Betty Pisoni v. Steak 'N Shake Operations, Inc.
2015 Mo. App. LEXIS 855
| Mo. Ct. App. | 2015Background
- On May 7, 2009, Pisoni slipped and fell inside a Steak ’n Shake; she filed an incident report and later alleged the fall contributed to a meniscal tear.
- Steak ’n Shake’s restaurant had an automated surveillance system that recorded over old footage; management viewed the tape after the fall but did not make a copy, so the video was lost.
- Pisoni sued for negligence/premises liability in 2012 and during discovery requested the surveillance footage; Steak ’n Shake initially said the footage was unavailable and later explained it was recorded over.
- Defendant obtained an independent medical exam (Rule 60.01) from Dr. Rende, who opined the knee complaint was degenerative and unrelated to the fall; after receiving treating-physician films four days before trial, he said the films confirmed his opinion.
- At trial the court: (a) barred defendant from testifying about what the lost videotape showed; (b) allowed the plaintiff to argue an adverse inference to the jury in closing but refused to give any adverse-inference (non‑MAI) jury instruction; and (c) admitted Dr. Rende’s deposition about the films.
- The jury ruled for defendant; Pisoni moved for a new trial arguing spoliation remedies were improperly denied and the expert offered opinions beyond his Rule 60.01 report. The trial court denied the motion; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether destruction/non‑preservation of surveillance video warranted an adverse‑inference jury instruction or broader spoliation remedies | Pisoni: loss of tape shows bad faith/spoliation; entitled to non‑MAI adverse‑inference instruction or to exclude defendant testimony about facts video would have shown | Steak ’n Shake: footage was automatically recorded over; trial remedied potential prejudice by barring testimony about the tape and allowing argument; jury instruction is improper | Court: refused instruction/exclusion; trial court’s remedies (bar testimony about video, allow argument) were within discretion and not an abuse |
| Whether defendant’s expert (Dr. Rende) improperly testified to opinions not disclosed in his Rule 60.01 report after reviewing treating‑physician films four days before trial | Pisoni: expert’s reliance on newly produced films expanded or altered opinions, causing prejudice and violating disclosure | Steak ’n Shake: films confirmed existing opinion; expert disclosed bases and no new surprise; trial court allowed testimony | Court: admission of testimony was not an abuse of discretion because films confirmed prior opinions and plaintiff suffered no prejudice |
Key Cases Cited
- DeGraffenreid v. H.L. Hannah Trucking Co., 80 S.W.3d 866 (Mo. App. W.D. 2002) (spoliation remedy limited to admission of what the missing evidence would have shown, not entitlement to ultimate legal conclusions)
- Schneider v. G. Guilliams, Inc., 976 S.W.2d 522 (Mo. App. E.D. 1998) (spoliation requires intentional destruction or circumstances indicating bad faith; failure to explain may give rise to adverse inference)
- McCullough v. Commerce Bank, 349 S.W.3d 389 (Mo. App. W.D. 2011) (abuse‑of‑discretion standard for denial of new trial and refusal to submit non‑MAI instruction)
- Garrett v. Terminal R. Ass’n of St. Louis, 259 S.W.2d 807 (Mo. 1953) (spoliator may be held to admit the missing evidence would have been unfavorable)
- Hartman v. Hartman, 284 S.W. 488 (Mo. 1926) (instructions that effectively comment on the evidence or state inferences of fact are improper)