From University Med. Ctr., Inc. v. Beglin, 2009 Ky. App. Unpub. LEXIS 361 (Ky. Ct. App. Jan. 16, 2009):

The Hospital's first argument is that the trial court erred by giving the following missing evidence instruction to the jury:

If you find from the evidence that an incident report was in fact prepared by Nurse Barbara Cantrell recording material information about Mrs. Beglin's surgery, and if you further find from the evidence that University Medical Center, Inc. d/b/a University of Louisville Hospital, intentionally and in bad faith lost or destroyed the incident report, you may, but are not required to, infer that the information recorded in the incident report would be, if available, adverse to University Medical Center and favorable to the plaintiffs.

We disagree.

The Kentucky Supreme Court declined to create a new cause of action for "spoliation of evidence" in Monsanto Co. v. Reed, 950 S.W.2d 811, 815, 44 5 Ky. L. Summary 22 (Ky. 1997), a products liability action. Instead, the court explained that "[w]here the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and 'missing evidence' instructions." Id. "[A]bsent some degree of 'bad faith,' [a criminal] defendant is not entitled to an instruction that the jury may draw an adverse inference from that failure." Estep v. Commonwealth, 64 S.W.3d 805, 810 (Ky. 2002). The Hospital argues that Beglin was not entitled to a missing evidence instruction because there was no evidence of bad faith regarding the missing incident report; instead, the report was, at most, lost. In support, the Hospital describes and relies upon Cantrell's trial testimony as follows:

During trial, [Cantrell] testified that she completed an "incident report" at the suggestion of Elaine Strong, the charge nurse, following Jennifer's surgery. [Cantrell] testified that the only information she would have recorded in the report was that CPR was performed in the OR. [Cantrell] acknowledged that in an earlier deposition she had testified that she did not believe she had completed an incident report, but if she had she would have included a chronology and her perception of events that occurred during surgery. [Cantrell] testified at trial that she placed the report in the bin at the front desk.

(Internal footnotes omitted.) Appellees argue, on the other hand, that the very nature of the incident report is such that the Hospital would not want it available for litigation.

Regardless of whether the trial court was persuaded that the Hospital acted in bad faith in causing the incident report to not be produced, the court did not err by instructing the jury as it did. Simply put, the court left the decision as to whether the Hospital acted in bad faith up to the jury. It instructed that if the jury found that Cantrell recorded in a report material information about Beglin's surgery, and if the jury found that the Hospital intentionally and in bad faith lost or destroyed the report, it could, but was not required to, infer that the information if available would be adverse to the Hospital/favorable to the plaintiffs. Thus, the jury was not required to weigh the evidence at all, much less in favor of appellees.