JONES (JANET), ET AL. VS. OVERSTREET (STEPHEN K.) M.D., ET AL.
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RENDERED: AUGUST 12, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000920-MR
JANET JONES
and RONALD JONES
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 06-CI-011121
STEPHEN K. OVERSTREET, M.D.;
STEPHEN K. OVERSTREET, M.D.,
PLLC.; and HUMANA
INSURANCE COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, MOORE AND NICKELL, JUDGES.
MOORE, JUDGE: Janet and Ronald Jones appeal a defense verdict in their
medical negligence action against Stephen K. Overstreet, M.D., Stephen K.
Overstreet, M.D., PLLC, and Humana Insurance Company (collectively
“appellees”). The sole issue on appeal is whether the trial court committed
reversible error in admitting a wire into evidence on the basis that the wire
qualified as a true replica of the instrument that allegedly caused the injuries at
issue in the appellants’ action. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Dr. Overstreet performed an esophageal dilation procedure at Baptist
Hospital Northeast on Janet’s esophagus for what Dr. Overstreet suspected was a
mid-esophageal stricture. The appellants describe the specifics of this procedure in
their brief:
After [a] diagnostic, upper endoscopy [is performed], a
guide wire is placed through the endoscope (which has an
open channel) past the area of the suspected stricture in
the esophagus and into the stomach. After the wire is
properly positioned under direct visualization, the
endoscope is slowly removed while the wire is
simultaneously advanced in order to maintain the
position of the wire in the stomach. After the endoscope
is removed, the position of the wire is confirmed by using
distance markings placed on the wire by the
manufacturer or by using fluoroscopy (x-ray). The wire
is held in position at the patient’s incisors by an assistant,
and the dilator is then loaded onto the back of the wire
and lubricated. The physician must then firmly secure
the wire outside the patient and advance (push) the
dilator over the guide wire past the suspected stricture. If
subsequent, larger dilators are used, the initial dilator is
removed, and the wire is held in place at the incisors by
an assistant. The placement of the wire is re-checked by
using the wire markings or fluoroscopy, and the process
is repeated. When the dilations are completed, the wire
and dilator are removed together.
....
[A] Savary-Gilliard wire is utilized as a safety device to
guide the passage of the dilators. It is manufactured and
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designed with a flexible, floppy [spring] tip. The tip is at
the front end of the wire and is inserted into the patient.
When used properly, the flexible, floppy [spring] tip is
also intended and designed as a safety device. The
flexible, floppy [spring] tip is wider in diameter than the
remainder of the wire and the dilator so the dilator cannot
be pushed beyond the wire. The flexible, floppy [spring]
tip is soldered to the rest of the wire, and if there is
excessive movement or bending of the wire at this
junction, a sharp edge can be created or the tip may even
break off completely. The wire can be of different
lengths, but it is typically 160 centimeters long. It has
markings (bands) in 20 centimeter increments indicating
the distance from the floppy [spring] tip (front end) of the
wire in relationship to a fixed point on the patient—the
incisors. In most patients, the wire is inserted to the band
with three marks or approximately 60 centimeters from
the tip of the wire to the patient’s incisors. The wire is
manufactured and designed to be a reusable medical
device.
Immediately following Janet’s procedure, Dr. Overstreet consulted
with a general surgeon, Dr. Thomas Hart, because Janet was complaining of
abdominal pain. Dr. Hart’s consult note states that Dr. Overstreet felt moderate
resistance upon passage of the second dilator during the procedure and that Dr.
Overstreet had noticed that the initial guide wire was “somewhat kinked” when he
removed it from Janet’s esophagus. Janet was transferred to Baptist Hospital East
for further evaluation and treatment. She was seen by Dr. Marc Marcum, a general
surgeon. Dr. Marcum suspected that the guide wire that Dr. Overstreet had used in
Janet’s procedure had caused a stomach or duodenal perforation. During surgery,
Dr. Marcum found evidence of a perforation.
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The appellants filed a medical negligence suit in Jefferson Circuit
Court against Dr. Overstreet and his practice, and the case proceeded to trial. Both
of the appellants’ experts, Drs. Alvin Zfass and Patrick Okolo, testified that Dr.
Overstreet’s method of marking, securing, and controlling the guide wire during
Janet’s procedure fell below accepted standards of care and had caused the guide
wire to move beyond the stomach, bend into a sharp edge at the front end, and
perforate Janet’s duodenum.
