297 Ga. 386
FINAL COPY
S14G1868. PHILLIPS et al. v. HARMON et al.
S14G1893. HARMON et al. v. PHILLIPS et al.
S14G1895. HENRY MEDICAL CENTER v. PHILLIPS et al.
HINES, Presiding Justice.
This Court granted a writ of certiorari to the Court of Appeals in Phillips
Hector v. Harmon, 328 Ga. App. 686 (760 SE2d 235) (2014), to determine if
that Court properly held in this medical malpractice action: (1) that the trial
court’s communication to the jury outside the presence of counsel and the
parties was reversible error (S14G1893; S14G1895), and (2) that the trial court
did not abuse its discretion in its refusal to give plaintiffs’ requested jury charge
on spoliation (S14G1868). For the reasons that follow, we affirm in part and
reverse in part the judgment of the Court of Appeals, and remand the case to that
Court.
Lee V. Phillips IV (“Phillips”) by and through his mother Santhonia
Hector (“Hector”), and Hector individually (collectively “Plaintiffs”), brought
this medical malpractice action against certified nurse midwife (“CNM”) Marcia
R. Harmon, Deborah E. Haynes, M.D., Eagles Landing OB-GYN Associates,
P.C., Eagles Landing OB-GYN Associates II, LLC, and Henry Medical Center,
Inc. (collectively “Defendants”). Plaintiffs alleged that Defendants’ negligence
caused Phillips to suffer oxygen deprivation shortly before birth, resulting in
severe, permanent neurological injuries, including spastic quadriplegia,
blindness, and an inability to speak.
The case went to trial before a jury on August 20, 2012, and the jury
returned a verdict for the Defendants on September 6, 2012, after approximately
one-and-a-half days of deliberations. Plaintiffs filed a motion for a new trial,
alleging that the trial court erred by engaging in a communication with the jury
when neither the parties nor their attorneys were present, and by refusing to give
their requested jury charge on the spoliation of evidence. The trial court denied
the motion, and Plaintiffs appealed to the Court of Appeals.1
The Court of Appeals concluded that the trial court did not abuse its
discretion in refusing to give Plaintiffs' requested charge on spoliation of
evidence; however, it reversed the trial court’s denial of Plaintiffs’ motion for
1
In their appeal to the Court of Appeals, Plaintiffs raised the additional claim that the
Defendants improperly introduced evidence of collateral source benefits; however, the Court of
Appeals found it unnecessary to consider such claim. In any event, the issue is not within the
confines of this Court’s grant of certiorari.
2
new trial after determining that Plaintiffs were entitled to a new trial because the
trial court responded to a note from the jury during the course of their
deliberations without ever advising the parties or their counsel that the
communication had taken place.
I. S14G1893; S14G1895. Communication with the Jury.
The facts as found by the Court of Appeals with regard to the
communication with the jury are the following. Several weeks after the jury
verdict, two jurors contacted Plaintiffs’ counsel regarding possible juror
misconduct.2 In that conversation, Plaintiffs’ counsel learned for the first time
that the trial judge had responded to a note from the jury without disclosing to
the parties or their counsel the contents of the note or his response. Plaintiffs’
counsel obtained affidavits from these two jurors, which affidavits averred that,
on the second day of deliberations, the jury sent a note to the trial judge
“indicating that [they] were not able to reach a unanimous verdict,” and that the
judge sent back a note instructing the jury to “continue deliberating.”
2
These jurors were concerned that another juror might have been sending and receiving text
messages during deliberations. The Court of Appeals found that this issue was originally raised by
Plaintiffs in their motion for a new trial, but that they did not assert any claim of error in this regard
on appeal to the Court of Appeals.
