1 “CNM” refers to a certif ied nurse midwife. FIRST DIVISION PHIPPS , C. J., ELLINGTON, P. J., and MCMILLIA N, J.
N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 15, 2014



## In the Court of Appeals of Georgia
A14A0188. LE E V. PHILLIPS, IV BY NEXT FRIEND SANTHONIA HECTOR v. HARMON et al. M C M ILL IAN , Judge. Lee V. Phillips , IV, by and t hrough his mothe r Santhoni a Hector , and He ctor ind ivi dua lly, (collect

ively “ Plaintiff s”) file d this medical malpr actice a ction against Marci a R. Harmon, CN

M, 1 Deborah E. Haynes, M.D., Eagles Landing OB-GYN Associat es, P.C., Eagles Landi ng OB-GYN Associates II, LLC, and Henry Medical Center, Inc. (c ollectiv ely “Defendants”), alleging that, due to Defendants’ negligence, Phillips suffere d oxygen

deprivati on shortly

before birth , w hich resulted in severe, perm anent

neurological injuries, including spastic quadri plegia, blindness, and an inabili ty to speak.2

The case ultim ately

proceede d to a jur

y trial, which

comm enced on A

ugust 20, 2012 and, foll owing appr oxima tely on e and a

half d ays of deliberations, the jury returned averdict f

or the De fendants on

Septem ber 6, 2012 . Plainti ffs file d amotion for new trial asserting, among other things, that the trial court er

red by engaging in
a comm unication w it h the j ury when neither the parties nor their attorney s were present, and by r

efusing to give Plainti ffs’ r equested c harge on spo liation of e vidence. The trial cour

t denied the ir mo tion, and P laintiffs fil ed th is appeal, raising the additional claim

that the D efendants imprope rly introduced evidence of collateral
source benefits. We a g ree wit h Plaintif fs that the y we re entitl ed to a new trial and
reverse. 1. We first consider Plaintiffs’ contention that they are entitled to a new trial bec ause the tr ial court r

esponded to a

note from

the jury during the c ourse of th eir delibe ration s without ev er advisin g the parti es or their counsel tha

t the communication had taken plac e. (a) As to this issue, the record shows that several weeks after the jury returned its verdict, two jur

ors contac ted Plaint

iffs’ counsel to e xpress concernsabout possible2 The two jurors w ere conc erned tha t another j uror m ay hav e been sen ding and receivin g text

messages while the y we re delibe rating. P laintiffs originally raised thi s as an issue in their m otion for new trial but ha ve not asse rted any

claim of error arising fr om this juror’s all eged miscondu ct on appe al.

3 That sec tion provide s: Where a trial in any c ivil or cr iminal case is r

eported by

a court reporter, all motion s, colloqui es, obj ections, rulings, evidence, whether admitted 3 juror misc onduct. 2 During tha t conversa

tion, Plaintiffs’ counsel le arned for the first ti me that the trial

judge had

responded to anote from the jury without ev er disclos ing the c ontents of t

he note or h is response to either the partie s or their couns el
. Thereafter, Plaintif

fs’ cou nsel obtaine d affidav its from the two j urors, bot

h of whom averred that, on the second day of deliberations, the jury sent a note to the trial judge “indic ating tha t [t hey] were not able to reach a unanimous verdict .” Acc ording to the jurors, the judge

sent a note

back, w

hich instruc ted the j ury to “cont i n ue deliberating.” After learning of the comm

unication, Plaintiffs’ counsel sent a letter to the trial judge requestin g that he “ take st eps to see that bo th the jur ors’ not e . . . and [his] responsive

note are filed with the Clerk.” After real izing that t he court reporter d

id not have the no te, the t

rial jud ge, with out seeking input fro m counsel or holding a hearing, entered

an order supplementing the record pursuant to OCGA § 5-6-41 (d). 3or

stricken o n objecti on or oth erwise, c opies or sum mari es of all documentary

evidence , the cha

rge 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 repor t is transcribed, all such matters shall be included in the written transcri pt, it bein g the intention of this articlethat all matters appear in the record. Where m atters occur which are not report ed, such a s objections to oral ar gument , mi sconduct of

the jury, or other like instances, the court, upon motion of either part y, shall require that a tra

nscript of these matters be

made and included as part of the reco rd. The tra

nscript of

proceedings shall not b e reduce d to narrativ e form

unless by agreem ent of counsel; but, where the trial is not reported or the transcript of the proceedings fo r any r eason is not available and the evi denc e is pr epared f rom recollect

ion, it m ay be prepared in narrative fo rm. 4 The order

recites that four notes were delivered to the court while the jury was delibera ting, that three

of the note s were p reserve d and made a part

of the re cord, but that the note pertaining to the jury’s inability to reach a unanimous verdict was not
o ne of them. The orde r found tha t the note read “ What ha

ppens if w e can’ t reach a unanim ous verdict, ” and was delivere d to the court imm ediately after lu nch rece ss on September

