Case Law Update: The Georgia Court of Appeals Affirms the Trial Court Allowing Jury to Touch Plaintiff as Part of Evidence

We all remember that dramatic moment when OJ Simpson was asked to put on the black gloves in front of the jury in the so-called “Trial of the Century.” Both gloves, according to the prosecution, contained DNA evidence from Simpson, Nicole Brown and Ronald Goldman, with the glove found at Simpson’s house also containing a long strand of blonde hair similar to Brown’s. On June 15, 1995, defense attorney Johnnie Cochran goaded assistant prosecutor Christopher Darden into asking Simpson to put on the leather glove that was found at the scene of the crime. The prosecution had earlier decided against asking Simpson to try on the gloves because (according to prosecutors) the glove had been soaked in blood from Simpson, Brown and Goldman, and frozen and unfrozen several times. The leather glove seemed too tight for Simpson to put on easily, especially over gloves he wore underneath. Of course Defense Attorney Johnny Cochran seized on that moment and repeated a quip he had used several times in relation to other points in his closing arguments, “If it doesn’t fit, you must acquit.” And we all know the end of the story.

Of course the glove was demonstrative evidence which required the jury to use their sense of sight. In a recent medical malpractice case the Georgia Court of Appeals held the trial court did not abuse its discretion in allowing members of the jury to use their sense of touch during the trial to determine a critical issue of fact. In Piedmont Newnan Hospital, Inc. v. Barbour, ___Ga. App. ___, 774 S.E.2d 822 (July 16, 2015), Barbour underwent a series of diagnostic tests to assess his heart, principally a nuclear stress test to compare the blood flow into his heart while he was both at rest and under stress. This procedure involves injecting a small amount of nuclear material into the bloodstream to act as a tracer to the heart to facilitate the taking of a “resting” image of the patient’s heart. Thereafter, the patient exercises to increase his heart rate, and then receives another injection of the same nuclear tracer, and a second image of the “stressed” heart is taken. For Barbour, in each instance the nuclear tracer was introduced through an IV catheter which was originally placed in his left arm when he first received treatment upon arriving at the emergency room.

The “resting” phase of the test went off without any outward indication of a problem. The nuclear material was introduced into Barbour’s vein, and hospital staff proceeded to take an image of his heart. Thereafter, Barbour proceeded to the “stress” portion of the test. First, he began walking on a treadmill to induce his heart to reach the target rate. Then, the radioactive tracer was injected into the catheter in Barbour’s arm while he remained on the treadmill. Eventually, however, Barbour felt a sharp pain and cried out, leading the nurse to immediately terminate the test as she believed that the tracer material had infiltrated Barbour’s arm, meaning that the material was not contained within his vein and bloodstream, but had leaked into the soft tissue of his arm. Barbour’s arm swelled and became discolored, and a bulge appeared near where the IV port was located. No image of Barbour’s heart was taken as the attention of hospital staff shifted to treating his arm. Eventually, Barbour was discharged with specific instructions related to his arm.

Barbour claimed that hospital staff improperly performed the nuclear stress test on him and damaged his arm, which caused him to suffer from Complex Regional Pain Syndrome (CRPS).Although the experts who testified at trial agreed that temperature asymmetry was an important factor in determining whether someone suffered from CRPS, they disagreed as to whether there was a meaningful difference in the temperature of Barbour’s hands. However, Barbour’s expert testified that for someone to have CRPS there would have to be at least a 2 degree difference in temperature between each hand and that it you should be able to feel it with the human touch. After both parties’ experts testified, Barbour’s counsel requested and received permission for members of the jury to briefly touch both of Barbour’s hands to determine if there was a detectable difference in the temperature of each hand. Jurors who wished to touch his hands did so.