The appellees argued that Dr. Overstreet had met the applicable
standard of care when he performed Janet’s procedure. The appellees’ experts, Dr.
William Emlich, Jr., Dr. Kashif Haider, and Dr. Overstreet himself testified that (1)
a perforation is a known risk of the dilation procedure and could occur even when
the physician does not breach the applicable standard of care; (2) there was no
evidence that the guide wire even reached Janet’s duodenum; and (3) the
perforation may have been caused by something unrelated to the procedure, i.e., a
duodenal ulcer.
At trial, Dr. Overstreet testified that he had performed Janet’s
esophageal dilation procedure with a Savary-Gilliard guide wire and polyvinyl
dilators. However, the original guide wire that Dr. Overstreet had used during
Janet’s procedure was unavailable for trial; Dr. Overstreet testified that, to his
knowledge, Baptist Hospital Northeast had disposed of it. As such, both parties
equally utilized sample Savary-Gilliard guide wires to prove their respective
theories of this case. In particular, both parties had virtually every expert use
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sample guide wires to perform simulations of Janet’s procedure for the jury, and
the sample guide wires were manipulated and bent during those simulations. Aside
from those demonstrations, Dr. Zfass, the appellants’ expert, also allowed a juror
to touch part of a sample guide wire. At one point in his demonstration, Dr. Zfass
held a sample guide wire in his mouth. And, both Drs. Emlich and Haider
demonstrated the flexibility of the spring tip at the front end of a sample guide wire
by probing it into their hands. Dr. Haider remarked that the spring tip “couldn’t
even pop a balloon.”
Near the end of Dr. Haider’s testimony, the appellees’ counsel asked
Dr. Haider whether the sample guide wire that he had been demonstrating with was
representative of the type of guide wire that Dr. Overstreet would have used in
Janet’s procedure. Dr. Haider stated, “I would think so. I mean, this is the guide
wire that we use. Yes, sir.” Thereafter, the appellees sought to introduce the
sample guide wire into evidence. The appellants objected.
The matter of whether the sample guide wire was admissible as
evidence was postponed. The parties argued this issue before the trial court on the
following day.
Appellees’ Counsel: Your honor, we, we did check the
tapes, or CD’s last night. We did find the area where Dr.
Overstreet acknowledged that this particular wire is
indeed of the same type that was utilized and we’ve got
that marked for the court so that we can mark the wire as
an exhibit. Um, and above and beyond that, I will tell the
court if the plaintiff has rested, that it is the intention of
the defense to rest as well.
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The Court: Alright.
Appellants’ Counsel: Let me address the wire issue, your
honor. Um, with respect to the wire issue, um, the wire
that we have here that Mr. Whonsetler is seeking to
introduce into evidence is not the wire that was used in
Mrs. Jones’ case. It is not evidence in that way, shape, or
form. At the very best, that wire and any of the other
wires that have been used in this courtroom are visual
aids that have been used by the witnesses to explain their
testimony. Um, to the extent that someone, in this case
perhaps Dr. Overstreet says it is the same wire or an
exemplar similar wire, it is still only sufficient to
establish it as a visual aid. Our objection to this going to
the jury is several-fold. First, the wire is not necessarily
in the same condition as the wire that he used, so there is
a substantial danger of prejudice or confusion. I don’t
know if that’s a new wire that just came out of the box. I
don’t know if it is a wire that has been used on repeated
occasions. So that is a problem. In addition to that, the
problem we have here is we’re going to take a visual aid
into the jury room for purposes of allowing the jury to
conduct demonstrations or experiments with the wire,
which means that we are making decisions in this case
potentially based on things that are not in evidence. The
physicians in this case can use the visual aids or the wire
to explain their testimony. It’s been bent, handled,
moved, manipulated, or any other way, shape or form.
But there is not any authority that I am aware of that says
a visual aid goes to the jury as some form of evidence.
And, to the extent it has any relevance whatsoever, there
is a much more high likelihood of danger of confusion
and prejudice such that the court should exclude it under
Rule 403.[1] And for those reasons we do object to the
wire being put into evidence for the jury to manipulate
and handle.
Appellees’ Counsel: Only briefly, your honor.
1
Kentucky Rule(s) of Evidence (KRE) 403 provides that “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of undue prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”
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The Court: Yes.
