One of the issues on appeal was Dr. Jacques Susset's inability to produce certain diagnostic and visit reports pertaining to the plaintiff. In her instructions to the jury, trial Justice Gibney stated:
"Under certain circumstances, spoliation of evidence may give rise to an adverse inference that the missing or spoliated evidence evidence would have been unfavorable to the position of the party unable to produce it. A showing of bad faith is not required before the jury will be permitted to draw this inference."
Attorneys for the defense argued that such an instruction unfairly prejudiced the jury, but Williams writing for a unanimous Court said that the instructions did not so prejudice the defendant as to warrant reversal.
It is only reasonable that juries be allowed to make a negative inference when doctors are unable to produce records because medical malpractice cases are built on the records written and in the possession of the defendant. A plaintiff's only chance at justice requires truth and accuracy in medical reporting.