PHILLIPS Et Al. v. HARMON Et Al.

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 15, 2014
In the Court of Appeals of Georgia
A14A0188. LEE V. PHILLIPS, IV BY NEXT FRIEND
SANTHONIA HECTOR v. HARMON et al.
MCMILLIAN, Judge.
Lee V. Phillips, IV, by and through his mother Santhonia Hector, and Hector
individually, (collectively “Plaintiffs”) filed this medical malpractice action against
Marcia R. Harmon, CNM,1 Deborah E. Haynes, M.D., Eagles Landing OB-GYN
Associates, P.C., Eagles Landing OB-GYN Associates II, LLC, and Henry Medical
Center, Inc. (collectively “Defendants”), alleging that, due to Defendants’ negligence,
Phillips suffered oxygen deprivation shortly before birth, which resulted in severe,
permanent neurological injuries, including spastic quadriplegia, blindness, and an
inability to speak.
1
“CNM” refers to a certified nurse midwife.
The case ultimately proceeded to a jury trial, which commenced on August 20,
2012 and, following approximately one and a half days of deliberations, the jury
returned a verdict for the Defendants on September 6, 2012. Plaintiffs filed a motion
for new trial asserting, among other things, that the trial court erred by engaging in
a communication with the jury when neither the parties nor their attorneys were
present, and by refusing to give Plaintiffs’ requested charge on spoliation of evidence.
The trial court denied their motion, and Plaintiffs filed this appeal, raising the
additional claim that the Defendants improperly introduced evidence of collateral
source benefits. We agree with Plaintiffs that they were entitled to a new trial and
reverse.
1. We first consider Plaintiffs’ contention that they are entitled to a new trial
because the trial court responded to a note from the jury during the course of their
deliberations without ever advising the parties or their counsel that the
communication had taken place.
(a) As to this issue, the record shows that several weeks after the jury returned
its verdict, two jurors contacted Plaintiffs’ counsel to express concerns about possible
2
juror misconduct.2 During that conversation, Plaintiffs’ counsel learned for the first
time that the trial judge had responded to a note from the jury without ever disclosing
the contents of the note or his response to either the parties or their counsel.
Thereafter, Plaintiffs’ counsel obtained affidavits from the two jurors, both of whom
averred that, on the second day of deliberations, the jury sent a note to the trial judge
“indicating that [they] were not able to reach a unanimous verdict.” According to the
jurors, the judge sent a note back, which instructed the jury to “continue
deliberating.”
After learning of the communication, Plaintiffs’ counsel sent a letter to the trial
judge requesting that he “take steps to see that both the jurors’ note . . . and [his]
responsive note are filed with the Clerk.” After realizing that the court reporter did
not have the note, the trial judge, without seeking input from counsel or holding a
hearing, entered an order supplementing the record pursuant to OCGA § 5-6-41 (d).3
2
The two jurors were concerned that another juror may have been sending and
receiving text messages while they were deliberating. Plaintiffs originally raised this
as an issue in their motion for new trial but have not asserted any claim of error
arising from this juror’s alleged misconduct on appeal.
3
That section provides:
Where a trial in any civil or criminal case is reported by a court reporter,
all motions, colloquies, objections, rulings, evidence, whether admitted
3
The order recites that four notes were delivered to the court while the jury was
deliberating, that three of the notes were preserved and made a part of the record, but
that the note pertaining to the jury’s inability to reach a unanimous verdict was not
one of them. The order found that the note read “What happens if we can’t reach a
unanimous verdict,” and was delivered to the court immediately after lunch recess on
September 5, 2012, which was the first day the jury deliberated. The trial judge
further recited that due to the fact that the note did not actually indicate that the jury
was “hung” and in view of the short amount of time the jury had been deliberating
or stricken on objection or otherwise, copies or summaries of all
documentary evidence, the charge of the court, and all other proceedings
which may be called in question on appeal or other posttrial procedure
shall be reported; and, where the report is transcribed, all such matters
shall be included in the written transcript, it being the intention of this
article that all matters appear in the record. Where matters occur which
are not reported, such as objections to oral argument, misconduct of the
jury, or other like instances, the court, upon motion of either party, shall
require that a transcript of these matters be made and included as part of
the record. The transcript of proceedings shall not be reduced to
narrative form unless by agreement of counsel; but, where the trial is not
reported or the transcript of the proceedings for any reason is not
available and the evidence is prepared from recollection, it may be
prepared in narrative form.
4
after such a lengthy trial, he did not believe consultation with counsel about his
response to the note was necessary, and therefore wrote on the same piece of paper
“please continue deliberating” and had the bailiff return the note to the jury. The trial
judge also stated the note had remained with the jury, and presumably was destroyed
along with the jurors’ personal notes as instructed by the bailiff after the verdict was
returned.
