EVIDENCE Copyright July 1999 State Bar of California Mary Smith sued Dr. Jones, alleging that Jones negligently performed surgery on her back, leaving her partly paralyzed. In her case-in-chief, Mary called the defendant, Dr. Jones, as a witness. The following questions were asked and questions given: [1] Q. Now, you did not test the drill before you used it on Mary Smith s vertebrae, did you? [2] A. No. That s not part of our procedure. We don t ordinarily do that. [3] Q. Well, since Mary s operation, you now test these drills immediately before using them, don t you? A. Yes. [4] Q. Just before you inserted the drill into my client s spine, you heard Nurse Clark say The drill bit looks wobbly, didn t she? A. No. I did not. Q. Let me show you what has been marked as plaintiff s exhibit No. 10. [Tendering document] This is the surgical report written by Nurse Clark, isn t it? A. Yes. [5] Q. In her report she wrote: At time of insertion I said the drill bit looked wobbly, didn t she? A. Yes. That s her opinion. Q. OK, speaking of opinions, you are familiar with the book, General Surgical Techniques by Tompkins, aren t you? A. Yes. Q. And it is authoritative, isn t it? A. Some people think so. [6] Q. And this book says, at page 255, Always test drill bits before using them in spinal surgery, doesn t it? A. I guess so, but again that s his opinion. Q. Now, you ve had some trouble yourself in the past? A. What do you mean? [7] Q. Well, you were accused by two patients of having sexually abused them, weren t you? A. That was all a lot of nonsense. [8] Q. But you do admit that in two other operations which you performed in 1993 the drill bit which you were using slipped during back surgery, causing injury to your patients? A. Accidents do happen. What objection or objections could Dr. Jones attorney reasonably have made to the question or answer at each of the places indicated above by the numbers in the left hand margin, and how should the court have ruled in each instance? Discuss.
EVIDENCE Copyright July 1999 Scott F. Pearce, Esq. Outline I. Now, you did not test the drill before you used it... A. Objection: Leading B. Conclusion: Overrule the objection for leading. II. III. IV. No. That s not part of our procedure... A. Objection: Non-Responsive B. Conclusion: Strike the answer after the word No. Well, since Mary s operation you now test these drills... A. Objection: Legal Relevance - Subsequent Remedial Measures B. Conclusion: Sustain the objection....you heard Nurse Clark say The drill bit looks wobbly... B. Exception: Present Sense Impression C. Non-hearsay - Offered for its Effect on the Listener D. Conclusion: Overrule the objection. V. In her report she wrote...the drill bit looked wobbly. A. Objection: Improper Opinion B. Objection: Hearsay C. Exception: Business Records Exception D. Conclusion: Overrule the Objection VI. VII. VIII. And this book says...always test drill bits... B. Exception: Learned Treatise C. Conclusion: Overrule the Objection Well, you were accused... A. Objection: Irrelevant B. Objection: Character Evidence / Specific Bad Acts C. Objection: Hearsay D. Conclusion: Sustain the Objection But you do admit... A. Objection: Character Evidence / Specific Bad Acts B. Conclusion: Sustain the Objection
EVIDENCE Copyright July 1999 Scott F. Pearce, Esq. Answer I. Now, you did not test the drill before you used it... Plaintiff s first question is relevant because the surgeon s exercise of due care is one of the central issues of the case. A. Objection: Leading The question is leading, because it suggests the answer. It is appropriate for an attorney to ask leading questions of a party opponent. Furthermore, although the question is direct and to the point, it is not sufficiently argumentative to justify an objection on that grounds. B. Conclusion: Overrule Plaintiff s first question is appropriate. Defendant s objection will be overruled. II. No. That s not part of our procedure... A. Objection: Non-Responsive Plaintiff s first question called for a yes or no answer. After answering No, Dr. Jones went on to attempt to justify his answer. This part of his answer is non-responsive to the question. B. Conclusion: Strike the answer after the word No. Plaintiff s objection to the non-responsive part of Dr. Jones answer will be sustained, and that portion of his testimony will be stricken from the record. III. Well, since Mary s operation you now test these drills... Plaintiff s second question suggests Dr. Jones changed his behavior to prevent future accidents. It is logically relevant because it suggests Dr. Jones should have tested the drill before operating on Mary Smith. A. Objection: Legal Relevance - Subsequent Remedial Measures Defendant s objection is founded in the public policy that excludes evidence of subsequent remedial measures in order to encourage parties to conduct themselves in the safest manner possible without