3
Subsequently, Plaintiffs’ counsel asked the trial judge to take measures to
see that both the jury note and the judge’s responsive note were filed with the
clerk of court. After realizing that the court reporter did not have a copy of the
jury’s note, the trial judge, without holding a hearing or seeking any input from
the parties’ counsel, entered an order supplementing the record pursuant to
OCGA § 5-6-41 (d).3 The order recited that four notes were delivered to the
court during deliberations and that three of them were preserved and made part
of the record, but that the note regarding the jury's inability to reach a
unanimous verdict was not one of them. The order stated that the missing note
read, “What happens if we can’t reach a unanimous verdict,” and was delivered
3
OCGA § 5-6-41 (d) provides:
Where a trial in any civil or criminal case is reported by a court reporter, all
motions, colloquies, objections, rulings, evidence, whether admitted or
stricken on objection or otherwise, copies or summaries of all documentary
evidence, the charge of the court, and all other proceedings which may be
called in question on appeal or other posttrial procedure shall be reported;
and, where the report is transcribed, all such matters shall be included in the
written transcript, it being the intention of this article that all these matters
appear in the record. Where matters occur which were not reported, such as
objections to oral argument, misconduct of the jury, or other like instances,
the court, upon motion of either party, shall require that a transcript of these
matters be made and included as a part of the record. The transcript of
proceedings shall not be reduced to narrative form unless by agreement of
counsel; but, where the trial is not reported or the transcript of the
proceedings for any other reason is not available and the evidence is prepared
from recollection, it may be prepared in narrative form.
4
to the court immediately after lunch recess on the first day of jury deliberations;
due to the fact that the note did not actually indicate that the jury was “hung,”
and in view of the short amount of time that the jury had been deliberating after
the lengthy trial, the trial judge did not believe it was necessary to consult with
counsel about his response; therefore, the trial judge wrote on the same piece of
paper, “please continue deliberating,” and had the bailiff return the note to the
jury. The trial judge also stated that the note had remained with the jury, and
presumably was destroyed along with the jurors’ personal notes, as instructed
by the bailiff after return of the verdict.
Plaintiffs moved to recuse or disqualify the trial judge due to the perceived
conflict between the jurors’ affidavits and the trial judge’s order supplementing
the record. The trial judge granted the motion, and the case was reassigned.
Following a hearing on Plaintiffs’ motion for new trial, the assigned judge
rejected Plaintiffs’ claim that the trial judge’s communication with the jury
outside the presence of Plaintiffs or counsel was per se reversible error, and
concluded that Plaintiffs were not entitled to a new trial because the note was
not impermissibly misleading or coercive. However, in denying the motion for
new trial, the trial court noted that the evidence in the case was “close” and
5
would have supported a verdict for either Plaintiffs or Defendants.
After a lengthy analysis which examined the right of a natural party to be
present in the courtroom during trial, and the applicability of a presumption of
prejudice or harmless error review, the Court of Appeals concluded that the
particular and unique circumstances surrounding the communication in this case
warranted a new trial. And, the Court was correct to do so.
A. Right to be Present
As the Court of Appeals properly noted, in Kesterson v. Jarrett, 291 Ga.
380 (728 SE2d 557) (2012), this Court steadfastly reaffirmed the right of a
natural party to be present in the courtroom when the party’s case is being tried
as such right,
is deeply rooted in the law of this Nation and, if anything,
even more embedded in the law of this State. It has been
treated as a component of the due process of law in both
criminal and civil cases since the early decisions of this
Court. The right to be present is also reflected textually in our
State Constitution, in the provision guaranteeing to every
person “the right to prosecute or defend, either in person or
by an attorney, that person's own cause in any of the courts of
this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII.4
4
Ga. Const. of 1983, Art. I, Sec. I, Par. XII provides: “No person shall be deprived of the
right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the
courts of this state.”
