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March 11, 2026 Get Citation Alerts Download PDF Add Note

Caryl Rosen v. Community Healthcare System d/b/a Community Hospital

Indiana Supreme Court

• Citations: None known
• Docket Number: 25S-CT-00217
• Panel: Mark S. Massa, Loretta H. Rush
• Judges: Molter, Rush, Massa, Slaughter, Goff

• Disposition: Affirmed

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.1K)

• PDF

Disposition

Affirmed

Combined Opinion

                        by Justice Molter

IN THE

Indiana Supreme Court
Supreme Court Case No. 25S-CT-217
FILED
Mar 11 2026, 11:29 am
Caryl Rosen,
CLERK
Appellant/Plaintiff, Indiana Supreme Court
Court of Appeals
and Tax Court

–v–

Community Healthcare System
d/b/a Community Hospital,
Appellee/Defendant.

Argued: November 5, 2025 | Decided: March 11, 2026

Appeal from the Lake Superior Court
No. 45D10-2102-CT-122
The Honorable Rehana R. Adat-Lopez, Judge

On Petition to Transfer from the Indiana Court of Appeals
No. 24A-CT-1463

Opinion by Justice Molter
Chief Justice Rush and Justices Massa and Slaughter concur.
Justice Goff dissents with separate opinion.
Molter, Justice.

Caryl Rosen sued Community Hospital alleging that its disheveled
entryway mat caused her to trip and fall as she was leaving through the
hospital’s main entrance doors. A jury decided the hospital wasn’t liable,
but Rosen believes her trial was unfair, so she appealed.

Her appeal focuses on the hospital’s failure to preserve video footage
she thinks might have helped prove her case. That is, she claims the
hospital spoliated evidence. The hospital’s security supervisor swore in an
affidavit that only one camera captured Rosen’s fall, so he preserved a
couple minutes of that video, from the moment she entered the frame
until she got up and left. He also swore there were two other cameras in
the area, but they didn’t capture the fall, so he didn’t save that footage.
Rosen argues that not saving more video from the camera that captured
the fall and not saving any video from the other two cameras was
evidence spoliation. The trial court credited the hospital’s evidence that
none of the unpreserved footage captured her fall. But Rosen argues the
footage from the surrounding area still might have shown the mat was
disheveled before she fell or led to the discovery of other evidence about
the mat’s condition.

After considering Rosen’s and the hospital’s versions of events, the trial
judge disagreed, concluding the hospital didn’t spoliate evidence. Rosen
argues that conclusion was an abuse of discretion. And that initial
decision, she contends, led the judge to further abuse her discretion by:
(1) denying Rosen’s request to instruct the jury that it could infer from the
hospital’s failure to save more video that the additional footage would
have been unfavorable to the hospital; and (2) sustaining the hospital’s
objections to evidence that the hospital didn’t preserve more video.
Because we conclude these were reasonable judgment calls within the trial
judge’s discretion, we affirm.

Facts and Procedural History
While Caryl Rosen’s husband was being discharged from Community
Hospital in Munster, she walked ahead to retrieve her car so she could

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 2 of 17
pick him up near the hospital’s main entrance. Just inside the main
entrance was a large, commercial grade floormat that Rosen tripped over
as she approached the door. She says her “right foot got stuck under that
rug,” and because her “momentum was still going forward and [she]
couldn’t stop [herself],” she fell, and “[her] face smashed into the
ground.” Tr. Vol. 2 at 235. Before she fell, she didn’t notice “any part of the
rug or mat to be lifted,” nor did she see any other defect in the mat.
Tr. Vol. 3 at 20. But when she sat up after falling, she says she “could see
the rug that was pulled up and where [her] foot had gotten stuck and
what had trapped [her] foot.” Tr. Vol. 2 at 237.

The fall left her “pretty shaken” and “disoriented,” and a few people
nearby quickly helped her up and comforted her. Id. at 236. One of those
people was Angela Smith, a security officer who had worked for the
hospital for nearly a decade. Smith suggested that Rosen get checked out
in the emergency room, but Rosen declined and drove her husband home
instead. Shortly after Rosen left, Smith prepared an incident report noting
that when she “arrived the visitor said her foot got caught in the carpet
and she fell,” and Rosen “had a cut that was bleeding on her nose, chin,
and fingers, but she declined treatment.” Ex. 7 at 23.

The next day, Security Supervisor Timothy Panek reviewed Smith’s
incident report and all the security footage from the area. Panek has
worked for the hospital since 1992, and he became the security supervisor
in 2011. His responsibilities require him to “routinely review and preserve
security camera footage related to incident reports.” Appellant’s App. Vol.
3 at 8, ¶¶ 5, 6.