facing potential liability for past practices. B. Conclusion: Sustain the objection. Despite its obvious logical relevance to the issues presented in this case, Plaintiff s second question will not be allowed for public policy reasons. IV....you heard Nurse Clark say The drill bit looks wobbly... Plaintiff s next question suggests that the doctor was warned about potential problems with the drill before injuring the plaintiff. This question is relevant because it goes to liability and, although leading, is permissible since the witness is the party opponent. Nurse Clark s statement was made out of court. If it is offered to prove the truth of the matter asserted, it is hearsay and will not be admitted unless an exception can be found. B. Exception: Present Sense Impression Nurse Clark made the statement at issue at the moment she was observing the drill. Thus, it qualifies as a present sense impression, and will be admitted over a hearsay objection to show that the drill bit was wobbly before Dr. Jones used it on Mary.. C. Non-hearsay - Offered for its Effect on the Listener Plaintiff could be offering the evidence not to show that the drill bit was wobbly, but instead to show that the Doctor was on notice that there might be a problem with the equipment. This use of the evidence would not be hearsay, and the question would be permitted. D. Conclusion: Overrule the objection. Nurse Clark s statement comes in as an exception to hearsay or as non-hearsay. V. In her report she wrote...the drill bit looked wobbly Plaintiff next seeks to confront the doctor with damning evidence from the nurse s report. This is relevant because it supports the Plaintiff s theory of liability. Plaintiff s previous question satisfies the requirements for foundation, authentication and best evidence. A. Objection: Improper Opinion The doctor responded that the Nurse s statement was her opinion. The defense could object on the grounds that the Nurse was not qualified to make that opinion. Unfortunately for Dr. Jones, it
is probable that the Nurse would be ideally suited to form the opinion, should her personal observations support it. B. Objection: Double Hearsay In her report, Nurse Clark quotes herself as warning Dr. Jones about the drill. This is double hearsay, and an exception must be found for each link in the hearsay chain. C. Exceptions: Present Sense Impression / Business Records Exception As discussed above in part IV, the nurse s comment qualifies as a present sense impression. Furthermore, her report is a business record - another exception to hearsay. D. Conclusion: Overrule the Objection Because each of the two links in the hearsay chain are within exceptions to the rule, the question should be allowed. VI. And this book says...always test drill bits... Next, Plaintiff s counsel confronts the doctor with a book that supports Plaintiff s theory about the due care required of Defendant. Again, the document appears to be properly authenticated. The statement within the book was written out of court, and it is being offered to prove the truth of the matter asserted, so it is hearsay. It will be excluded unless there is an appropriate exception. B. Exception: Learned Treatise Even the Defendant agrees that at least some people consider the Tompkins book on General Surgical Technique to be authoritative. With this foundation, a court would not abuse its discretion to except the information without benefit of cross examination. C. Conclusion: Overrule the Objection The Tompkins book appears to be a learned treatise, and the information would be helpful to the trier of fact. The question should be permitted. VII. Well, you were accused... Plaintiff next seeks to smear Dr. Jones with alleged accusations of sexual abuse by former patients. It is likely this question is not logically relevant to any of the issues presented in this case.
A. Objection: Irrelevant The first defense objection would be on logical relevance. Possible allegations of sexual abuse have no bearing on the doctor s competence at the time he operated on Plaintiff. B. Objection: Character Evidence / Prior Bad acts Specific bad acts evidence is only admissible to show dishonesty or habit and practice under certain circumstances. Sexual abuse has nothing to do with competent surgical practice. C. Objection: Hearsay The Defense would object that this out of court statement should not be admitted to prove the truth of the matter asserted, particularly under these circumstances, where the prejudice would be great and the probative value minimal. No exceptions are present to overcome a hearsay objection. D. Conclusion: Sustain the Objections The question presented by the Plaintiff is irrelevant hearsay, as well as being inadmissible character evidence. It should be excluded. VIII. But you do admit... Finally, Plaintiff seeks to confront the doctor with two earlier operations in which patients were injured by slipping drill bits. This evidence is relevant because it suggests Dr. Jones has a tendency to make similar mistakes in back surgery and thus likely made a mistake while operating on Mary. A. Objection: Character Evidence / Specific Bad Acts Specific prior bad acts evidence is admissible only to show dishonesty or habit and practice under the mimic rule. Although this evidence is far more relevant to the instant case than the question about sexual abuse allegations, it still has nothing to do with the doctor s honesty. B. Conclusion: Sustain the Objection Dr. Jones character is not at issue. The Defendant s objection will be sustained.