5, 2012, w hich was t

he first da

y the j ury de liberate d. The t rial jud ge further recited that due to t

he fact that the note did not actually indicate that the jury
was “hung”

and in view

of the shor

t amou nt o f tim e the jur

y had be en deliber

ating5

after such a lengthy tr

ial, he di d not believe

cons u ltation wi th counsel a bout his response to the note was necessary, and theref ore wrote on the same piece of paper “plea se continue del ibe rati ng” and had the bai lif f ret urn the not e to the jury. The trial judge also stated the note had remained with the jury , and presumably was destroyed along with the j urors’ personal notes as instructed by the bailiff after the verdict was returned. Plaintiffs subsequentl

y filed a m otion to recuse or disqua

lify t he trial j udge due to the perceived conflict

between his order s upplem enting the r ecord and the jurors’ affidavi ts. The trial judge gr anted themotion

to recuse , and the c ase was re- assigned. Following

a hearing on Plaintif

fs’ m otion for newtrial, the assigned judge rejected Plaintiff s’ claim that the tr

ial court’ s comm

unication w ith the ju

ry w as per se
rev ersi ble error, and concluded that the Plaintiffs were not entitled to a new trial because the note was not imperm issibly mislead ing or

coercive . Plainti ffs now challenge that ruling, arguing that, under the circum st ances of t his case, we should pre su me that the tr

ial judge ’s com

munic ation

with the j ury w as harmful, and that, in any event, th e trial j udge’s response wa s coerciv e under thecircumstances in which it was give n.4 Kesterson was also a medical malpr actice case wh ere a ch il d suffered

neurological injurie s all egedly caused by oxygen deprivati on shortly

before birth. Our Sup reme Cou rt ruled that the exclusion was improper under the facts of that case, ho lding that in light

of a part y’s fundam ental and s tate const itutional r

ight to be present during their trial, the trial court should

have used ot

her, les s drastic m

eans to ensure a fair trial. 6 (b) In Kesterson v. Jarrett , 291 Ga. 380 ( 728 SE2d 557 ) (20 12 ), o ur S up reme Court reaffirmed

and elucid ated the f

undamental right o f a natural party to be present in the cou rtroom during the trial o f his or her c ase. As the Cou rt explain ed, [The right to be present] has been tr eated as a

com ponent of th e due process of law in

both criminal and civil c ases since the earl y deci sions of this Cou rt. . . . Tift

v. Jones , 52 Ga. 538, 542 (1874) (explaining that a civil litigant has a “right to be present in the co urt during t h e whole trial of his case.”) . . .T

he right to be present is al so ref lected te xtually in our State Co nstitution, in the provi sion guaran teeing to e very p erson “theright to pro secute or defend, either in person or by an attorney, that perso n’s own cause in any of the courts of t his 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 t

he right to b e present
a nd pr operly excluded from the c ourtroom because his or her physical or m ental condition might i nvoke undue sy

mpath y from the jury – was one o f first im

pression in this state. 4 However, there is, as noted i n Kesterson, a long line o f preced ent in5 We do so with caution, recognizing that there are other constitution al rights, such as those guaranteedto crim inal defe ndants by the Sixth Amendment, which are not impli cated in c ivil cases
. E.g., Lowery v . State , 282 Ga. 68, 73 (4) (b) (646 SE2d 67) (2007) (a na lyzing both a right to be present claim and an ineffective assistance of counsel claim arising out of the trial judge’ s fa ilure to inf orm or consult the defendant or his cou nsel prio r to respon ding to t he jury’s inquiry). 7 Georgia affirmin g a civ il li tiga nt’s right to be prese nt at thei r trial. See, e.g., St. Paul Fire& Mari ne, I

ns. Co. v. Brunsw ick Groc ery Co. , 113 Ga. 786, 789 (39 SE 483) (1901) (it is “manifes tlyerroneous” for a par ty to the “issue ” to be excluded f

rom t he courtroom); Mays v. Tharpe & Brooks , 143 Ga. App. 815, 816 (240 SE 2d 159) (1977) (“A subs tan tial right of a party to litigation is to be present at the trial and render assistance to his counsel as the deve lopme nts unfold”) ; Walden v. MART A , 161 Ga. App. 725, 726 (288 SE 2d 671) (1982) (in seques teringof witnes ses, plaintiff shoul d be given the option of te stifyi ng first so t

hat plainti ff can be

present du

ring the trial). Although a party ’s right

to be presentis firmly est ablished in both our civi l and criminal jurisprudence, there appears to be a dear th of authori ty addr

essing the r

ight of a civil litigant to be present when the trial judge eng ages in com munic ations wit

h the jury . Howe ver, our

appellate courts hav e address ed this issue numer ous tim es in criminal cases and, as have the parties, we turn to those cases for guidance. 58

As our Supre me C ourt explai ned 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 defen dant ’s ‘right

to be present , and

see and hear, all the proc eedings which are had against him on the trial

before t he Court. ’ A col loquy be tween the trial j udge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.” (Citation s and punctua tionomitt ed; em

phasis in or

iginal.) Id. at 807 (6). See also Cox v. Yates , 96 Ga. App. 466 (100 SE2d 649) (1957) (generally, parties to civil action ha ve the righ t to be pres ent at all s tages of th e trial).

