dissenting.
I agree that the trial judge erred in declining to give the missing evidence instruction in the circumstances of this case. I disagree, however, that the error was sufficient to warrant vacating the judgment and requiring this case to be retried. I therefore respectfully dissent.
I agree with the finding of error reluctantly because, as Battocchi makes clear, “a finding by the trial court as to the degree of fault of a party in failing to produce or preserve evidence will not be disturbed unless clearly erroneous.” 581 A.2d at 767. Moreover, Battocchi did not recede from this court’s prior expressions of “skepticism about the missing witness/evidence doctrine,” id. at 766, and “the dangers inherent in creating evidence from nonevidence.” Id. at 765 (citation omitted). Nevertheless, the present record leaves me with the definite and firm conviction, sufficient to overcome our deferential standard of review, that the hospital’s conduct “transcended] ordinary negligence, and evidence[d] at least knowing disregard of the importance of the [metal fragment] to [the] opposing litigant’s claim,” id. at 766. In Battocchi’s ultimate formulation, it displayed “gross indifference to or reckless disregard for the relevance of the evidence to a possible claim." Id. at 767.
Hospital officials were on constructive and even actual notice that plaintiffs had sought production of the metal fragment in discovery and, indeed, that it had been produced and made available for Dr. Mitchell’s deposition, after which the hospital had been entrusted with its custody. The hospital also knew that liability in this case centered about the negligence vel non of its physician in not detecting the presence of the metal fragment, and thus that the size and configuration of the object might be an issue. Specifically, the hospital knew that at least part of its defense would be to require plaintiffs to prove that the fragment was actually in Mr. Williams’ eye at the time of Dr. Mitchell’s examination, despite the absence of markings in the eye showing the entry of such an object. See Defendant’s Pretrial Statement (“Defendant contends that the foreign object found in Mr. Williams’ eye on June 12, 1987, if present [emphasis in original] on February 2,1987, was difficult to discern or diagnose through examination”; “Mr. Williams presented no symptoms on February 2, 1987 which would have led any competent examining physician to diagnose a foreign body in his eye”). Yet, despite the relevance of the fragment to the hospital’s liability generally and its anticipated “footprint” defense in particular, the hospital allowed its doctors, sometime before trial but after production of the object in discovery, to remove the fragment from its place in the medical record and subject it to testing for “radiopacity.” I readily concede that the doctors did not do so intending to destroy the fragment or otherwise make it unavailable to plaintiffs. Indeed, they consulted with counsel for the hospital in this litigation before removing it. But therein lies a considerable portion of the rub.
According to counsel for the hospital, the doctors wanted to see if “some kind of testing [could be] set up to see what the iron content was of [the fragment].” Counsel told them, however, “We can’t do that. That may take the place of destruc*36tive testing. Don’t do that.” The doctors then asked, “Can you find out what the hammer and chisel were so we can judge that metal?” to which counsel replied, “To do that is destructive testing. We can’t do that without telling the other side.” So the doctors settled on an x-ray to determine if the object was “radiopaque” or visible by x-ray. Yet counsel for the hospital had always believed “x-ray was not an issue” in the case and hence was “not even sure why they wanted to know if it was radiopaque.” Besides forbidding them to do “corrosive testing,” therefore, he gave them no green light to test for radiopacity: “That’s why I didn’t tell them to do it; it’s not an issue in the case.” Still the testing went forward and the fragment was lost in a way no one could later explain.
In these circumstances, even without evidence of intent to destroy the fragment or gain some unfair advantage over the plaintiffs, I cannot reasonably conclude that the loss of the fragment was only an ordinary lapse from the standard of proper care. To so hold on these facts would allow “ordinary negligence” to absorb the whole range of fault, excluding only deliberate destruction or subjective “bad faith” or ill-will. For better or worse, hospitals such as the Washington Hospital Center are regular litigants in Superior Court defending malpractice suits. It is reasonable to assume they know the importance of safeguarding records and exhibits in their custody related to pending litigation. When in addition their own counsel in litigation, at the very least, has warned them of the danger of performing tests on so easily lost or destroyed an object as a minute metal fragment and raised the advisability of pri- or court clearance, there is no justification for the doctors to have proceeded as they did in this case. As hospital counsel effectively conceded in argument before the trial court, advance clearance with the court would have allowed the issue of need for the testing to be fully aired — in circumstances where counsel himself questioned the relevance of the test to this litigation. And even if the testing were allowed, permission by the court might have been conditioned on safeguards to preserve the integrity of the object beyond the apparently routine measures that failed here. I therefore agree with the majority that the hospital’s conduct demonstrated “gross indifference to ... the relevance of the evidence to a possible [indeed, an actual] claim,” Bat-tocchi, 581 A.2d at 767, leaving the trial judge no choice but to give the missing evidence instruction.
