The Conflict Between Missouri’s Spoliation Doctrine and the Rule on Subsequent Remedial Measures
Despite its difficulty in application, the evidentiary spoliation doctrine—not to be confused with the independent tort of spoliation—is a fairly common sense doctrine at heart. Boiled down to its most basic terms the spoliation doctrine prevents parties from destroying relevant evidence and using its absence to support their position. The spoliation doctrine prevents parties from benefitting from their intentional destruction of evidence by allowing the other parties to make an adverse inference to the jury that the destroyed evidence would have been favorable to their position.
On the other hand, the rule on subsequent remedial measures seeks to encourage a party to repair a dangerous or injury-causing condition after an accident has occurred. The public policy behind this rule encourages parties to make repairs where necessary to prevent the same injury from recurring. This rule provides that any action taken after an injury-causing event that, if undertaken before the event, would have reduced the likelihood of injury, is inadmissible to establish the manufacturer’s negligence.Missouri’s Spoliation Doctrine
Missouri Courts recognized the spoliation doctrine as far back as the 1882 case of Pomeroy v. Benton, at its time one of the most cited American spoliation cases. The spoliation doctrine is a “stern rule,” embodied in the maxim “omnia praesumuntur in odium spoliatoris,” roughly translated as “all things are presumed in hatred of a spoliator.” In applying the doctrine, the Pomeroy concluded that, because “the defendant has done these things, as he has endeavored by all these means to baffle inquiry and shut out investigation; as in consequence thereof, it has become impossible to ascertain the amount out of which he has defrauded his partner…nothing remains to us but to apply to the defendant, the stern rule recognized alike in equity and at law embodied in the maxim omnia praesumuntur in odium spoliatoris. No fitter case than the one in hand could ever be presented for the application of this rigid maxim.”
Spoliation is “the destruction or significant alteration of evidence.” As noted in Pomeroy:
It is because of the very fact that the evidence of the plaintiff, the proofs of his claim or the muniments of his title, have been destroyed, that the law, in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose, by indulging a presumption which supplies the lost proof, and thus defeats the wrong-doer by the very means he had so confidently employed to perpetrate the wrong.
If the spoliation doctrine is found to apply, the court will allow the requesting party to make an adverse inference regarding the destruction of the evidence. This adverse inference, however, “does not prove the opposing party’s case,” and is limited to punishing “the spoliators by holding them to admit that the destroyed evidence would have been unfavorable to their position.” In response, “[t]he spoliator is left to determine whether any remaining evidence exists to support his or her claim in the face of the inference.”
As with any other evidence admitted at trial, the allegedly spoliated evidence must be relevant. Next, the “cases involving claims of spoliation have required more than the mere loss or destruction of the evidence.” In Missouri, the “evidentiary spoliation doctrine applies when there is intentional destruction of evidence, indicating fraud and a desire to suppress the truth.” “If applicable, destruction of evidence without a satisfactory explanation gives rise to an inference unfavorable to the spoliator.” Finally, although a party must be shown to have intentionally spoliated the evidence, indicating fraud and a desire to suppress the truth, “it may be shown by the proponent that the alleged spoliator had a duty, or should have recognized a duty, to preserve the evidence.”
There Must be a Duty to Preserve the Evidence.
The evidentiary spoliation doctrine requires “evidence showing intentional destruction of the item, and also such destruction must occur under circumstances which give rise to an inference of fraud and a desire to suppress the truth. In such cases, it may be shown by the proponent that the alleged spoliator had a duty, or should have recognized a duty, to preserve the evidence.”
