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Supreme Court decides not to decide spoliation case

Two weeks after hearing an appeal that might have cleared up how Missouri’s “spoliation doctrine” is to be applied at trial, the Missouri Supreme Court has sent the case back to the Court of Appeals.

The order, made without comment on Dec. 18, likely will prompt the Eastern District to readopt its decision earlier this year to grant a new trial in a wrongful-death lawsuit that resulted in one of the largest defense verdicts of 2017.

It’s not clear why the high court took up the case only to send it back without setting any new precedent. But Doug Dowd of Dowd & Dowd in St. Louis, an attorney for the plaintiffs, was pleased.

“It’s OK with me, because we won in the Court of Appeals,” he said.

Jeff McPherson of Armstrong Teasdale, an attorney for defendant SSM Health Care St. Louis, couldn’t be reached for comment.

The long-running lawsuit stems from the 2009 death of Irwin Hill, 78, who fell and struck his head on the concrete as he was entering St. Clare Hospital in Fenton. He died several weeks later.

Hill’s family filed a wrongful-death suit, alleging that Hill had tripped on an uneven walk. But in 2017 a St. Louis County jury sided with hospital. The family had asked for $7.2 million, making it the third-largest defense verdict of that year, as tracked by Missouri Lawyers Weekly.

Hill’s fall had been captured on surveillance video, but when Hill’s family brought the case to Dowd, they said they’d been told it had been overwritten. A security guard had reviewed the video and referred to it in a report, but the video itself had been erased.

“I told him not to worry about that, that’s not true, that can’t be,” Dowd told the Supreme Court during oral arguments on Dec. 5. “It’s 2009, there’s a video, it’s a computer. Computers are designed to preserve evidence. We’ll find the video, and that will be the end of it.”

Nine years later, after what Dowd said involved 22 depositions and $85,000 in costs, the parties still are arguing over what happened to that video, what it would have shown and what a jury should be told about it.

At trial, Dowd had asked the judge to apply the “spoliation doctrine” and grant an adverse inference against SSM. The judge declined the request but allowed the parties to talk about the missing video during opening statements and closing arguments.

In May, the Court of Appeals Eastern District found that response was inadequate because arguments by lawyers aren’t evidence. The court granted a new trial, given that SSM “gave inconsistent explanations and failed to adequately explain” why the video wasn’t preserved.

The Eastern District also said the defense may have confused the jury by mischaracterizing the law on adverse inferences during closings by saying there was nothing in the jury instructions about spoliation of any evidence. However, Missouri court rules don’t allow a “spoliation instruction” to be given to the jury.

In a footnote, the appeals court had questioned why such instructions were barred and said the Supreme Court may need to revisit the rule.

The Missouri Supreme Court building in Jefferson City. Photo By: KAREN ELSHOUT

The Missouri Supreme Court building in Jefferson City. Photo By: KAREN ELSHOUT

Although the Supreme Court apparently isn’t prepared to make any such changes just yet, the court’s questions on Dec. 5 showed that application of the spoliation doctrine can be tricky. Although the judges acknowledged that spoliation can’t be discussed in the jury instruction, it’s not clear how the defendant’s admission should be communicated to jurors.

“It can’t be a secret between the parties and the judge,” Judge Laura Denvir Stith said. “How does the jury know about it?”

During oral arguments, McPherson denied that any evidence was destroyed. He said the hospital had been open for only a few months in 2009 and that the staff thought the videos remained on the computer longer than they actually did. The guards, he said, were “working guys who don’t have a reason in the world to try to delete a video.”

But Judge W. Brent Powell pressed McPherson on why those disputed facts shouldn’t have been sorted out by the jury. If a suspected bank robber threw his gun in a river and then claimed he was just trying to keep it away from his children, Powell said, “the jury gets to hear all that evidence, and then the jury decides whether or not he was trying to destroy the evidence because he robbed a bank.”

McPherson also denied that the defense had mischaracterized the law on adverse inferences during closing arguments, characterizing it as a correction of an earlier misstatement by the plaintiffs.

Dowd said he’d hoped the Supreme Court would have gone farther than the appeals court did by allowing him to say that the video would have shown that Hill had tripped on the uneven sidewalk. Instead, the Eastern District merely said SSM would have to admit that the content of the video would have been “unfavorable to its position.”

Still, Dowd said, getting an “admission” from SSM would be a strong statement.

“Just telling juries it’s an ‘adverse inference,’ that’s lawyer gibberish,” he said.

The case is Hill v. SSM Health Care St. Louis, SC97306. The Eastern District’s ruling is Hill v. SSM Health Care St. Louis, ED105779.