6
Id. at 384 (2) (a) (Internal citations omitted.) Kesterson was also a medical
malpractice case in which it was alleged that a child suffered neurological
injuries caused by oxygen deprivation shortly before birth as the result of the
defendant medical providers’ negligence in failing to timely recognize signs of
fetal distress. The trial court excluded the young child from most of the liability
phase of the trial of the lawsuit after the defendants moved to so exclude the
child from the courtroom on the basis that the child’s presence would be
prejudicial to them. Id. at 382 (1). The Court of Appeals affirmed that ruling
after applying a test which gave the trial court discretion to exclude a civil party
when the party's physical and mental condition might generate sympathy from
the jury and the party’s mental condition precludes meaningful participation in
and understanding of the proceedings. See Kesterson v. Jarrett, 307 Ga. App.
244, 248-251 (1) (b) (704 SE2d 878) (2010). So, the issue before this Court on
certiorari was whether a party might be denied the right to be present in court
during the trial of the party’s case and excluded from the courtroom because the
party’s physical and mental condition might evoke undue sympathy from the
7
jury, and thereby improperly prejudice the other side. Kesterson, 291 Ga. at
380-381. This Court reversed and remanded the case to the Court of Appeals
after concluding that a party could not be excluded from the party’s own trial
simply because the party’s physical and mental condition might evoke
sympathy, and that there were other means to ensure a fair trial without
infringing on the party's right to be present. Id. at 381. Thus, in those
circumstances the right to be present was deemed paramount.
Kesterson, however, did not directly address the situation at bar, that is,
the right of a party in a civil case to be present when the trial judge engages in
communications with the jury. But, as a general matter, parties to civil actions
in Georgia have the right to be present at all stages of the trial of the action.
Willingham v. Willingham, 192 Ga. 405, 408 (1) (15 SE2d 514) (1941); Cox v.
Yates, 96 Ga. App. 466 (3) (100 SE2d 649) (1957). And, in a civil proceeding
this is so in order, inter alia, that the party be able to render assistance to his
counsel as developments unfold. Mays v. Tharpe & Brooks, Inc., 143 Ga. App.
815, 816 (240 SE2d 159) (1977).
As noted by the Court of Appeals, the right to be present in the context of
communications between the trial judge and jury has been clearly determined
8
in criminal cases. In Hanifa v. State, 269 Ga. 797, 806-808 (6) (505 SE2d 731)
(1998), this Court squarely addressed the right of the criminal defendant to be
present during the trial judge’s communications with the jury. Defendant
Hanifa contended that the trial judge committed reversible error when the judge
suspended the State's closing argument, left the bench, and returned some time
later, informing counsel and their clients that the judge had been to “visit with
the jury” whose condition the judge described as “fragile.” Id. at 806 (6). Even
though this Court concluded that Hanifa waived the right to appellate review of
this issue because she failed to object or seek a mistrial after being informed by
the trial judge of the communication with the jury, this Court nevertheless
unequivocally affirmed a criminal defendant's “right to be present, and see and
hear, all the proceedings which are had against him on the trial before the
Court,” and that “[a] colloquy between the trial judge and the jury is a part of the
proceedings to which the defendant and counsel are entitled to be present.” Id.
at 807 (6) (Punctuation omitted.) In so doing, this Court strongly admonished
trial judges about engaging in such communications with the jury outside the
presence of the parties and their counsel, stating,
[u]questionably the trial judge should not in any manner
9
communicate with the jury about the case, in the absence of the
accused and his counsel, pending the trial; and the better practice is
for the judge to have no communication with the jury on any subject
except through the medium of the sworn bailiff in charge of the
jury; and the communication should be restricted, in the absence of
the accused and his counsel, to matters relating to the comfort and
convenience of the jury. There should be no communication which
would tend in any manner to prejudice the accused . . . ; and unless
the character of the communication clearly shows that it could not
have been prejudicial to the accused, the presumption of law would
be that it was prejudicial. . . . We state again: “all communications
with the jury are to be discouraged except in open court with all
persons present. . . .”