Unquestionably the trial judge should not in any manner comm unicate with the j ury ab out the cas e, in the absenc e of the accused and his counsel, pending the trial ; and the be tter pra ctice is f or the judge to have no com

munic ation with

the jury on any s ubject e xcept through the medium of

the sworn bailiff in char ge of the jury ; and the comm unication sh ould

be restr icted, in the absenc e of the a ccused and his counsel, to mat

ters rel ating to thecomf

ort and conv eni ence of the jury. There s ho uld b e no com munic ation whic h would tend in any manner to preju dice the a ccused . . . ; and unless the c haracte r of the comm unication clearly shows that

it could not have been prejudi cial to the accused , the presumpti on of law wou ld be that it was prejudi cial.9

Hanifa, 269 at 807 (6). Lowery v . State , 282 Ga. 68, 73 (4) (b) ( 646 SE2d 67) (2007) (“[a] trial c ourt’s comm

unication w ith a jur

y on subst antive matters is a part of the proceedin gs to which the defend ant and co unsel are en titled to be present .”). Further, and pertin ent to this case, ou r appellate

courts hav e specifi cally consid ered

judge/jury communicatio ns concern ing a jury’s abilit y, or inabilit y, t o reach a verdict , and routine ly held that it is error for a trial judge to respond to such
an inquiry in the absence of the defend ant and/o r his coun sel. E.g., Lowery v . State , 2 82 Ga. a t 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. A pp. 428, 42 9-430 (2) (300 SE2d 331) (1983) (trial court ’s response of “keep on trying” to deadlock ed juror s “not so mat erial to appellant’s case as to require her presence and that of her counsel.”). Def endants, while certainly

not suggestin g that ex pa rte com munic atio n s betweena trial j udge and a j ury ar e perm issible even in a civil trial, urge that t he stringent requirem ents applicabl e to crim

inal case s should be reserved f or those civil
cases suc h as Kesterson where a fundam ental righ

t has been totally

or substantially denied. But we f

ind that the r ight to be present ha s been totally denied here. Although certainl y the durati on of the ex clusion wa s notas long as Kesterson , the violation here6 We are aware that the Defenda nts and their counsel w ere also unaware of the comm unication. We thus make clear th at our an alys is wo uld be t he s ame if the y, instead of the Plaint

iffs, ha d suffere d an adver se verdic t.

10 was in at leas t one way

more absolute – u

nlike in Kesterson , where the plaintiff had her attorneys representing her duri ng tri al, Plaintiffs he re were wholly without an

y represe ntation

during the t

rial cour t’s com munic ation 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 j udge sho uld not answer a question f

rom t he jury in a civil c ase about t

heir abili ty to reach a ve rdict unle ss the part ies and/or their counsel a re present as well. (c) The quest

ion then, a

ndthe one presented squarely by this case, is whether t he absol ute failur

e to have c ounsel or the parties pr

esent for this ty pe of
comm unication with the jury requires reversal or whether we should further consider whether the error harm ed the party seeking relief. 6 The harmless error rule applicabl e to civil c ases is codified in OCGA § 9-11- 61: No error i n either th e admission or the exclusion of

evidence and no error or defect in any ruling or order

or in any thing done or

omitt ed by the court or by

any of the partie s is ground f

or granting a

new trial or for settingaside a ve rdict or f or vacating, m odifying, or otherwise7 In Conley , appellants asserted a denial of their right to a fair and impartial j ury

when the jury was not

qualified as to insura

nce carr iers wit h a financ ial interest in the case. 294 Ga. at 549 (3) (b)
. 11 d isturbing

a judgment or order, unless refusal to take suc h a ctio n appears to the court inconsistent with substantial justice. The court at every stage of the proc eeding m ust disrega

rd any error or defect in the proceedin g which doe s not affe ct the subst antial ri ghts of the p arties. Under this section, Plaintiffs normally w ould not be entitled to a n ew trial unless they could show “m aterial harm” from the trial cou rt’s actions
. Ford Motor Co.

v. Conley , 294 Ga. 530 (7 57 SE2d 20 ) (2014). How ever, a s also state d in Conley , harm may n everthe less be pre sumed under cer

tain circumsta

nces, suc h as when a fundamental right has been denied and the error cannot be cured after the verdic t. 7 We
see no reason w

hy deni al of

a fundam

ental and c onstitutiona l right such as the right to be pre sent – in p erson or by counsel – should not also be one of those rare circumstances whe re prej udice might be presumed. See Ga. Const. of 1983, Art. I, Sec. I, Par . XII; see also St. Paul F ire &Marine Ins. , 113 Ga. at 789 (it was “manifestly erroneous” to exclud e the party from the cou rtroom). Although the Court i

n Kesterson did not use th e term s “ pres umed h arm” or “presum edprejudi ce” in its analy sis of the r ight to be present violation

in that case,8 The Cour t did note, however , the pre sumpti vely pr ejudic ial sta

ndard applicab le to criminal cas es. Kesterson , 291 Ga. at 386
. 12 italso d id no t ap pea r to req ui re a sh owi ng of s pec ifi c ha rm. 8 Rather, the Court distinguished its prior d ecision in Willingh am v. W

illingham , 192 Ga. 405 (15 SE2d 514) (1941), in which a h arm less error test w as applied, by sta ting that unlike in W il lingham , the Court i

n Kesterson , “‘ can see ho w’ the trial cour

t’s dec ision [to exclude the plaintiff] ‘could possibly have opera ted to the inju ry’ of Appellants.” Kesterson , 291 Ga. at 389 . Furthe r, the C ourt lim ited the hol ding in Willingh am , which involved a be nch trial i n a custody

