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Exclusion of a Party Admission Violates Evidence Rules and was Clearly Prejudicial to Plaintiff in Medical Negligence - Wrongful Death Trial

On April 12, 2016, the Tenth District granted a new trial to Kay Lynn Pontius on claims of medical negligence relating to her deceased husband. The appellate court determined that Pontius' case was clearly prejudiced by the trial court excluding damaging testimony that the defendant-radiologist's former partner, named Joseph Schultz, M.D., had reviewed the CT scan at issue in the case, and made statements that there were blood clots on the CT scan, that the defendant "blew it," and that "Todd (Pontius) should still be alive today." The Tenth District ruled that these statements were "party admissions" and should have been presented to the jury.

The case involved a radiologist employed by Riverside Radiology who failed to identify blood clots on Todd Pontius' CT scan of the abdomen and pelvis. The day after the CT scan, those blood clots broke loose, traveled to Todd's heart and lungs, and killed him instantly.

At Todd's funeral, his mother was approached by Dr. Schultz, who offered to review the CT scan, as he had access to it through his employment, to "get to the bottom of what happened" to Todd. Schultz accessed the CT scan 7 times in the week following the funeral home visit. He then came to the golf club where he and Todd were members, pulled the golf professional into a private room, and told him there were in fact blood clots on the CT scan, even drawing a diagram to show the location of the clots in the body. Schultz also told Todd's family physician about his findings on the CT scan.

Plaintiff sought to introduce the testimony of the golf professional and Todd's physician, as to what Dr. Schultz told them about the CT scan. The defense fought vigorously to keep this evidence out in toto. Before trial, the court granted the defense request. Pontius took steps to preserve the record on this issue, including asking the Court to state its specific reasons for excluding the evidence. The trial court's only stated reason for excluding the evidence, was because Schultz denied making the statements to the golf professional and family physician during pretrial testimony.

The case was tried to a jury in August of 2015. Plaintiff's claims against the Hospital (which were solely for vicarious liability arising out of Dr. Zadvinskis' negligence) were settled during voir dire. Trial proceeded with the plaintiff presenting expert testimony that the CT scan clearly showed evidence of blood clots, while the defense countered that no one could possibly say whether there were clots on the CT scan, due to the contrast protocol and timing.

By excluding the damaging admissions from Dr. Schultz, the trial court made this case a simple "battle of the experts" with each side presenting the testimony of hired witnesses on interpretation of the CT scan. Ultimately, the jury rendered a verdict for the defense. Mrs. Pontius appealed, asserting a single assignment of error arising out of the trial court's decision to exclude testimony as to the damaging statements by the partner radiologist.

Central to the issue on appeal, was the application of Evid.R. 801(D)(2)(d) (the party admission rule), which states that statements made by an employee of a party, made during the existence of the employment, and concerning matters within the scope of the employment, are admissible non-hearsay. In analyzing the issue, "the trial court either failed to apply Evid.R. 801(D)(2)(d) or misapplied it," according to the Tenth District. The trial court abused its discretion in excluding evidence of Schultz's statements, solely because of his contradictory testimony.

The defense also argued on appeal that plaintiff's case was not prejudiced by the exclusion. The Tenth District quickly disposed of this issue, finding "it impossible to conclude that the jury's analysis would not have been affected to some extent" by Schultz's statements.

In a desperation argument, the defense even argued that plaintiff failed to properly preserve the Schultz issue for appellate review, because it was not raised a third time after voir dire had concluded. The court ruled "a party is not required to make repetitive renewals of the issue throughout the trial" when the evolution of the case has given the trial court no reason to reconsider the matter.

This decision makes clear that party admissions constitute highly relevant evidence, which if excluded, can serve to unfairly prejudice the opposing party. Further, it demonstrates the importance of building a strong record for the appellate court.

The full text of the opinion can be found here.

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