On appeal, the hospital argued that the trial court abused its discretion in permitting jurors to touch Barbour’s hands, arguing that it impermissibly allowed them to make a medical diagnosis, that it made them witnesses who could not be cross-examined, that the exercise had no probative value and that such a practice has been rejected by other courts around the country. Although the Court found no Georgia case directly on point, Georgia Court of Appeals precedent indicates that jurors may utilize all their senses, not just hearing and eyesight, in determining factual disputes put to them. Additionally, the Court rejected the argument that allowing the jurors to touch Barbour’s hands was allowing them to make a medical diagnosis, finding that the exercise was merely a tool to aid them, as laymen, in deciding a question of fact that was squarely put to them, and that the information so gleaned was probative to the issues in the case. Accordingly, under the circumstances of the case, the trial court did not abuse its discretion in allowing the jurors to touch the plaintiff’s hands to determine for themselves which of the two experts was correct as to a critical fact, and possibly, which expert had greater credibility as to his medical diagnosis of whether the plaintiff did or did not suffer from CRPS.

The hospital also argued that the trial court abused its discretion in applying spoliation sanctions against it due to the hospital’s admitted failure to preserve the digital images of the “resting” test of Barbour’s heart despite the written request from Barbour’s attorney for his records. The hospital argued that these sanctions were inappropriate because (1) there was no spoliation because these images were not “necessary” for Barbour’s case and (2) that the sanctions were prejudicially over broad.

On September 23, 2011, legal counsel for Barbour wrote to the hospital asking for a complete copy of his medical records, including “[c]opies of any Radiology Diagnostic CDs or Films[.]” Unquestionably, this request would have included the images of his heart that were captured by the diagnostic machinery during the “resting” phase of the test. Further, within six months of the test, Barbour alerted the hospital that he would pursue legal action against it. Yet, despite receipt of this request and knowledge that a lawsuit would be forthcoming, the hospital did not preserve and produce these images. These images, which had remained stored on the imaging device and were never downloaded, were lost when the hospital moved to a new location and the vendor of the portable medical imaging device erased the hard drive before moving the machine.

The importance of these images was hotly debated. Barbour claimed that without the images, he was hampered in his effort to discover and establish that the catheter was not working properly during the “resting” phase of the test. His theory at trial was that the negligence on the part of the hospital may have occurred either during this first phase, or the “resting” test, and if not, that it occurred during the second phase, or the active “stress” test. Without the images to show whether the nuclear tracer made it to his heart during the “resting” test, the only objective evidence was lost and his burden to prove when and under what circumstances the leakage occurred was made much harder.

In opposing the spoliation motion, in addition to contending that there was no pending or contemplated litigation when the images were erased, the hospital argued that the “resting” heart images were not necessary because it essentially was clear that the infiltration occurred during the “stress” phase of the test. The nurses and technicians who performed the tests would have testified as such, and Barbour did not experience any of the symptoms of the infiltration until the “stress” portion of the test was underway. Thus, as the argument goes, there was no reason to preserve the images captured during the “resting” phase.

The Court found that while the testimony of the hospital’s employees may have supported its contention that there was no problem during the “resting” phase of the test and, indeed, the fact that no infiltration to Barbour was detected during that time, the images themselves would have been important proof one way or the other because it would have shown whether the tracer was making its way to Barbour’s heart. “Assuming arguendo that the IV was not working correctly during the “resting” test, despite the testimony of the hospital’s employees, the images were the only objective way that Barbour likely could have proven otherwise.” The Court of Appeals upheld the trial court’s conclusion that these images should have been preserved and sanctions against the hospital were appropriate.

The hospital did win one argument on appeal and that pertained to Barbour’s award for future wage loss. The nearly $4.5 million verdict in favor of Barbour included $1,195,957 for future lost wages. The hospital complained that there was not sufficient evidence to support this claim and that it was based merely on speculation. The Court of Appeals agreed since the evidence as to future lost wages was at best speculative and unsupported. The claim for future lost wages was based on Barbour’s fear that he would lose the job he had at the time of the trial, but he had received glowing reviews of his job performance, he was in good standing with his supervisor, his employer had a policy of accommodating workers with health issues and he received full pay when he had to miss work for medical treatment.

This case is a good reminder to employ all of the jury’s five senses at trial, not just sight and hearing. It not only helps them determine critical evidence and credibility, it also keeps them involved in the case. It is also a reminder that spoliation is becoming more and more of an issue in litigation today and sanctions are being issued by courts when necessary evidence is not preserved.

Molly O’Conner