Instructions: Missing Evidence Instruction aka Spoliation of Evidence

UNIVERSITY MEDICAL CENTER (UofL)  V.  MICHAEL G. BEGLIN, ETC.
Questions Presented:
Personal Injury. Jury Instructions. Missing evidence. Issues include propriety of giving spoliation instruction and other evidentiary and instructional rulings.

ON REVIEW FROM COURT OF APPEALS
CASE NOS. 2007-CA-000018-MR AND 2007-CA-000133-MR
JEFFERSON CIRCUIT COURT NO. 04-CI-001605
OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART

We granted discretionary review in this matter to examine when it is
proper for the trial court to give a missing evidence instruction, and whether it was permissible here to hold an employer liable for punitive damages based upon the gross negligence of an employee. University Medical Center, Inc. d/b/a University of Louisville Hospital ("University Hospital"), appeals from an opinion of the Court of Appeals which affirmed a judgment entered by the Jefferson Circuit Court in favor of Appellee, Michael G. Beglin. 1Based upon a jury verdict, the trial court entered judgment awarding the following
compensatory damages: $1,922,102.00 for the destruction of Jennifer Beglin's power to labor and earn money; 367,358.09 for her medical expenses; 7,543.00 for her funeral and burial expenses; and $3,000,000.00 for her children's loss of parental consortium. The jury also awarded $3,750,000.00 in punitive damages, resulting in a total award of $9,047,003.09.

THE MISSING EVIDENCE INSTRUCTION WAS PROPERLY GIVEN

University Hospital first argues that the trial court erred by giving the missing evidence instruction in connection with the unexplained disappearance of the occurrence report that Cantrall testified she prepared immediately following the operation pursuant to normal hospital procedures. Although University Hospital had exclusive care, custody, and control of the report (if it existed), it is unable to offer any explanation to account for its disappearance. University Hospital contends that it was fundamentally improper and contrary to Kentucky law for the trial court to give the missing evidence instruction when -there was no evidence to show that it had intentionally and in bad faith lost or destroyed the document. It further argues that the instruction improperly influenced both the general verdict of liability and the punitive damages award by insinuating that the hospital covered-up adverse evidence. For the reasons stated below, we conclude that the instruction was properly given.

Following the form approved in Sanborn v. Commonwealth, 754 S.W.2d 534, 539-540 (Ky. 1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006), the trial court gave, over the hospital's objection, this missing evidence instruction:
If you find from the evidence that an incident report was in fact prepared by Nurse Barbara Cantrell recording material information about Mrs. Beglin's surgery, and if you further find from the evidence that University Medical Center, Inc. d/b/a University of Louisville Hospital, intentionally and in bad faith lost or destroyed the incident report, you may, but are not required to, infer that the information recorded in the incident report would be, if available, adverse to University Medical Center and favorable to the plaintiffs.

This remains the approved instruction in both criminal and civil cases.    See Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) ("Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and 'missing evidence' instructions.") All agree that the Sanborn instruction accurately sets forth the elements necessary to permit a jury to draw an adverse inference from missing evidence. 6

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