The hospital’s security video system has limited memory, so new
footage automatically records over old footage after about forty-five days.
Whenever an individual falls, it is Panek’s “custom and practice to review
the security cameras in the area near the fall and preserve any and all
footage which shows the fall and aftermath,” ensuring that footage does
not get recorded over. Id. ¶ 7. When he preserves that footage, he “start[s]
with the point at which the person involved enters the screen and stop[s]
with the point at which the incident is concluded and/or the person leaves
the screen.” Id. ¶ 9.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 3 of 17
There were three cameras in the area where Rosen fell, and Panek
“reviewed and preserved all video footage which showed the fall.”
Id. ¶¶ 13, 14. That included reviewing “all cameras recording in the main
entrance lobby area” and saving “any video footage which showed any
aspect of the fall.” Id. After “reviewing video from all three cameras,” he
“determined that only the video from the camera near the security desk
facing towards the main entrance doors captured the fall,” and “[t]he
video recorded by the other two cameras did not show the fall or any part
thereof.” Id. ¶ 16.

Based on his “custom and practice,” he “began preserving video from
the point at which Ms. Rosen entered the screen,” and he “stopped
preserving video at the point at which she stood up and walked out of the
hospital.” Id. ¶ 17. The video shows the main lobby area with the entrance
visible in the distance, approximately seventy-five feet from the camera.
The video also shows three other visitors walking over the same area of
the mat without difficulty just seconds before Rosen, and none made any
movement to avoid any part of the mat.

Six days after the fall, Rosen’s attorney sent the hospital a letter
requesting that it preserve “video and/or photos which show my client
being injured” and provide “copies of any and all incident reports which
may have been completed by the hospital.” Appellant’s App. Vol. 2 at 135.
The hospital promptly provided the preserved video and the incident
report, along with contact information and an invitation to request
anything else Rosen’s counsel needed. Rosen’s counsel did not respond to
that invitation.

About fifteen months later, Rosen filed suit against the hospital alleging
it was “negligent and at fault in maintaining, operating, inspecting, and
warning those on the premises so as to create an unsafe condition for
[Rosen] and others similarly situated, and was otherwise negligent.”
Appellant’s App. Vol. 2 at 23–24, ¶ 3. During discovery, she twice moved
for spoliation sanctions, arguing the hospital should have preserved video
from all three cameras. After a hearing, the trial court denied the motions
through a written order finding that the hospital did not spoliate
evidence. The court also later granted the hospital’s motion in limine to

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 4 of 17
exclude any evidence or mention of spoliation at trial, concluding there
was no basis for a spoliation claim.

At trial, Rosen proposed a jury instruction stating: “If a party fails to
produce a document or physical evidence under the party’s exclusive
control, you may conclude that the documents or evidence would have
been unfavorable to the party’s case.” Appellee’s App. Vol. 2 at 141. Based
on its pretrial ruling that the hospital did not spoliate evidence, the trial
court refused the instruction, and the jury returned a verdict for the
hospital.

The Court of Appeals reversed, holding that the trial court abused its
discretion by finding the hospital did not spoliate evidence and by
refusing Rosen’s proposed spoliation instruction. Rosen v. Cmty. Healthcare
Sys., 257 N.E.3d 6, 17 (Ind. Ct. App. 2025), trans. granted, opinion vacated,
265 N.E.3d 1002 (Ind. 2025). The Court of Appeals reasoned that “the
portion of the mat over which Rosen allegedly tripped is not visible at all
on Preserved Video because it is blocked by a pixelated object that may be
a wheelchair,” and had the hospital “retained video footage from that
camera before the wheelchair had been moved into its position, such
footage may have shown the state of the mat, which would have been
relevant to Rosen’s claims.” Id. at 14 (cleaned up). As for one of the
cameras facing the lobby that Panek said did not capture the fall, the court
explained that the hospital “did not provide any evidence from Panek or
any other source indicating that the state of the mat over which Rosen
allegedly tripped was not visible in that recording before or after the fall.”
Id. (emphasis in original).

