PHILIP H. BERGER,                         )
                                          )
                    Appellant,            )
                                          )
      vs.                                 )    No. SD34193
                                          )
COPELAND CORPORATION, LLC,                )    FILED: October 5, 2016
                                          )
                    Respondent.           )

            APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY

                         Honorable Ralph H. Jaynes, Judge

AFFIRMED

      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.




1 There are no issues in this appeal regarding workers’ compensation exclusivity or
claims against other defendants. Rule references are to Missouri Court Rules (2013).
       Berger appeals the new trial order, raising four points. We deny two without

extended discussion 2 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:

                                   INSTRUCTION NO. 10

               If you should find that a party willfully destroyed evidence in order
            to prevent its being presented in this trial, you may consider such
            destruction in determining what inferences to draw from the
            evidence or facts in this case. You may, but are not required to,
            assume that the contents of the files destroyed would have been
            adverse, or detrimental to that party.

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).

                       It was Error to Submit Instruction 10

       Since Hartman v. Hartman, 284 S.W. 488 (Mo. 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:

               Appellant does not identify any Missouri case law demonstrating
            that, upon a finding of spoliation, a party is entitled to relief in the
            form of an adverse-inference jury instruction. As noted by the


        asserts judicial estoppel and is mooted by our reversal and remand in Berger
2 Point I

v. Emerson Climate Technologies, No. SD34288, also handed down today.
Point IV claims the trial court lacked jurisdiction to grant Copeland’s new trial motion.
This was ruled against Berger in a prior appeal (Berger v. Copeland Corporation,
No. SD33292 (Mo.App. Jan. 6, 2015)), which is the law of the case. See Walton v.
City of Berkeley, 223 S.W.3d 126, 128-31 (Mo. banc 2007).

                                             2
          Missouri Supreme Court Committee on Jury Instructions (“the
          Committee”), many things cannot be stated in instructions,
          including inferences. Mo. Approved Jury Instr. (Civil), Why and
          How to Instruct a Jury (7th ed.), at LXXV. Specifically, the
          Committee provides the following:

                 Every lawyer knows that ... an adverse presumption arises
                 against the spoiler of evidence, ad infinitum. Nevertheless,
                 none of those presumptions or inferences or abstract
                 statements of law has any place in a jury instruction.

          Id. at LXXV–LXXVI. The prohibition against such an instruction is
          based upon the principle that the trial court should not comment on
          the evidence. See Hartman v. Hartman, 314 Mo. 305, 284 S.W.
          488, 489 (1926) (“Such an instruction would be a comment on the
          evidence; it is an inference of fact, not of law”).

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., 56 S.W.2d 838, 842 (Mo.App. 1933). A decade later, cases moved to the

criminal side until Pisoni last year. See State v. Damon, 169 S.W.2d 382, 384 (Mo.

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
                                           3
natural that MAI’s austere philosophy of jury instruction would continue to prohibit

these and other accurate but abstract statements of law:

              Many things can not be stated in the instructions. Those are the
          matters which are rules of law, presumptions, inferences and the
          like.

              Every lawyer knows that a deceased accident victim is presumed
          to have exercised care for decedent’s own safety until evidence of
          lack of care appears; that every person is presumed to know the law,
          that there is an arguable adverse inference that a civil litigant who
          fails to testify on that party’s own behalf would not have helped a
          particular position, that an adverse presumption arises against the
          spoiler of evidence, ad infinitum. Nevertheless, none of those
          presumptions or inferences or abstract statements of law has any
          place in a jury instruction. [Emphasis added.]

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


3 Berger’s argument that MAI Why and How “is not authoritative and the court in
Pisoni should not have relied on it” is a fair one that prompted us to research and find
the seemingly unbroken Missouri case law support for Pisoni’s holding. But Berger
borders on maligning our sister district by insinuating:
       Presumably, it would be of great interest to the Supreme Court of
       Missouri that courts are relying on language from a secondary source
       that the Supreme Court has specifically declared non-authoritative to
       make novel and sweeping declarations of Missouri law.
Although tempted to say more, we answer this ill-considered slap at our colleagues
with just two observations. Pisoni made no “novel” legal declaration, but continued
a line of Missouri cases barring adverse-inference instructions. And long ago, our
supreme court itself cited “Why and How to Instruct a Jury,” and in doing so has been
followed by each district of this court. See Callahan v. Cardinal Glennon
Hospital, 863 S.W.2d 852, 863 (Mo. banc 1993); Hedgecorth v. Union Pacific
R.R., 210 S.W.3d 220, 228 (Mo.App. 2006); Criswell, 70 S.W.3d at 594-95;
Environmental Protection, Inspection, and Consulting, Inc. v. City of
                                           4
       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



Kansas City, 37 S.W.3d 360, 368 n.10 (Mo.App. 2000); Drury v. Missouri
Pacific R.R., 905 S.W.2d 138, 146 (Mo.App. 1995).
    It is equally unbecoming that Berger blames the trial judge, complaining in his
brief that “[t]he trial court was within its discretion to either offer or refuse to offer
the instruction on spoliation. It was not, however, within its discretion to elect to offer
the instruction and then deny Berger the jury verdict in his favor on the grounds that
it offered the instruction,” and again in his reply brief that the court could not “choose
to offer the mild spoliation instruction … and then punish Berger by granting a new
trial based on the spoliation instruction.” The trial judge deserves credit, not blame,
for acting on the error Berger led it into. Had that court not acted, this court would
have.
4 Berger cites two Eighth Circuit sanction cases, first Stevenson v. Union Pac.

