While preparing for trial, litigators in medical malpractice lawsuits are inevitably confronted with the conundrum of how they will communicate to jurors the complex medical concepts involved in the case. Most jurors have only a cursory understanding of biology, and a rudimentary knowledge of medical procedures and jargon. But a majority of jurors rely on digital technology. As a result, many jurors expect that information will be conveyed to them in a technologically sophisticated manner. With this in mind, an advocate who can use advanced technology to convey complicated medical information to lay people should have an advantage at trial.

Testimonial evidence, the traditional mechanism for eliciting proof at trial, can be an inefficient method for educating jurors. Demonstrative evidence, on the other hand, allows jurors to perceive evidence through the direct use of their senses.1 Demonstrative evidence, which is a physical representation of a fact presented at trial, includes diagrams, photographs, and films. It is well known that people typically retain more information when it is presented both visually and orally, rather than just orally.2 So, in conjunction with expert testimony, trial lawyers are increasingly relying on demonstrative evidence to illustrate issues in science and medicine. Trial judges generally instruct jurors that demonstrative evidence is not “evidence of the actual event or how it happened, but rather for the limited purpose of illustrating and understanding the opinion [of the expert].”3

Medical procedures, which are the crux of many medical malpractice trials, can be illustrated to juries through compelling video demonstrations. Videos of medical procedures are ubiquitous on YouTube: Clips ranging from circumcisions to childbirths are easily accessible. These videos depict the surgical tools used during the procedures, the precise movements of the surgeons, and the speed with which operations are performed. They are an efficient way to educate juries about the intricacies of the medical treatment at issue. Naturally, one would expect that a video of a surgical procedure that is the focus of a trial would be shown to the jury as a matter of course. But this is not so in New York.

The Appellate Division, First Department’s decision in Glusaskas v. Hutchinson, 148 A.D.2d 203 (1st Dept. 1989) limits trial lawyers’ ability to present demonstrative evidence to a jury in medical malpractice cases. In Glusaskas, the First Department precluded a physician-defendant from introducing a video depicting the defendant performing a similar operation on a different patient. The court suggested that for the video to be admissible the patient depicted in the video should be physically similar to the plaintiff, the two surgeries should be identical, and the video demonstration should not include the defendant-physician. Since that decision, which was issued over 20 years ago, the First Department has continued to uphold Glusaskas.4 Just last year, in Rojas v. Palese, 94 A.D.3d 557 (1st Dept. 2012), the First Department, relying on Glusaskas, precluded the defendant from presenting a surgical video.

The First Department’s preclusive ruling in Glusaskas is rather broad, but computer-generated demonstrative evidence may satisfy the objections raised in Glusaskas. Digital evidence allows trial attorneys to control the pertinent variables of the demonstration—speed, patient size, and type of procedure—without sacrificing accuracy or reliability.5

U.S. District Judge Jack B. Weinstein presaged the use of computer enhanced demonstrations nearly a decade ago:

The revolution in communicating that has occurred and is still occurring may sometimes be distracting, but it can strengthen the ability of courts to seek truth. Technology in litigation has changed enormously since the adoption of the Federal Rules of Evidence in 1975. In any complex case, computer-generated presentations are the norm rather than the exception.6

Evidentiary Standards for Demonstrative Evidence in New York. To reap the benefits of computer-generated exhibits, litigators should be conversant with the case law on demonstrative evidence in New York. Like any other form of evidence, demonstrative evidence must be relevant. But the linchpin for admissibility in New York is whether the conditions of the demonstration are sufficiently similar to those existing at the time in question.7 Clearly, if the demonstration is inaccurate or misleading, the exhibit will be precluded.

In Glusaskas, the defendant, a cardiac surgeon, performed an aortic and mitral valve replacement on the patient. During the surgery, the defendant lacerated the patient’s aorta and the patient died. At trial, the defendant’s lawyer showed a video of the same defendant performing another heart valve replacement on a different patient that was performed shortly before trial. Defense counsel argued that the video would educate jurors about anatomical features and surgical methods, and it was admitted into evidence. The jurors awarded a defense verdict, and the plaintiff appealed the judgment dismissing the complaint.

