Update: On November 21, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.
On June 20, 2012 the Supreme Court of Ohio heard oral argument in the case of Branch et al. v. Cleveland Clinic Foundation, 2011-1634.
Margaret Branch suffered a stroke during brain surgery performed by Dr. Andre Machado at the Cleveland Clinic. Branch claims this happened because the surgeon pierced the ventricle wall during the procedure; the Clinic disputes this. After a two week trial, the jury returned a unanimous defense verdict. The Eighth District Court of Appeals reversed, in a split decision.
Read the oral argument preview of the case here.
The issues raised by the Clinic in its Supreme Court brief were that the appeals court erred in finding (1) that the trial court abused its discretion in allowing the defense to present a computer re-creation of the surgery plan, (2) that the trial court erred in giving the “different methods” instruction and (3) that the trial court did not let Branch’s counsel argue the adverse inference theory to the jury. But the oral argument centered almost entirely around the first issue.
Crucial to this surgical procedure is target planning done before the surgery to reflect the entry point, target point, and trajectory for the surgery. A complex computer software program fuses the patient’s head magnetic resonance imaging (MRI) and computer tomographic (CT) scans into a single image. From this fused image, the surgeon obtains a “probe’s eye view” of the brain to develop the target plan. This fused image is placed on a disc. The actual target plan data in this case is contained in Branch’s medical records. But the fused image was missing. At trial, Dr. Machado, as the final defense witness, was allowed to re-create the target plan using a 3-D software system, to demonstrate to the jury how he had performed the surgery.
Each side in this case argued it was sandbagged.
Defense counsel argued the Clinic had to do the demonstration to refute Branch’s 11th hour trial tactic of making the “missing data” the keystone of her case. This demonstration did not go to the defense of the case of medical negligence; it was only done to refute the charge of missing data. There was ample additional evidence to defend the case on the medicine. The reason there was no pretrial disclosure of the demonstration is that there was no allegation of any missing data then. The first time the defense learned of this was when plaintiff’s counsel submitted proposed supplemental jury instructions before trial. Defense counsel urged the Court to reinstate the jury’s defense verdict.
Plaintiff’s counsel contends Branch was blindsided by Dr. Machado’s 11th hour re-creation of his target planning for her surgery on a three-dimensional software system for the jury, disclosed to plaintiff’s trial counsel only minutes before Dr. Machado took the stand as the final defense witness. He suggested the defense was playing “fast and loose” with its terms—the target data in the case, namely the co-ordinates, have never been missing. That data is in the operative note, and is part of the medical record, and no one challenges its accuracy. It is the fused image on the disc that is missing. And given that the surgeon knew he had a patient who had a stroke on the operating table, why would he not retain the disc that showed exactly how he performed the surgery? It is just not true for the defense to claim the demonstration had nothing to do with the defense of the case on the merits. What the jury saw in the demonstration was that Dr. Machado cleanly missed the ventricle. The jury must have believed that what it saw in the demonstration was exactly what happened during the surgery. By contrast, the plaintiff’s own demonstration was just a hypothetical example of how the procedure was done. The case isn’t about demonstrative versus trial evidence. It is about disclosure and fairness, and not applying the same rules to both sides. Branch should be allowed to try her case fairly.
Explain the Demonstration to Us Please
There were many questions showing that the justices were trying to understand the medicine and how the demonstration actually worked. Justice O’Donnell, as is his wont, led off with many specific questions. What exactly did the demonstration consist of? What exactly did the doctor do with the probe? Was all of this projected onto a large screen? Did any of it go back to the jury room? Chief Justice O’Connor asked for an explanation of when the surgeon looked at all of this in real time.
Justice Cupp asked exactly what it was the jury saw. An on-screen animation of the head and brain? Was this ever marked as an exhibit?
Justice Stratton asked if the Clinic made any motions to exclude reference to its missing data.
Justice Cupp asked if the plaintiff moved for a continuance when it claimed unfair surprise.
Playing Offense or Defense?
Justice McGee Brown asked what the plaintiff used for her demonstration. Did she have access to the same information as the defense did?