The Court of Appeals agreed with the hospital and trial court on one
point though. It held the trial court properly excluded evidence about the
adequacy of the hospital’s post-fall investigation. Id. at 17. The trial court
reasoned that the adequacy of an investigation after the fall was irrelevant
to whether the hospital had notice of any defect in the mat before the fall.
And the trial court reasonably concluded that evidence to challenge the
adequacy of the investigation “could confuse and mislead the jury into
believing that Hospital had a duty to investigate,” which both sides
agreed the hospital did not. Id. at 16, 17.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 5 of 17
We granted transfer, thus vacating the opinion of the Court of Appeals.
Ind. Appellate Rule 58(A).1

Standard of Review
We review each of the issues Rosen raises on appeal—spoliation, jury
instructions, and evidentiary rulings—for an abuse of discretion. See Abbas
v. Neter-Nu, 261 N.E.3d 233, 242 (Ind. 2025) (jury instructions and
evidentiary rulings); N. Ind. Pub. Serv. Co. v. Aqua Env’t Container Corp.,
102 N.E.3d 290, 301 (Ind. Ct. App. 2018) (spoliation). “A trial court exceeds
its discretion when its decision is unlawful, illogical, or otherwise
unreasonable.” Expert Pool Builders, LLC v. Vangundy, 224 N.E.3d 309, 312
(Ind. 2024).

Discussion and Decision
Rosen argues we should vacate the judgment for the hospital for two
reasons. First, she claims the hospital spoliated evidence, and she was
unfairly prejudiced by the trial court unreasonably declining to remedy
the spoliation. Second, she claims the trial court erred by sustaining the
hospital’s objections to her introducing evidence that there was additional
video footage that the hospital didn’t preserve. The hospital responds that
each of these rulings reflects a reasonable judgment call within the trial
court’s discretion. We agree with the hospital and analyze each issue in
turn.

I. The trial court did not abuse its discretion by
concluding the hospital did not spoliate evidence.
Rosen first argues the trial court abused its discretion by concluding the
hospital did not spoliate evidence and then, consequently, failing to

1In our Court, the Indiana Trial Lawyers Association submitted an insightful amicus brief in
support of Rosen for which we are grateful.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 6 of 17
remedy the claimed spoliation with an instruction to the jury that it could
infer that the spoliated evidence would have been unfavorable to the
hospital’s defense.

“Spoliation” refers to destroying, materially altering, or concealing
evidence that a party has a duty to preserve for pending or reasonably
foreseeable litigation. Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000).
The parties to pending or foreseeable litigation have a duty to preserve
evidence in their control that they know, or reasonably should know, is
discoverable. See Miller v. Fed. Exp. Corp., 6 N.E.3d 1006, 1013 (Ind. Ct.
App. 2014) (explaining the scope of the duty to preserve evidence). The
party claiming spoliation must show “(1) there was a duty to preserve the
evidence, and (2) the alleged spoliator either negligently or intentionally
destroyed, mutilated, altered, or concealed the evidence.” Aqua Env’t
Container Corp., 102 N.E.3d at 301.2

For both elements, Rosen fails to demonstrate that it was unreasonable
for the trial court to conclude that the hospital did not spoliate evidence.

2When deciding how to remedy spoliation, trial courts generally consider the spoliating
party’s culpability and the prejudice to the party seeking discovery. Aqua Env’t Container
Corp., 102 N.E.3d at 301. And when a court concludes sanctions are appropriate, it should aim
“to: (1) deter parties from engaging in spoliation; (2) place the risk of erroneous judgment on
the party who wrongfully created the risk; and (3) restore the prejudiced party to the same
position he or she would have been in absent the wrongful destruction of evidence by the
opposing party.” Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 189 (Ind. 2011)
(quotations and brackets omitted). Our Court has not had occasion to decide whether mere
negligence is enough to justify the sanction of an adverse inference instruction, or whether
instead something more is required. That question is debated around the country, but the
parties didn’t brief it, and we don’t need to answer it to resolve this appeal, so we leave it for
another day. See, e.g., Andrew S. Pollis, Trying the Trial, 84 Geo. Wash. L. Rev. 55, 103 (2016)
(“The requisite level of mental culpability is the subject of intense debate among scholars and
courts.” (quotations omitted)); compare Emerald Point, LLC v. Hawkins, 808 S.E.2d 384, 392–93
(Va. 2017) (“[W]e hold that the evidence must support a finding of intentional loss or
destruction of evidence in order to prevent its use in litigation before the court may permit the
spoliation inference.”), with Bass-Davis v. Davis, 134 P.3d 103, 105 (Nev. 2006) (holding that “a
permissible inference that missing evidence would be adverse applies when evidence is
negligently lost or destroyed” and that there is “a rebuttable presumption that the evidence
would be adverse” “[w]hen evidence is willfully suppressed”).

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 7 of 17
A. The trial court could reasonably conclude the
hospital had no duty to preserve additional video.

Rosen claims the hospital made two mistakes when deciding what
video to preserve.

First, for the camera footage the hospital saved, Rosen contends the
hospital should have saved a longer period. The hospital preserved the
footage beginning when Rosen appeared on camera. But she argues earlier
footage might have shown the mat was disheveled, which would have
supported her testimony that a raised portion of the mat tripped her. And
video showing a disheveled mat, she believes, also might have convinced
the jury that the hospital should have noticed and smoothed the mat.