Appellees’ Counsel: I don’t think anyone has said that
this is the same wire. In fact, Dr. Overstreet indicated
that the wire was no longer available, it was turned over
to the tech at the hospital and presumably destroyed. I
don’t think “destroyed” is the word he used, but
presumably “thrown out,” I think is the word that he
used. That’s number one. Number two is, this wire has
been in the hands of literally every expert witness that
has been put up in front of the jury. The jury was even so
interested in knowing about the characteristics of the
wire that the court asked that a demonstration be done in
front of the jury. And two of the jurors, or one of them—
I think only one—came up to the court bench inquiring
about the wire itself. To the extent that we are talking
about a wire that has a safety device on the tip of it, we
are not representing that this wire is of a, of the exact
circumstance as the wire that Dr. Overstreet had. It’s the
same type of wire. But, we have no idea as to what went
wrong, if there was anything that went wrong, with the
wire that he employed. And so, I think it is pertinent for
the jury to have in their hands the wire, since the very
comments that we have made to this jury having to do
with the allegations of negligence against Dr. Overstreet
have to do with how he handles the wire. They have seen
that, both from Dr. Overstreet and Dr. Haider as to how
he handles the wire, and I think it’s entirely appropriate,
particularly since plaintiffs’ attorney is saying, “this is
the wire, this, this is the instrument that caused the
injury,” for them to be able to have the wire and come to
a conclusion as to whether Dr. Overstreet utilized it
appropriately.
....
The Court: I think it is clear from every witness who
took the stand and who understood these things that were
handed this wire, not one of them said, “This probably
isn’t like what was used.” Every one of them said that it
is. So I think in terms of similarity, we’ve covered that.
Um, my greater concern is with what a jury does with it.
In other words, I’m not sure there’s anything more that
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they can glean from this wire that hasn’t already been
stated by the physicians. My worry is what they will do
with it back in the jury room, what kind of conclusions
will they draw that may or may not have any relevance to
the issues at hand. Um, and that’s a concern of the court.
Um, on the other hand, we’re trusting them to make some
pretty important decisions, digest a lot of medical
testimony, they were shown this wire and it’s been
discussed for hours, I suspect if we added up all the time.
After further considering the parties’ arguments, the trial court granted
the appellees’ motion to enter the sample guide wire into evidence.
The Court: The closest thing we have in Kentucky is
Hogan v. Cooke Pontiac [Co., 346 S.W.2d 529 (Ky.
1961)], where they brought in a model of a master brake
cylinder and the judge let it in. The appellate court felt
that it was appropriate and actually encouraged that sort
of thing to come in. Um, and at this point in time I’m
going to allow the wire to come in and be introduced. I
think the jury has seen it quite a bit, um, and I think I
have some concerns about what they’ll do with it, but,
um, I think it’s been utilized so much that I can’t overrule
their request to put it in and sustain your objection to it
coming in. So the guide wire will come in as
Defendants’ Number 20.
The appellants requested that the trial court make it clear for the jury
“that this is not the wire, or may not be the same, in that, in that fashion. That it is
used only for illustrative purposes.” The appellants also requested that the trial
court “admonish the jury not to do demonstrations with the wire in the jury room.”
In response, the trial court stated:
Um, I will ask them not to try to bend it and such for the
simple reason that I don’t want it, some day, some
appellate court may be looking at it, and I don’t want
them saying “look at this, they sent a bent wire back to
the jury.” So I’m going to be asking them not to be
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bending it or anything like that. They can hold it, they
can look at it, but I don’t want them bending it for fear
that somebody thinks that we sent a bent wire back there.
Um, so yes, I’ll say that as well.
Thereafter, the appellees gave their closing argument. In relevant
part, the appellees stated:
Dr. Zfass specifically admitted [a perforation] cannot
happen unless the wire is defective. It can’t happen
unless it’s defective. Well, you know you’ve got a nurse
at the hospital,[2] she’s not going to be suing her
employer. And so what happened? This jury heard,
well, Dr. Overstreet, he should have inspected this wire
better. It’s his duty to inspect this wire. And then he had
to admit, well now wait a minute, it can look perfectly
normal and be acceptable. Many of you may recall I
personally bent the wire well over, and it stayed there.