case where the par

ents, but n ot their attorney s, were e xcluded wh ile the chi ldren w ere questioned, to the circumstances presentedthere, stating it sh ould not be viewe d “as precede nt for exc luding a par ty from a typical civil trial.” Id. In sh ort , we gl ean no th in g fr om Kesterson that requ ires us t o ap ply a harmless
error ana lys is to a right to b e present violation suc h as the onethat occur red in this
case. Mor eover, as stated above, in our criminal law j urisprudence, our appel lat e courts have “consistently ruled that the denial of the right to be present guaranteed by the Geor gia Constit

ution is not sub

ject to h arml ess error

review on direct a

ppeal.13

Instead, a violation is presumed to be prejudicial. Thus, absent a valid waiver, violation of the rig

ht to be present triggers reversal and remand for a new trial whenever the issue is properly

raised on d

irect app eal.” ( Citation

omitted.) Ward v. State , 288 Ga. 6 41, 646-647 (4) (706 S E2d 430) (2011). As we ha

ve explaine d, “ [t]he accused and his couns el have the right to be present a t every stage of t he procee dings and personall y see and know w

hat is being

done in the c ase. T o say that no injury results when it appear s that what occurred in their absence was regular and legal would, in effec t, pract

ically do away with this gr

eat and im

portant ri ght, one e leme nt of which is to see to it that what does take place is in accord with law an d 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 p roceedings

has been deemed
so fundamental that a violation properly raised on direct appeal from a convicti on is presu med to be prej udicial, requiring a new tr ial.”) (emp hasis supplie d); Smith v. State , 284 Ga. 599, 609 (4) (669 SE2d 98) (2008) (harmless err o r applicabl e to federal claim of right to be presen

t but “denial of the right to be present guaranteed by the Geor gia Constit

ution is not subject to harmless error review on direct appeal”); Sammons v. State , 279 Ga. 386, 387 ( 2) (612 SE2d 785) (2005) (reversal required14

when defendant not present when juror released); Pennie v . State , 271 Ga. 419, 422 (520 SE2d 448) (1999) (new trial r equired w hen defend ant was in

voluntarily

absent during colloquy

between t rial jud ge and juror

); Wells , 297 Ga. App. at 160 (2) (ex parte comm

unication be tween tr

ial judge and jury

presum ptively prejudi cial, manda ting a new trial); Vaughn v. State , 281 Ga. App. 475, 478-479 (636 SE2d 163) (2006) (same); cf. Logan v. St ate , 266 Ga. 566 (468 SE 2d 755) (1996) (reversal n ot required where comm

unication w as a

hypothe tical inquiry by

one juror which did n ot
occur during deli

berations and the tri al court di d not provide any spe cific instructio n 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 n ot prejudi cial to th e appellan t). (d) Defenda

nts argue t

hat, in an y even t, the er ror that occurred

here would not be reversib le even ag ainst a cr im inal defendant

because t

he chara cter of t

he
comm unication shows that it could not have been prejudicial to Plaintiffs, and that
our appellate courts hav e in fact

applied the

harmless error

rule even in criminalcases involvinga violation

of the rig htto be present. E.g., Barnett , 276 Ga. App. at 241 (2). But a critic al diffe rence ex i sts betw een m any of the cases in which ou

r appellate courts have deem

ed a right to be prese nt violation h arml ess or waived a nd15

the case at h and, whi ch is that t hose com munic ation s were in fac t disclosed to the defendant and/or his a

ttorney prior to the

timethe jury

returned its verdic t. Depe nding
on the time of this disclosure, this afforded the d efendant o r his counse l the
o pportu nity

to have input concerning the court’s response, request that the court query the jury about the pot ential deadlock, obj ect, m ove for a m

istrial, or at a min imu m, and importantly here, preserve a recor d of the com

munic ation. And if the defendant or his attor

ney w as told of th e com

munic ation

p rior to the

return of the verdictand they failed to act, a waiver of the righ t to be present violation w ould occur. E.g., Lowery , 282 Ga. at 74 (4) ( b) (i) (n o violation of

the right to be present when appellant

and his couns el presen

t for cour t’s response); Hanifa , 269 Ga. at 808 (6) (“w e endorse the . . . holding that a defendant

waiv es appel late review of an allegedly improper judge/jury

comm unication when, prior to verd ict, defendant is
aware of the comm

unication and fails to voice an objection.”); Coleman v . State , 317 Ga. App. 409 ( 731 SE2d 94) (2012) (c ounsel for appellant present and confe rred on court ’s response, and appell ant i nform ed of the comm

unication prior to the verdict but did not obje ct); Daniel

v. State , 292 Ga. App. 560, 561(1) (665 SE2d 696) (2008) (appella ntwaived right to assert error when he failed to objec t or seek t o perfec t the record after he was m ade awa

re of com munic ation prior

to the entry

of the verdict);9 We als o do not belie ve that Burtts v. State , 269 Ga. 402, 403 (3) (499 S E2d