Plaintiffs subsequently filed a motion to recuse or disqualify the trial judge due
to the perceived conflict between his order supplementing the record and the jurors’
affidavits. The trial judge granted the motion to recuse, and the case was re-assigned.
Following a hearing on Plaintiffs’ motion for new trial, the assigned judge rejected
Plaintiffs’ claim that the trial court’s communication with the jury was per se
reversible error, and concluded that the Plaintiffs were not entitled to a new trial
because the note was not impermissibly misleading or coercive. Plaintiffs now
challenge that ruling, arguing that, under the circumstances of this case, we should
presume that the trial judge’s communication with the jury was harmful, and that, in
any event, the trial judge’s response was coercive under the circumstances in which
it was given.
5
(b) In Kesterson v. Jarrett, 291 Ga. 380 (728 SE2d 557) (2012), our Supreme
Court reaffirmed and elucidated the fundamental right of a natural party to be present
in the courtroom during the trial of his or her case. As the Court explained,
[The right to be present] has been treated as a component of the due
process of law in both criminal and civil cases since the early decisions
of this Court. . . . Tift v. Jones, 52 Ga. 538, 542 (1874) (explaining that
a civil litigant has a “right to be present in the court during the whole
trial of his case.”) . . .The right to be present is also reflected textually
in our State Constitution, in the provision guaranteeing to every person
“the right to prosecute or defend, either in person or by an attorney, that
person’s own cause in any of the courts of this state.” Ga. Const. of
1983, Art. I, Sec. I, Par. XII.
Kesterson, 291 Ga. at 384 (2) (a).
The issue in Kesterson – whether a party may be denied the right to be present
and properly excluded from the courtroom because his or her physical or mental
condition might invoke undue sympathy from the jury – was one of first impression
in this state.4 However, there is, as noted in Kesterson, a long line of precedent in
4
Kesterson was also a medical malpractice case where a child suffered
neurological injuries allegedly caused by oxygen deprivation shortly before birth. Our
Supreme Court ruled that the exclusion was improper under the facts of that case,
holding that in light of a party’s fundamental and state constitutional right to be
present during their trial, the trial court should have used other, less drastic means to
ensure a fair trial.
6
Georgia affirming a civil litigant’s right to be present at their trial. See, e.g., St. Paul
Fire & Marine, Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786, 789 (39 SE 483)
(1901) (it is “manifestly erroneous” for a party to the “issue” to be excluded from the
courtroom); Mays v. Tharpe & Brooks, 143 Ga. App. 815, 816 (240 SE2d 159) (1977)
(“A substantial right of a party to litigation is to be present at the trial and render
assistance to his counsel as the developments unfold”); Walden v. MARTA, 161 Ga.
App. 725, 726 (288 SE2d 671) (1982) (in sequestering of witnesses, plaintiff should
be given the option of testifying first so that plaintiff can be present during the trial).
Although a party’s right to be present is firmly established in both our civil and
criminal jurisprudence, there appears to be a dearth of authority addressing the right
of a civil litigant to be present when the trial judge engages in communications with
the jury. However, our appellate courts have addressed this issue numerous times in
criminal cases and, as have the parties, we turn to those cases for guidance.5
5
We do so with caution, recognizing that there are other constitutional rights,
such as those guaranteed to criminal defendants by the Sixth Amendment, which are
not implicated in civil cases. E.g., Lowery v. State, 282 Ga. 68, 73 (4) (b) (646 SE2d
67) (2007) (analyzing both a right to be present claim and an ineffective assistance
of counsel claim arising out of the trial judge’s failure to inform or consult the
defendant or his counsel prior to responding to the jury’s inquiry).
7
As our Supreme Court explained in Hanifa v. State, 269 Ga. 797, 807 (6) (505
SE2d 731) (1998), “[w]ithin the Georgia constitutional right to the courts is a criminal
defendant’s ‘right to be present, and see and hear, all the proceedings which are had
against him on the trial before the Court.’ A colloquy between the trial judge and the
jury is a part of the proceedings to which the defendant and counsel are entitled to be
present.” (Citations and punctuation omitted; emphasis in original.) Id. at 807 (6). See
also Cox v. Yates, 96 Ga. App. 466 (100 SE2d 649) (1957) (generally, parties to civil
action have the right to be present at all stages of the trial).