On appeal, the First Department concluded that the video was “highly improper, inflammatory, and prejudicial.”8 The First Department made the following findings: (1) the videotape was prepared exclusively for trial, which enabled the defendant to employ a heightened level of care for the camera; (2) there were significant anatomical differences between the patient in the video and the plaintiff; and (3) the surgical procedures were not identical. The Appellate Division concluded that the video had not been prepared for educational purposes; rather it had been a staged event to show that the defendant-physician was a careful doctor.

The First Department did not revisit the Glusaskas holding regarding demonstrative evidence for over 20 years. But last year, in Rojas, the First Department quietly endorsed Glusaskas. In Rojas, the defense attempted to present a video showing a nephrectomy performed by the defendant on another patient. Since the court could not determine if the size of the patient’s abdomen was similar to that of the plaintiff (the procedure differs depending on the size of the abdominal cavity), or if the plaintiff and patient were of similar age, sex, or health status, the court excluded the video in order to avoid jury confusion and prejudice. On appeal, the First Department concluded that the prejudicial effect of showing the video to the jury outweighed its marginal probative value.

In Glusaskas, the First Department observed that a demonstrative video in a medical malpractice lawsuit could be admissible under certain circumstances. A video demonstration that features a defendant-physician appears less likely to pass muster. But in both Glusaskas and Rojas, the courts found that the use of patients who did not closely resemble the plaintiffs was also objectionable. So the question remains, what circumstances must exist for a demonstrative surgical video to be admissible in a medical malpractice trial? How can either side create a demonstration that accurately portrays the medical treatment at issue without unfairly biasing the jury?

Computer-Animated Evidence as a Method of Avoiding a ‘Glusaskas’ Objection. While the New York state appellate courts have been somewhat resistant to demonstrative videos in civil cases,9 the district court’s decision in Verizon Directories v. Yellow Book USA, 331 F. Supp. 2d 136 (E.D.N.Y. 2004), advocates for the use of all forms of demonstrative evidence. The court held that, subject to relevancy standards and appropriate limiting instructions, demonstrative pedagogical aids, particularly computer-generated exhibits, should generally be admitted into evidence.10 Weinstein was confident that jurors would not be easily misled by computer-generated demonstrative aids: “[Modern juries] need not be treated as illiterates as under the old English practice.”11 He predicted that increased use of computer-driven educational devices would result in verdicts that hewed more closely to the truth.

Given the district court’s endorsement of computer-generated evidence in Verizon Directories, one might assume that its state-court counterparts should be open to computer-generated demonstrative evidence in medical malpractice cases. As far back as 1984, a criminal trial court in New York state remarked: “A computer is not a gimmick and the court should not be shy about its use, when proper.”12

Computer-generated demonstrative evidence may permit medical malpractice attorneys to clear the evidentiary hurdles raised by the appellate division in Glusaskas. A computer-generated instructional video could substitute an anonymous physician in place of the defendant-physician or depict a digitally-animated “patient” who is anatomically identical to the plaintiff. To avoid creating the impression that the computer animation is a staged event, it can be presented to the jury in real time.

The utility of computer-animated videos extends to nonsurgical medical malpractice cases as well. Computer-animation can replicate live births in brain-damaged baby cases; vascular blockages in heart attack and stroke cases; metastasis of tumors in cancer cases; and the development of pressure ulcers in lawsuits against nursing homes. In addition, new technology enables trial attorneys to present three-dimensional digital images to jurors. Three-dimensional images allow jurors to appreciate the depth of an organ. For example, a three-dimensional digital animation of a heart pumping blood through the cardiac vessels would be helpful in illustrating the effect of ischemia (the restriction in blood supply) on the heart. In a three-dimensional view of the heart, jurors could appreciate the precise location of the major coronary vessels within the heart, which could effectively illustrate to them how a heart attack causes the death of cardiac muscle.