326) (1998) and Reid v. State , 319 Ga. App. 782, 784 (2) (738 SE2d 624) (2013) are necessar ily controllin g here bec ause both of those cases invo lved a quest ion from the jury asking to rehear evid ence and di d not touch on t he ability of the j ury to rend er a verdict. 16 Barnett , 276 Ga. A

pp. at 240-241 ( 2) (trial court re ad the ju ry’ s question an dcourt ’s response to appellan t’s atto rney b efore the jury ’s verd

ict was pu

blished, a nd the attorney moved for a

mistrial); 9 see also Kesterson , 291 Ga. at 385 (2) (b) (party can waive right to be prese nt or acqui esce in cou nsel’s waiver o f his/her ri ght). (e) Perhaps partly

in response

to the fre quency

with whic h right

to be present cla ims stemming from ex

parte com

munic ations betw een trial judges an djuries a

rise in criminal cases, our Suprem e Court in Lowery

set out a procedure to require trial cour

ts to have j urors’ comm

unications s ubmitt ed to the court in writin g; to mark

th e written comm

unication a s a court e xhibit in the presence of counsel; to affo rd co unsel a ful l opportunity to suggest an a ppropriat e response ; and to make counse l aware of the substance of the trial court’s intended response in order that counsel may seek whatever modifications counsel deem s appropria te before the jury is expos ed to the i nstructi on. Lowery , 282 Ga. at

76 (4) (b) (ii). A lthough the S uprem e Court in Lowery did no t specific ally

state that this proce dure applie s to civilas well as crim inal tria ls, it als o10 It is noteworthy, however, that the c ourt in Lowe ry declined t o reverse the appel lant ’s convi ction b ased on a denial of the right to be present, reasoning that appellant and his counsel were present for the trial court’s response t o the jury ’s question, and

that appel lant did not ha

ve the right to be present w hen his couns el and the trial court discussed the court’ s response to the jur y’s question. Lowery , 282 Ga. at74 (4) (b) (i). But the Court went on to find that assuming the right to counsel inclu des the “right to have reasonable notice of a deliberating jury ’s substan tiv e comm unication and a m eaningful opportunity to be hear

d” in respo nse there to , defen dant ’s Sixth Amendm ent right to counsel had bee n violated because counsel was not in fact

inform ed of the c ontents of t he note or a

llowed to h ave input pr

ior to the trial court ’s response. Id. at 74 (4) (b) (ii). Thus, w e cannot ignore that the Court announced the procedure for handling judge/j ury co mm unications u

nder the division analy zing appellant’s ineffective assistance of counsel claim, and that the procedure requires , among

other things, that the trial judge inf orm c ounsel, not

the party , about the contents of the note and seek counsel’ s responsebefore responding. But we str ess that we are

by no m eans holding

here that the procedure set out in Lowery applies to civil litigants, who do not e njoy the same Sixth Amendment protections as criminal defendant s. However, as set forth in m

ore detai l below, t

he wisdom

of requir ing civil trial courts to adhere to the Lowery manda te is aptly illustrate d by thi s case, wh ere neither the partie s nor their

attorney s were inform ed of the c omm unication a

t any time during t rial.

11 We note

that Lowery

did not state that a fa ilure to follow that procedure constituted per se re versible error, a ndin the post-

Lowery cases of Grant v. State , 295 Ga. 126 (___

SE2d ___) (2014) and Humphrey s v. State , 287 Ga. 63 (694 SE2d 316) (2010), the Supreme Court declined to revers e when th e contents of the comm unication 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 h as been a complet e failure to preserve th e communication. 17 did not specif

ically limit its applica

tion to crim

inal case s. 10 And if the

trial j udge had followed the procedure in Lowery 11 for preserving the com

munic ation and m

aking it12 Although w e have no dou bt the trial judge pr

oceeded in

good faith in entering an order s upplem enting the r ecord purs uant

to OCG A § 5-6-41 (d), that section does not pre cisely

fit the circum stances here where th ere i s an apparent disagree ment betwee n the reco llections o f the jur y and th e trial j udge about a comm unication that occur

red betw een them . Moreover, although OCGA § 5-6-41 (g ) provides that the de cision of th e trial j udge shall be final on a transcri

pt prepared from recollec tion if

the parties cannot agree, there is no similar mec hanism

for reso lving an apparent

conflict b etween t

he recoll ections of a t rial jud ge and m embe rs of the jury. Further, it appear s that the tri al judge prepared the OCGA § 5-6-41 (d) order without input from the parties, and that the judge assigned after r ecus al did not resolve these appa

rent discr epancies in deciding

the m otion for new trial, finding instead t hat they were immaterial and i rrelevant t o his anal ysis. 18 a part of the re cord for ou r review, 12 there w ould be no dou bt about when the jury made its inquiry

and the exact nat

ure of the ir question to the trial court. If a t th at t ime uncertainty had

been reve aled about the nature of the inquiry, as therenow appears to be, that uncertainty could h ave been resolved when the jury rem ained convened and the parties and their counsel were present to perfect the record as needed. But the trial court did not follo w Lowery , or take any st eps on its own t o preserv e the
comm unication, and

this Court has been left with diff ering, although we a

re cert ain, good faith, r ecollect ions both as to the tim

ing of the c omm

unication a

nd what it
m eant, reco llections w

hich no doubt ha

ve been er

oded by time and intervening events. See Lindsey v . State , 277 Ga. App. 18 , 21 (625 SE2 d 431) (20 05).13 Once again, the analysis in that case was in the context of an ineffe ctiv e

assistance cla im, this tim e for thefailureof trial c ounsel to obj ect to the “proc ess” by which the judge responded to the jury inquiry and because tr ial counsel did not have a record made of th e communication. 19 These differences are

not unimpor tant to any

analy sis which w e migh

t attem pt to decide w

hether the

comm unication a

t issue wa s coerciv e or misle ad ing. As th e Sup reme Court expl ained in Hanifa , “[ t]he co ntents of th e com munication are
n ec essary to determ