Unquestionably the trial judge should not in any manner
communicate with the jury about the case, in the absence of the accused
and his counsel, pending the trial; and the better practice is for the judge
to have no communication with the jury on any subject except through
the medium of the sworn bailiff in charge of the jury; and the
communication should be restricted, in the absence of the accused and
his counsel, to matters relating to the comfort and convenience of the
jury. There should be no communication which would tend in any
manner to prejudice the accused . . . ; and unless the character of the
communication clearly shows that it could not have been prejudicial to
the accused, the presumption of law would be that it was prejudicial.
8
Hanifa, 269 at 807 (6). Lowery v. State, 282 Ga. 68, 73 (4) (b) (646 SE2d 67) (2007)
(“[a] trial court’s communication with a jury on substantive matters is a part of the
proceedings to which the defendant and counsel are entitled to be present.”).
Further, and pertinent to this case, our appellate courts have specifically
considered judge/jury communications concerning a jury’s ability, or inability, to
reach a verdict, and routinely held that it is error for a trial judge to respond to such
an inquiry in the absence of the defendant and/or his counsel. E.g., Lowery v. State,
282 Ga. at 74 (4) (b) (i); Wells v. State, 297 Ga. App. 153, 159-160 (2) (676 SE2d
821) (2009); Barnett v. State, 276 Ga. App. 238, 241-242 (2) (623 SE2d 136) (2005).
But see Stewart v. State, 165 Ga. App. 428, 429-430 (2) (300 SE2d 331) (1983) (trial
court’s response of “keep on trying” to deadlocked jurors “not so material to
appellant’s case as to require her presence and that of her counsel.”).
Defendants, while certainly not suggesting that ex parte communications
between a trial judge and a jury are permissible even in a civil trial, urge that the
stringent requirements applicable to criminal cases should be reserved for those civil
cases such as Kesterson where a fundamental right has been totally or substantially
denied. But we find that the right to be present has been totally denied here. Although
certainly the duration of the exclusion was not as long as Kesterson, the violation here
9
was in at least one way more absolute – unlike in Kesterson, where the plaintiff had
her attorneys representing her during trial, Plaintiffs here were wholly without any
representation during the trial court’s communication with the jury. Accordingly, we
see no reason for the rule to be different in civil cases, and find that, as a general
proposition and broadly stated, a trial judge should not answer a question from the
jury in a civil case about their ability to reach a verdict unless the parties and/or their
counsel are present as well.
(c) The question then, and the one presented squarely by this case, is whether
the absolute failure to have counsel or the parties present for this type of
communication with the jury requires reversal or whether we should further consider
whether the error harmed the party seeking relief.6
The harmless error rule applicable to civil cases is codified in OCGA § 9-11-
61:
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying, or otherwise
6
We are aware that the Defendants and their counsel were also unaware of the
communication. We thus make clear that our analysis would be the same if they,
instead of the Plaintiffs, had suffered an adverse verdict.
10
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.
Under this section, Plaintiffs normally would not be entitled to a new trial
unless they could show “material harm” from the trial court’s actions. Ford Motor Co.
v. Conley, 294 Ga. 530 (757 SE2d 20) (2014). However, as also stated in Conley,
harm may nevertheless be presumed under certain circumstances, such as when a
fundamental right has been denied and the error cannot be cured after the verdict.7 We
see no reason why denial of a fundamental and constitutional right such as the right
to be present – in person or by counsel – should not also be one of those rare
circumstances where prejudice might be presumed. See Ga. Const. of 1983, Art. I,
Sec. I, Par. XII; see also St. Paul Fire & Marine Ins., 113 Ga. at 789 (it was
“manifestly erroneous” to exclude the party from the courtroom).
Although the Court in Kesterson did not use the terms “presumed harm” or
“presumed prejudice” in its analysis of the right to be present violation in that case,
7
In Conley, appellants asserted a denial of their right to a fair and impartial jury
when the jury was not qualified as to insurance carriers with a financial interest in the
case. 294 Ga. at 549 (3) (b).
11
it also did not appear to require a showing of specific harm.8 Rather, the Court
distinguished its prior decision in Willingham v. Willingham, 192 Ga. 405 (15 SE2d
514) (1941), in which a harmless error test was applied, by stating that unlike in
Willingham, the Court in Kesterson, “‘can see how’ the trial court’s decision [to
exclude the plaintiff] ‘could possibly have operated to the injury’ of Appellants.”
Kesterson, 291 Ga. at 389. Further, the Court limited the holding in Willingham,
which involved a bench trial in a custody case where the parents, but not their
attorneys, were excluded while the children were questioned, to the circumstances
presented there, stating it should not be viewed “as precedent for excluding a party
from a typical civil trial.” Id.In short, we glean nothing from Kesterson that requires us to apply a harmless
error analysis to a right to be present violation such as the one that occurred in this
case.