Hanifa at 807 (6) (Citation omitted.) Indeed, “[a] trial court's communication
with a jury on substantive matters is a part of the proceedings to which the
defendant and counsel are entitled to be present.” Lowery v. State, 282 Ga. 68,
73 (4) (b) (646 SE2d 67) (2007). And, a jury communication regarding its
inability to reach a verdict has been deemed a substantive matter for the purpose
of a defendant’s right to be present. Id. at 74 (4) (b) (i); accord Wells v. State,
297 Ga. App. 153, 159-160 (2) (676 SE2d 821) (2009).
This Court cannot sanction communications of a substantive nature
between a trial judge and a jury outside the presence of the defendant and
counsel in a criminal trial, and it should not do so in a civil trial as such actions
10
are no less a violation of a party’s right to be present during trial. Furthermore,
as this Court expressed in Kesterson:
There is . . . a personal element to the right to be present. The right
is based not only on what the party can do to the case, but on what
the case will do to the party. It is the party's interests that are being
determined by the jury and the judge, and it is the party's life that
will be directly affected by the outcome of the case.
291 Ga. at 392 (2) (f) (emphasis omitted). The Court of Appeals correctly
concluded that the right to be present in regard to the jury communication was
totally denied in this case, and that although the duration of the exclusion was
briefer than in Kesterson, the present violation was “more absolute” in that,
unlike in Kesterson, where the plaintiff had her attorneys present and
representing her during trial, these Plaintiffs were wholly without any
representation or input during the trial court's communication with the jury.
Phillips, 328 Ga. App. at 691 (1) (b).
B. Harm
The Court of Appeals held that this violation of Plaintiffs’ right to be
present at trial required reversal and a new trial; it did so both by presuming
prejudice as a matter of law, as has been done in criminal cases involving jury
communications that violated a defendant’s right to be present except where
11
“‘the character of the communication clearly shows that it could not have been
prejudicial to the accused,’” Hanifa at 807 (6) (citation omitted), and
alternatively, by undertaking a harmless-error analysis generally applicable to
errors in civil cases as set forth in OCGA § 9-11-61.5 It is unnecessary for this
Court to decide whether the criminal precedents regarding the presumption of
prejudice should be extended into the civil arena in a case such as this because
we agree with the Court of Appeals that, under the unique circumstances of this
case, the error was harmful.
It has been aptly observed that OCGA § 9-11-61 “exhorts” the appellate
courts to disregard errors or defects in the proceeding which do not affect the
substantial rights of the parties, but leaves open the question of how to
determine when an error affected the parties' “substantial rights” or that the
failure to correct the error was “inconsistent with substantial justice.” Thomas
5
OCGA § 9-11-61, which is part of the Civil Practice Act and to which there is no
counterpart in the Criminal Code, provides:
No error in either the admission or the exclusion of evidence and no error or defect in any
ruling or order or in anything done or omitted by the court or by any of the parties is ground
for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial rights
of the parties.
12
v. Emory Clinic, 321 Ga. App. 457, 460 (1) (d) (739 SE2d 138) (2013) (physical
precedent only). Indeed, “whether an error requires reversal depends on the
nature of the error and the importance of the issue to which it applies.” Id. at
461 (1). As the Court of Appeals observed in the present case,
a critical difference exists between many of the cases in which our
appellate courts have deemed a right to be present violation
harmless or waived and the case at hand, which is that those
communications were in fact disclosed to the defendant and/or his
attorney prior to the time the jury returned its verdict. Depending on
the time of this disclosure, this afforded the defendant or his
counsel the opportunity to have input concerning the court's
response, request that the court query the jury about the potential
deadlock, object, move for a mistrial, or at a minimum, and
importantly here, preserve a record of the communication. And if
the defendant or his attorney was told of the communication prior
to the return of the verdict and they failed to act, a waiver of the
right to be present violation would occur.