Both Justice Lanzinger and Justice Stratton asked whether the defense was only using the demonstration to refute the allegations of missing data.
Justice Stratton, who appeared overtly hostile to the plaintiff’s position, asked plaintiff’s counsel if there was any evidence the missing data claim was raised any sooner than in the proposed supplemental jury instruction a week before the trial. Didn’t the trial court let the plaintiff and her expert talk about the missing data? Wasn’t the defense trying to show the fused image wasn’t necessary because when using the coordinates you get the same result? She also noted in one of her questions an error in the appellate decision on missing fused image and target data. The target data wasn’t missing, so that part of the opinion was wrong. If data is the core and key to this case, surely the defense is entitled to argue you can get the same result based on a demonstration based on data already in evidence—
What exactly did the defense say in opening statement about a demonstration, Justice O’Donnell wanted to know.
But it’s Only Demonstrative Evidence
Noted Chief Justice O’Connor. It wasn’t being offered for what actually happened. If that were the only piece of evidence to be presented, the plaintiff’s position would be stronger, but the demonstration just supplemented other evidence.
How was the defense demonstration prejudicial asked Justice McGee Brown. Plaintiff always argued Dr. Muchado pierced the ventricle wall, the defense said no he didn’t—isn’t this just a demonstration of the defense position? And didn’t the jury see the plaintiff’s demonstration also? Did the defense ever try to keep the medical record with the co-ordinates away from the plaintiff? (answer: no).
Justice O’Donnell asked whether there was a jury instruction that this was only demonstrative evidence and was not the actual procedure. Did the jury think this was what actually happened? Justice Lanzinger also asked if there was a separate jury instruction on how to evaluate demonstrative evidence.
So, Rose Mary Woods, What Happened to the Disc?
Chief Justice O’Connor seemed particularly intrigued by what happened to the disc. (no one knows, apparently). Was it saved and then erased? (does history repeat itself?) Why not adjust the co-ordinates? Otherwise isn’t there a trail for re-creation? (plaintiff’s counsel made it clear that no one disputed the accuracy of the co-ordinate data in the medical record)
Justice Stratton then immediately jumped in, noting that plaintiff’s expert testified that he rarely keeps his. (counsel disagreed). And wasn’t it up to the jury to evaluate the credibility of a re-creation?
Justice Cupp asked what plaintiff’s theory was on why the disc was “tossed”.
What Rule Would You Have Us Write?
Chief Justice Moyer always used to ask this question. In this case, Justice McGee Brown asked it, in the key exchange of the day, noting that the entire argument had been entirely case-specific. Defense counsel answered, that actual evidence and demonstrative evidence should be treated differently, and that demonstrative evidence was flexible during trial. Justice Pfeifer, seemingly incredulous, asked how that would possibly help any trial lawyer. Justice Lanzinger suggested demonstrative evidence is not substantive evidence but is merely used to illustrate a principle.
How it Looks from the Bleachers
The Court never should have accepted this case. It looks like error correction, pure and simple. As Justice McGee Brown asked in the key exchange of the day, what law could the Court possibly write in this case? That demonstrative evidence is different from trial evidence? Every trial lawyer and trial judge on earth already know that.
This looks like a split decision, probably in favor of the Clinic on the ground that this was just demonstrative evidence and the jury was told how to evaluate it. I can’t imagine a syllabus. Justice Stratton’s questions sounded like she was sitting as second chair for the defense. Example of a question to the defense—“they claimed you had missing data, you took the data that existed, and plugged it into a computer model to show that all the data that was needed was still there—you did this in response to their claim they were missing pieces.” (query—what was that question, your honor?)
But the Chief and Justices Pfeifer and McGee Brown seemed to follow the plaintiff’s fairness argument.
Here is what student contributor Greg Kendall thought.
The court spent most of appellant’s time trying to understand the intricate facts and the nature of the demonstrative animation, until Justice McGee Brown’s question on rebuttal regarding what the Court’s holding should be. The Court made very little mention of the Court of Appeals’ decision and its questioning made it sound like this case will be about error correction. The justices were also clearly uncertain about how to handle the issue of the alleged missing evidence and what that means for both parties.