R.R., 354 F.3d 739 (8th Cir. 2004), then Hallmark Cards, Inc. v. Murley, 703
F.3d 456 (8th Cir. 2013), which was Berger’s source for Instruction 10 and from which
we quote (id. at 460, 461):
            Our Court made clear in Stevenson v. Union Pacific R.R. Co. that in
        a case involving the alleged spoliation of evidence, a district court is
        required to make two findings before an adverse inference instruction
        is warranted: (1) “there must be a finding of intentional destruction
        indicating a desire to suppress the truth,” and (2) “[t]here must be a
        finding of prejudice to the opposing party.” 354 F.3d 739, 746, 748 (8th
        Cir. 2004).
                                           ***
        Taking into consideration the gravity of an adverse inference
        instruction, which “brands one party as a bad actor,” Morris v. Union
        Pac. R.R., 373 F.3d 896, 900 (8th Cir.2004), we conclude that a district
        court must issue explicit findings of bad faith and prejudice prior to
        delivering an adverse inference instruction.
    Instruction 10 may be copied from Hallmark, but these federal decisions do not
support its use in our case. Federal courts follow federal (not state) law on these
issues. See Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 879 (8th Cir.
2015). Ours is not a judicial-sanctions case (contrast Hallmark, 703 F.3d 461-62,
and Stevenson, 354 F.3d at 743, 745-50) or one with judicial findings of intentional
destruction, bad faith, or prejudice as required by Hallmark (see above).
    However, we do agree with Hallmark about the “gravity” of adverse-inference
instructions (703 F.3d at 461), such that even the facially correct and neutral
                                            5
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.

                             Prejudice Not Disproved

      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:

             But this is complicated by the fact that they destroyed all the
          documents. And the instruction that you’re going to be given back
          there, instruction number 10, is important in regard to this finding.

             Because - - and if you want to and if you believe it’s more likely
          than not true - - if you should find that a party willfully destroyed
          evidence in order to prevent its being presented in this trial, you
          may consider such destruction in determining what inference to
          draw from the evidence or facts in this case.




instruction copied here as Instruction 10 “brands [Copeland] as a bad actor.” Id. We
will address this further under the issue of prejudice.


                                           6
             You may, but are not required, to assume that the contents of the
         files destroyed would have been adverse or detrimental to the
         defendant.

             But in considering that and whether or not you believe that’s
         likely to be true or not, look at the - - look at the document
         instruction [sic] policy. This is Exhibit 250.

             And in this regard at the very beginning there’s a warning. And
         it says “destruction of records relating to judicial proceedings can
         result in sanctions against the company and the individuals and is
         absolutely forbidden.”

             So they must have been really bad because they’re all gone. And
         you’ve seen that it’s the lawyers here who are in charge of producing
         all the records and hiring all the witnesses.

            And when they want to produce records, they could, including all
         the receipts dating back to when he was just hired.

             They had the procedures of what the tests would be. Those were
         still preserved. But not the results.

             Ask yourself how bad must the results have been that they
         needed to be destroyed, that it was better to have me read this to
         you than for you to see the results in terms of the microbial growth
         in that room?

                                         ***

             Where are the tests? They took the tests and then they destroyed
         them. Where are they? They showed you the QRs, but they have no
         tests.

            And the instructions tell you you can consider that in finding
         them to have engaged in negligence.

      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.

                                         7
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.

                                     Conclusion

      We affirm the trial court’s judgment granting a new trial on Berger’s claims for

compensatory and punitive damages. 5


DANIEL E. SCOTT, J. – OPINION AUTHOR

GARY W. LYNCH, P.J. – CONCURS

WILLIAM W. FRANCIS, JR., J. – CONCURS




5 This moots Copeland’s charge of error in admitting evidence of its parent
corporation’s financial condition on the issue of punitive damages against Copeland,
an issue that may arise again on retrial. Generally, “introduction of the wealth of a
parent corporation is improper in a suit against a subsidiary corporation where the
two are operated as separate entities and the subsidiary is not a ‘mere instrumentality’
of the parent.” 1 Stein on Personal Injury Damages Treatise § 4:58 (3d ed., database
updated Apr. 2016)(accessed online). See, e.g., Cap Gemini Am., Inc. v. Judd, 597
N.E.2d 1272, 1286 (Ind.App. 1992)(parent corporation’s wealth generally irrelevant
and inadmissible in assessing punitive damages against subsidiary); HCA Health
Services v. Nat’l Bank of Commerce, 745 S.W.2d 120, 123-24 (Ark. 1988);
Walker v. Dominick’s Finer Foods, Inc., 415 N.E.2d 1213, 1216-17 (Ill.App.
1980).



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