As set forth in Morris v. J.C. Penney Life Ins. Co., “it may be shown by the proponent that the alleged spoliator had a duty, or should have recognized a duty, to preserve the evidence.” The Morris Plaintiff brought suit on the basis of defendant’s vexatious refusal to pay. The evidence plaintiff submitted included the fact that a tape recording of the telephone solicitation call was destroyed by defendant approximately 4 to 6 months after the phone call, and some 3 to 5 months after the claim was submitted. In finding no evidence of bad faith on the part of defendant, the court noted “It is true that [defendant] would have known of the existence of the claim at the time the tape was reused, but there is no reason to believe that [defendant] would have believed that the contents of the tape were pertinent to the claim, since [defendant] never denied that [plaintiff] had agreed to the coverage.” The court held that it “is true that [defendant] would have known of the existence of the claim at the time the tape was reused, but there is no reason to believe that [defendant] would have believed that the contents of the tape were pertinent to the claim, since [defendant] never denied that [plaintiff] had agreed to the coverage.” It then concluded that “the bald stipulation of facts submitted by plaintiff does not logically raise an inference of bad faith intent to hinder plaintiff’s claim.”
The Allegedly Spoliated Evidence must be Destroyed, and The Destruction Must Occur under Circumstances Evidencing Fraud, Deceit, or Bad Faith.
As with the requirement that the allegedly spoliated evidence must be relevant, the requirement that the evidence be destroyed also seems rather obvious. “When spoliation is urged as a rule of evidence which gives rise to an adverse inference, it is necessary that there be evidence showing intentional destruction of the item, and also such destruction must occur under circumstances which give rise to an inference of fraud and a desire to suppress the truth.” However, it is this requirement that creates the conflict between the spoliation doctrine and the rule on subsequent remedial measures.
In Carroll v. Kelsey, plaintiffs filed a wrongful death suit after their son was struck and killed by a vehicle driven by defendant. They sought an adverse inference, arguing defendant intentionally destroyed evidence by repairing his truck three weeks after he was served with suit. The court noted, if the evidence was found to have been destroyed “[t]he question then becomes whether [defendant] provided the court with a satisfactory explanation.” The defendant testified during his deposition that his “insurance company told him he could have the damage repaired if he so chose.” He further stated no one ever told him he could not repair the truck, and “neither [plaintiffs’] counsel or their expert ever contacted him to inspect the truck or ask that he not repair the damage.” In applying the spoliation doctrine, the Carroll court found that the only evidence produced by plaintiffs to show defendant’s desire to suppress the truth was the timing of the repair, which the court found to be insufficient.
The Rule on Subsequent Remedial Measures
“Generally, evidence of subsequent remedial measures is inadmissible in negligence actions.” The rule on subsequent remedial measures “can best be stated by reference to Federal Rule of Evidence 407.” Rule 407, in its present form, provides:
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.
The rationale for precluding the admission of subsequent remedial measures to prove negligence is twofold: “First, if precautions taken could be used as evidence of previous improper conditions, no one, after an accident, would make improvements. Secondly, subsequent changes are irrelevant as to what the previous condition was.” “The general rule barring evidence of subsequent remedial measures is designed to further the public policy in favor of eliminating safety hazards, as well as making already safe things safer.”
“The public-policy rationale for excluding evidence of post-accident remedial measures does not apply, however, if the measures in question were planned, provided for, or undertaken prior to the accident.” This is because the “purpose of the exclusionary rule is to protect a defendant who has been first alerted to the possibility of danger after an accident and has been induced by the accident to make the repair to prevent further injury.” “Because public policy favors remedial measures, evidence that, after an accident has occurred, a defendant took precautions to prevent a reoccurrence of the accident, or made changes or repairs in the property or place causing the accident, is not competent evidence to be used against the defendant to show antecedent negligence or an admission of negligence.”
- The Conflict Between the Spoliation Doctrine and the Rule on Subsequent Remedial Measures
The requirements for the spoliation doctrine and rule on subsequent remedial measures, discussed supra in Parts I and II, begin to reveal the overlap between the two doctrines and the potential conflict between them. Returning to the examples of a leaky pipe or a broken stair tread, replacing them can be seen as destroying evidence of a defective condition. Alternatively, replacing or repairing them is encouraged under the rule on subsequent remedial measures to prevent additional injuries caused by the same defects. This begs the question of whether these two important doctrines can be reconciled, or whether one is destined to take priority over the other in future litigation.