And then I bent it back. And Dr. Zfass said, “I have to
admit, that tip as I see it now would be acceptable for me
to use. And I had to ask did anybody ask Dr. Overstreet
how many people had their hands on this wire at the
hospital to check before it ever gets in his hands to
determine by visualization? I mean, we talked earlier in
this case about electron microscopy, but at least by feel
and by visualization whether or not the wire’s
appropriate to put down. The point of Dr. Zfass’s
testimony is, it may look perfectly normal and be ready
to be used, and yet not be normal. Now, I’m not making
up that testimony. That’s from the plaintiff’s own expert.
It can’t happen unless the wire is defective.
....
Five layers of tissue. We heard that the duodenum is so
thin that this can go right through it. Then we heard from
Dr. Emlich yesterday and he said, “What? The
duodenum is the same thickness, it has five layers, as the
stomach.” The stomach is just slightly more muscular,
but it’s got five layers of tissue. It’s got to go through
2
At the time of this incident, Janet was employed as a nurse at Baptist Hospital.
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five layers? You’ve got to be kidding me. And you all
saw Dr. Emlich going like this.
At this point in the appellees’ closing argument, the appellees’
counsel probed the spring tip of the front end of the guide wire into the back of his
hand. Then, without any objection from the appellants, he repeatedly probed it
into the inside of his mouth.
Appellees’ Counsel: I cannot. Try as I may. Try as I
may, I can’t even get that through the mucosa of the
inside of my mouth. Is it any wonder why Dr. Overstreet
has said, I know I’m going to put fourteen people out, but
I by golly want my day in court because I was trained the
right way, I handled this the right way, and I don’t think
it was the wire that did this. But if it did, based on Dr.
Zfass’s own testimony, it had to have been defective.
Following the appellees’ closing argument, the trial court gave the
following statement to the jury:
Ladies and gentlemen, I need to bring you up to speed on
one item that I neglected to do before Mr. Whonstetler
did his closing, although frankly he did something in it
that’s going to kind of facilitate my explaining things to
you. Before we finished with the case in terms of putting
proof in, while you all were outside just before lunch, I
allowed into evidence the guide wire, or an exemplar of
the guide wire from this case. You’ve heard the
witnesses talk about this, you’ve seen them use it, it’s
now in evidence. It will go back with you to the jury
room. My reluctance in allowing that in was because it’s
not back there for you all to experiment with. You’ve
heard me talk about how each time I send you home,
you’re not to experiment on your own or try to gather—
this is not for you all, with all due respect to Mr.
Whonstetler, to sit there and see if you can push it
through your lip or any other thing. I don’t want
anybody getting hurt playing with it or concluding
something because you couldn’t do something. Don’t try
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to make it break or anything like that. So, it’s in
evidence, but it’s not there for you all to experiment with.
The appellants did not ask the trial court to admonish the jury any
further. And, immediately following the trial court’s admonition, the appellants
gave their own closing arguments which lasted approximately one hour. During
their closing arguments, the appellants’ counsel also used the sample guide wire in
front of the jury. In particular, the appellants’ counsel bent the spring tip on the
front end of the wire, stating:
The defendant has admitted that he pushed the thing to
the spring tip. And again, the problem with this is you
end up passing an unnecessary amount of dilator for
performing the procedure correctly. And by banging into
this tip over and over again with the dilator, you increase
the likelihood you’re pushing against this and bending it.
That’s one thing we know he did wrong.
At the conclusion of the appellants’ closing arguments, the jury
deliberated. The sample guide wire was made available to the jury during its
deliberations. The jury eventually returned a verdict in favor of appellees, and this
appeal followed.
ANALYSIS
As noted, the sole issue raised in this appeal is whether the trial court
committed reversible error when it allowed the appellees to introduce the sample
guide wire into evidence. The appellants first argue that the only wire that should
have been entered into evidence was the actual wire that Dr. Overstreet used to
perform Janet’s esophageal dilation procedure, and that objects used as visual aids
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are never admissible as evidence and should never be submitted to a jury. We
disagree.
Generally speaking, “Visual aids are a part of the witness’ testimony
but they are not a substitute for testimony, nor are they admitted as exhibits.”
Hellstrom v. Commonwealth, 825 S.W.2d 612, 616 (Ky. 1992); see also Stringer v.
Commonwealth, 956 S.W.2d 883 (Ky. 1997). However, the appellants’ argument
is legally incorrect if the object or visual aid in question qualifies as a “true
replica” under Kentucky precedent. See, e.g., Cincinnati, N.O. & T.P. Ry. Co. v.
