Lee Phillips and his mother, Santhonia Hector, brought a medical-malpractice suit alleging that negligent care caused oxygen deprivation shortly before his birth and permanent neurological injuries. After a defense verdict, they learned that the judge had responded to a deliberating jury’s note outside their presence, without recording the exchange. The trial court denied a new trial and refused a spoliation instruction concerning paper fetal-monitor strips destroyed under the hospital’s routine policy. The Court of Appeals reversed and ordered a new trial. It concluded that the plaintiffs were entitled to attend the judge’s substantive exchange with the deliberating jury. Because the note concerned the jury’s ability to reach a verdict, the exchange was unrecorded, and the evidence was close, the court could not determine whether the error was harmless. It upheld refusal of the spoliation instruction because the hospital had not been put on notice of contemplated litigation before routine destruction; an internal investigation alone did not establish notice under the standard it applied. The court left the collateral-source issue for the retrial court because it had not been ruled on below. The judgment was reversed and the case remanded for a new trial.