Scant case law exists nationally on the conflict between spoliation and subsequent remedial measures. One of the more recent cases expressly acknowledging this conflict is Hickman v. Carnival Corp. TheHickman plaintiffs filed a Motion to Strike Answer and/or Affirmative Defenses due to spoliation of evidence. They argued defendant’s actions in repairing a defective and injury-causing bar stool constituted spoliation of evidence sufficient to warrant an adverse inference. Specifically, plaintiffs argued defendant “acted deliberately and intentionally to alter the evidence by repairing the stool almost immediately.”
In denying plaintiffs’ motion, the court argued that under plaintiffs’ approach, “[i]t would take nothing short of a complete preservation of an accident scene to avoid an adverse result. Fortunately, that is not the law of the Eleventh Circuit.” The court stated that there are six total elements for a spoliation claim, noting the most important of which is that plaintiffs must demonstrate they were unable to prove their underlying cause of action without the missing evidence. Applying this rule, the court found that “while there is no question that the presence of the actual bar stool might enhance the ability to support plaintiffs’ theories of liability, a case can nonetheless be made. Furthermore, if we had the bar stool, we’d be arguing about the failure to preserve the base.” On top of this, there was no evidence defendant acted in bad faith in repairing the bar stool, another prerequisite to a spoliation inference.
Ultimately, the court denied plaintiff’s Rule 37(c) Motion to Strike Answer and/or Affirmative Defenses Due to Spoliation of Evidence. The Court ultimately found the repair of the bar stool did not amount to spoliation. It also recognized “there simply is no claim for ‘immediate and deliberate’ repair of a defective situation,” and that if such a claim existed “it would eviscerate Federal Rule of Evidence 407, and would create liability, for example, where a spill in a supermarket was cleaned up, where an automobile was moved after an accident, or where a staircase was repaired after someone tripped and fell.”
Despite recognizing this conflict between the spoliation doctrine and the rule on subsequent remedial measures, a number of courts completely avoid discussing the interplay between these two overlapping doctrines. In Rodriguez v. Webb, the plaintiff, who was injured by a metal baling machine owned by defendant, was allowed to introduce testimony regarding the destruction of the baler on a negligence count, making it unnecessary to determine whether New Hampshire recognizes an independent cause of action based on intentional spoliation of evidence. However, the court noted defendant did “not argue that this testimony was inadmissible under New Hampshire Rule of Evidence 407 (subsequent remedial measures), and we therefore do not consider the application of Rule 407.”
This conflict provides parties with a potentially viable argument that a subsequent remedial measure constitutes spoliation. In Malone v. Marriott Int’l, Inc., plaintiffs were golfing on defendants’ course and, while walking through the rough, one of the plaintiffs stepped into a depression in the tall grass and fell, injuring herself. Defendants subsequently took pictures and filled in the hole to prevent additional injuries, which plaintiffs claimed constituted spoliation. However, the court determined “Defendants’ behavior here comes closer to being a subsequent remedial measure, behavior which is specified as a statutory evidentiary exclusion in order to encourage it,” than spoliation, because “Defendants fixed a dangerous condition on their golf course which had been brought to their attention.”
The problem with this conflict is that, when pushed to extremes, the application of either doctrine creates a potential for abuse, and risks absorbing the other doctrine in the process. Regarding the spoliation doctrine, the Southern District of Florida recognized this problem when it realized that “[i]t seems that the ‘new frontier’ of litigation is the spoliation arena; find some evidence in the case that is not preserved exactly, and try to win the case on that basis.” Similarly, the Supreme Court of New Jersey recognized that the “strong public policy encouraging prompt remedial measures, however, is meant as a shield, and not as a sword.”
Reducing the Tension
The overlap between the two doctrines creates tension in light of the ability of a party to push one theory to such extremes as to undermine the other. Without a clear set of rules governing the interaction between the theories the parties are left with an “either/or” option, with the selection of one potentially precluding the application of the other, regardless of which one should properly apply.
Where the spoliation doctrine seeks to punish malfeasance resulting in the destruction or suppression of evidence, the rule on subsequent remedial measures seeks to protect the interests and safety of the public at large by encouraging the repair of dangerous conditions. Any solution, therefore, needs to take the policy implications behind both theories into account in resolving the conflict.