Phillips, 328 Ga. App. at 693-694 (1) (d) (Citations omitted.) In this case, upon
learning of the communication, Plaintiffs' counsel took diligent action to have
the communication made a part of the record, but through no fault of Plaintiffs
or counsel, was unable to secure the actual communication. Thus, as the Court
of Appeals stated,
this case presents one of those rare circumstances where the party
who asserts they have been aggrieved has been effectively
precluded from demonstrating harm. Such an inability of a party to
13
prove they were harmed by an ex parte judge/jury communication
obviously “affect[s] the substantial rights.”
Phillips, 328 Ga. App. at 696-697 (1) (e).6
In sum, the unique circumstances of this case, which include the untimely
and serendipitous disclosure of the communication to Plaintiffs or their counsel;
Plaintiffs’ inability to make the actual note or response a part of the record; the
differing recollections about the nature and timing of the communication; the
failure to resolve the perceived conflicts; and the inability to make a
determination that a verdict for Defendants was demanded, regardless of any
effect of the communication on the jury, support Plaintiffs’ entitlement to a new
trial.
II. S14G1868. Spoliation.
The term “spoliation” is used to refer to “the destruction or failure to
preserve evidence” that is relevant to “contemplated or pending litigation.”
6
As the Court of Appeals noted, there is no reason to question the trial judge’s good faith in
attempting to supplement the record pursuant to OCGA § 5-6-41 (d); however, by its express terms
that section does not lend itself to the present circumstances in which there are apparent
discrepancies between the recollections of the jury and the trial judge about a communication that
occurred between them. And, although subsection (g) of the statute makes the trial judge the final
arbiter in a dispute between the parties in regard to the correctness of a transcript prepared from
recollection, this statutory provision does not address this situation in which there is apparent conflict
between the recollections of the trial judge and jurors.
14
Silman v. Assoc. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009). Such
conduct may give rise to the rebuttable presumption that the evidence would
have been harmful to the spoliator. Lane v. Montgomery Elevator Co., 225 Ga.
App. 523, 525 (1) (484 SE2d 249) (1997). See OCGA § 24-14-227 (formerly
OCGA § 24-4-22). However, in order for the injured party to pursue a remedy
for spoliation, the spoliating party must have been under a duty to preserve the
evidence at issue. Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App.
801, 807 (6) (748 SE2d 281) (2013).
The destroyed evidence at issue in this case was printed paper strips of the
electronic monitoring of Phillips’s fetal heart rate. Plaintiffs alleged that
Defendants acted negligently in monitoring and responding to Phillips’s heart
decelerations and periods of bradycardia, which are signs of fetal distress.
Acute, sustained bradycardia can cause brain damage as a result of oxygen
deprivation, and generally the longer it lasts, the greater the potential brain
damage.
7
OCGA § 24-14-22 provides:
If a party has evidence in such party's power and within such party's reach by which
he or she may repel a claim or charge against him or her but omits to produce it or if such
party has more certain and satisfactory evidence in his or her power but relies on that which
is of a weaker and inferior nature, a presumption arises that the charge or claim against such
party is well founded; but this presumption may be rebutted.
15
At the time of Phillips’s birth, the medical records at Henry Medical
Center were maintained electronically. Nevertheless, the nurses often took notes
on paper fetal monitor strips during labor and delivery. And even though these
strips were not considered a part of the official record, the nurses would refer
back to their notes to complete the official record. Henry Medical Center
maintained the strips for 30 days post-delivery, and then would routinely destroy
them. The strips at issue were destroyed pursuant to this procedure.
There was some evidence in this case that there were nursing notations on
the printed strips, not part of the electronic record, which were relevant, inter
alia, to the timeliness of medical response to Phillips’s signs of fetal distress,
and thus, relevant and arguably critical to Plaintiffs’ claim of Defendants’
failure to adhere to the appropriate standard of care. Plaintiffs requested that the
following charge be given to the jury:
Defendant Henry Medical Center destroyed the printed paper copy of the
fetal heart rate tracing sometime after the delivery of Lee V. Phillips, IV.
