(Retired), dissenting.
I respectfully dissent.
The majority states the instruction was not necessary because the presumption asserted by appellants never arose. In making such statement, the majority places itself in the role of a fact finder, judging the credibility of witnesses rather than that of an appellate tribunal. The majority would impose on appellants the impossible burden of showing an intentional destruction or loss of the records — such a burden could rarely be met and to make it a requirement avoids the realities of life.
Dr. Dowling and Dr. Carrington testified as to their recollections of what the monitor strip contained. Nurse Jee testified as to what the strip contained and that such contents were reproduced in her records. Appellants were deprived of a basic element of due process — the right to effectively cross-examine such witnesses as to the contents of the strip — appellants had no way to test the recollections or interpretations of such witnesses. It is noted that when Shane’s problems became evident, the doctors involved, Dr. Dowling and Dr. Carrington, went to the monitor strip and not Nurse Jee’s notes. Also, Dr. Staples sought to examine the strip at the request of Dr. Dowling only to find it missing within hours of Shane’s birth. It is true that appellants’ attorney was extended the right to argue that a presumption existed by virtue of such disappearance, but such right is hollow without a proper instruction from the court to the jury that they may infer that the missing strip contained information adverse to the interests of the defendants. The court has instructed the jury that they are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law they must be governed by the instructions in the charge. The jury finds no instructions with regard to the missing records — they then can assume that no law attaches to the fact that essential records are missing.
Submission of an instruction that a presumption exists by virtue of missing records was inferentially approved in Ramirez v. Otis Elevator Co., 837 S.W.2d 405, 412 (Tex. App. — Dallas 1992, writ denied). Ramirez sued for personal injuries resulting from being struck by an elevator door. During trial it was discovered that some repair records had been destroyed. The trial court submitted an instruction that the destruction of such documents raised a presumption that the evidence would have been unfavorable to Otis. The court of appeals in reviewing the question of proper sanctions for such distinction tacitly approved the instructions by giving it as a reason for denying death penalty sanctions.
Appellants refer us to the case of DeLaughter v. Lawrence County Hosp., 601 So.2d 818 (Miss.1992). In DeLaughter the hospital records of a decedent were “locked up” with instructions that they should not be examined by the family of the decedent. When such records were to be made available to the decedent’s family, the records could not be found. In the trial of the case appellants sought three jury instructions with regard to a presumption arising from disappearance of the records. These instructions were denied, and on appeal such refusals were held to be proper because they created an impermissible, irrebuttable presumption of negligence, permitted an inference that negligent treatment was contained in the missing records, and shifted the burden of proof.
Even though the Mississippi appellate court found that a proper instruction as to the missing records had not been presented, it held that the trial court erred in failing to place the burden of proof on the hospital to show that the chart was not lost or destroyed by the hospital, and in failing to give an instruction on the spoliation issue; it was further held that such failures were not harmless error.
We are not bound by Mississippi law; however, the principles pronounced in De-Laughter are sound and are subject to adoption by this State. It is no secret that problems are being encountered by trial judges with missing and altered documents in our present scheme of extensive pre-trial discovery. We are further mindful of the problems of sanctions with regard to missing docu-*162merits. Proper instructions on the trial of the case may have the effect of more diligent and complete search for missing essential documents.
In the instant case a substantially correct instruction was submitted; it was error not to submit an instruction to the jury on the matter of the missing records and that such error was calculated to, and did cause, the rendition of an improper verdict.
Attention is turned to the problem confronting the trial judge with regard to this matter. There was no predicate precisely on point for his guidance. Upon a new trial of this cause, and in the event of like testimony then being presented, an instruction similar to the one stated below would be appropriate:
You are instructed that if documents which are pertinent to the issues in this cause and which were in the exclusive possession and control of a party and which cannot be produced, and their disappearance has not been satisfactorily explained, then you will consider that such documents contained information adverse to the position taken by the party who was in possession.
Appellants’ point of error should be sustained, and the cause remanded for a new trial.