Duvall, 263 Ky. 387, 92 S.W.2d 363, 366 (1936) (holding that such a model or
object “may be submitted to the jury to aid them in understanding how an event
occurred or might have been prevented.”) (citing 22 C.J. 768, § 869) (emphasis
added); Hogan v. Cooke Pontiac Co., 346 S.W.2d 529, 532 (Ky. 1961) (holding
that “true replica[s]” are allowed into evidence when they are a “useful aid to the
jury in understanding the evidence and in obtaining a clear comprehension of the
physical facts”); Mitchell v. Commonwealth, 2005 WL 2316195 (Ky. 2005)(2003SC-000670), at *4, note 53 (explaining that a visual aid qualifying as a “true
replica” may be formally admitted into evidence); see also Gorman v. Hunt, 19
S.W.3d 662, 669, n. 33 (Ky. 2000) (“the prevailing practice in trial courts in civil
cases is not only to permit, but, without a request from the jury, to send exhibits
back to the jury room when the jury begins its deliberations.”).
3
We find Mitchell to be persuasive authority in this case and proper to cite because it fulfills the
criteria of Kentucky Rule(s) of Civil Procedure (CR) 76.28(4).
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The appellants also pose three alternative arguments:4 1) even if an
object used as a visual aid could be admitted into evidence, the sample guide wire
that was introduced into evidence in this matter could not have qualified as
admissible evidence because it was impossible to determine whether the sample
guide wire was in exactly the same condition as the guide wire that allegedly
inflicted Janet’s injuries;5 2) the trial court failed to properly admonish the jury
regarding the sample guide wire, per KRE 105; and 3) the trial court should have
excluded the guide wire from evidence, per KRE 403, because its probative value
was substantially outweighed by the danger of creating undue prejudice, confusing
the issues, or misleading the jury.
We disagree. However, before addressing these alternative
arguments, we must first discuss what a “true replica” is under Kentucky
precedent, and why the guide wire qualified as a “true replica.”
In Kentucky, models or objects are “true replicas,” and admissible
evidence for the jury to consider where they are properly identified and
4
In their brief, the appellants also argue that “the trial judge clearly abused his discretion by
failing to consider other evidentiary alternatives such as passing the wire to the jury during trial
under the Court’s supervision or allowing the jurors to return to the courtroom to view the wire if
they needed to see it again and by failing to state on the record the reasons for admissibility.”
At trial, however, the appellants failed to raise or preserve any issue regarding
“evidentiary alternatives” for our review.
Moreover, the trial court unequivocally allowed the guide wire into evidence as a “true
replica,” citing to Hogan, 346 S.W.2d at 532. It is evident, from reviewing the trial court’s
ruling, that the trial court believed that the probative value of the sample guide wire outweighed
its potential for prejudice.
5
As noted, the sample guide wire was presumably new, while the guide wire used in Janet’s
procedure had been disposed of and its condition was unknown.
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authenticated as evidence of the things which they represent and where the items
they represent are relevant. Duvall, 92 S.W.2d at 366. “Any evidence to the
contrary goes to weight, not admissibility” of the evidence. Allen v.
Commonwealth, 901 S.W.2d 881, 885 (Ky. App. 1995). And, like any other
evidence, “It is within the sound discretion of the trial judge to determine whether
the probative value of [the true replica] evidence is outweighed by its possible
prejudicial effect and to admit or exclude it accordingly.” See Beard v.
Commonwealth, 2006 WL 1360887 (Ky. 2006)( 2004-SC-000548-MR), at *4 6
(citing King v. Grecco, 111 S.W.3d 877, 885 (Ky. App. 2002), and Rake v.
Commonwealth, 450 S.W.2d 527 (Ky. 1970)). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
Hogan, Allen, and Beard illustrate the application of these principles.
In Hogan, the right front wheel assembly in the plaintiffs’ 1956 Pontiac car, which
positioned the brake shoes on the right front wheel, allegedly malfunctioned and
caused an accident. The question presented was whether the assembly had allowed
the brake shoe in the right front wheel to become improperly positioned. Hogan,
346 S.W.2d at 531. The defendants sought to introduce into evidence a new right
front wheel assembly from the same model of car to demonstrate that it could not
6
We find Beard to be persuasive authority in this case and proper to cite as it fulfills the criteria
of CR 76.28(4).
