The Missing Witness/Evidence Instruction & The Damage It Can Do To A Defendant

If there is one thing retail, restaurant and hospitality companies can relate to it is being sanctioned for missing reports and witness statements. Spoliation of evidence and missing witness/evidence instructions are always a threat in this industry because store/property level employees are the first to address personal injury incidents. If we are lucky enough for an incident report or written statement to be prepared the challenge then becomes ensuring those documents are retained and preserved for several years.

A recent appellate court decision in Illinois addressed these very issues so it is worth noting.

In Shaytoya Meeks v. Great America, LLC, 2017 IL App (2d) 160655 (from Lake County, Illinois), the plaintiff obtained a judgment against an amusement park for a severe hand injury she sustained on a waterslide.  The jury awarded the plaintiff $1,514,670.  As a sanction for the defendant’s failure to disclose certain occurrence witnesses and produce written incident reports in a timely manner, the trial court gave a missing witness/evidence jury instruction.  The defendant filed an appeal, arguing the instruction was improper, but the appellate court affirmed.

During pretrial discovery the defendant indicated three people in different employee positions could not be identified and the written report completed by the waterslide supervisor could not be located. Later in the case, and just four days before the trial was to begin, the three unknown employees were identified in an evidence deposition and then later the same day two incident reports prepared the day of the incident were produced after having just been located.

(I must interject here. It is really easy for the Plaintiffs’ Bar to stand on their soap box and judge this behavior as intentional and vexatious but that is because they represent one person at a time, not corporations with thousands of employees. If a plaintiff can fail to recall she saw a doctor for the same knee problem a year before she fell at a grocery store it is also possible an overworked store manager can misfile a one page incident report.).

On the day the trial was to begin, the plaintiff filed a Rule 219(c) motion for sanctions based on discovery violations and asked for the entry of default judgment, or in the alternative, the defendant’s affirmative defense be stricken and the missing witness/evidence instruction be given to the jury. Interestingly, (and in my opinion proof that the report was just found and the employees were just recently identified), the defendant argued that if sanctions were to be awarded it should instead be a mistrial, the defendant should pay costs, the depositions of the newly disclosed witnesses should be allowed and the trial should be continued.

The plaintiff actually argued the trial should not be continued because the plaintiff developed PTSD from the incident and preparing for trial made her relive the trauma so she should not be required to do it again. The judge ruled the defendant did not act willfully and refused to enter a default judgment or strike the defendant’s affirmative defense.  The judge did not want to delay the trial because there was a question as to how long it would actually take to depose the remaining witnesses so the trial proceeded with a modified missing witness/evidence jury instruction.

The trial court gave the jury a written instruction based on IPI Civil (2011) No. 5.01, stating the defendant failed to offer the testimony of the supervisor, the dispatcher, and the “run out attendant” who were on duty when the plaintiff was injured; the medical technician who attended to plaintiff; and the employee who “cycled” the ride after the incident. The instruction further stated that the defendant failed to offer: (1) witness statements from the supervisor, the dispatcher, the “run out attendant,” and the employee who “cycled” the ride; and (2) the supervisor’s witness statement and lifeguard rescue report. The instruction advised the jurors that they could infer that the missing documents and testimony would be adverse to the defendant.

On appeal, the defendant argued the missing witness/evidence instruction should not have been given because it offered to reschedule the trial to allow for depositions to proceed and it agreed to pay costs. The defendant also argued that because the trial court ruled the defendant’s actions were not willful, sanctions should not have been awarded.

The appellate court stated it was not persuaded that the remedy proposed by the defendant was necessarily more appropriate than the missing witness/evidence instruction. It relied on the fact that the plaintiff advanced persuasive reasons why delaying he trial would cause hardship, even if the defendant paid plaintiff’s costs. (This assumingly is referring to the alleged PTSD).  Furthermore, the appellate court noted the trial court was skeptical the defendant would be able to produce the previously undisclosed witnesses within the time frame the defendant proposed. Therefore, the trial court believed the delay would not fix the errors.  For these reasons, the appellate court ruled it could not find it was an abuse of discretion to instruct the jury that it may draw an inference adverse to the defendant and the jury’s award was affirmed.

End Note: I don’t mean to be too jaded but I wonder if the plaintiff’s attorney offered a shred of evidence of the alleged PTSD being triggered by trial preparation.  It is interesting how easy it is for a plaintiff to manipulate the continuance, or in this case non-continuance, of a trial date with little to no reason while defendants tend to be at the mercy of the court since nothing that occurs to them ever seems to justify a continuance.

This case is a reminder of how important it is for post-incident investigations to take place as quickly as possible and for them to be completed by trained claim/risk examiners. Relevant information such as witness names and the collection of reports, statements and video is best done soon after the incident occurs.  A well run risk management department can help prevent rulings like this from happening.  If you think your risk management department needs some retooling or training, ask your defense counsel for help as she is a great resource (and often willing to help free of charge).

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