However, the video undercuts her argument. As Rosen describes in her
appellant’s brief, the video is “from over seventy-five (75) feet away and
at an angle which was pixelated and did not even show the location of the
fall.” Appellant’s Br. at 23. In other words, the camera was far enough
away that as Rosen reached the mat, the video became so pixelated that it
is difficult even to see her as she falls. Given how far away the mat is and
how difficult it is to see, it was reasonable for the trial judge to conclude
that earlier video would have been no more enlightening.

Disagreeing, the Court of Appeals noted there was an object, possibly a
wheelchair, near where Rosen fell, and the court inferred that earlier
footage without the wheelchair obstructing the view might have more
clearly shown the condition of the mat. Rosen, 257 N.E.3d at 14. Perhaps,
but the fact that the mat is so far away that we can’t even determine what
object is in front of it illustrates that it was not unreasonable—even if it
was not inevitable—for the trial court to doubt that earlier footage would
have been more helpful and to instead credit the security supervisor’s
sworn statement that he preserved all the video that shed any light on the
fall.

Second, Rosen faults the hospital for not preserving footage from a
camera “pointed directly at the incident location” and “within mere feet of
the location.” Appellant’s Br. at 23. She claims that footage “would have
clearly shown the fall, shown the defect in the mat, and shown how long

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 8 of 17
the defect was present.” Id. at 24. As with her first claim, the video again
undermines her argument that the trial court abused its discretion by
reaching a different conclusion.

To support her claim, Rosen relies on a still-frame photo from that same
camera years later. The photo shows only a corner of the large mat; the
photo doesn’t even show the entryway doors. The mat was also replaced
at least every two weeks. So even though a corner of the mat on the
ground years later was visible on camera, that doesn’t mean the judge had
to conclude that a different mat was in exactly the same position with the
same corner visible on camera years earlier.

What’s more, even if the mats were positioned in exactly the same spot
and the camera captured exactly the same corner, that still doesn’t mean
the camera captured useful footage. Again, Panek swore he preserved all
video capturing any part of Rosen’s fall, and Rosen did not challenge the
accuracy or truthfulness of his affidavit. If Rosen wasn’t even visible on
camera, then the trial judge could reasonably conclude, consistent with
Panek’s sworn statement, that the video did not capture the allegedly
raised portion of the mat. After all, Rosen claims the raised portion of the
mat was only the size of her foot. So if her foot wasn’t on camera, then
neither was the relevant portion of the mat. It was reasonable for the trial
court to conclude none of the deleted footage was useful. It follows, then,
the hospital couldn’t reasonably know the footage was discoverable.

Our analysis here turns on the standard of review. We don’t suggest
the Court of Appeals’ view of the evidence was unreasonable, and had the
trial judge reached the same conclusion as the Court of Appeals, we might
have affirmed that judgment too. But our appellate courts do not review
spoliation decisions de novo. Instead, like other discovery and relevance
questions, we review only for an abuse of discretion. So we cannot set

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 9 of 17
aside the jury’s verdict based on our substitution of the trial judge’s
reasonable judgment call with a different judgment call of our own.3

B. The trial court could reasonably conclude that the
hospital’s evidence preservation was reasonable.

Rosen not only had to demonstrate the hospital had a duty to preserve
additional video footage, she also had to show the hospital breached that
duty intentionally or negligently. Aqua Env’t Container Corp., 102 N.E.3d at
301. Our review thus involves two layers of reasonableness—we are
evaluating whether the trial court reasonably concluded that the hospital’s
efforts to preserve relevant evidence were reasonable.

“When adverse litigation becomes reasonably foreseeable, the duty to
preserve applies only to then-existing items or information reasonably
likely to be relevant to, or likely to lead to the discovery of evidence
relevant to, claims or defenses at issue in the contemplated litigation.”
Montana State Univ.-Bozeman v. Montana First Jud. Dist. Ct., 426 P.3d 541,
552–53 (Mont. 2018). That includes a duty to suspend a “routine records or
resource retention, destruction, or recycling policy or practice.” Id. at 553;
see also Margaret M. Koesel & Tracey L. Turnbull, Spoliation of Evidence:
Sanctions and Remedies for Destruction of Evidence in Civil Litigation 19 (ABA