ine wheth er the tr

ial court’ s erroneo us com munic ation with

the jury constitute s harm ful 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 tim

ing, m ay pla

y a ro le in determ ining coerciveness where there is a possibility that the charge could be coercive.” A similar circum stance was pres ented in Lindsey , and alth ough not controlling , 13 we find our opinion in that case to be instructive. In thatcase, the judge, actingthrough the bailiff, responded to a question from the jury sent out during the ir delibera tions conce rning whet

her their verdict had to be unanim ous. Although trial counsel was inform ed of the c omm unication a fter it oc curred, counsel did not reques t, and the trial court did no t of its ow

n accord, make

a recor d of the com

munic ation. Thus, we expl ained,20

[t]hecomm

unication in

volved in this case was not re stricted to matters concernin g th e jury ’s “ comf ort and conv enience. ” Instead , the inform ation

concerning the unanim it y requirem ent could w ell be considered a supplem

ental cha rge, wh ic h should have b een given in open court in [ appellant’ s] presence. If trial counsel had objecte d to the procedure used to answer the ju ry’s question, or if some record had been made of the jury ’s question and the tri al court’ s response had been m ade in open cour

t with all the parties present, vague recollections recorded weeks after trial wou ld not be an issue. Gi ven th e legal na ture of the question posed by the jury, the responsibility of trial judges and bailiffs to avoid im

proper co mm

unication w ith juries, and the state of the record in this case, we are

unable to c onclude tha

t the comm unication here “could not ha ve been preju dicial to ” [the appel lant]. (Citation s omitt ed.) 277 G a. App. at 21-22. In the case at hand, Plaintiffs’ counsel did attem pt to perfect

the reco rd by taking imm

ediate steps to hav e the com munic ation m ade a par

t of the recor d as soon
as he learne d o f it, but w as unable t o secure t he actual comm unication de spite his diligent efforts. Thus, this case presents one of those rare circum stance s w here the party who a sse rts they

have been aggrieved

has been e ffective ly pre cluded fr om demons trating

harm . Such an

inability of a party to prove they w ere harmed by an ex parte judge/j ury co mm

unication ob viously “af

fect[s] substan tial righ ts.” OCGA § 9-14 The motion for new trial hearing was held shortl

y aft er the ef

fective d ate of Georgia’s new Evi dence Code , and OCGA § 24-6-606 applies to our analysis here. Section 24- 6-606 (b) pr

ovides: Upon an inquiry

into the val idity of

a verdict or indictm ent, a j uror shall not testify by af fidavit or otherw ise nor shall a juror’s sta teme nts be received in evidenc e as to any

matt er or sta

teme nt occurr

ing during the course of the j ury’ s delibe rations o r to the ef fect of a nything u pon the jury delibera tions or any

other ju ror’s m ind or em otions as influencing the ju ror to assent to or dissent from the verdict or indictmen t concernin g the juror’s m ental processes in connec tion therewith; provided, however, that a juror may testify on the question of whether extr aneous prejudicial information was im properly bro ught to the juror’ s attention, whether any outside influence was im properly brought to bear uponany juror, o r whether there was a mistake in entering the verdict onto the verdict fo rm. 21 11-61. Cf
. Stewart , 165 Ga. A

pp. at 429 ( 2) (conte nt and tim ing of com

munic ation did not appear to be at issue). ( f) Sim ilarly , and as w as the situa tion in Conley , there is yet an additional
reason why we believe t hat error must be presum ed here, involving yet “another longstanding

Georgia rule – the prohibition again st jurors impeaching their verdict

. . . .” Conley , 294 Ga. at 550 (4) (b). See also OCG A § 24-6-6 06. 14 Under that rule, itis arguable t hat the jurors w ould be prec luded from even discl osing the fa ct and22

contents of the com

munic ation

to th e cour t, its timing , the co urt’s response, and the effect that such c omm

unication had on the deli berations. We nee d n o t decide th e p arameters of the rule

against j urors im

peaching th eir verdi ct here. But this demonstrates the extre me dif ficulty , if not im

possibi lit y, of a party to show harm when there is an absolute failure to preserve the comm unication or notify the parties and/or their coun sel about it

prior to the

receipt of

the verdic t. Thus, as in Kesterson , we “can see how” this failur e could af fect the substantial

rights of P laintiffs to a fair trial. Moreover, as the trial court noted in denying the m otion for n ew trial, the evidence in this case was “ close” an d would have suppor

ted a verd ict for e ither the Plaintiffs or the De fendants. Thus, thi s is not a situation where we can say that even
a misle ading or coercive comm unication could not have affected the outcom e of the proceedin gs becaus e a verdict was only authori zed for the Defe ndants. Acco rdi ngl y, we m

ust view th ese unique c ircum stances to gether – ( 1) that the
comm unication was not dis closed t o the Plaint iffs or th eir counse l until aft er the verdict; (2) the not e and resp onse were not m ade a part of the record at the time it was made or there after; ( 3) the diff ering rec ollections about the na ture and timin g of the
comm unication; (4) the f

act that t hose dif f erences were never resolved in the trial23

court by the judge wh o decided t he mot ion for new

trial; (5 ) the inabi lity of the Plaintiffs to show wh at effe ct the com munic ation had on t

h e jury ’s verd

ict; and (6 )
our inability to say tha t a ve rdict would have been dema nded for th e Defe ndants regardle ss of the ef