Moreover, as stated above, in our criminal law jurisprudence, our appellate
courts have “consistently ruled that the denial of the right to be present guaranteed
by the Georgia Constitution is not subject to harmless error review on direct appeal.
8
The Court did note, however, the presumptively prejudicial standard
applicable to criminal cases. Kesterson, 291 Ga. at 386.
12
Instead, a violation is presumed to be prejudicial. Thus, absent a valid waiver,
violation of the right to be present triggers reversal and remand for a new trial
whenever the issue is properly raised on direct appeal.” (Citation omitted.) Ward v.
State, 288 Ga. 641, 646-647 (4) (706 SE2d 430) (2011). As we have explained, “[t]he
accused and his counsel have the right to be present at every stage of the proceedings
and personally see and know what is being done in the case. To say that no injury
results when it appears that what occurred in their absence was regular and legal
would, in effect, practically do away with this great and important right, one element
of which is to see to it that what does take place is in accord with law and good
practice.” (Citations and punctuation omitted.) Goodroe v. State, 224 Ga. App. 378,
380 (1) (480 SE2d 378) (1997). See Kesterson, 291 Ga. at 385 (“under Georgia law
the right to be present for all critical stages of criminal proceedings has been deemed
so fundamental that a violation properly raised on direct appeal from a conviction is
presumed to be prejudicial, requiring a new trial.”) (emphasis supplied); Smith v.
State, 284 Ga. 599, 609 (4) (669 SE2d 98) (2008) (harmless error applicable to
federal claim of right to be present but “denial of the right to be present guaranteed
by the Georgia Constitution is not subject to harmless error review on direct appeal”);
Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005) (reversal required
13
when defendant not present when juror released); Pennie v. State, 271 Ga. 419, 422
(520 SE2d 448) (1999) (new trial required when defendant was involuntarily absent
during colloquy between trial judge and juror); Wells, 297 Ga. App. at 160 (2) (ex
parte communication between trial judge and jury presumptively prejudicial,
mandating a new trial); Vaughn v. State, 281 Ga. App. 475, 478-479 (636 SE2d 163)
(2006) (same); cf. Logan v. State, 266 Ga. 566 (468 SE2d 755) (1996) (reversal not
required where communication was a hypothetical inquiry by one juror which did not
occur during deliberations and the trial court did not provide any specific instruction
in response to the inquiry). But see Stewart, 165 Ga. App. at 430-431 (2) (pre-Lowery
case affirming denial of motion for new trial based on finding that subject
communication was not prejudicial to the appellant).
(d) Defendants argue that, in any event, the error that occurred here would not
be reversible even against a criminal defendant because the character of the
communication shows that it could not have been prejudicial to Plaintiffs, and that
our appellate courts have in fact applied the harmless error rule even in criminal cases
involving a violation of the right to be present. E.g., Barnett, 276 Ga. App. at 241 (2).
But a critical difference exists between many of the cases in which our
appellate courts have deemed a right to be present violation harmless or waived and
14
the case at hand, which is that those communications were in fact disclosed to the
defendant and/or his attorney prior to the time the jury returned its verdict. Depending
on the time of this disclosure, this afforded the defendant or his counsel the
opportunity to have input concerning the court’s response, request that the court
query the jury about the potential deadlock, object, move for a mistrial, or at a
minimum, and importantly here, preserve a record of the communication. And if the
defendant or his attorney was told of the communication prior to the return of the
verdict and they failed to act, a waiver of the right to be present violation would
occur. E.g., Lowery, 282 Ga. at 74 (4) (b) (i) (no violation of the right to be present
when appellant and his counsel present for court’s response); Hanifa, 269 Ga. at 808(6) (“we endorse the . . . holding that a defendant waives appellate review of an
allegedly improper judge/jury communication when, prior to verdict, defendant is
aware of the communication and fails to voice an objection.”); Coleman v. State, 317
Ga. App. 409 (731 SE2d 94) (2012) (counsel for appellant present and conferred on
court’s response, and appellant informed of the communication prior to the verdict
but did not object); Daniel v. State, 292 Ga. App. 560, 561(1) (665 SE2d 696) (2008)
(appellant waived right to assert error when he failed to object or seek to perfect the
record after he was made aware of communication prior to the entry of the verdict);
15
Barnett, 276 Ga. App. at 240-241 (2) (trial court read the jury’s question and court’s
response to appellant’s attorney before the jury’s verdict was published, and the
attorney moved for a mistrial);9 see also Kesterson, 291 Ga. at 385 (2) (b) (party can
waive right to be present or acquiesce in counsel’s waiver of his/her right).
