(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
DEFENDANTS’ DESTRUCTION OF CRUCIAL RECORDS OR PREVARICATION ABOUT FACTS MAY SUPPORT EVIDENTIARY SANCTIONS OR AN INFERENCE OF LIABILITY
Universal’s failure to produce legible copies of the fetal monitor strips is the equivalent of a failure to produce evidence and will support an evidentiary sanction so that the defendant cannot benefit from loss of the evidence. Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877, 885, 217 Cal.Rptr. 602 (even unintentional loss of evidence justifies evidentiary sanctions sufficient to cure any advantage that party might gain over opponent); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 739, 149 Cal.Rptr. 499; Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305, 10 Cal.Rptr. 377; Newland v. Superior Court (1997) 40 Cal.App.4th 608, 47 Cal.Rptr.2d 24.
Such orders may put the requesting party in the position it would have been in had the requested discovery been entirely favorable (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 227, 240 Cal.Rptr. 489, excluding all evidence of economic loss as sanction for failure to produce financial documents), or preclude any evidence which might have been impeached by the destroyed matter. People v. Michael L. (1984) 151 Cal.App.3d 1052, 199 Cal.Rptr. 207.
A jury may find that the hospital’s records or Dr. X.’s account of the birthing procedure are so far from the actual facts as to constitute willful misrepresentation, or that they willfully falsified the medical records so as to conceal what really happened. A false exculpatory statement can be evidence of consciousness of liability, and evidence that a party falsely denied knowledge of a fact permits the jury to infer that he or she had guilty knowledge. Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1841, 41 Cal.Rptr.2d 192; Evidence Code §413; Biondi v. Amship Corp., supra, 81 Cal.App.2d 751.
On summary judgment plaintiffs are entitled to have all evidentiary inferences drawn in their favor. C.C.P. §437c(c); Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 185, 163 Cal.Rptr. 912. The issue of responsibility for, and prejudice from, the loss of evidence is preliminary to any consideration of the evidence on summary judgment. Vineyard Springs Estates LLC v. Superior Court (2004) 120 Cal.App.4th 633, 15 Cal.Rptr.3d 587.
THE MOTION SHOULD ALSO BE DENIED BECAUSE DISCOVERY IS INCOMPLETE
Plaintiff has not yet deposed nursing personnel from the delivery room who may confirm the discrepancy between the medical records and actual events, or disclose other evidence of negligence. Accordingly, if the court does not deny this motion outright, it should be continued for completion of discovery. See Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 555-556, 229 Cal.Rptr. 209, holding that the provision in C.C.P. §437c that the court shall deny the motion or order a continuance for discovery where it appears there may be additional evidence is mandatory.
For the forgoing reasons, the motion should be denied, or leave to complete additional discovery be granted if the Court perceives any deficiency in the present state of the evidence.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.