fect of t he com munic atio n on the jury . Thus, based on the foregoing considerations and under the particu lar circumstance s of this c ase, we find that Plain tiffs are ent itled to a new trial. 2. Plaintif fs also ar gue that the

trial court erred in refusing to give its requested charge on spoliation

of evidenc e. Beca

use this er

ror will likely occur upon r

e-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 printe d paper co py of t he fetal heart ra

te tracing so meti me af

ter th e de li ver y of L ee V . Ph il li ps , IV . At th e ti me Defenda ntHenry Medical Center

destroyed the printer paper copy of the f etal heart rate tr acing, Defendant Henry Medical Center was aware of the potential fo r litigation. The Plaintiffs are entitled to a presumption that the printed paper copy of the fet al he art rate

tracing, which con

tained thehandwrit

ten notes th at [nurse ] Kim15 Plaintif fs’ bas ic contention is that th e nurse w ou ld have no ted wha t ti me CNM Harmon arrived in the deliv ery r oom in r esponse to an emergency

page issued after the fetal monitoring indicated that Phillips was experiencing sustained periods of bradycardia. H armo n’s response time was critical to Plaintiffs’ claim that Defendants failed to ad here to the appropri ate standa rd of care.

16 Although the trial court initially reserved ruling on the issue, it later denied the reques t to charge , and Plaint iffs objected to the fail ure to giv e the charge
.

17 “Pot ential san ctions to remedy the prejudice resulting f

rom t he spoliati on of evidence include (1) a

jury charge th at spoliati on of eviden ce crea tes the re buttable presum ption that the evidence would have been harmful to the spoliator; (2) dismissal of the case; or (3) the

exclusion of testimony about the evidence.” Kelleyv. Blue Line 24 Jones made

during the l abor at i ssue in this case, 15 would have been prej udicial to Defenda ntHenry Medical C enter. T

he presum

ption m ay be rebutted by De fendant Henry Medical Cent er.” The trial cour

t declined

to giv e the cha

rge, finding that D efendants had no knowledgeor notice o f potenti al litiga tion,” 16 but allowed the parties to presen t evidence and argum

ent concer

ning the note s made

on the feta

l monitor paper s trip, the use of the strip in

creating the offic ial m edical re cord, an d the destr uction of the strip. “[S ]polia

tion re fers to the

destructi on or failu

re to pre serve evi dence that is necessary to contem

plated or p ending litiga

tion.” (C itation

and punctuat ion omitted.) Silman v. Assocs. Bellem eade , 286 Ga. 27, 28 (685 SE2d 277) (2009). 17Carriers, LLC ., 300 Ga. App. 57 7, 579 (1) (6 85 SE2d 47 9) 2009). 25 “The trial cour t has wide

discret ion in resolving spoliati on issues, and we will not di sturb its ruling absent abuse. A spoliation c laim cannot be pursued unless the spoliati ng party was under

a duty to preser

ve evidence. And ou r ap pel lat e co urt s h ave time and time aga in emp has ized that to m eet the sta

ndard for proving spoli ation, the

injured party must showthat the a lleged tor tfeasor w as pu t on notice that the party was contem platinglitigation. The si mple fact that so meone is injured . . ., withou t more, i s not noticethat the inj ured part y is co ntemp lating lit igatio n sufficient to automatically trigger the r ules of spoliation. In other words, notice of potential liability is not the sa

me a s notice of potential litigation
. (Citation s and punctua

tion om itt ed; e mphasis in original.) Whitfie ld v. Te quila Mexican Restaurant

No. 1, Inc. , 323 Ga. App. 801, 807 (6) (74 8 SE2d 281) (2013). See also Clayton Cou nty v. A ustin-Pow ell , 321 Ga. A pp. 12, 17 ( 740 SE2d 831 ) (2013). The following

facts ar e releva nt to the spoliation issue. At the time Phillips was delivere d, the offic ial m edical re cords a t Henry Medical were ma intained in electron ic for m. Although the fetal monito r strips w ere not considere d part of t

he offici al recor

d, the nurses often took notes on t he strips du

ring the labor and delivery and would then refer back to the

strips to compl ete the of

ficial record. Henry

Medical m

aintained the26

strips for 3 0 da ys aft er a d eli ver y, and the n th ey were routinely destroy ed. It is undisp uted that the strip s in this case were destr oyed pursuan t to this procedure. I t is likewise

undisputed th at at the t

ime t he paper t

racings w ere destr

oyed, H e nry Medical h ad not rec eived any letters, calls, p leadings, or inquirie s of any nature from the Plaintiffs that m ight have alerted Henry Medical that Plaintiffs were contem platinglitigati on. A cc ordingly , the tri al court refused to g ive Plaint iffs’ spoliation charge in this case bec ause Def

endants did not have notice of p ending or contemplated

litigation a

t the timethe paper

copy of the feta l heart rate trac ing was destroyed. Plaintiffs argue, h owever, that the tr ial court erred in refusing to give its requestedcharge because Henry Medical’s actions after Phillips’ birth showed

that itwas contemplat

ing litigati on at the time it destroye d the records. In supportof this contention, Plaintiffs point to the fact that Henry Medical tri ggered its Sentinel Events/Medical Errors/Discl osures po licies and procedures (“Sentinel Ev e nts Polic ies ”) imm

ediately after P hillips’ birth and th at, pursu ant to thosepolicies, it began an internal investigation and then notified its insurance carrier and contacted counsel a short time later. Plaintiffs a rgue that once the Sentinel Events Policies were triggere d, Henry

