Lauren Santucci (Associate-White Plains, NY) defended our hospital client in a case involving orthognathic surgery performed by codefendant oral-maxillofacial surgeon to address the plaintiff’s sleep apnea. During the procedure, the bit of the drill used to access the jawbone broke off and became lodged in the surrounding tissue. The surgeon was unable to locate the drill bit, and a second surgeon was called in who removed the entire drill bit, which was disposed of as a surgical sharp. Post-operatively, the plaintiff had facial swelling that required intubation for several days, and later developed facial nerve palsy attributed stemming from the exploration for the bit. Other alleged damages included left facial paralysis, facial weakness, inability to close the left eye, inability to eat and drink properly, and malocclusion. Lauren argued that the hospital provided the surgeon with an unused drill bit that was inspected prior the surgery and that the complication of loss of the drill bit was a surgical issue that did not involve the hospital or its personnel, and that the drill bit, once retrieved and confirmed to be complete, was appropriately discarded as a surgical sharp. The plaintiff argued they were entitled to the adverse inference of spoliation because the drill bit was material evidence and should have been preserved; failure to do so prevented the plaintiff from ascertaining whether the drill bit was defective. In the decision, the Bronx County Supreme Court​ noted plaintiff’s opposition was entirely speculative and not an affirmative opinion that there was negligence. The court granted Lauren’s motion for summary judgment and denied plaintiff’s cross motion for spoliation sanctions. The court determined the hospital was not obligated to maintain the bit and the record confirmed the drill bit was fully retrieved, that there was no evidence it was discarded with a culpable state of mind, or that the plaintiff was deprived of his ability to prosecute his claim. The court noted the record established the bit was new and inspected prior to use; thus, the plaintiff’s inability to examine the bit did not equate to prejudice sufficient to warrant spoliation sanctions.