3 After acknowledging this point at oral argument in our Court, appellant’s counsel pivoted to
argue that whether a party spoliated evidence is a question the jury should answer rather
than the trial judge. Courts and commentators are divided over whether that is a question for
the judge or jury. Contrast Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 19–20 (Tex. 2014) (“Placing
the responsibility on the trial court to make spoliation findings and to determine the proper
remedy is a key mechanism in ensuring the jury’s focus stays where it belongs—on the
merits.”), with Rodriguez v. Webb, 680 A.2d 604, 607 (N.H. 1996) (explaining that it was proper
for the jury to decide whether the defendant intentionally spoliated evidence); see also Pollis,
supra, at 104 (acknowledging that “the determination whether or not spoliation has occurred
is usually left to the judge” but arguing that instead the jury should decide “spoliation-related
factual questions”). But as counsel also acknowledged, there was no argument in the trial
court that the jury should decide whether the hospital spoliated evidence, Oral Argument at
12:20–13:35, so this new argument is forfeited on appeal. Finnegan v. State, 240 N.E.3d 1265,
1270 n.3 (Ind. 2024). And to the extent counsel contends the argument was not made in the
trial court because that court was constrained by binding appellate precedent to the contrary,
Rosen’s appellate briefing did not urge the overruling of any precedent.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 10 of 17
3d ed. 2013) (“Many computer systems have automatic deletion features
that periodically purge electronic documents, so once the duty to preserve
is triggered, a party must also take active steps to halt any automatic
deletion process.”). “Of course, an organization need not preserve every
shred of paper, every e-mail, text message or other electronically stored
information once it recognizes the threat of litigation.” Koesel & Turnbull,
supra, at 18.

The party only must do what is reasonable given the circumstances.
See Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 20 (Tex. 2014) (“If a party
possesses a duty to preserve evidence, it is inherent that a party breaches
that duty by failing to exercise reasonable care to do so.”); see also Koesel
& Turnbull, supra, at 21 (“Even though parties must take reasonable steps
to preserve relevant evidence, they are not required to make extraordinary
efforts to retain evidence.”). Of course, part of acting reasonably is acting
in good faith. See DR Distrib., LLC v. 21 Century Smoking, Inc., 513
F. Supp. 3d 839, 945 (N.D. Ill. 2021) (“In discovery, the parties have an
obligation to conduct themselves in good faith.”). For example, a party
may act in bad faith and unreasonably when it implements or designs a
document or data retention protocol for the purpose of disadvantaging a
litigation adversary. See Koesel & Turnbull, supra, at 36 (“Legitimate
document retention policies are created in part to keep adverse
information from getting into the hands of others. But implementing a
document retention program to disadvantage a potential defendant or as
part of a litigation plan may support a finding that an organization acted
in bad faith.”).4

Here, just days after the fall, the hospital preserved video of the fall and
sent that video to Rosen’s counsel with the unanswered invitation to let

4Effective January 1, 2026, our Trial Rule 37(D) provides that “[a] court may impose sanctions
on a party for failing to take reasonable steps to preserve electronically stored information
that is relevant, material to the litigation, should have been preserved in anticipation of or
during litigation and is lost because a party fails to take reasonable steps to preserve it, cannot
be restored or replaced through additional discovery, and either prejudice results to another
party from loss of the information or the party acted with the intent to deprive another party
of the information’s use in the litigation.”

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 11 of 17
the hospital know if counsel needed anything further. At least when
assessing the strength of Rosen’s argument that the hospital should have
known to preserve earlier footage, the trial judge could consider that
Rosen’s counsel didn’t complain about the length of the video the hospital
produced until well over a year later when filing spoliation motions. If it
wasn’t initially apparent to Rosen’s counsel that earlier footage could be
relevant to her claim, then the trial judge could conclude it wasn’t
reasonable to expect that to be apparent to the hospital either.

As for the remaining unpreserved video, Panek submitted an affidavit
explaining his routine practice for preserving video after someone falls on
the premises and how he followed that practice here. Rosen does not
claim that Panek’s testimony was inaccurate or untruthful, does not
explain why his protocol for preserving video of falls is an unreasonable
one, does not argue that the protocol was implemented or executed in bad
faith, and does not explain why the only reasonable conclusion a trial
judge could reach is that Panek should have deviated from his protocol in
this case.

Panek had to draw the line somewhere, and Rosen acknowledges our
Court shouldn’t draw that line as a matter of law. For example, she
doesn’t propose that we hold that surveillance video of a fall must be
preserved beginning at some particular point before the fall through some
particular period after the fall, whether five minutes, an hour, a day, or
some other period. Nor does she propose any particular standard a party
could apply when deciding how much video to preserve before and after
a fall. Instead, just as when trial judges exercise their judgment to
determine what evidence is discoverable and then later what evidence is
admissible at trial, we must continue to leave fact-intensive,
circumstances-specific judgment calls about spoliation to our trial judges’
discretion. See Laura A. Adams, Reconsidering Spoliation Doctrine Through
the Lens of Tort Law, 85 Temp. L. Rev. 137, 143–44 (2012) (“Identifying the
trigger and scope of the preservation obligation requires a fact-intensive
inquiry, made difficult by the parties’ imprecise knowledge about the
subject matter of the litigation prior to the filing of a complaint. Moreover,
case law does not provide consistent guidance about what a party must

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 12 of 17
do to meet its obligation.”). And the judge exercised that discretion
reasonably here.

