Hepler Broom, LLC

Don’t Flip Out: When Using Exhibits at Trial, How Far Does the Plaintiff’s Expert Have to Go to Show Substantial Similarity?

December 10, 2020

Typically, how substantially similar a demonstrative exhibit must be to the original occurrence is a gray area. Recently, the Appellate Court in the case of Ackerman v. Yapp, 2020 IL App (1st) 182708, clarified that the demonstration or exhibit needs to be considerably similar, particularly if being demonstrated by an expert in front of a jury. Additionally, the Court upheld the ruling that Plaintiff’s expert had no reliable basis to support his opinions regarding the permanency of Plaintiff’s injuries because he had not examined the Plaintiff nor reviewed any recent medical records to support his causation claims.

The Plaintiff, Nicole Ackerman, brought a medical malpractice claim against Dr. Rockford Yapp, a gastroenterologist, after he performed an endoscopy that resulted in a perforated esophagus. The perforation occurred when Dr. Yapp tried to remove the Plaintiff’s dental “flipper” (a removable partial denture) after she swallowed it while kissing her boyfriend.

The flipper is a device with false teeth placed on acrylic that has sharp wires or clasps that attach it to surrounding teeth. Just like any other sharp piece of metal that gets swallowed, it needed to be removed from her stomach. In performing an esophagogastroduodenoscopy (EGD), Dr. Yapp knew the flipper had sharp edges, which posed a danger to Plaintiff when removing it. Dr. Yapp determined that the safest method to remove the flipper was to utilize a bell-shaped latex hood, which would cover the flipper to prevent injury to her throat. The device was successfully removed. However, because of the anatomy of the esophagus and the size of the flipper, the Plaintiff sustained a laceration of her esophagus, which required additional surgery. As a result, she alleged permanent constipation, GERD, and pain.

Plaintiff brought a claim against Dr. Yapp arguing he should have used a different device, a larger “over tube,” to more safely remove the flipper. Prior to trial, the original flipper was discarded, and the Plaintiff sought leave to use a replica of the original dental appliance. The Plaintiff requested her expert be allowed to place the over tube on the replica flipper with his hands and show a video of the use of the over tube to the jury. The trial court denied both requests, finding the manual demonstration made the process look too deceptively easy and the video was too dissimilar to the actual circumstances encountered by the Defendant during an endoscopic procedure. (An endoscope, not hands, was used to pull the flipper out of her stomach.) The Illinois Appellate Court agreed, finding that the demonstration did not meet the “substantially similar” requirement. The expert’s demonstration was not similar to the conditions and circumstances surrounding the Defendant’s EGD procedure, and no abuse of discretion in denying dissimilar demonstration was shown.

The trial court also barred Plaintiff’s expert testimony on permanency, which was upheld by the Appellate Court. It found the expert did not have the appropriate specialty, did not examine the Plaintiff, and did not review any current medical record with which to provide an adequate basis for his causation opinions on the permanency of her alleged injuries.

Trial exhibits are always a hot topic for argument at trial. It is important to object strenuously and make your record when a demonstrative exhibit does not closely mirror the event at issue.

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