(e) Perhaps partly in response to the frequency with which right to be present
claims stemming from ex parte communications between trial judges and juries arise
in criminal cases, our Supreme Court in Lowery set out a procedure
to require trial courts to have jurors’ communications submitted to the
court in writing; to mark the written communication as a court exhibit
in the presence of counsel; to afford counsel a full opportunity to
suggest an appropriate response; and to make counsel aware of the
substance of the trial court’s intended response in order that counsel may
seek whatever modifications counsel deems appropriate before the jury
is exposed to the instruction.
Lowery, 282 Ga. at 76 (4) (b) (ii). Although the Supreme Court in Lowery did not
specifically state that this procedure applies to civil as well as criminal trials, it also
9
We also do not believe that Burtts v. State, 269 Ga. 402, 403 (3) (499 SE2d
326) (1998) and Reid v. State, 319 Ga. App. 782, 784 (2) (738 SE2d 624) (2013) are
necessarily controlling here because both of those cases involved a question from the
jury asking to rehear evidence and did not touch on the ability of the jury to render
a verdict.
16
did not specifically limit its application to criminal cases.10 And if the trial judge had
followed the procedure in Lowery11 for preserving the communication and making it
10
It is noteworthy, however, that the court in Lowery declined to reverse the
appellant’s conviction based on a denial of the right to be present, reasoning that
appellant and his counsel were present for the trial court’s response to the jury’s
question, and that appellant did not have the right to be present when his counsel and
the trial court discussed the court’s response to the jury’s question. Lowery, 282 Ga.
at 74 (4) (b) (i). But the Court went on to find that assuming the right to counsel
includes the “right to have reasonable notice of a deliberating jury’s substantive
communication and a meaningful opportunity to be heard” in response thereto,
defendant’s Sixth Amendment right to counsel had been violated because counsel
was not in fact informed of the contents of the note or allowed to have input prior to
the trial court’s response. Id. at 74 (4) (b) (ii). Thus, we cannot ignore that the Court
announced the procedure for handling judge/jury communications under the division
analyzing appellant’s ineffective assistance of counsel claim, and that the procedure
requires, among other things, that the trial judge inform counsel, not the party, about
the contents of the note and seek counsel’s response before responding. But we stress
that we are by no means holding here that the procedure set out in Lowery applies to
civil litigants, who do not enjoy the same Sixth Amendment protections as criminal
defendants. However, as set forth in more detail below, the wisdom of requiring civil
trial courts to adhere to the Lowery mandate is aptly illustrated by this case, where
neither the parties nor their attorneys were informed of the communication at any time
during trial.
11
We note that Lowery did not state that a failure to follow that procedure
constituted per se reversible error, and in the post-Lowery cases of Grant v. State, 295
Ga. 126 (___ SE2d ___) (2014) and Humphreys v. State, 287 Ga. 63 (694 SE2d 316)
(2010), the Supreme Court declined to reverse when the contents of the
communication had been placed on the record but the mandates of Lowery had not
been exactly followed. Thus, those cases do not involve the circumstance present here
when there has been a complete failure to preserve the communication.
17
a part of the record for our review,12 there would be no doubt about when the jury
made its inquiry and the exact nature of their question to the trial court. If at that time
uncertainty had been revealed about the nature of the inquiry, as there now appears
to be, that uncertainty could have been resolved when the jury remained convened
and the parties and their counsel were present to perfect the record as needed. But the
trial court did not follow Lowery, or take any steps on its own to preserve the
communication, and this Court has been left with differing, although we are certain,
good faith, recollections both as to the timing of the communication and what it
meant, recollections which no doubt have been eroded by time and intervening
events. See Lindsey v. State, 277 Ga. App. 18, 21 (625 SE2d 431) (2005).
12
Although we have no doubt the trial judge proceeded in good faith in
entering an order supplementing the record pursuant to OCGA § 5-6-41 (d), that
section does not precisely fit the circumstances here where there is an apparent
disagreement between the recollections of the jury and the trial judge about a
communication that occurred between them. Moreover, although OCGA § 5-6-41 (g)
provides that the decision of the trial judge shall be final on a transcript prepared from
recollection if the parties cannot agree, there is no similar mechanism for resolving
an apparent conflict between the recollections of a trial judge and members of the
jury. Further, it appears that the trial judge prepared the OCGA § 5-6-41 (d) order
without input from the parties, and that the judge assigned after recusal did not
resolve these apparent discrepancies in deciding the motion for new trial, finding
instead that they were immaterial and irrelevant to his analysis.
