Martineau v. McKenzie-Willamette Med. Ctr.

549 P.3d 605

332 Or.App. 473

Jamie MARTINEAU, Personal Representative of the Decedent, Aaron Martineau, Plaintiff-Appellant,

v.MCKENZIE-WILLAMETTE MEDICAL CENTER, an assumed business name of McKenzie-Willamette Regional Medical Center Associates, a limited liability company, Defendant,andRadiology Associates, P.C., a corporation; Dariusz Zawierucha, M.D., an individual; Cascade Medical Associates, the assumed business name of Doctor’s Emergency Room Corporation, P.C., a corporation; and Gary Josephsen, M.D., an individual, Defendants-Respondents.

A172846

Court of Appeals of Oregon.

Argued and Resubmitted on Remand April 11, 2024

May 8, 2024

Lane County Circuit Court, 17CV36517

On remand from the Oregon Supreme Court, Jamie Martineau v. McKenzie-Willamette Medical Center, 371 Or. 247, 533 P.3d 1 (2023).

Travis Eiva, Portland, argued the cause and filed the opening and reply briefs for appellant.

Alice S. Newlin, Portland, argued the cause for respondents Radiology Associates and Dariusz Zawierucha, M.D. Also on the answering brief were Jay W. Beattie, Nikola L. Jones, and Lindsay Hart, LLP.

Hillary A. Taylor argued the cause for respondents Gary Josephsen, M.D., and Cascade Medical Associates. Also on the answering brief were Lindsey H. Hughes and Keating Jones Hughes, P.C.

Before Aoyagi, Presiding Judge, and Egan, Judge, and Kamins, Judge.

AOYAGI, P. J.

[1, 2] ₄₇₅This medical malpractice case arises from a young man’s untimely death from a cardiac injury. The case is on remand to us after the Supreme Court reversed our decision in Martineau v. McKenzie-Willamette Medical Center, 320 Or App 534, 514 P.3d 520 (2022), rev’d, 371 Or. 247, 533 P.3d 1, adh’d to as modified on recons, 371 Or. 408, 537 P.3d 542 (2023). Our earlier decision addressed plaintiff's first and fifth assignments of error, which the Supreme Court has now resolved in defendants’ favor. 371 Or. 247, 533 P.3d 1. Our task on remand is to address three remaining assignments of error that we did not reach in our earlier decision. 371 Or. at 412, 537 P.3d 542. Seeking a new trial on her wrongful death claim, plaintiff argues that the trial court erred with respect to Exhibit 92B, by excluding or limiting its admission, and by excluding it from the jury’s deliberative materials. She further argues that the trial court erred by not allowing her to show the jury a textbook image while cross-examining a defense expert.¹ For the following reasons, we affirm.

I. FACTS

Given the posture of this case, we limit our discussion to the wrongful death claim and the facts relevant to the issues currently on appeal.

Plaintiff is the personal representative of the estate of the decedent, Aaron Martineau. Plaintiff's wrongful death claim arises out of the medical care that Martineau received from defendants when he visited the emergency room after experiencing chest pain and other symptoms. Defendant ₄₇₆Josephsen examined Martineau and arranged for a chest x-ray, which defendant Zawierucha read. Josephsen concluded that Martineau did not have an urgent cardiovascular problem or need further testing immediately. Martineau went home, where he died approximately 24 hours later.

Plaintiff brought a wrongful death claim against Josephsen and the Doctor’s Emergency Room Corporation, P.C. (the ER defendants), and Zawierucha and Radiology Associates, P.C. (the radiology defendants), alleging that they negligently caused Martineau’s death. Specifically, plaintiff alleged that the ER defendants were liable for negligently examining Martineau and assessing his condition, failing to obtain adequate imaging tests, and failing to diagnose and treat his heart condition, and that the radiology defendants were liable for negligently reviewing his chest x-ray, failing to order additional imaging, including a CT scan, and failing to diagnose his heart condition.

The trial on plaintiff's wrongful death claim was largely a battle of experts and included opinions about whether Martineau’s chest x-ray, admitted as Exhibit 7, was normal or abnormal. Plaintiff called, among other experts, Dr. Patten, to establish that the defendants had negligently reviewed that x-ray. During Patten’s testimony, plaintiff put up boards displaying images of "normal" chest x-rays, including a "normal" chest x-ray from an unidentified 29-year-old male patient of Patten’s that was marked as Exhibit 92. Plaintiff explained that she was showing the normal x-rays "for illustrative purposes," which the court allowed.