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have malfunctioned in the manner alleged by the plaintiffs. The former Court of
Appeals held that the evidence, which included the testimony of the defendants’
experts, sufficiently established that the new right front wheel assembly was an
admissible true replica of a right front wheel assembly in the plaintiffs’ 1956
Pontiac car. Id. at 532. The Hogan Court made this ruling in spite of other
evidence raising “a possibility that something was wrong with the brake” on the
wheel of the plaintiffs’ car, and the plaintiffs’ assertion that the defendant had “put
itself in a position where it could conceal or secretly correct any defects in the
brake system” subsequent to the accident in question. Id.
The defendant in Allen, 901 S.W.2d 881, had allegedly used a paddle
to abuse children. The witnesses who were specifically asked about the thickness
of the paddle testified that it was actually thicker and less flexible than a model
paddle that the Commonwealth sought to introduce as a “true replica.” Id. at 8845. However, the Allen Court found no error in the trial court’s decision to admit a
model paddle into evidence as a “true replica” because those witnesses also
testified that the model paddle was comparable in color, length, and width. Id.
And, the defendant in the more recent case of Beard, 2006 WL
1360887, was accused of using a wooden carved phallus to sexually abuse a child.
The Commonwealth sought to enter a wooden phallus found in the defendant’s
home into evidence as a “true replica” of the phallus the defendant allegedly used.
Id. at *4. The child in question identified the wooden phallus that the
Commonwealth sought to introduce “as being the same type as the one used on
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her, except the one used on her was smaller.” Id. In its review, the Supreme Court
of Kentucky found no error in the trial court’s decision to admit it into evidence as
a “true replica” because, in spite of its differences, “the evidence was exactly as
[the child] had described, wooden carvings of a ‘boy’s private part.’” Id. at *5.
In sum, Kentucky’s definition and treatment of a “true replica”
essentially mirrors the explanation of admissible models and replicas provided in
29A Am. Jur. 2d. Evidence § 1006 (2011),7 which states in relevant part:
Models and objects offered in evidence for purely
illustrative purposes must not only be relevant and
material in character to the ultimate fact sought to be
demonstrated by their use, but, additionally, must be
supported by proof showing such evidence to be
substantially like the real thing and substantially similar
in operation and function to the object or contrivance in
issue. A model or replica should be excluded where the
jury is apt to be misled by it or by its use. However, the
fact that a model differs in some respects from the
original will not prevent its admission in evidence or its
use for purposes of demonstration or illustration, where
such dissimilarity is clearly explained to the jury, or
where the difference is not such as to mislead the jury.
(Internal citations omitted).
7
In its analysis of what qualifies as a “true replica,” the Hogan Court actually relied upon a
predecessor of this section of American Jurisprudence, 20 Am. Jur. Evidence § 740. See Hogan,
346 S.W.2d at 532. As it appeared at the time of Hogan, 20 Am. Jur. Evidence § 740 stated:
Models and casts that correctly represent the object concerning
which relevant testimony is given, and which may assist the jury in
understanding the evidence, are frequently received in evidence.
The admission of such models and casts rests largely in the
discretion of the trial court. A cast, if otherwise relevant and
admissible, may be received in evidence even though it may be of
a gruesome character.
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The sample guide wire that the trial court admitted into evidence in
the case at bar satisfied the two criteria for qualifying as a true replica, i.e., it was
“relevant and material in character to the ultimate fact sought to be demonstrated
by its use” and “supported by proof showing such evidence to be substantially like
the real thing and substantially similar in operation and function” to the guide wire.
Id. It was relevant because, as the appellants themselves note in their brief, “The
guide wire was alleged by the Appellants to have been the instrument which
caused the injury,” and “during the testimony of each and every expert at trial, and
during Dr. Overstreet’s testimony, sample guide wires were used to assist the jury
in understanding the procedure, the manner in which the guide wire is marked,
secured, and controlled, and how the wire could kink or bend causing a sharp edge
and perforation.”
Moreover, the sample guide wire was adequately identified and
authenticated as evidence of what it purported to represent. Dr. Overstreet testified
that he performed Janet’s esophageal dilation with a Savary-Gilliard guide wire.