18
These differences are not unimportant to any analysis which we might attempt
to decide whether the communication at issue was coercive or misleading. As the
Supreme Court explained in Hanifa, “[t]he contents of the communication are
necessary to determine whether the trial court’s erroneous communication with the
jury constitutes harmful or harmless error.” 269 Ga. at 808 (6). Further, as stated more
recently by that Court in Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012),
“[c]ontextual factors, like timing, may play a role in determining coerciveness where
there is a possibility that the charge could be coercive.”
A similar circumstance was presented in Lindsey, and although not
controlling,13 we find our opinion in that case to be instructive. In that case, the judge,
acting through the bailiff, responded to a question from the jury sent out during their
deliberations concerning whether their verdict had to be unanimous. Although trial
counsel was informed of the communication after it occurred, counsel did not request,
and the trial court did not of its own accord, make a record of the communication.
Thus, we explained,
13
Once again, the analysis in that case was in the context of an ineffective
assistance claim, this time for the failure of trial counsel to object to the “process” by
which the judge responded to the jury inquiry and because trial counsel did not have
a record made of the communication.
19
[t]he communication involved in this case was not restricted to matters
concerning the jury’s “comfort and convenience.” Instead, the
information concerning the unanimity requirement could well be
considered a supplemental charge, which should have been given in
open court in [appellant’s] presence. If trial counsel had objected to the
procedure used to answer the jury’s question, or if some record had been
made of the jury’s question and the trial court’s response had been made
in open court with all the parties present, vague recollections recorded
weeks after trial would not be an issue. Given the legal nature of the
question posed by the jury, the responsibility of trial judges and bailiffs
to avoid improper communication with juries, and the state of the record
in this case, we are unable to conclude that the communication here
“could not have been prejudicial to” [the appellant].
(Citations omitted.) 277 Ga. App. at 21-22.
In the case at hand, Plaintiffs’ counsel did attempt to perfect the record by
taking immediate steps to have the communication made a part of the record as soon
as he learned of it, but was unable to secure the actual communication despite his
diligent efforts. Thus, this case presents one of those rare circumstances where the
party who asserts they have been aggrieved has been effectively precluded from
demonstrating harm. Such an inability of a party to prove they were harmed by an ex
parte judge/jury communication obviously “affect[s] substantial rights.” OCGA § 9-
20
11-61. Cf. Stewart, 165 Ga. App. at 429 (2) (content and timing of communication
did not appear to be at issue).
(f) Similarly, and as was the situation in Conley, there is yet an additional
reason why we believe that error must be presumed here, involving yet “another
longstanding Georgia rule – the prohibition against jurors impeaching their verdict
. . . .” Conley, 294 Ga. at 550 (4) (b). See also OCGA § 24-6-606.14 Under that rule,
it is arguable that the jurors would be precluded from even disclosing the fact and
14
The motion for new trial hearing was held shortly after the effective date of
Georgia’s new Evidence Code, and OCGA § 24-6-606 applies to our analysis here.
Section 24-6-606 (b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror shall
not testify by affidavit or otherwise nor shall a juror’s statements be
received in evidence as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon the
jury deliberations or any other juror’s mind or emotions as influencing
the juror to assent to or dissent from the verdict or indictment
concerning the juror’s mental processes in connection therewith;
provided, however, that a juror may testify on the question of whether
extraneous prejudicial information was improperly brought to the juror’s
attention, whether any outside influence was improperly brought to bear
upon any juror, or whether there was a mistake in entering the verdict
onto the verdict form.
21
contents of the communication to the court, its timing, the court’s response, and the
effect that such communication had on the deliberations. We need not decide the
parameters of the rule against jurors impeaching their verdict here. But this
demonstrates the extreme difficulty, if not impossibility, of a party to show harm
when there is an absolute failure to preserve the communication or notify the parties
and/or their counsel about it prior to the receipt of the verdict. Thus, as in Kesterson,
we “can see how” this failure could affect the substantial rights of Plaintiffs to a fair
trial.
Moreover, as the trial court noted in denying the motion for new trial, the
evidence in this case was “close” and would have supported a verdict for either the
Plaintiffs or the Defendants. Thus, this is not a situation where we can say that even
a misleading or coercive communication could not have affected the outcome of the
proceedings because a verdict was only authorized for the Defendants.
Accordingly, we must view these unique circumstances together – (1) that the
communication was not disclosed to the Plaintiffs or their counsel until after the
verdict; (2) the note and response were not made a part of the record at the time it was
made or thereafter; (3) the differing recollections about the nature and timing of the
communication; (4) the fact that those differences were never resolved in the trial
22
court by the judge who decided the motion for new trial; (5) the inability of the
Plaintiffs to show what effect the communication had on the jury’s verdict; and (6)
our inability to say that a verdict would have been demanded for the Defendants
regardless of the effect of the communication on the jury. Thus, based on the
foregoing considerations and under the particular circumstances of this case, we find
that Plaintiffs are entitled to a new trial.