As noted above, the spoliation doctrine is a “harsh rule” that, “in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose, by indulging a presumption which supplies the lost proof, and thus defeats the wrong-doer by the very means he had so confidently employed to perpetrate the wrong.” The rule on subsequent remedial measures, however, seeks to “further the public policy in favor of eliminating safety hazards, as well as making already safe things safer.” Comparing the harshness of the spoliation doctrine with the laudable goal of protecting the public at large by eliminating hazardous conditions, the rule on subsequent remedial measures should take center stage when resolving the conflict between the two doctrines. The new rule should focus first on the nature of the repair/replacements, and then on the intent behind performing the repairs/replacements in determining which doctrine applies in a given situation.
The first inquiry examines whether the dangerous conditions repaired or replaced remain visible and accessible to all parties after the conditions were repaired or replaced. When examined after the fact, repairs such as these are visually distinguishable from their surroundings and are not hidden from observation by the party claiming injury from the previously dangerous conditions. Such repairs should fall within the doctrine of subsequent remedial measures, as these actions do not constitute spoliation as defined in Missouri because there is no destruction of the condition as a whole: it still exists, but in its repaired form, and as such, is available to the parties to make their case. Not only are these repairs clearly visible to an opposing party who would investigate the remediated condition, but because the repairs are visible it means the dangerous conditions were not destroyed, suppressed, or concealed, precluding the operation of the spoliation doctrine. It is difficult to argue a condition was destroyed, suppressed, or concealed when the repaired portion remains obvious.
In those cases where the remediation isn’t obvious, such as where a stair tread is replaced and the entire stairwell repainted, a balancing approach is required. This approach examines whether the repair was undertaken in good faith or under circumstances indicating “fraud and a desire to suppress the truth,” as required by Missouri’s spoliation doctrine. If found that the repairs were performed in good faith, the rule on subsequent remedial measures prevails; if not, and it is found that the repairs were done under circumstances indicating “fraud and a desire to suppress the truth,” the spoliation doctrine applies. This places the initial inquiry within the rubric of the subsequent remedial measures rule so that the more laudable policy of protecting versus punishing is promoted.
Finally, the timing of the repair alone isn’t sufficient to show that intentional destruction of the evidence indicating fraud and a desire to suppress the truth. This rule enables the party in control of the injury-causing condition great latitude in performing subsequent remedial measures, showing the priority this policy takes over the punishment served by the spoliation doctrine.
Following the proposed rule set forth herein places the onus on the party seeking the spoliation inference to prove the fraudulent intent of the party performing the repairs. This protects that “person who believed that he had engaged in socially responsible conduct” from “find[ing] himself not only mulcted in damages but publicly tarred as a spoliator as well—that led an English judge to denounce as “barbarous” the use of subsequent repairs as implied admissions of guilt.” Therefore, in the absence of the evidence of fraud and nefarious intent on the part of the alleged spoliator, the rule on subsequent remedial measures should govern the conflict.
While Missouri law offers no guidance on resolving this conflict, cases from her sister states coupled with the public policy behind these rules provide the starting framework for resolution. Given the harshness of the spoliation doctrine, its application should not be taken lightly, especially in those cases where the purportedly offensive act also serves to protect the public from further injury. Only the creation of a bright line test addressing the interaction between the spoliation doctrine and rule on subsequent remedial measures can avoid the confusion inherent in those situations where both rules could apply, preventing inconsistent results across similar cases while upholding the purpose and policy behind both rules.
 Pomeroy v. Benton, 77 Mo. 64, 86 (1882).
 John MacArthur Maguire & Robert C. Vincent, Admissions Implied from Spoliation or Related Conduct, 45 Yale L.J. 226, 240 (1935)
 Pomeroy at 86.
 Id. at 85-85.
 Degraffenreid v. R.L. Hannah Trucking, 80 S.W.3d 866, 873 (Mo. Ct. App. 2002), rev’d on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. 2003).