A final word about Rosen’s preservation letter. To the credit of
plaintiff’s counsel, counsel promptly sent a letter just a few days after
Rosen’s fall informing the hospital that Rosen had retained a lawyer and
was considering a claim, thus precluding any doubt at that point that the
hospital’s duty to preserve evidence was triggered. Also, rather than
relying only on broad boilerplate, the letter helpfully identified specific
evidence plaintiff’s counsel thought the hospital had, such as “incident
reports” and “video and/or photos which show my client being injured.”
Appellant’s App. Vol. 2 at 135.

At times, the hospital has seemed to argue that the preservation letter
created an outer limit for proper discovery requests or that compliance
with the letter created a spoliation safe harbor. Those views are mistaken,
as the Court of Appeals correctly noted, Rosen, 257 N.E.3d at 14 n.2, and as
the hospital’s counsel acknowledged at oral argument in our Court. A
preservation letter may be relevant to whether litigation was reasonably
foreseeable and whether it was reasonably foreseeable that particular
evidence would be discoverable. And compliance with the letter may be
one relevant consideration in evaluating the reasonableness of a party’s
preservation efforts (considered among all the other circumstances). But
when it is reasonably foreseeable that evidence will be discoverable in
litigation, the party has a duty to preserve that evidence regardless of
whether the evidence is identified in a preservation letter.

Having decided the trial court reasonably concluded that the hospital
did not spoliate evidence, we next consider whether the trial court erred
by precluding Rosen from questioning the hospital’s witnesses about the
unpreserved footage.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 13 of 17
II. The trial court did not abuse its discretion when it
prohibited Rosen from mentioning other cameras
and footage during the trial.
Before trial, the trial court granted the hospital’s motion in limine and
barred any “argument, questions, testimony, or evidence suggesting that
(a) video footage existed or does exist (b) substantiating plaintiff’s claim of
negligence; (c) that was or is being withheld or has been destroyed by
defendants or by defendants’ attorneys.” Appellant’s App. Vol. 3 at 24, 30.
At trial, the trial court reaffirmed its ruling and sustained objections to
questions about the unpreserved videos. Rosen argues that barring her
from asking questions about the unpreserved footage was an abuse of
discretion for three reasons, but we do not find any of them persuasive.

First, she argues evidence that the hospital failed to preserve the video
footage was admissible to impeach Steven Stimac, who oversaw
maintenance for the building where Rosen tripped. Stimac testified in his
Trial Rule 30(B)(6) deposition that he was aware of only one camera in the
location where the fall occurred, that he wasn’t sure whether there were
any other cameras in the area, and that the security department would
know if there were more. After his deposition concluded, he conferred
with other hospital personnel and submitted an errata sheet
supplementing his testimony to say that “there is an additional camera in
the lobby which is pointed North toward the reception desk and would
not have captured the fall.” Appellant’s App. Vol. 2 at 106. He also noted
there was a security camera in the nearby gift shop. Id. But Timothy Panek
had reviewed the footage from that camera and observed it did not
capture the fall.

At trial, when plaintiff’s counsel asked Stimac whether it was the
hospital “that selected that video,” he answered that the video played at
trial was “the video that depicted the incident.” Tr. Vol. 3 at 65:15–16.
When counsel next asked how he knew that, he responded that “[a]fter
further investigation with our security department, that was the only
video that depicted the incident.” Id. at 65:17–19. The trial court then
sustained an objection to the next question: “Did you see the other
videos?” Id. at 65:20–21; 66–67.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 14 of 17
Rosen argues she should have been able to ask Stimac about the other
unpreserved videos because prior inconsistent statements are ordinarily
proper evidence for impeachment. See Collins v. State, 521 N.E.2d 682, 685
(Ind. 1988) (“Prior inconsistent statements may be used to impeach a
witness so long as a proper foundation is first laid.”). But the hospital
responds, and we agree, that Rosen has not identified any inconsistent
statements. There is nothing inconsistent in Stimac’s statements that he
knew of only one video capturing the fall; that he later learned from other
hospital personnel that there were other cameras in the area, but they
didn’t capture the fall; and that the hospital produced the video played at
trial because that was the only video that captured the fall.