At the time Defendant Henry Medical Center destroyed the printed paper
copy of the fetal heart rate tracing, Defendant Henry Medical Center was
aware of the potential for litigation. The Plaintiffs are entitled to a
presumption that the printed paper copy of the fetal heart rate tracing,
which contained the handwritten notes that [nurse] Kim Jones made
during the labor at issue in this case, would have been prejudicial to
Defendant Henry Medical Center. The presumption may be rebutted by
16
Defendant Henry Medical Center.
The trial court declined to give the charge, after finding that Defendants
had “no knowledge or notice of potential litigation”;8 however, it permitted the
parties to present evidence and argument concerning the notes made on the fetal
monitor paper strips, the use of the strips in creating the official medical record,
and the destruction of the strips.
On appeal to the Court of Appeals, Plaintiffs maintained that it was error
to refuse to give its requested charge because Henry Medical Center’s actions
after Phillips's birth showed that it was contemplating litigation regarding the
delivery at the time it destroyed the records. In support, Plaintiffs cited Henry
Medical Center’s triggering of its Sentinel Events/Medical Errors/Disclosures
policies and procedures (“Sentinel Events Policies”) immediately after Phillips's
birth, and in accordance with such policies, its launching of an internal
investigation, which involved questioning of involved personnel, its subsequent
notification to its insurance carrier, and its contacting legal counsel shortly
thereafter. Plaintiffs argued that once the Sentinel Events Policies were
8
The trial court made statements to the effect that the law would not permit it to give a
charge on spoliation as notice of a claim or litigation had not been given the Defendants.
17
triggered, Henry Medical Center was required to “obtain and/or preserve
evidence, as appropriate (for example, photographs, equipment, supplies, etc.)”
and to protect “[t]he medical record and other potential evidence . . . as needed
in anticipation of possible litigation.” Plaintiffs further urged that they
presented evidence that risk management would “sometimes” request that the
fetal monitor strips be preserved, although no such request was made in this
case.
The Court of Appeals concluded that Henry Medical Center did not have
notice of “pending or contemplated” litigation at the time of its destruction of
the paper fetal monitor strips, and consequently, that it was not an abuse of the
trial court’s discretion to refuse to give Plaintiffs' requested charge on spoliation
of evidence. In so doing, the Court of Appeals cited its own precedent for the
proposition that merely launching an internal investigation and taking some
steps pursuant to company policies do not, without more, equate to notice that
litigation is contemplated or pending, and that the mere fact that someone is
injured, without more, is not notice that the injured party is contemplating
litigation sufficient to automatically trigger the rules of spoliation. Phillips, 328
Ga. App. at 699-700 (2). It also concluded that this Court’s decision in Baxley
18
v. Hakiel Indus., 282 Ga. 312 (647 SE2d 29) (2007), as further discussed in
Silman v. Assoc. Bellemeade, supra at 28, did not mandate a finding of
spoliation in that the phrase “potential for litigation” used in Baxley refers to
litigation that is actually “contemplated or pending,” and “nothing more.” 328
Ga. App. at 701. But, the Court of Appeals’s analysis and conclusion miss the
mark. Although the Court of Appeals was correct in concluding that Silman
clarified that in saying “potential for litigation” Baxley meant “contemplated or
pending” litigation, it erred in interpreting that standard, and consequently, in
applying it to the facts of this case.
Logically, the duty to preserve relevant evidence must be viewed from the
perspective of the party with control of the evidence and is triggered not only
when litigation is pending but when it is reasonably foreseeable to that party.
See Graff v. Baja Marine Corp., 310 Fed. Appx. 298, 301 (11th Cir. 2009); West
v. Goodyear Tire & Rubber Co., 167 F3d 776, 779 (2d Cir. 1999) (Spoliation
is the destruction or significant alteration of evidence, or the failure to preserve
property for another's use as evidence in litigation that is pending or reasonably
foreseeable.) However, to say merely that the duty arises when litigation is
“contemplated or pending” does not answer the question as to which party is
19
doing the “contemplating,” that is, anticipating the litigation.
