his parked truck. DeGraffenreid, 80 S.W.3d at 870. The driver filed a claim for workers' compensation, alleging the trucking company forced its drivers to drive more hours than federal regulations allowed, causing stress that contributed to the stroke. Id. In discovery, the driver sought a set of telephone logs maintained by the trucking company allegedly demonstrating the federal violation, but the trucking company failed to provide the complete logs without explanation. Id. at 873–74. The Workers' Compensation Commission (“the Commission”) found the trucking company's failure to explain the missing logs triggered the spoliation...