On the record in this case, however, I am convinced that the failure to give an adverse inference instruction was harmless error. First, appellants’ claim of prejudice is their inability to have their expert, Dr. Elman, examine the metal fragment in connection with his testimony at trial refuting the hospital’s “footprint” defense. Yet appellants never attempted to have Dr. El-man examine the fragment until he was poised to testify at trial as virtually the last witness in the case.1 Trial counsel for plaintiffs were able and experienced; they litigated this case thoroughly and aggressively. It is all but inconceivable to me that if they (1) regarded refutation of the footprint defense as a critical aspect of Dr. Elman’s testimony and (2) considered his opinion on that issue to depend critically on actual examination of the fragment, they would have put him on the stand without previously attempting to have him examine the evidence. This fact by itself, in my view, supports the trial judge’s post-trial finding that plaintiffs had “exaggerated the significance of the missing evidence in the context of the entire trial.”
Second, the record reveals that in lieu of the evidence it had lost, the hospital was willing to stipulate to the configuration of the fragment, specifically to the fact that it was long and narrow and three:dimensional. This would have furnished a basis for Dr. Elman’s opinion that “if the object was long and narrow it is unlikely to have transected a blood vessel, and have left a visible ‘footprint’ ” (post-trial affidavit of Dr. Elman). Indeed, even without the stipulation, Dr. Elman described the fragment at trial as “like having a little needle in the *37eye. You may not be able to see a mark on the outside of the eye.” He was not cross-examined by hospital counsel in a manner implying the fragment was any other shape.2 Plaintiffs never asked Dr. Elman whether the unavailability of the fragment impaired his ability to form an opinion whether it would have left footprints. And similarly, although the trial judge ruled that plaintiffs’ counsel could not argue the adverse inference in closing argument, the record does not suggest that he barred them from pointing out that any weakness in the foundation of Dr. Elman’s opinion stemmed from the unavailability of the fragment owing to its loss by the hospital.
Finally, although the judge did not instruct on the adverse inference, he made clear to the jury who had caused the fragment to disappear:
Now at various times you may have been wondering where the object is that was removed from Mr. Williams’ eye by Dr. Perrault during his surgery on June 12, 1987. At one point that object was preserved as part of the hospital’s medical record for this patient. At some point along the way between then and now, however, the hospital removed the foreign body from the record to do an analysis of it and thereafter it was apparently never returned to the original record. Therefore, no witness for the plaintiff or for the defendant at this trial was able to look at the actual object and testify about its size or shape or other characteristics. It is at this point simply unavailable to both sides, and the parties and witnesses have had to base their testimony on descriptions of the object contained in the medical records.
Hence, if the jury was troubled by its own (or any expert’s) inability to inspect the fragment in evaluating the footprint defense, it knew whom to blame for the loss.
In these circumstances, I am not convinced that the error in failing to instruct further on the missing evidence justifies setting aside the verdict in this complex civil trial.3
. Dr. Elman testified out of turn.
. The trial judge indicated that, in view of the loss of evidence, he likely would not have allowed any such impeachment.
. For reasons similar to those stated, I also reject the majority’s conclusion that the hospital’s failure to “seasonably amend" its response to discovery by informing plaintiffs earlier of the lost evidence compelled the extreme remedy of a new trial. In any event, my reading of the record indicates that at trial plaintiffs requested only a missing evidence instruction, not a mistrial; not until their reply to the hospital's opposition to their post-trial motion for a new trial did they assert that only a new trial could have repaired the discovery breach.