In regard to the injured party, usually the plaintiff, the duty arises when
that party contemplates litigation, inasmuch as litigation is obviously forseeable
to the plaintiff at that point. As to the opposing party, usually the defendant, the
duty arises when it knows or reasonably should know that the injured party, the
plaintiff, is in fact contemplating litigation, which the cases often refer to in
terms of “notice” to the defendant. See, e.g., Hand v. South Georgia Urology
Center, P.C., 332 Ga. App. 148 (769 SE2d 814) (2015); Allen v. Zion Baptist
Church of Braselton, 328 Ga. App. 208, 216-217 (3) (761 SE2d 605) (2014).
Certainly, the defendant’s knowledge that the plaintiff is contemplating
litigation may come when the plaintiff provides actual or express notice of
litigation. And, such notice can be constructive as well as actual. Indeed,
Baxley correctly identified two concepts: that notice in the context of spoliation
can be constructive and that actual notice of contemplated litigation from the
plaintiff to the defendant is not the only way that the defendant may reasonably
foresee litigation, but rather, that the defendant’s actions may be relevant to that
20
determination, that is, that such actions may demonstrate constructive notice.9
Notice that the plaintiff is contemplating litigation may also be derived
from, i.e., litigation may be reasonably foreseeable to the defendant based on,
other circumstances, such as the type and extent of the injury; the extent to
which fault for the injury is clear; the potential financial exposure if faced with
a finding of liability; the relationship and course of conduct between the parties,
including past litigation or threatened litigation; and the frequency with which
litigation occurs in similar circumstances. Thus, it may be appropriate to
consider, in determining whether the defendant actually did or reasonably
should have foreseen litigation by the plaintiff, not only what the plaintiff did
or did not do after the injury and before the evidence in question was lost or
destroyed, but also what the defendant did or did not do in response to the
injury, including the initiation and extent of any internal investigation, the
reasons for any notification of counsel and insurers, and any expression by the
9
The full facts of Baxley may not be clear from the face of the opinion, but Baxley should
not be read to hold that merely an injury and subsequent questioning of employees by a manager
about what happened regarding the injurious event triggers the duty to preserve evidence. The
defendant’s duty also does not arise merely because the defendant investigated the incident, because
there may be many reasons to investigate incidents causing injuries, from simple curiosity to quality
assurance to preparation for possible litigation.
21
defendant that it was acting in anticipation of litigation. It is undisputed that at
the time the strips were destroyed, Henry Medical Center had not received
express or actual notice from Plaintiffs that litigation was being planned,
pursued, or pending. Again, the duty to preserve relevant evidence arises when
litigation is reasonably foreseeable to the party in control of that evidence, and
thus while actual notice of litigation from the plaintiffs would clearly make such
litigation foreseeable, other circumstances may show that the defendant/alleged
tortfeasor actually or reasonably should have anticipated litigation, even without
notice of a claim being provided by the injured party/plaintiff.
Certainly a trial court has wide discretion in adjudicating spoliation issues,
and such discretion will not be disturbed absent abuse. Hand, 332 Ga. App. at
156. However, an appellate court cannot affirm a trial court’s reasoning which
is based upon an erroneous legal theory. Amin v. Guruom, 280 Ga. 873, 875
(635 SE2d 105) (2006).
