The misuse of skulls as substantive evidence rather than demonstrative evidence during the testimony of an expert witness persuaded the Appellate Court of Illinois to grant a new trial to the plaintiff in a medical malpractice case. Lawyers should take note of the decision as they consider how to question an expert witness who uses exhibits as demonstrative evidence.
Experts often rely on demonstrative evidence to help juries understand their testimony. A chiropractor might point to vertebrae on a plastic spine, an engineer might take apart a motor to show the jury why a similar motor failed, or an accident reconstruction expert might show the jury an animated version of how an accident occurred.
Most judges routinely allow demonstrative evidence to be used, while making it clear that the evidence should only be considered for illustrative purposes. The judge or the expert must explain that the plastic spine isn’t the patient’s actual spine, the disassembled motor isn’t the actual motor that failed, and the animation is a reconstruction of how the accident might have happened, not a representation of the actual accident.
In Yanello v. Park Family Dental, an Illinois appellate court decided that an expert went too far in using skulls as substantive rather than demonstrative evidence in a dental malpractice case.
Yanello’s Dental History
Dr. Jae Roh extracted eight teeth from Nancy Yanello’s upper jaw and inserted four dental implants. The surgery was intended to allow Yanello to attach a denture to the implants.
A year or two later, Yanello complained that the implants were loose and painful. Roh determined that three of the four implants had failed. He observed significant bone loss in Yanello’s upper jaw that he had not seen during the surgery.
Roh removed the failed implants and inserted new ones. He observed that there was barely enough depth in the bone to allow the implants to be placed.
A couple of months later, Yanello returned to Roh with a complaint of pain. Roh saw nothing amiss.
Yanello then saw an oral surgeon who noted that the implants were failing and were at a poor angle. At his recommendation, the implants were removed.
Yanello continued to have pain that dental experts attributed to nerve damage caused by improper placement of one of the implants. The experts also concluded that one of the implants had perforated her sinus.
Yanello’s Expert Evidence
Yanello sued Roh for dental malpractice. At trial, Yanello relied on the expert testimony of her family doctor and three dental experts. The experts had all treated Yanello after her last visit to Roh.
All three dental experts testified that Roh violated the appropriate standard of care by placing the implants at an improper angle, resulting in bone loss and implant failure. They also testified that improper positioning of the implants caused one to damage a nerve and the other to perforate Yanello’s sinus. As a result of Roh’s negligence, the experts said, Yanello has no remaining bone in which implants can be placed, has pain caused by nerve damage, and cannot use her denture.
Dr. Richard Burton, the leading expert witness who also supervised the removal of the implants, testified that Roh was not qualified to perform such complex surgery. On cross-examination, Roh’s lawyer suggested that Burton was acting unethically by testifying. The American Association of Oral and Maxillofacial Surgeons’ Code of Professional Conduct prohibits members from testifying in cases where they treated the patient.
The code seems designed to shelter members from the consequences of their malpractice rather than to encourage ethical testimony. Treating physicians usually have the best and most helpful knowledge of how earlier treatment affected the patient’s condition. Treating physicians make excellent witnesses because jurors do not typically view them as hired guns. It is hard to believe that assisting justice by giving truthful professional opinions derived from observations made while treating a patient could reasonably be deemed unethical. In any event, Dr. Burton testified that Roh does not belong to the Association and that he was therefore not violating the ethical code by testifying against him.
Defense Expert Testimony
Roh’s expert, Dr. Nicholas Panomitros, is a law professor who is trained as a dentist. He opined that Roh did not violate the appropriate standard of care because he succeeded in placing the implants in bone and all implants, by their nature, are placed at an angle. He also testified that implants are appropriately placed if they are aligned with teeth, taking into account available bone in the jaw.
Panomitros illustrated his testimony by using a model skull as well as an actual human skull. Over objection, the court ruled that Panomitros could use the skulls as demonstrative evidence, but could not suggest that the skull represented or resembled Yanello’s teeth. The judge ruled, however, that Panomitros would be allowed to say that the human skull “shows the angulation of teeth in the human skull.”
Panomitros used the skulls to support his testimony that x-rays did not prove that an implant perforated Yanello’s sinus cavity because the x-ray interpretation will depend on the angle from which the x-ray was taken. He opined that none of the x-rays conclusively established that the implants perforated the sinus cavity or caused nerve damage.
Panamitros also suggested a number of health conditions that might have caused Yanello’s problems, including rheumatoid arthritis and osteopenia. The court concluded that Panamitros was qualified to give that testify despite having a dental degree rather than a medical degree.
The jury concluded that Roh was not negligent. Yanello appealed.
Misuse of Skull as Evidence
The court drew a well-recognized distinction between exhibits used as real evidence that played a role in the incident at issue, and those used as demonstrative evidence. In essence, demonstrative evidence is a visual aid. Demonstrative evidence is favored when it helps a jury understand testimony, but courts must take care that it is not used in a way that will cause the jury to confuse real evidence with the visual aid.
The court concluded that the defense expert misused the skulls by treating them as real evidence rather than demonstrative evidence. If Panomitros had merely pointed out parts of the skull to explain the location of relevant bones, he would have used the skulls appropriately. Instead, he used the skulls to show that Roh placed implants appropriately, “consistent with the natural angulation of natural teeth as shown by the skulls” and by pointing to the thinness of the bone into which the implants were inserted.
The court decided that Panomitros’ testimony “implicitly suggested that the anatomy depicted in the skulls was identical or similar to Yanello’s anatomy.” He also misused the skulls to undermine the x-ray evidence when he compared the skulls to the x-rays, implying that all skulls are the same.
The court also concluded that Panomitros was not qualified to testify about possible medical (as opposed to dental) causes of Yanello’s problems.
In addition, the court agreed that Roh’s attorney should not have been allowed to question Burton about his alleged ethical violation in testifying, because the admissibility of testimony is determined by rules of evidence, not by codes of conduct. Notably, the court held that any qualified expert “may present expert opinion testimony that a doctor or other healthcare practitioner violated the applicable standard of care, notwithstanding any purported professional ‘ethical rule’ to the contrary.”
Since Panomitros did not use the skulls merely as demonstrative evidence, but as substantive support for his expert opinions, the trial court erred by permitting the testimony. The court therefore granted a new trial to Yanello.
The court noted that the defense failed to lay a proper foundation for use of the skulls as substantive support for Panomitros’ opinions. If Panomitros had testified that the skulls accurately represented the relevant bones in Yanello’s skull, it may have been appropriate to use the skulls as substantive evidence. Whether that foundation could be laid, of course, is a matter for the expert to determine. The Yanello case nevertheless serves as a reminder that experts who use demonstrative evidence must take care to point out the ways in which the visual aid is similar to the thing it represents.