2. Plaintiffs also argue that the trial court erred in refusing to give its requested
charge on spoliation of evidence. Because this error will likely occur upon re-trial,
we will also consider the trial court’s ruling on this issue.
The record shows that Plaintiffs requested that the following charge be given
to the jury: “Defendant Henry Medical Center destroyed the printed paper copy of the
fetal heart rate tracing sometime after the delivery of Lee V. Phillips, IV. At the time
Defendant Henry Medical Center destroyed the printer paper copy of the fetal heart
rate tracing, Defendant Henry Medical Center was aware of the potential for
litigation. The Plaintiffs are entitled to a presumption that the printed paper copy of
the fetal heart rate tracing, which contained the handwritten notes that [nurse] Kim
23
Jones made during the labor at issue in this case,15 would have been prejudicial to
Defendant Henry Medical Center. The presumption may be rebutted by Defendant
Henry Medical Center.”
The trial court declined to give the charge, finding that Defendants had no
knowledge or notice of potential litigation,”16 but allowed the parties to present
evidence and argument concerning the notes made on the fetal monitor paper strip,
the use of the strip in creating the official medical record, and the destruction of the
strip.
“[S]poliation refers to the destruction or failure to preserve evidence that is
necessary to contemplated or pending litigation.” (Citation and punctuation omitted.)
Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009).17
15
Plaintiffs’ basic contention is that the nurse would have noted what time
CNM Harmon arrived in the delivery room in response to an emergency page issued
after the fetal monitoring indicated that Phillips was experiencing sustained periods
of bradycardia. Harmon’s response time was critical to Plaintiffs’ claim that
Defendants failed to adhere to the appropriate standard of care.
16
Although the trial court initially reserved ruling on the issue, it later denied
the request to charge, and Plaintiffs objected to the failure to give the charge.
17
“Potential sanctions to remedy the prejudice resulting from the spoliation of
evidence include (1) a jury charge that spoliation of evidence creates the rebuttable
presumption that the evidence would have been harmful to the spoliator; (2) dismissal
of the case; or (3) the exclusion of testimony about the evidence.” Kelley v. Blue Line
24
“The trial court has wide discretion in resolving spoliation issues, and
we will not disturb its ruling absent abuse. A spoliation claim cannot be
pursued unless the spoliating party was under a duty to preserve
evidence. And our appellate courts have time and time again emphasized
that to meet the standard for proving spoliation, the injured party must
show that the alleged tortfeasor was put on notice that the party was
contemplating litigation. The simple fact that someone is injured . . .,
without more, is not notice that the injured party is contemplating
litigation sufficient to automatically trigger the rules of spoliation. In
other words, notice of potential liability is not the same as notice of
potential litigation.
(Citations and punctuation omitted; emphasis in original.) Whitfield v. Tequila
Mexican Restaurant No. 1, Inc., 323 Ga. App. 801, 807 (6) (748 SE2d 281) (2013).
See also Clayton County v. Austin-Powell, 321 Ga. App. 12, 17 (740 SE2d 831)
(2013).
The following facts are relevant to the spoliation issue. At the time Phillips was
delivered, the official medical records at Henry Medical were maintained in electronic
form. Although the fetal monitor strips were not considered part of the official record,
the nurses often took notes on the strips during the labor and delivery and would then
refer back to the strips to complete the official record. Henry Medical maintained the
Carriers, LLC., 300 Ga. App. 577, 579 (1) (685 SE2d 479) 2009).
25
strips for 30 days after a delivery, and then they were routinely destroyed. It is
undisputed that the strips in this case were destroyed pursuant to this procedure.
It is likewise undisputed that at the time the paper tracings were destroyed,
Henry Medical had not received any letters, calls, pleadings, or inquiries of any
nature from the Plaintiffs that might have alerted Henry Medical that Plaintiffs were
contemplating litigation. Accordingly, the trial court refused to give Plaintiffs’
spoliation charge in this case because Defendants did not have notice of pending or
contemplated litigation at the time the paper copy of the fetal heart rate tracing was
destroyed.