Here, the trial court’s exercise of discretion in ruling that Defendants had
no duty to preserve the paper fetal monitor strips, and the Court of Appeals’s
upholding of that ruling, appear to rest on the legally incorrect premise that a
defendant’s duty to preserve evidence required notice of a claim or litigation
22
from the plaintiff, i.e., actual notice, without regard to other circumstances, such
as the type and extent of the injuries (severe injuries to a newborn child after an
unexpectedly difficult delivery), the high damages that can flow from such
injuries, the frequency of litigation in these circumstances, and the defendant’s
internal investigation and notification to its counsel and insurer. Consequently,
the judgment of the Court of Appeals in regard to the spoliation issue cannot be
upheld, and to the extent that the Court of Appeals cases dealing with the issue
of spoliation may be read as endorsing the erroneous analysis used in this case,
they are hereby disapproved in that regard.10
Although the spoliation issue may recur upon any retrial of the present
case, the evidence presented on this issue may be different, and the trial court
will have to exercise its discretion based on the evidence presented to it, guided
10
Such cases include, but are not limited to, Hand v. South Georgia Urology Center, P.C.,
332 Ga. App. at 155 (2); Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. at 806-808
(2); Clayton County v. Austin-Powell, 321 Ga. App. 12, 16-17 (2) (740 SE2d 831) (2013); Powers
v. Southern Family Markets of Eastman, LLC, 320 Ga. App. 478, 479-480 (1) (740 SE2d 214)
(2013); Flores v. Exprezit!A Stores 98-Georgia, LLC, 314 Ga. App. 570, 573 (2) (724 SE2d 870)
(2012); Paggett v. Kroger Co., 311 Ga. App. 690, 692-693 (2) (716 SE2d 792) (2011); Craig v.
Bailey Bros. Realty, 304 Ga. App. 794, 797 (1) (697 SE2d 888) (2010).
23
by the discussion in this opinion.11 It should also be noted that this Court has
held that a rebuttable presumption or adverse inference jury instruction such as
the one requested in this case is to be given as a remedy for spoliation of
evidence “only in exceptional cases,” that “the greatest caution must be
exercised in its application,” and that “[e]ach case must stand upon its own
particular facts.” Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 31 (174 SE
708) (1934). And, the Court of Appeals has explained that in considering the
giving of such an instruction, the trial court should consider both prejudice to
the party seeking the charge and “whether the party who destroyed the evidence
acted in good or bad faith.” Johnson v. Riverdale Anesthesia Assocs., 249 Ga.
App. 152, 154 (2) (547 SE2d 347) (2001). The good or bad faith of the party
is a relevant consideration because one of the rationales for the
presumption is that it deter[s] parties from pretrial spoliation of
evidence and serves as a penalty, placing the risk of an erroneous
judgment on the party that wrongfully created the risk. But, [a] party
should only be penalized for destroying the documents if it was
wrong to do so.
Id. (Citation and punctuation omitted; emphasis in original). But see AMLI
Residential Properties v. Georgia Power Co., 293 Ga. App. 358, 363 (1) (a) (iii)
11
This Court expresses no view on what that decision should be.
24
(667 SE2d 150) (2008) (“Exclusionary sanctions may be appropriate where the
spoliator has not acted in bad faith.”).12
Accordingly, the judgment of the Court of Appeals is affirmed in part and
reversed in part, and the case is remanded to the Court of Appeals for
proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and case remanded. All the
Justices concur.
Decided June 29, 2015.
Certiorari to the Court of Appeals of Georgia – 328 Ga. App. 686.
Grant Law Office, Wayne Grant, Kimberly W. Grant; The Parrish Law
Firm, Jonathan A. Parrish, for Phillips et al.
Huff, Powell & Bailey, Michael S. Bailey, Anna B. Fretwell, for Harmon
12
In AMLI Residential Properties v. Georgia Power Co., the Court of Appeals cited five
factors that a trial court should weigh before exercising its discretion to impose sanctions for
spoliation: (1) whether the party seeking sanctions was prejudiced as a result of the destroyed
evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4)
whether the destroying party acted in good or bad faith; and (5) the potential for abuse if any expert
testimony about the destroyed evidence was not excluded. Id. at 361 (1).
25
et al.
Hall, Booth, Smith, John E. Hall, Jr., W. Scott Henwood, Wark W.
Wortham, Nathan A. Gaffney, for Henry Medical Center, Inc.
26