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Yanello v. Park Family Dental - 2017 IL App (3d) 140926, 413 Ill. Dec. 945, 79 N.E.3d 294

Rule:

The primary considerations in determining whether demonstrative evidence is admissible or may be used at trial are relevancy and fairness. Ill. R. Evid. 401, 402, and 403. As for relevancy, for demonstrative evidence to be admissible, it must actually be used to illustrate or explain the verbal testimony of a witness as to a matter that is relevant in the case in question. With regard to fairness, even if the relevancy test has been satisfied, demonstrative evidence may still be excluded by the trial court if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ill. R. Evid. 403. Moreover, demonstrative evidence may not be used substantively to show the basis of a medical expert's opinion or to support his conclusions.

Facts:

In 2009 and 2010, defendant Dr. Jae S. Roh extracted eight teeth from plaintiff Nancy Yanello's upper jaw, inserted four dental implants in her maxilla, and gave her a maxillary denture which snapped onto the dental implants. Dr. Roh did not see any significant bone loss in the Yanello's maxilla at the time. Yanello returned to Dr. Roh complaining that two of the implants were loose and painful. Upon examination, Dr. Roh determined that three of the implants he placed had failed. The implants were replaced but Yanello still complained of pain. Yanello went to the University of Iowa complaining of "chronic pain" and pain in her midline up her nose and lip; the staff there referred Yanello to Dr. Richard Burton, a board certified oral surgeon and the vice chairman of oral surgery at the University of Iowa, for treatment of what was characterized as "failed implants." Yanello filed a lawsuit in Illinois state court against Dr. Roh and his practice, defendant Park Family Dental, for professional negligence. Following a jury trial, judgment was entered in favor of defendants. Yanello appealed and sought a new trial. Yanello argued that the trial court abused its discretion when allowing a defense expert to present an actual human skull and a model skull to the jury and to use those skulls as real evidence (rather than demonstrative evidence) to establish that Dr. Roh did not violate the standard of care, where the skulls were not disclosed to Yanello prior to trial.

Issue:

Did the trial court abuse its discretion in allowing the defense to use the skulls as evidence?

Answer:

Yes.

Conclusion:

The appellate court reversed the trial court's judgment and remand for a new trial. It held that a new trial was warranted because it was improper to allow the defense expert witness to use skulls at trial as real evidence, not merely as demonstrative evidence to explain or to illustrate his testimony, when the defense did not previously disclose the skulls as a basis for the medical opinions of the expert witness prior to trial, pursuant to Ill. Sup. Ct. R. 213, and did not lay a proper foundation for the opinion of the expert witness that the skulls were accurate representations of Yanello's dental anatomy.

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