Plaintiffs argue, however, that the trial court erred in refusing to give its
requested charge because Henry Medical’s actions after Phillips’ birth showed that
it was contemplating litigation at the time it destroyed the records. In support of this
contention, Plaintiffs point to the fact that Henry Medical triggered its Sentinel
Events/Medical Errors/Disclosures policies and procedures (“Sentinel Events
Policies”) immediately after Phillips’ birth and that, pursuant to those policies, it
began an internal investigation and then notified its insurance carrier and contacted
counsel a short time later. Plaintiffs argue that once the Sentinel Events Policies were
triggered, Henry Medical was required to “obtain and/or preserve evidence, as
26
appropriate (for example, photographs, equipment, supplies, etc.)” and to protect
“[t]he medical record and other potential evidence . . . as needed in anticipation of
possible litigation.” Further, Plaintiffs argue that they presented evidence that risk
management would “sometimes” request that the fetal monitor strips be preserved,
although they were not requested here.
This Court has previously held that launching an internal investigation and
taking certain steps pursuant to company policies do not, without more, equate to
notice that litigation is contemplated or pending. Powers v. Southern Family Markets
of Eastman, LLC, 320 Ga. App. 478, 479-480 (1) (740 SE2d 214) (2013). That is
because “contemplation of potential liability is not notice of potential litigation.”
Kitchens v. Brusman, 303 Ga. App. 703, 707 (1) (a) (694 SE2d 667) (2010) (notice
of contemplated litigation when plaintiffs’ attorney had contacted defendants about
viewing slides). See Austin-Powell, 321 Ga. App. at 17 (2). Watts & Colwell Builders,
Inc. v. Martin, 313 Ga. App. 1, 5 (1) (720 SE2d 329) (2011) (completion of accident
report does not demonstrate contemplated litigation); cf. The Kroger Co. v. Walters,
319 Ga. App. 52 (735 SE2d 99) (2012) (manager aware of potential litigation after
potential plaintiff came back to the store and informed the manager he was going to
the doctor); Wal-Mart Stores v. Lee, 290 Ga. App. 541, 544 (2) (659 SE2d 905)
27
(2008) (notice provided by letter from plaintiff’s attorney attempting to settle and
avoid litigation).
Moreover, we do not believe that Baxley v. Hakiel Indus., Inc., 282 Ga. 312(647 SE2d 29) (2007) mandates a finding of spoliation here. In Baxley, our Supreme
Court found proof of spoliation, after the bar manager questioned the bar staff about
what they served a customer who had been involved in an accident when she left the
bar, and then failed to preserve a recording that might have provided critical evidence
concerning the manner in which the customer left the bar. Although defendant’s
knowledge of potential or contemplated litigation was not directly spelled out in
Baxley, our Supreme Court later explained Baxley, making it clear “the phrase
‘potential for litigation’ from Baxley refers to litigation that is actually ‘contemplated
or pending,’ and nothing more.” (Emphasis supplied.) Silman, 286 Ga. at 2.
Further, even if Henry Medical’s Sentinel Events Policies required it to
preserve the official medical records, it is undisputed here that the paper monitoring
strips were not considered part of the official electronic medical records at the time
Phillips was born. And even if there had been directives issued to preserve the paper
strips in prior incidents, there is absolutely no evidence that such a request had been
made in this case.
28
Accordingly, Henry Medical did not have notice of pending or contemplated
litigation at the time the paper monitor strips were destroyed, and the trial court did
not abuse its discretion in refusing to give Plaintiffs’ requested charge on spoliation
of evidence.
3. It is unnecessary, however, for us to consider Plaintiffs’ contention that
Defendants improperly admitted evidence of collateral source benefits in violation of
a motion in limine. The alleged benefits at issue are certain educational services and
resources that must be provided under federal law to children with disabilities, and
evidence of these benefits was elicited by Defendants during cross-examination of
Phillips’ life care planner. Plaintiffs did not object to this evidence at the time it was
introduced, and argue for the first time on appeal that it was not required to object to
this testimony at trial because these services and resources were “benefits” from a
collateral source that already had been ruled inadmissible pursuant to the grant of its
motion in limine.18
18
Plaintiffs sought to exclude “[a]ny reference or suggestion that Plaintiffs
have received, have been entitled to receive, will receive, or will become entitled to
receive, benefits of any kind or character from a collateral source[.]” Defendants
agreed that evidence of collateral source benefits should be excluded.
29
The issue of whether the services and resources at issue here constitute
“benefits” from a collateral source as that term is used in this state is one of first
impression, and the issue of the admissibility of this specific evidence was not raised
or ruled upon below. Clearly, however, neither Plaintiffs nor Defendants will allow
this case to be retried without bringing this issue to the attention of the trial court,
who will then have the opportunity to rule on this evidentiary issue in the first
instance.
Judgment reversed. Ellington, P. J., concurs. Phipps, C. J., concurs in
Divisions 1 and 3 and in judgment only as to Division 2.
30