Predicates 2013 Update: Documentary and Demonstrative Evidence p.5

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XIII. MEDICAL ILLUSTRATIONS

A. PREDICATE:

1) The illustration depicts a certain body part(s), etc.

2) The witness is familiar with that body part(s) and explains the basis for his or her familiarity.

3) In the witness’s opinion, the illustration is an accurate depiction of that body part(s).

B. EXCLUSION:

1) The probative value of the demonstration of the medical illustrations is substantially outweighed by the danger of unfair prejudice; or

2) The probative value of the demonstration of the medical illustrations is substantially outweighed by danger that it will cause confusion of the issues or will mislead the jury; or

3) The probative value of the demonstration of the medical illustrations is substantially outweighed by danger that it will cause undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

XIV. MEDICAL MODELS

A. PREDICATE:

1) Model will aid the witness in explaining his testimony to the judge and jury.

2) Witness is familiar with the object depicted and explains the basis of his familiarity.

3) Witness testifies that, in his opinion, the model is a true, accurate, good or fair model of the object depicted. (It is best if the model is an exact replica except with respect to size).

4) If the model was prepared according to scale, the witness testifies as to what scale has been utilized.

5) witness explains how the original measurements for the model were taken, whether the original measurements were compared against the model, and how they were compared.

B. EXCLUSION

1) The medical model’s probative value is substantially outweighed by the danger of unfair prejudice.

2) The medical model will cause confusion of the issues or mislead the jury.

3) The medical model will cause undue delay, waste of time or needless presentation of cumulative evidence.

4) Part of the model is not to scale.

5) The disparity in size between the model and the original is so great that it distorts the evidence and reduces the probative value of the model.

C. COMMENTARY:

Courts are given very wide discretion concerning the admissibility of models.
Traders and General Ins. Co. v. Stone, 258 S.W.2d 409, 411 (Tex. Civ. App. – Galveston 1953), no writ. (The use by a doctor of a spine from a human skeleton was allowed). See also 58 A.L.R.2d 689, Sec. 1 (1958)

XV. MODELS

A. PREDICATE:

1) Witness needs the visual aid to explain his or her testimony.

2) Model will assist the judge and jury to understand complex issues.

3) Model depicts a certain scene or object with which witness is familiar and witness explains the basis of his familiarity.

4) Witness testifies that, in his opinion, the model is a true, accurate, good or fair model of the scene or object. (It is best if the model is an exact replica except with respect to size).

5) Witness testifies how the original measurements for the model were taken as well as the comparison between the original measurements and the model.

Whether a model must be to scale depends on the purpose for which it is being used. In a geographical model where distances, grading, curves, or embankments are essential factors, scale accuracy would probably be required. Otherwise, as long as a model gives some benefit to the trier of fact without distorting important conditions, it need not be to scale.
Where a model is scaled and accuracy is important to some issue in the case, a civil engineer or surveyor, after being qualified, should offer testimony that the model not only would help the witness testify, but also would aid the trier of fact in understanding the testimony. In addition, the witness should verify and explain:

1) How the original measurements for the model were taken and what was done with the original measurements;

2) Whether the original measurements were compared against the model and how such measurements were compared;

3) Whether the measurements compared accurately;

4) What scale has been utilized;

5) Whether the witness has an opinion as to whether the model truly and accurately represents the object or condition which it purports to represent;

6) What that opinion is.

B. EXCLUSION:

1) The probative value of the model is substantially outweighed by the danger of unfair prejudice; or

2) The probative value of the model is substantially outweighed by danger that the model will cause confusion of the issues or will mislead the jury; or

3) The probative value of the model is substantially outweighed by danger that the model will cause undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

4) Part of the model is not to scale.

5) There is a great disparity in size between the model and the original, so as to distort important data.

6) The model is not authenticated by testimony.

C. COMMENTARY:

Courts are given very wide discretion concerning the admissibility of models. Martindale v. Mountain View, 208 Col. App. 2d 109, 120, 25 Cal. Rptr. 148 (1962)(relying on Cal. Code Civ. Pro., Section 1954, repealed, 1967. See Cal. Evid. Code Sections 140, 210, 351, 352). See Chicago, R.I. & G Ry. Co. v. Harris, 28 S.W.2d 611, 616-617 (Tex. Civ. App. – Ft. Worth 1930), writ dism’d. (Jury was permitted to view model of railroad car). See also 29A Am.Jur. 2d Evidence Section 993 (2003); 36 Tex. Jur. 3d Evidence Sec. 472 (2004). Traders & General Ins. Co. v. Stone, 258 S.W.2d 409 (Tex. Civ. App. – Galveston 1953), no writ. (Physician was allowed to illustrate his testimony with a spine from a human skeleton and a chart which illustrated the nerve distribution in the spinal column).
The model should be similar in both operation and function to the object at issue and must be so authenticated by testimony. McKeon v. Proctor & Gamble Mfg. Co., 162 App. Div., 784, 147 NYS 1012 (1914). See also Ann. 2003 ATLA Convention Reference Material 2233, Nuts and Bolts: Demonstrative Evidence in Automobile and Premises Cases (2003).
While representation may differ from the original, such dissimilarities must be explained to the jury so that it will not be misled. Arkansas State Highway Comm’r v. Rhodes, 240 Ark 565, 401 S.W.2d. 558, 559 (1966). See also 23 A.L.R. 3d 825, Sec. 11 + (1969).
In instances where scale is important and critical portions of the model are not to scale, the court may properly exclude the model. However, slight changes not affecting the ultimate issue should not alter the model’s admissibility. Page v. Unterreiner, 106 S.W. 2d 528, 532 (Tex. 1937). (Court allowed plaintiff to introduce in evidence a golf ball of a brand other than that which struck plaintiff). See also 95 A.L.R.2d 681, Sec. 10 (1964); 69 A.L.R.2d 424, Sec. 5+ (1960).
Some federal courts have allowed expenses of producing a model to be taxed as costs. See e.g., W.F. & John Barnes Co. v. International Harvester Co., 145 F.2d 915, 918-919 (7th Cir. 1944). cert. den., 324 U.S. 850, 89 L.Ed. 1410 (1945). (A model should be taxed as costs if it was “reasonably necessary” for a proper understanding of the controversy.) See also Wahl v. Carrier Mfg. Co. Inc., 511 F.2d 209 (7th Cir. 1975). However, the circuits are not in agreement about whether costs for charts and models may be taxed. See Phillips v. Cameron Tool Corp., 131 F.R.D. 151, 154-155 (S.D.Ind. 1990). The key appears to be whether the circuit has interpreted 28 U.S.C. Section 1920 to include this type of demonstrative evidence, so that the statutory authority to tax costs required by Crawford Fitting Co. v. J.T. Gibons, Inc., 482 U.S. 437, 445 (1987) exists. See, e.g., Maxwell v. Hapag-Lloyd Aktiengesellschaft, Hamburg, 862 F.2d. 767, 770 (9th Cir. 1988). See also 97 A.L.R. 2d 138 (1964). The Fifth Circuit has held that there is no statutory basis for taxing costs. Johns-Manville Corp. v. Cement Asbestos Products Co., 428 F.2d 1381, 1385 (5th Cir. 1970), overruled insofar as holding allowed taxing costs without a statutory basis. See EEOC v. W&O, Inc. 213 F.3d 600, 622-623 (11th Cir. 2000)(relying on Crawford Fitting Co. v. J.T. Gibons, Inc., 482 U.S. 437, 445 (1987)); see also Arcadian Fertilizer v. MPW Industrial Services, Inc., 249 F.3d 1293, 1297-1298 (11th Cir. 2001)

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