He represented, through counsel, that the sample guide wire he sought to introduce
in evidence was representative of that type of wire. After demonstrating the
esophageal dilation procedure for the jury with the guide wire that was eventually
introduced into evidence, Dr. Haider also testified that it was representative of the
guide wires he used in his own practice for that procedure. And, the sample guide
wire entered into evidence matches the appellants’ description of a Savary-Gilliard
guide wire, i.e., one end of the wire has a flexible spring tip that is wider in
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diameter than the remainder of the wire, and it has markings in 20-centimeter
increments indicating the distance from the spring tip. Indeed, the appellants offer
no contention that the sample guide wire entered into evidence is not representative
of a typical Savary-Gilliard guide wire.
Bearing this in mind, we return to the first of the three alternative
arguments posed by the appellants. The appellants argue that the sample guide
wire should have been excluded from evidence because it might have been a new
Savary-Gilliard wire; the guide wire that Dr. Overstreet used during Janet’s
procedure might have been a used wire that was more prone to breaking; and, Dr.
Hart’s consult report indicated that the wire that Dr. Overstreet had used during
Janet’s procedure might have been “somewhat kinked” afterward, and the sample
wire was not “somewhat kinked.”
The guide wire, however, fit the criteria for qualifying as a true
replica. These differences between the condition of the sample guide wire and
what the appellants speculated was the condition of the actual guide wire were a
matter of weight, not admissibility. Allen, 901 S.W.2d at 885.
Moreover, we reemphasize that “the fact that a model differs in some
respects from the original will not prevent its admission in evidence or its use for
purposes of demonstration or illustration, where such dissimilarity is clearly
explained to the jury, or where the difference is not such as to mislead the jury.”
29A Am. Jur. 2d. Evidence § 1006 (2011). Here, the appellants cannot
demonstrate that the sample wire posed a substantial danger of misleading the jury.
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Dr. Overstreet introduced the sample guide wire into evidence to illustrate the
appearance of the type of guide wire he used during Janet’s procedure. He did not
represent that it was the actual guide wire that he used or that it was even in the
same condition as the actual guide wire. He testified that, to his knowledge, the
hospital had disposed of the guide wire that had allegedly caused Janet’s injuries.
The appellants also described for the jury, throughout the course of the week-long
trial in this matter, that the original wire may have appeared “somewhat kinked”
and that it was unknown whether the actual wire was new or used. And, using
several expert witnesses, the same sample guide wire, and other sample guide
wires, the appellants also demonstrated and described at length how the actual
guide wire could have caused Janet’s injuries. In sum, we find the first of the
appellants’ three alternative arguments to be without merit.
Next, we turn to the appellants’ second alternative argument, i.e., that
the trial court failed to admonish the jury, per the requirements of KRE 105(a),
with regard to the sample guide wire. In particular, the appellants claim that the
trial court’s admonition confused the jury, failed to instruct the jury not to
experiment with the guide wire, and incorrectly represented that the substitute
guide wire was the actual guide wire.
In relevant part, KRE 105(a) provides that “When evidence which is
admissible as to one (1) party or for one (1) purpose but not admissible as to
another party or for another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and admonish the jury accordingly.”
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That said, the appellants’ argument simply asks this Court to assume
that the jury was confused by the trial court’s admonition, but it offers nothing to
support that conclusion. We believe that the trial court’s admonition, taken as a
whole, was adequate. Contrary to what the appellants represent, the trial court’s
admonition stated, twice, that the sample guide wire was “not back there for you all
to experiment with.” And, contrary to what the appellants represent, the trial
court’s admonition did not state that the sample guide wire was the actual guide
wire. Rather, the trial court referred to it as “an exemplar of the guide wire from
this case.” Moreover, this latter point should have already been apparent to the
jury at the time of the admonition because Dr. Overstreet had already testified that
the actual guide wire had, presumably, been discarded by the hospital following
Janet’s procedure.
More to the point, nothing prevented the appellants from requesting
an additional admonition from the trial court to address their concerns or for
further clarification. See, e.g., Curtis v. Commonwealth, 474 S.W.2d 394, 397 (Ky.
1971) (“It was incumbent on [the defendant], if he felt that the admonition was
inadequate, to move the trial court for a further admonition or to move for a
mistrial.”) (citing Reeves v. Commonwealth, 462 S.W.2d 926 (Ky. 1971)).
Nothing prevented the appellants from reemphasizing, during their hour of closing
arguments immediately following the trial court’s admonition, that the sample
guide wire was not the actual guide wire and that the jury should not experiment
with the sample guide wire. The appellants actually used the sample guide wire as
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a visual aid during their closing arguments. Indeed, the first time that the
appellants voiced any concern regarding the trial court’s admonition was in their
appeal before this Court. In short, the appellants’ second alternative argument
cites nothing indicative of error or prejudice, and it is therefore without merit.
