Destruction or other loss of crucial evidence by a wrongdoer is not uncommon, particularly in record-laden cases of medical malpractice. At trial in August, 2010, for example, the Defendant Assistant Principal admitted that he had destroyed his pertinent calendar entries and had lost his hand-written notes bearing on the brain injury Plaintiff in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.
Spoliation is the willful destruction of evidence or the failure to preserve potential evidence for another’s use in pending or future litigation. E.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. VA. 2001). A court may instruct the jury with a spoliation instruction if at the time the evidence was lost or destroyed, a reasonable person in the defendant’s position should have foreseen that the evidence would be relevant and material to a potential civil action. E.g., Wolfe v. Va Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580 S.E.2d 467 (2003). See, Johnson v. Johnston Mem’l Hosp., Inc., No. CL0700176 (Washington County Jan. 12, 2010)(spoliation instruction for missing nurses notes, consent to treatment form, and discharge instructions). Cf., Blue Diamond Coal Co v. Airstop, 183 Va. 23, 25 (1944)(defendant’s failure to perform requested autopsy permitted inference the results would be adverse). But in the Gagnon brain injury case, Mr. Waterman elected not to seek a spoliation instruction, and instead simply argued Defendant’s misconduct to the jury in closing.