Second, Rosen argues the evidence was relevant to impeach the
hospital’s accident reconstruction expert, Michael Whitley. Whitley
testified that in his opinion, based in part on the video, “there is no
physical evidence or testimonial evidence to support there being a defect
in the mat before Ms. Rosen fell.” Tr. Vol. 3 at 242:4–246:12, Tr. Vol. 4 at
4:18–23. Rosen argues she should have been able to cross-examine Whitley
about his failure to review the other unpreserved video, which she
believes would have undermined his credibility and the strength of his
opinion. This argument fails because Rosen does not explain how video
that did not capture the fall or show the portion of the mat over which
Rosen tripped would be relevant to Whitley’s opinion about what caused
the fall and the condition of the mat.

Third, Rosen argues that Whitley’s testimony analyzing the preserved
video opened the door to this evidence because, without the barred
evidence, the jury was left with the misimpression that the preserved
video was “the only relevant video to the case.” Appellant’s Br. at 28. This
argument fails because what Rosen describes as a misimpression was an
accurate impression—the trial judge reasonably concluded the video was

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 15 of 17
the only relevant video. Video that captured the fall was relevant. Video
that didn’t capture the fall was irrelevant.5

In sum, the trial court’s evidentiary rulings were reasonable judgment
calls within the trial judge’s discretion, and we must defer to those
rulings.

Conclusion
For these reasons, we affirm the judgment.

Rush, C.J., and Massa and Slaughter, JJ., concur.
Goff, J., dissents with separate opinion.

ATTORNEYS FOR APPELLANT
Angela M. Jones
Pillar Jones, LLC
Crown Point, Indiana

Steven J. Sersic
Smith Sersic, LLC
Munster, Indiana

ATTORNEYS FOR APPELLEE
Gregory A. Crisman
Zachary R. Peifer
Eichhorn & Eichhorn, LLP
Hammond, Indiana

5Under Appellate Rule 58(A)(2), we summarily affirm the holding of the Court of Appeals
that the trial court did not err by precluding evidence related to the adequacy of the hospital’s
post-fall investigation because that evidence was irrelevant. Rosen, 257 N.E.3d at 16–17.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 16 of 17
ATTORNEY FOR AMICUS CURIAE THE INDIANA TRIAL LAWYERS
ASSOCIATION
Katherine A. Piscione
Waldron Tate Bowen Land LLC
Indianapolis, Indiana

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 17 of 17
Goff, J., dissenting.

Caryl Rosen sued Community Healthcare System (the Hospital) for
negligence after she tripped over a mat in the Hospital’s lobby and fell.
Less than a week after the fall, Rosen’s counsel sent a letter to the Hospital
requesting that it preserve any video footage or photos showing Rosen
being injured. The Hospital responded by sending a ten-to-twelve-second-
long video (the Preserved Video) showing Rosen’s fall, but the footage
was taken at an angle and about seventy-five feet away from the mat. The
portion of the mat Rosen allegedly tripped over was also not visible
because it was blocked by a pixelated object, likely a wheelchair. The
Hospital did not retain that camera’s footage from earlier in the day,
which might have shown the condition of the mat. Rosen later learned of
two other cameras recording the main lobby at the time of her fall, but the
Hospital did not preserve the footage from these cameras after a security
supervisor determined that only the Preserved Video captured the fall.

At trial, Rosen argued the Hospital engaged in spoliation and moved
for sanctions which the trial court denied. The trial court also refused to
provide Rosen’s proposed adverse-inference jury instruction which read,
“If a party fails to produce a document or physical evidence under the
party’s exclusive control, you may conclude that the documents or
evidence would have been unfavorable to the party’s case.” Appellee’s
App. Vol. 2, p. 141. The jury returned a verdict in favor of the Hospital.
Rosen appealed, and the Court of Appeals reversed in part, concluding
that the trial court erred in ruling that the Hospital did not engage in
spoliation. Rosen v. Cmty. Healthcare Sys., 257 N.E.3d 6, 17 (Ind. Ct. App.
2025). This Court vacated the Court of Appeals’ opinion and concludes on
transfer that the trial court did not abuse its discretion in finding no
spoliation and declining to give Rosen’s proposed jury instruction. Ante,
at 6–7. I respectfully dissent from the Court’s conclusion that the trial
court did not abuse its discretion in declining to give Rosen’s proposed
jury instruction. In my view, whether the Hospital spoliated evidence here
is a fact-sensitive issue that is more appropriately decided by a jury.