Medical w as r equir ed to “obtain and/or preserve evidence, as27

appropria te (for exa

mple, photographs, equipm ent, suppli es, etc. )” and to p rotect “[t] he medica l r ecord and other poten tial evide nce . . . as nee ded in antic ipation of possibl e liti gation.” Further, Plaintif fs argue t hat they presente d evidence

that risk
manageme ntwould “sometim es” re quest

that the f etal monitor stri

ps be preserved, althoug h they were not req uested he re. This Court has previously held that launching an inter nal investigati on and taking certain steps pursua nt to com pany pol icies do not , without more , equate

to notice that litiga

tionis contemplat ed or pend ing. Powers v. Southe rn Family Markets of Eastman, LLC , 320 Ga. App . 478, 47 9-480 (1) ( 740 SE2d 214 ) (2013). That is because “cont empla

tion of pote ntial liability is not no tice of pot ential li tigatio n.” Kitchens v . Brusm an , 303 Ga. App. 703, 707 (1) (a) (694 SE2d 667) (2010) (notice of contemplated

litigation when plaintiffs’ attorney had contacte d defendan

ts about viewing slides). See Austin-P

owell , 321 Ga. App. at 17 (2). Watts & Colwell B uilders, Inc. v. Martin , 313 Ga. App. 1, 5 (1) (720 S E2d 329) (2011) (c omple tion of acc ident reportdoes not demonstrate contemplated litigati on); cf. The Kroger Co. v. Walter

s , 319 Ga. App. 52 (735 SE2d 99) (20 12) (manager awa re of potential litigation after potential plaintiff

came back

to the store

and inform

ed the manager he

was going t o the doctor); Wal-M

art Stores v . Lee , 2 90 Ga. A pp. 541, 54 4 (2) (659 S E2d 905)28

(2008) (notic e provided by let ter from plaintiff ’s attor ney at tempt ing to settle

and avoid li tigatio n). Moreover, we do not be lieve that Baxley v. Hakiel Indus., Inc. , 282 Ga. 312 (647 SE2d

29) (2007) manda

tes a finding of spoliat

ion here. In Baxley , ou r Su pre me Court found

proof of sp oliation, after th e bar manager que stioned the bar staff about what they s erved a c ustome

r who had b een involve d in an accident when she left the bar, and then failedto preserve a recording that might have provided critical evidence concernin g th e ma nner in which the cu stomer l eft th e bar. Al thou gh de fenda nt’s kno wledge of potential or contem plated liti gation wa s not direc tly spe lled out i n Baxley , our Supre me C ourt later explained Baxley , making it clear “ the p hrase ‘potential for litiga

tion’ fr om Baxleyrefers to litigati on that is actually ‘contemplated or pending,’ and nothing more.” (Em phasis supplied.) Silman , 286 Ga. at 2. F ur ther, even if H enry M edical’ s Sentinel Events Po licies re quired it to preserve the official

medical records, it is undisputed here that the paper monito ring strips were not considered part of the official electronic me dical records at th e ti me Phillips was born. And even if there had been directives issued to preserve the paper strips in prior inci dents, there is absol utely n o evidence that such a request had been made in this case.18 Plaintif fs sought to e xclude “ [a]ny reference or sugge stion that P laint if fs have receive d, have been entitled to receive , will receive, or will be come entitled to receive, ben efi ts of a ny k in d o r ch ara cte r fr om a collater al source [.]” Defenda nts agreed that evidence o f collateral source ben efits sho uld be exc luded. 29 Accordingly, Henry

Medical d

id not have no tice of pending or contemplated litigation at t he t ime the paper

monito r strips were de stroye d, and thetrial cour t did not abuse its di scretion in refusing to give Plaintiffs’ requestedcharge on spoliation of eviden ce. 3. It is u nnecessa ry, however, f

or us to consider Plaintiffs’ contention that Defenda nts improperly

admit ted evidenc e of colla

teral sour ce benef its in violation

of
a motion in lim ine. The

alleged benefits at issue are certain educational service s and
resources that must be provided under federal law to children with disabilities, an d evidence of these benefits was elicited by Defendants during cross-exam inat io n of Phillips’ life care planner. Plaintiffs did not object to this evidence at the time it was introduced , and arguefor the first time on appeal that it was not required to objec t to this testimony at trial beca use these services and resourc es w ere “b ene fit s” f rom a collateral source tha

t already had been r

uled inadm

issible pur suant to thegrant of i ts motion in limine. 1830

The issue of whether the serv ices and resources at issue he re constit ute “be nefits” from

a collateral sourc e as that t erm is used in thi s state is o ne of firs t impre ssion, and the issu e of the a dmissi bility of this specif

ic evidenc e was not

raised
or ruledupon below. Clearly , however, neither Plainti ffs nor D efendants will allo w this case to be

retried without br

inging this iss ue to the at tent ion of the tri al court, who will the n ha ve t he o ppo rtu nit y to ru le o n th is e vid ent iary issue in the first instance
. Judgment reversed

. Ellingt on, P. J., con curs . Ph i

pps, C. J

., conc urs in Divisions 1 and 3 and in judg ment only as to Divi

sion 2.