Later in direct examination, plaintiff asked Patten about a document marked "Exhibit 92B," which was described as a side-by-side comparison of two x-rays: first, Martineau’s x-ray from the hospital, which had previously been admitted as Exhibit 7 and, second, a "normal" x-ray of Patten’s 29-year-old patient, which had previously been used as a demonstrative marked Exhibit 92. Using Exhibit 92B, Patten described differences between the two x-rays and outlined What he considered an abnormal contour on the Martineau x-ray.

At that point, plaintiff offered Exhibit 92B into evidence. The radiology defendants objected to its admission ₄₇₇into evidence, stating that it should be allowed only as a demonstrative. Plaintiff began to respond, "It can go back as an exhibit, Your Honor. It’s showing the medical opinion—." The parties then agreed that the matter should be discussed outside the jury’s presence. When the discussion resumed outside the jury’s presence, the court stated that "illustrative exhibits do not go into the jury." The court continued, "I suppose you can mark them. You have an illustrative exhibit attached to a substantive exhibit. I suppose if you cap cut it in half I’ll deal with it." Plaintiff argued that Exhibit 92B was "evidence of the opinion. It’s not necessarily illustrative in the same way that just a diagram is. This is actually how you understand a normal versus the actual identification of the injury." The court adhered to its ruling that Exhibit 92B (and other exhibits showing "normal" x-rays) could be used for illustrative purposes but would not be admitted or sent to the jury for deliberations.

The question of the admissibility of the "normal" x-rays, including Exhibit 92B, resurfaced multiple times during trial. The court consistently rejected admitting the "normal" x-rays into evidence. At one point, the court explained:

"It was an expert that interpreted these for you to explain the difference. I’m not going to put those in, otherwise that becomes testimonial and I'm running the risk—it’s one thing to have medical record[s] involving this particular individual and his X-ray. I'm not going to start adding X-rays to it."

The court then gave plaintiff an opportunity to make a further record, and plaintiff stated that the normal x-rays were critical for the jury to evaluate the expert testimony regarding Martineau’s x-ray and, while they might be illustrative, were also "substantive" because they were useful to the jury as evidence of a normal x-ray of someone of plaintiff's age.

Much later in the trial, the court returned to the issue again, stating:

"The only thing I haven’t let in is X-rays—purported normal X-rays of other persons in this case that don’t have any drawings on them. And I’m not going to let this jury conduct radiology in the jury room by starting to compare ₄₇₈X-rays back and forth and make their own evaluation. I think we all agree they have to base it on either your experts’ testimony or their experts’ testimony."

As previously mentioned, and as referenced in the court’s explanation, there was competing expert testimony about Martineau’s chest x-ray. One of defendants’ experts was Dr. Slater, a cardiothoracic surgeon. On direct examination, Slater testified that he did not see any aortic abnormality visible on Martineau’s chest x-ray. On cross-examination, plaintiff sought to impeach Slater’s testimony with a treatise, Acute Aortic Disease, which other experts had identified as a learned treatise and reliable authority on evidence of aortic disease in x-rays. Plaintiff directed Slater to a treatise page showing "a normal chest X-ray up at the top," then asked Slater whether it showed "an illustration on that normal that says look into this area for the—if the cardiomediastinal silhouette shadow swings into that area, that’s evidence of aortic aneurysm or aortic disease."

After a back and forth in which plaintiff and Slater seemed to be looking at different things, plaintiff tried to direct Slater to a particular "diagram," at which point the radiology defendants’ counsel interjected, "Excuse me. Don’t publish that to the jury. That’s not allowed." Plaintiff's counsel responded, "Sure," then proceeded to ask Slater a series of questions about what the diagram showed, with Slater often agreeing with counsel’s characterization of what it showed. Eventually, plaintiff's counsel returned to the issue of publishing the diagram or image to the jury:

"Q. So we have this article and it says this is the evidence of aortic disease in the chest X-ray to look for. That right there or that right there.

"And, Your Honor, I know that you’d like us to cross-examine, but this is actually an image, and I think it is worthwhile to publish to the jury."

The radiology defendants’ counsel objected. The court sustained the objection, stating, "You can ask about it, but that’s all."²

₄₇₉The jury ultimately rendered a verdict for defendants.

II. EXHIBIT 92B

Plaintiff's second and third assignments of error concern Exhibit 92B. Plaintiff argues that the trial court erred, respectively, by "not admitting or limiting the admissibility of exhibit 92B" and by "refusing to provide exhibit 92B to the jury for deliberations." Given the arguments that the parties have made on appeal, and in aid of addressing those specific claims of error, we begin with a general discussion of the use of demonstrative and illustrative exhibits at trial.³

A. Demonstrative and Illustrative Exhibits Generally

The ...