In this medical malpractice suit, the plaintiff contends the defendants spoliated evidence. The trial court disagreed, and it denied the plaintiff’s motion for sanctions as a result of spoliation and granted the defendants’ motion to exclude evidence of spoliation. The trial court also granted the defendants’ motion to exclude two of the plaintiff’s expert witnesses on the ground that their testimony regarding causation was too uncertain and speculative to be submitted to the jury. The issues are interrelated because the plaintiff seeks the benefit of an inference from spoliation in order to support the experts’ opinions. We granted the plaintiff’s interlocutory appeal to consider these issues. The relevant facts are that on October 31, 1997, Jillian Kitchens went to Southern Regional Medical Center “SRMC” with complaints of pain and swelling in her left breast. The following day, a surgeon performed an incision and drainage procedure of an abscess located at the periareolar border at the “9 o’clock” position on her left breast where “3 o’clock” is towards the arm and obtained a tissue sample from the abscess. On or about November 2, 1997, Dr. Harold Brusman, a pathologist, reviewed and analyzed one slide taken from the specimen. Dr. Brusman submitted a one-page written report of his findings interpreting the specimen as “fibroadipose tissue with acute and chronic inflammation and granulation tissue reaction.” He has testified that his findings were consistent for that of an abscess and that there were no indications of breast cancer or malignancy. That is still his professional opinion. Mrs. Kitchens was released from the hospital and had no further problems until 1999.
In October 1999, after experiencing symptoms for some months, Mrs. Kitchens went to Dr. Davis Scott Timbert, a breast surgeon, complaining of tenderness in the lateral aspect of her left breast from approximately the “1 o’clock” to the “4 o’clock” position on the arm side of her areola. The area of the 1997 abscess was not of clinical concern to Dr. Timbert and he never found breast cancer there; but he did not perform a biopsy of that area because he found aggressive cancer in the lateral location. After further tests, Mrs. Kitchens was diagnosed with advanced breast cancer and later with lung cancer. Although she received treatment, on October 4, 2000, she died.