In light of Glusaskas, trial attorneys should be prepared to respond to potential evidentiary objections raised by an opposing counsel. It is prudent to disclose demonstrative evidence to adverse parties before trial, and attorneys should attempt to obtain an adversary’s consent to show demonstrative evidence to jurors. If the attorneys are unable to agree, trial attorneys should litigate admissibility issues before trial through a motion in limine.

To be sure, a computer animation needs to be supported by testimony from a physician that the procedure depicted in the animation is a fair and accurate representation of how it is actually performed. Opposing counsel will undoubtedly have an opportunity to voir dire the witness and argue to the jury that the demonstration has limited probative value because it cannot possibly mirror the events in question in every respect. The proponent of the demonstration may respond that this argument bears on the weight the jury may give to the demonstration, not to its admissibility.13 Assuming the opposing counsel asks for a limiting instruction, the proponent can argue that the jury will be presumed to follow the court’s instruction that the evidence was admitted for the limited purpose of illustrating and understanding the expert’s opinion.

Above all, computer-generated de-monstrations must be pedagogical, accurate, and representative of the parties in the litigation. Any hint of bias should be excised. Trial attorneys who do not scrutinize demonstrations for these factors risk preclusion. As the use of digital technology grows, medical malpractice trial attorneys who lack sophisticated demonstrative evidence may find their trial presentations to be antiquated.

Robert B. Gibson is a trial attorney and a partner, and Jesse D. Capell is an associate, at Heidell, Pittoni, Murphy & Bach. Brendan J. Alt, an associate, assisted in the preparation of this article.

Endnotes:

1. Clark v. Brooklyn Heights R., 177 N.Y. 359, 69 N.E. 647 (1904).

2. The seminal Weiss-McGrath study compared retention of information presented in three different formats: orally only, visually only, and visually and orally. Harold Weiss and James B. McGrath, Technically Speaking: Oral Communication for Engineers, Scientists, and Technical Personnel (McGraw-Hill 1963). After 72 hours, the group presented information solely by oral means retained only 10 percent of the information. The group receiving information solely through visual aids retained twice the information, but still only 20 percent of the total material presented. But the participants who received information both orally and visually retained 65 percent of the information presented.

3. NY PJI3d. 1:90.3.

4. See Rojas v. Palese, 94 A.D.3d 557 (1st Dept. 2012).

5. David S. Santee, “More Than Words: Rethinking the Role of Modern Demonstrative Evidence,” 52 Santa Clara L. Rev. 105, 111-12 (2012).

6. Verizon Directories v. Yellow Book USA, 331 F. Supp. 2d 136, 142 (E.D.N.Y. 2004) (emphasis added).

7. Kane v. Triborough Bridge & Tunnel Auth., 8 A.D.3d 239 (2d Dept. 2004).

8. Glusaskas, 148 A.D.2d at 205.

9. See Kane v. Triborough Bridge & Tunnel Auth., 8 A.D.3d 239 (2d Dept. 2004) (plaintiff precluded from introducing a computer-generated animation illustrating the plaintiff’s expert’s theory of the cause of a fire); Dunn v. Moss, 193 A.D.2d 983 (3d Dept. 1993) (defendant precluded from introducing a videotape outlining the particulars of a mini-trauma cholecystectomy); Austin v. Bascaran, 185 A.D.2d 474 (3d Dept. 1992) (defendants precluded from showing a video of their dog because it portrayed the dog as obedient and implied that defendants had no reason to suspect that the dog possessed vicious propensities); Mechanick v. Conradi, 139 A.D.2d 857 (3d Dept. 1988).

10. Verizon Directories v. Yellow Book USA, 331 F. Supp. 2d 136, 142 (E.D.N.Y. 2004) (“Whether designated as “pedagogical devices” or “demonstratives,” this material may be admitted as evidence when it is accurate, reliable and will “assist the factfinder in understanding the evidence”).

11. Id. at 143.

12. See People v. McHugh, 124 Misc. 2d 559 (Sup. Ct., Bronx Cty., 1984).

13. People v. Yates, 290 A.D.2d 888 (3d Dept. 2002) (the trial court must decide whether the probative value of a demonstration outweighs its potential for prejudice).