Litigants in Kentucky state courts now have new guidance on dealing with spoliation of evidence. Kentucky appellate courts have produced few decisions on the issue of spoliation or destruction of evidence with almost none in the civil context (most involve prosecutorial destruction of evidence). However, with the exponentially increasing digitalization of document storage, the proliferation of emails, and the age of electronic discovery, spoliation of evidence is become a more common issue in civil litigation. The federal courts have markedly addressed these emerging issues over past several years and have made great strides in developing a framework for handling electronic discovery and spoliation disputes. Kentucky’s jurisprudence in this area remains less developed.
Nevertheless, the Kentucky Supreme Court recently handed down a decision that, should it become final, advances the Commonwealth’s law on spoliation. The case, Univ. Med. Center Inc. v. Beglin, — S.W.3d —-, 2011 WL 5248303 (Ky. 2011), involved a medical negligence action by the estate of the deceased plaintiff against University of Louisville Hospital and two physicians. In short, the plaintiff suffered unexpected and substantial blood loss during surgery followed by an unreasonable delay in obtaining blood from the hospital blood bank. The plaintiff sustained an anoxic brain injury as a result, which left her in a permanent vegetative state.
The jury exculpated the physicians but found that the hospital, through its employees, acted with gross negligence. The jury awarded a $9 million verdict The Supreme Court ultimately vacated the $3,750,000 in punitive damages and affirmed the remainder of the verdict. One of the hospital’s primary arguments on appeal asserted that the trial court erred in giving a “missing evidence” instruction to the jury because there was allegedly no evidence to show that it had “intentionally and in bad faith lost or destroyed” the document (an incident report filed by the surgical nurse). The hospital argued that the instruction improperly influenced the verdict by insinuating a cover-up.
The instruction essentially allows a jury to infer that missing evidence would be adverse to a party if the jury finds that the party had intentionally and in bad faith lost or destroyed that evidence. Under the developed federal framework, a missing evidence instruction such as this constitutes the least harsh of several potential remedies/sanctions for spoliation. Other, harsher federal sanctions for spoliation include tougher jury instructions, fines, issue preclusion, default judgment, and dismissal. In federal court, the sanction for spoliation depends on the culpability of the party, which ranges from negligence, gross negligence, and recklessness to willful misconduct.
The Supreme Court in Beglin discussed the evidentiary standard for obtaining the missing evidence instruction but did not address the harsher penalties available in federal court. Specifically, the hospital in Beglin argued that its conduct did not warrant the instruction because the plaintiff did not show that the loss of evidence was due to anything worse than negligence (notably, in federal court negligence alone could warrant the instruction). The hospital stated that the disappearance of the missing incident report was unexplained.
The Supreme Court rejected the hospital’s argument, stating that, because the hospital had “absolute care, custody, and control over the evidence,” the trial court did not err in giving the instruction. The inexplicable disappearance of an important document that would normally be expected to be retained may be circumstantial evidence of misconduct. Using an abuse of discretion standard, the Supreme Court went on to state that the trial court was entitled to employ normal inferences and suppositions in determining whether to give the instruction.
In sum, the Beglin case provides a good starting point for what will hopefully be Kentucky’s development of a modern framework for handling spoliation. This development still has quite a distance to go. When compared to the array of federal remedies and sanctions for spoliation and the rationale for levying them, Kentucky’s current system is far less strict (see the dissent in Beglin) and less tailored to the specific culpability of the litigant. We should expect to see this area of the law continue to develop.
NOTE: The opinion should not be cited as authority until it becomes final and is published.
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