                              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