 Pomeroy v. Benton, 77 Mo. 64, 86 (1882); see also Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 516 (D. Md. 2010) (defining spoliation as “the destruction or material alteration of evidence or … the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation,” and providing an in depth overview and analysis of the spoliation doctrine as applied in the federal courts).
 Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 526 (Mo. Ct. App. 1998)
 Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 77 (Mo. Ct. App. 1995).
 Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo. 1993) (citing Moore v. General Motors, 558 S.W.2d 720, 733 (Mo. Ct. App. 1977)).
 Brown v. Hamid, 856 S.W.2d at 56-57.
 Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 78 (Mo. Ct. App. 1995) (emphasis in original).
 Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 77 (Mo. Ct. App. 1995) (emphasis in original); see also Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo. 1993) (citing Moore v. General Motors, 558 S.W.2d 720, 733 (Mo. Ct. App. 1977)).
 Morris, 895 S.W.2d at 78 (emphasis in original).
 Id. at 77.
 Id. at 78.
 DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 873 (Mo. Ct. App. 2002) rev’d on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).
 Carroll v. Kelsey, 234 S.W.3d 559, 561 (Mo. Ct. App. 2007).
 Id. at 565, 566.
 Id. at 566.
 Stinson v. E.I. DuPont De Nemours & Co., 904 S.W.2d 428, 432 (Mo. Ct. App. 1995).
 Pollard v. Ashby, 793 S.W.2d 394, 401 (Mo. Ct. App. 1990).
 Fed. R. Evid. 407 (West 2012). At the time Pollard was decided, Rule 407 read as follows: “When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Rule does not require the exclusion of evidence as subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Pollard, 793 S.W.2d at 401.
 See Stinson v. E.I. DuPont De Nemours & Co., 904 S.W.2d at 432; see also Pollard, 793 S.W.2d at 402 (citing Gignoux v. St. Louis Pub. Serv. Co., 180 S.W.2d 784, 787 (Mo. Ct. App. 1944)).
 Dick v. Children’s Mercy Hosp., 140 S.W.3d 131, 142 (Mo. Ct. App. 2004) (citing Danbury v. Jackson County, 990 S.W.2d 160, 165 (Mo. Ct. App. 1999)).
 Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 21 (Mo. Ct. App. 2005).
 Id. (citing Cupp v. Nat’l R.R. Passenger Corp., 138 S.W.3d 766, 775 (Mo. Ct. App. 2004)).
 Hickman v. Carnival Corp., No. 04-20044 CIV UUB, 2005 WL 3675961 (S.D. Fla. July 11, 2005).
 2005 WL 3675961 at *1.
 Id. at *1.
 Id. at *2.
 Rodriguez v. Webb, 141 N.H. 177, 178, 680 A.2d 604, 605-06 (N.H. 1996), the
 Malone v. Marriott Int’l, Inc., No. EDCV 09-01980 VAP, 2010 WL 4537828 at *1 (C.D. Cal. Oct. 29, 2010).
 Id. at *7.
 Hickman v. Carnival Corp., 2005 WL 3675961 at *1.
 Szalontai v. Yazbo’s Sports Café, 874 A.2d at 518; see also Currie v. Palm Beach County, 578 So. 2d 760, 763 (Fla. Dist. Ct. App. 1991) (“the limited appropriate use of evidence of subsequent remedial measures are cast in terms of defense, not offense.”).
 Pomeroy v. Benton, 77 Mo. 64, 86 (1882).
 Dick v. Children’s Mercy Hosp., 140 S.W.3d 131, 142 (Mo. Ct. App. 2004) (citing Danbury v. Jackson County, 990 S.W.2d 160, 165 (Mo. Ct. App. 1999)).
 DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 873 (Mo. Ct. App. 2002) ), rev’d on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003) (“While Missouri spoliation cases have usually dealt with the destruction of evidence, the principles of law in the cases apply equally to application of the spoliation doctrine because a party has concealed or suppressed evidence.”).
 Carroll v. Kelsey, 234 S.W.3d 559, 566 (Mo. Ct. App. 2007)
 23 Charles Alan Wright et al, “Policy of Rule 407,” Federal Practice and Procedure § 5282 (1st ed. Supplemented September 2012).