Spoliation is a “discovery abuse that involves the intentional or
negligent destruction, mutilation, alteration, or concealment of physical

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 1 of 4
evidence” in pending or reasonably foreseeable litigation. In re Paternity of
A.J., 146 N.E.3d 1075, 1083 (Ind. Ct. App. 2020) (quoting N. Ind. Pub. Serv.
Co. v. Aqua Envt’l Container Corp., 102 N.E.3d 290, 300–01 (Ind. Ct. App.
2018)), trans. denied. A party “is under a duty to preserve what it knows, or
reasonably should know, is relevant in the action, is reasonably calculated
to lead to the discovery of admissible evidence, is reasonably likely to be
requested during discovery and/or is the subject of a pending discovery
request.” Miller v. Fed. Express Corp., 6 N.E.3d 1006, 1013 (Ind. Ct. App.
2014) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y.
2003)), trans. denied. A party claiming spoliation must prove that “(1) there
was a duty to preserve the evidence, and (2) the alleged spoliator either
negligently or intentionally destroyed, mutilated, altered, or concealed the
evidence.” Synergy Healthcare Res., LLC v. Telamon Corp., 190 N.E.3d 964,
968 (Ind. Ct. App. 2022).

This Court holds that the trial court did not abuse its discretion because
the video from the first camera was so pixelated that earlier footage would
not have shown the condition of the mat. Ante, at 8. The Hospital’s failure
to retain footage from the other two cameras was also reasonable, the
Court explains, because the other cameras captured only the corners of the
mat and not the portion of the mat Rosen tripped over. Id. at 9. In contrast,
the Court of Appeals concluded the Hospital did engage in spoliation
because footage from before the wheelchair was positioned might have
shown the condition of the mat. Rosen, 257 N.E.3d at 14. And while the
security specialist swore he preserved the only video of the fall, the panel
reasoned, neither he nor any other Hospital employee said there was no
other source indicating the condition of the mat. Id. Because the relevant
evidence in a premises-liability case includes any evidence of the
condition of the premises, not just the evidence of the injury, the Court of
Appeals concluded that the Hospital engaged in spoliation. Id.

The Court acknowledges that the Court of Appeals’ view of the
evidence is reasonable, and had the trial judge reached the same
conclusion as the Court of Appeals, this Court might have affirmed that
judgment too based on the deferential standard of review. Ante, at 9. With
two reasonable interpretations of the facts, then, it would seem

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 2 of 4
appropriate to have the jury determine whether spoliation occurred and
what inferences to draw from the missing evidence. 1

As one commentor observes, “One might expect that the fact-intensive
nature of a spoliation determination—including the determination of the
spoliator’s bad faith—would be the ideal type of dispute to submit to
juries. After all, the very purpose of the jury in our modern litigation
system is to resolve factual disputes.” Andrew S. Pollis, Trying the Trial, 84
Geo. Wash. L. Rev. 55, 104 (2016). Rather than having a court decide if
spoliation occurred and then impose an adverse-inference jury instruction
as a sanction, it may make more sense to allow the attorneys to present
evidence of spoliation at trial and then allow each side to argue
permissible inferences that the jury could draw from the missing
evidence. Charles W. Adams, Spoliation of Electronic Evidence: Sanctions
versus Advocacy, 18 Mich. Telecomm. & Tech. L. Rev. 1, 6 (2011). In
Rodriguez v. Webb, for example, the defendant argued he destroyed the
relevant evidence (a baling machine) to avoid further injury to others at
his factory while the plaintiff argued the defendant was attempting to
hide evidence of negligence. 680 A.2d 604, 605, 607 (N.H. 1996). In my
view, the parties should be allowed to argue to the jury what inferences
they should draw from the destruction of relevant evidence.

Here, the trial court should have had the parties present evidence on
the destruction of the video footage, had the parties argue what inferences
to draw from the destruction of evidence, and given Rosen’s proffered
instruction. Rosen’s proposed instruction stated, “If a party fails to
produce a document or physical evidence under the party’s exclusive
control, you may conclude that the documents or evidence would have
been unfavorable to the party’s case.” Appellee’s App. Vol. 2, p. 141
(emphases added). Such instruction would have allowed the jury to

1The Court concludes that Rosen forfeited her argument that whether a party spoliated
evidence is a question the jury rather than the trial judge should answer. Ante, at 10 n.3. I
would address the argument because Rosen proffered a jury instruction that would have
allowed the jury to consider whether evidence was spoliated and what inferences it could
draw.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 3 of 4
determine whether spoliation even occurred, and from there, the jury
could decide what inferences to draw. After hearing argument from the
parties, the jury “may” have concluded the Hospital destroyed the footage
because it was unfavorable, or the jury “may” have concluded the
Hospital destroyed the footage because it was unhelpful to the case.
Because of the fact-sensitive nature of spoliation, the issue seems ideal for
a jury to resolve.

Indiana Supreme Court | Case No. 25S-CT-217 | March 11, 2026 Page 4 of 4