PHILLIPS Et Al. v. HARMON Et Al.
328 Ga. App. 686
Ga. Ct. App.2014Background
- Plaintiffs (mother and infant by next friend) sued multiple medical providers for prenatal/neonatal negligence, alleging perinatal oxygen deprivation caused severe lifelong injuries to the child. The jury returned a defense verdict after ~1.5 days of deliberation.
- Weeks after the verdict two jurors told Plaintiffs’ counsel the trial judge had received a jury note about being unable to reach unanimity and had responded "please continue deliberating" without notifying the parties or counsel; the note itself was not preserved.
- The trial judge later supplemented the record with his recollection of the note and response; Plaintiffs moved for new trial and recusal. The judge who heard the new-trial motion denied relief; Plaintiffs appealed. The appellate court granted a new trial.
- Plaintiffs also requested a spoliation instruction because the hospital destroyed fetal heart-rate paper strips under routine 30-day retention; the trial court refused the instruction because there was no evidence the hospital had notice of pending or contemplated litigation when it destroyed the strips.
- Plaintiffs raised (for appeal) a third issue about admission of evidence of federally mandated educational services as collateral-source benefits; that question was preserved for retrial because it was not ruled on below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex parte judge–jury communication about deadlock (right to be present) | Judge answered jury note during deliberations without parties/counsel present; that denied Plaintiffs’ constitutional right to be present and requires presumed prejudice | Communication was brief and non-coercive; criminal-law safeguards shouldn’t automatically apply to civil cases; harmless-error review should govern | Reversed and new trial ordered: denial of the right to be present here is presumptively prejudicial given (1) no notice to parties/counsel, (2) note/response not preserved, (3) conflicting recollections, and (4) close evidence. Lowery procedures should be followed to preserve communications. |
| Refusal to give spoliation instruction (destruction of fetal monitor strips) | Hospital’s activation of sentinel-event procedures and internal investigation put it on notice of potential litigation; jury should get rebuttable presumption the destroyed strip would have been adverse to hospital | Hospital had no actual notice of contemplated or pending litigation when strips were destroyed; strips were not part of the official medical record; routine destruction policy applied | Affirmed: trial court did not abuse discretion. Spoliation instruction requires notice of contemplated or pending litigation; internal reviews and sentinel-event steps alone are insufficient without evidence the defendant knew litigation was contemplated. |
| Admission of evidence of collateral-source educational benefits | Such testimony violated the in limine exclusion of collateral-source benefits and should not have been elicited | Plaintiffs failed to contemporaneously object at trial; issue was not ruled on below and requires trial-court resolution | Not decided on appeal; case must be retried and trial court will rule in the first instance on whether these federally mandated services are inadmissible collateral-source evidence. |
Key Cases Cited
- Kesterson v. Jarrett, 291 Ga. 380 (Supreme Court of Georgia) (party has constitutional right to be present during trial; exclusion can require reversal)
- Hanifa v. State, 269 Ga. 797 (Supreme Court of Georgia) (judge–jury colloquy is part of proceedings to which defendant/counsel are entitled to be present)
- Lowery v. State, 282 Ga. 68 (Supreme Court of Georgia) (procedure requiring written juror communications, marking as court exhibits, and affording counsel an opportunity to respond)
- Conley v. Ford Motor Co., 294 Ga. 530 (Supreme Court of Georgia) (presumed prejudice where fundamental rights affecting jury qualification/fairness are violated)
- Silman v. Assocs. Bellemeade, 286 Ga. 27 (Supreme Court of Georgia) (definition and standards for spoliation; "contemplated or pending litigation" required)
- Baxley v. Hakiel Indus., Inc., 282 Ga. 312 (Supreme Court of Georgia) (spoliation found where evidence that could bear on liability was destroyed after events raising litigation potential)
- Lindsey v. State, 277 Ga. App. 18 (Court of Appeals of Georgia) (illustrative of prejudice concerns when juror question about unanimity is answered without the record and counsel present)