The appellants’ final alternative argument is that the trial court should
have excluded the sample guide wire, per KRE 403. Specifically, the appellants
contend that even if the trial court had properly instructed the jury not to
experiment with the sample guide wire and even if the jury understood that
instruction, admitting the sample guide wire into evidence was prejudicial error
because its presence created an irresistible opportunity for the jury to conduct
unsupervised experiments with the sample guide wire. Thus, this would allow the
jury to acquire information that was not presented at trial. The appellants also
argue that, as evidence, the sample guide wire was “needlessly cumulative.”
Like the appellants’ previous argument, this argument also calls upon
us to make assumptions: first, that the jury chose to ignore the court’s direction not
to experiment with the sample guide wire; and second, that after experimenting
with the sample guide wire, the jury deduced something about the sample guide
wire that had not been revealed at trial. We decline to make these assumptions.
As stated in Greene v. Commonwealth, 244 S.W.3d 128, 138 (Ky.
App. 2008):
[A] jury is presumed to follow an admonition to
disregard evidence; thus, the admonition cures any error.
Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky.
-21-
1999). There are only two circumstances in which the
presumptive efficacy of an admonition falters: (1) when
there is an overwhelming probability that the jury will be
unable to follow the court’s admonition and there is a
strong likelihood that the effect of the inadmissible
evidence would be devastating to the defendant; or (2)
when the question was asked without a factual basis and
was “inflammatory” or “highly prejudicial.” Johnson v.
Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
Because this matter regards prejudice relating to the introduction of an object into
evidence, rather than the asking of a question, the latter of these exceptions is not
applicable.
As to the former exception, even if this Court were to classify the
sample guide wire or the jury’s hypothetical experimentation with the sample
guide wire as “inadmissible evidence,” and further assume that there was “an
overwhelming probability that the jury [was] unable to follow the court’s
admonition,” the appellants cannot show that there was “a strong likelihood that
the effect of the inadmissible evidence [was] devastating” to their case. Id. The
trial court did not give the jury the sample guide wire until after the week-long trial
had concluded and the jury was ready to deliberate. The appellants acknowledge
in their brief that “the jury had already repeatedly seen wires during the testimony
of the physician witnesses,” and “everyone in the courtroom except the jury had
already handled a guide wire.” As noted, most of the experts called in this matter
bent, manipulated, demonstrated with, and testified extensively about the samples
of the guide wire that Dr. Overstreet used in Janet’s procedure. Aside from that,
Dr. Emlich, one of the appellees’ experts, demonstrated the integrity of the spring
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tip of the sample guide wire by probing it against the back of his hand. During his
testimony, Dr. Zfass, one of the appellants’ experts, even allowed a juror to touch
part of a sample guide wire and held part of a sample guide wire in his mouth.
And, when the appellees’ counsel proceeded to probe the back of his own hand and
the inside of his own mouth with the spring tip of the sample guide wire during
closing arguments, the appellants raised no objection.
In short, before the jury had the sample guide wire for its
deliberations, virtually everything that could have been done to the sample guide
wire had already been done to it, along with other sample guide wires, during the
trial. There is no reason to believe that admitting the sample guide wire into
evidence was “devastating” to the appellants’ case. Indeed, the trial court
recognized that admitting the wire into evidence posed little danger of prejudicing
the appellants’ case when it stated, “I’m not sure there’s anything more that [the
jury] can glean from the wire that hasn’t already been stated by the physicians.”
For the same reasons, even if the sample guide wire was the
“needlessly cumulative” evidence that the appellants allege, any error that resulted
from admitting it into evidence was harmless. See CR 61.01; see also Mitchell,
2005 WL 2316195 at *5 (“We do not believe that the use of the [replica] gun
prejudiced the jury in a substantial manner in light of the totality of the
evidence[.]”).
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CONCLUSION
For these reasons, the judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Paul A. Casi, II
Kevin C. Burke
Louisville, Kentucky
Scott P. Whonsetler
Robert A. Ott
Bradley R. Hume
Heather R. Cash
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANTS:
Paul A. Casi, II
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
Bradley R. Hume
Louisville, Kentucky
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