Phillips v. Harmon, 297 Ga. 386

Newborn Lee V. Phillips IV allegedly suffered severe neurological injury from perinatal oxygen deprivation; plaintiffs (Phillips by mother Hector) sued various medical providers and Henry Medical Center for malpractice.
After a multi-day trial the jury returned a defense verdict; plaintiffs moved for a new trial arguing (1) the trial judge communicated ex parte with the jury during deliberations and did not disclose the content to parties/counsel, and (2) the court refused plaintiffs’ requested spoliation instruction for destroyed fetal monitor strips.
Juror affidavits (obtained post-verdict) stated the jury sent a note saying they could not reach a unanimous verdict and the judge replied “please continue deliberating”; the judge later supplemented the record with his own recollection because the original note was not preserved.
The trial judge supplemented the record sua sponte, plaintiffs sought recusal; the judge who heard the new-trial motion denied relief, finding the judge’s ex parte note not coercive and that defendants lacked notice of pending litigation when monitor strips were destroyed.
The Court of Appeals reversed as to the ex parte jury communication (ordering a new trial) but upheld refusal to give the spoliation charge; the Georgia Supreme Court affirmed in part and reversed in part.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Trial judge communicated with jury ex parte during deliberations (jury inability to reach verdict)	Ex parte communication denied Phillips and Hector the constitutional/state right to be present; nondisclosure prevented counsel from objecting or preserving the record, warranting reversal	Judge’s response was brief, not coercive or misleading; error (if any) was harmless given evidence and short nature of contact	Reversed trial court; Court of Appeals was correct to order new trial under unique facts—party was totally excluded and prejudice could not be assessed because note was not preserved
Refusal to give requested spoliation/instruction for destroyed fetal monitor strips	Henry Medical Center triggered preservation duty by invoking internal Sentinel Events investigation, notifying insurer and counsel, making litigation reasonably foreseeable; instruction/presumption should have been given	No actual notice of claim or litigation from plaintiff; routine destruction policy and internal steps alone do not automatically establish duty to preserve	Reversed Court of Appeals on legal standard: duty to preserve arises when litigation is reasonably foreseeable to the party controlling evidence (actual or constructive notice); remanded for reconsideration under corrected legal standard (trial court discretion remains for sanctions/instruction)

Kesterson v. Jarrett, 291 Ga. 380 (affirming strong right of civil parties to be present during trial proceedings)
Hanifa v. State, 269 Ga. 797 (criminal defendant’s right to be present during judge–jury communications; presumption of prejudice absent clear proof of nonprejudicial nature)
Lowery v. State, 282 Ga. 68 (judge–jury communication about jury deadlock is substantive and implicates right to be present)
Silman v. Assoc. Bellemeade, 286 Ga. 27 (spoliation defined; "potential for litigation" means litigation that is contemplated or pending)
Baxley v. Hakiel Indus., 282 Ga. 312 (discussed in spoliation context regarding notice/foreseeability)
Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 (rebuttable adverse-inference instruction for spoliation is an exceptional remedy; use caution)