Ms. Keyes went to the emergency room on June 12, 2006, complaining of abdominal pain. After examining Ms. Keyes, Dr. Lerman arrived at a diagnosis of gall bladder disease and possible small bowel obstruction. Additional tests confirmed the gall bladder disease but showed no evidence of small bowel obstruction. Ms. Keyes' gall bladder was subsequently removed; however, a small bowel obstruction was confirmed on June 14, 2006. The next day, Dr. Lerman performed the more extensive surgery of correcting the small bowel obstruction.

The issue of spoliation raised by the Plaintiffs concerned the June 15, 2006, surgery that dealt with the small bowel obstruction – something they believed should have been dealt with during the first surgery. Dr. Lerman testified that, to the best of his knowledge, he dictated an operative report following the June 15, 2006, surgery, but there was substantial evidence to the contrary. The Keyes argued that this was not an innocent omission, and that the absence of the report hindered the ability of their experts to render opinions regarding Dr. Lerman's compliance with the applicable standard of care. The trial court permitted counsel to argue spoliation to the jury, but declined to give the requested instruction.

The second issued presented to the court concerned the possible bias of defense expert witness, Dr. Kafonek. Dr. Kafonek had previously been represented by the same law firm representing Dr. Lerman, and the Plaintiffs wanted to establish that Dr. Kafonek had a relationship with that firm, in which he reviewed malpractice cases for them and had testified as an expert in cases they handled. In deposition, Dr. Kafonek had stated that he would not testify against another doctor insured by the same medical malpractice insurer that insured Dr. Kafonek. Dr. Lerman moved, in limine, to preclude any questions that would reveal the existence of insurance, and, although the trial court said that it would allow questions regarding Dr. Kafonek's relationship with defense counsel and his refusal to testify against Dr. Lerman, it granted the motion to the extent of precluding any mention of medical malpractice insurance.

After providing a detailed discussion of what spoliation of evidence is and what the instruction is, the Court of Special Appeals held that there was no finding by the trial court, or evidence that would support a finding by the jury, that Dr. Lerman deliberately failed to dictate the operative report in order to conceal evidence of wrong doing on his part. The "bottom line" was that the trial court did not believe, from the evidence in the case, that the requested instruction was appropriate.

Relying on a number of cases, the Keyes averred that the Circuit Court erred in distinguishing between the destruction or non-preservation of evidence, on the one hand, and the non-creation of evidence on the other, where there is a duty to create such evidence. It was the Keyes' view that, where a party was under a duty to make a report documenting certain events that could have legal significance, the failure to make such a report, under certain circumstances, may create inference that the report, if made, would have been unfavorable to a position taken by the party in the litigation. There is, indeed, some authority to support that view.

Even if the Plaintiffs were correct, however, the Court of Special Appeals viewed the question not as whether, in the circumstances of this case, such an inference was permissible from Dr. Lerman's failure to dictate an operative report, but only whether the trial court was obliged to so instruct the jury. The Court of Special Appeals held that where, in given circumstances, an unfavorable inference may be drawn from missing evidence or witnesses, is a matter of fact, not law, the court is under no obligation to give an instruction on the matter. The court may do so, and in certain circumstances perhaps it should do so, but the court of Appeals has clearly stated in Patterson v. State, 356 Md. 677 (1999), failure to do so is not in error or an abuse of discretion.

With regard to the cross-examination of Dr. Kafonek on bias and interest, the Keyes cited case law for the proposition that "discretion must be allowed in permitting cross-examination as to bias and interest" and noted that the rule dealing with liability insurance, MD. RULE 5-411, renders such evidence inadmissible only as to whether the insured acted wrongfully and does not require exclusion when offered to show bias or prejudice of a witness. The Court of Special Appeals, however, noted the overarching principal that "the scope of cross-examination of expert witnesses is largely within the control and discretion of the trial judge." Here, the trial court clearly tried to balance Plaintiffs' desire to show a bias on Dr. Kafonek's part due to his association with defense counsel against the prejudice to Dr. Lerman from revealing that he had liability insurance. Plaintiffs were able to show the nature and extent of Dr. Kafonek's economic association with defense counsel generally and Dr. Lerman's attorneys in particular, and Plaintiffs were offered the opportunity of exposing Dr. Kafonek's reluctance to testify against doctors in Baltimore County, so long as that would not reveal that Dr. Lerman was insured. Thus, the court found no abuse of discretion in the trial court's ruling.