This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-355

George W. Buck,

Appellant,

vs.

St. Paul Ramsey Medical Center, et. al,

Respondents.

Filed November 5, 1996

Affirmed

Randall, Judge

Ramsey County District Court

File No. C9-94-5820

Marlene S. Garvis, Jardine, Logan & O'Brien, P.L.L.P, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for respondents).

George H. Smith, Trawick & Smith, P.A., 330 Second Avenue South, Suite 702, Minneapolis, MN 55401 (for appellant).

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Randall, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant George W. Buck challenges the trial court's denial of his motion for a new trial, arguing the trial court erred by refusing to give proposed jury instructions and excluding documentary evidence and rebuttal testimony. We affirm.

FACTS

Richard Houston and other security guards employed by St. Paul Ramsey Medical Center (Medical Center) responded to a 72-hour hold order by restraining and controlling Buck. Buck resisted restraint. He claims the application of force by the security guards caused permanent psychological and physical injuries.

A closed-circuit television camera monitored the interaction between the security guards and Buck. Houston testified the camera recorded at least a portion of that interaction on videotape. As a general policy, the Medical Center records over any videotapes not requested or subpoenaed within thirty days.

Buck requested a copy of any videotaped footage of the incident by letter dated July 14, 1992, forty-two days after the incident. Peggy Wagner, vice president of quality and risk at the Medical Center, refused his request stating: "There is no videotaping of any incident on that day with Mr. Buck."

Buck initiated a lawsuit and the matter was tried to a jury. By special verdict, the jury assigned no liability to respondents, found Buck negligent, and awarded Buck no money damages. Buck appeals from the judgment.

Respondents filed a motion to strike several documents as not properly part of the record on appeal. This court deferred respondent's motion to strike those documents and referred the motion to this panel.

D E C I S I O N

I. Proposed Jury Instruction

Appellant contends the trial court abused its discretion in refusing to give the following jury instruction:

Where a party to a lawsuit fails to produce material evidence within that party's control and normally expected to be produced by that party, without satisfactory explanation, you are permitted to infer that the evidence, if produced, would have been unfavorable to the party.

We disagree.

Trial courts have latitude in selecting the language in jury instructions and broad latitude in determining the propriety of specific instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). An appellate court will not reverse a district court's decision refusing to grant a specific jury instruction absent an abuse of discretion. See Leonard v. Parrish, 420 N.W.2d 629, 634 (Minn. App. 1988) (no abuse of discretion where trial court rejected plaintiff's request for specific instruction on damages).

Appellant believed there was a videotape of the incident. He testified that Houston himself told him a few days after the incident that it was on videotape. Based on his belief that a videotape existed, appellant requested a copy forty-two days following the incident. Respondent, through Peggy Wagner, dismissed appellant's request with the following statement: "There is no videotaping of any incident on that day with Mr. Buck." Wagner did not go on to point out that there had been a videotape or that thirty days after the incident, supposedly, hospital policy called for it to be erased. Appellant, relying on Wagner's statement, failed to make a motion to compel evidence or to subpoena production of the videotape.

Later, at trial, respondents admitted they videotaped at least a portion of the alleged incident. Respondents claimed, however, as a general policy, they record over any videotapes not requested or subpoenaed within thirty days.

First of all, we are compelled to state that respondents benefited by playing fast and loose with the truth. Instead of admitting the existence of the videotape and explaining their policy in regard to videotapes, Wagner implied there never was any videotape. There is no way to determine the extent to which their misrepresentation impacted discovery, appellant's trial strategy, and, finally, the verdict.

This court agrees with appellant that one might sensibly infer that respondent would not destroy a videotape depicting a favorable version of an incident involving an altercation between a patient and security. Common sense tells us that normal prudent hospital policy would call for a copy to be preserved in the event a lawsuit developed. But our decision must be based on the record before us. Nothing in the record indicates a deliberate destruction of the videotape. We only have respondent's word for the bare assertion that no copy was made and that there is no videotape in existence. But, unfortunately for appellant, nothing in the record indicates that a copy has been preserved, nor does anything in the record indicate that respondents deliberately destroyed a videotape that would have reflected negatively on them. All the record shows is that the videotape was not "in respondent's control" for production at trial because supposedly it had been routinely destroyed after thirty days due to lack of a timely request. Appellant cannot show otherwise. Based on the facts before us, we cannot say the district court abused its discretion by refusing to allow the requested jury instructions.

In addition, appellant requested that an instruction be given on the standard for placing someone on a 72-hour hold. The standard requires that "[a] copy of the statement shall be personally served on the person immediately upon admission." Minn. Stat. § 253B.05, subd. 1(b) (1994). Appellant points out that Houston admits he failed to personally give appellant a copy of the 72-hour hold order. Houston testified, however, that security staff never see a copy of 72-hour hold orders to avoid violating physician-patient confidentiality. On the facts before us, we cannot even conclude appellant did not receive the 72-hold order on admission as per hospital policy. The trial court did not abuse its discretion as the proposed instruction appears pointless.

II. Documentary Evidence

Buck asserts he laid a sufficient foundation to admit an audiotape of a conversation between himself and Houston. We disagree. Parties lay an adequate foundation to admit documentary evidence when they present sufficient testimony "to support a finding that the matter in question is what its proponent claims." Minn. R. Evid. 901(a). Sufficient testimony to lay a foundation for admission of an audiotape includes showing no changes, additions, or deletions have been made. Furlev Sales & Assocs. v. North Am. Automotive Warehouse, 325 N.W.2d 20, 27-28 n.9 (Minn. 1982). Sufficiency of foundation evidence is within the discretion of the trial court. McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).

The partial transcript provided by appellant does not include testimony that properly laid a foundation to admit the audiotape. Any objections raised or statements from the bench at that time were, likewise, not provided. During proceedings in chambers, appellant admitted "there may have been some deletions on the tape." Based on these facts and the limited record before this court, we cannot say the trial court abused its discretion in suppressing appellant's audiotape.

III. Rebuttal Testimony

Rebuttal evidence explains, contradicts, or refutes a party's evidence. Van Tassel v. Patterson, 235 Minn. 152, 160, 50 N.W.2d 113, 117 (1951). The determination of what evidence constitutes proper rebuttal evidence "rests almost wholly in the discretion of the trial court." Briggs v. Chicago Great W. Ry., 248 Minn. 418, 427, 80 N.W.2d 625, 633 (1957).

Appellant's assertion that the trial court abused its discretion by refusing to allow the rebuttal testimony of Jerome Ritter is without merit. A review of the partial transcript provided does not reveal any evidenced of trial court error.

IV. Motion to Strike

An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). Respondents filed a motion to strike three documents from appellant's appendix, arguing that the documents are not part of the record on appeal. We deny respondents' motion to strike the transcript of taped conversations between Buck and Houston. We agree that appellant improperly included the partial transcript of Richard Houston's deposition and Defendants' Responses to Plaintiff's Interrogatories and thus, we grant respondents' motion to strike those documents. We deny respondents' associated motion for sanctions against appellant.

Affirmed.