Gibson v. Wright

742 S.E.2d 49, 403 S.C. 32, 2013 WL 1830955, 2013 S.C. App. LEXIS 144
CourtCourt of Appeals of South Carolina
DecidedMay 1, 2013
DocketAppellate Case No. 2010-163726; No. 5127
StatusPublished
Cited by2 cases

This text of 742 S.E.2d 49 (Gibson v. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibson v. Wright, 742 S.E.2d 49, 403 S.C. 32, 2013 WL 1830955, 2013 S.C. App. LEXIS 144 (S.C. Ct. App. 2013).

Opinion

KONDUROS, J.

In this medical malpractice action, the Estate of James E. Gibson, III1 appeals the trial court’s (1) admission of summaries as evidence, (2) failure to grant a mistrial after Christopher [36]*36C. Wright, M.D. asked about Gibson’s social security benefits, and (3) excluding as hearsay Gibson’s questions to Dr. Wright about another doctor’s deposition. We affirm.

FACTS/PROCEDURAL HISTORY

In 2001, Dr. Wright performed heart bypass surgery on Gibson, placing four cardiac wires in him. A few days after surgery, Dr. Wright removed two of the wires from Gibson but left in the remaining two wires. Gibson had problems with his wounds healing, and Dr. Wright referred him to Dr. James Wallace, a plastic surgeon. About five years later, after Gibson continued to have problems, Dr. Wallace performed surgery on Gibson to remove any infection. He also removed the two remaining wires with Dr. Wright’s assistance.

In 2008, Gibson filed a complaint, alleging Dr. Wright was negligent in failing to (1) remove cardiac wires from Gibson despite having claimed to do so, (2) x-ray or diagnose the retained wires in a timely manner, (3) provide prompt and proper medical treatment to Gibson, (4) inform Gibson of the danger of leaving retained pacing wires in his chest cavity, and (5) treat Gibson in a reasonable amount of time so as to avoid further injury and damage. Prior to trial, Gibson filed a motion in limine requesting Dr. Wright not mention any collateral source such as insurance, social security disability, and workers’ compensation. During Dr. Wright’s cross-examination of Gibson, Dr. Wright asked him if he was receiving police officer’s and social security disability. Gibson objected and moved for a mistrial. Following a lengthy discussion on the matter, the trial court denied Gibson’s motion for a mistrial but gave the jury a curative instruction.

Later during trial, Gibson objected to Dr. Wright’s using summaries of evidence, which were timelines, as PowerPoint slides to aid his examination of witnesses. Gibson argued he had not received enough time to review all of the slides and of the ones he had reviewed, many contained mistakes or were not objective. The parties debated the matter, and the trial court ultimately allowed Dr. Wright to use the slides, excluding some of the slides and allowing others. The trial court allowed Gibson some time to review the slides, although less time than he had requested.

[37]*37During Dr. Wright’s testimony, Gibson attempted to question him about a deposition Dr. Wallace gave regarding whether Dr. Wallace knew the wires had not been removed. Dr. Wright objected, arguing it was hearsay. After extensive arguments by both sides, the trial court granted the motion to exclude the deposition.

Following the conclusion of testimony, the jury found in favor of Dr. Wright. Gibson filed post-trial motions alleging the trial court erred in allowing the summaries to be used, failing to grant a mistrial after Dr. Wright violated the motion in limine agreement, and not allowing Gibson to introduce Dr. Wallace’s deposition in cross-examining Dr. Wright. The trial court denied the motions. This appeal followed.

I. EVIDENTIARY SUMMARIES

Gibson argues the trial court erred in allowing Dr. Wright to present inaccurate summaries to the jury based on documents not produced to Gibson until days prior to trial, thus violating Rule 1006, SCRE. We disagree.

Demonstrative evidence includes items such as a photograph, chart, diagram, or video animation that explains or summarizes other evidence and testimony. Such evidence has secondary relevance to the issues at hand; it is not directly relevant, but must rely on other material testimony for relevance. Demonstrative evidence is distinguishable from exhibits that comprise “real” or substantive evidence, such as the actual murder weapon or a written document containing allegedly defamatory statements.

Clark v. Cantrell, 339 S.C. 369, 383, 529 S.E.2d 528, 535 (2000).

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation, provided the underlying data are admissible into evidence. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

Rule 1006, SCRE (emphasis added).

“[T]he standard for merely showing or exhibiting demonstrative evidence ... would not be higher than the [38]*38standard for actually admitting demonstrative evidence.” Davis v. Traylor, 340 S.C. 150, 156-57, 530 S.E.2d 385, 388 (Ct.App.2000). “The trial court has broad discretion in the admission or rejection of evidence and will not be overturned unless it abuses that discretion.” Id. at 157, 530 S.E.2d at 388. “To warrant a reversal based on the admission of evidence, the appellant must show both error and resulting prejudice.” Conway v. Charleston Lincoln Mercury Inc., 363 S.C. 301, 307, 609 S.E.2d 838, 842 (Ct.App.2005).

“[CJounsel may use a blackboard during jury argument to illustrate points that are properly arguable or to bring to the jury’s attention facts or figures properly revealed by the evidence.” Edwards v. Lawton, 244 S.C. 276, 277, 136 S.E.2d 708, 708 (1964).

There is no impropriety in counsel’s use of a blackboard, during his argument to the jury, for the purpose of fairly illustrating points that are properly arguable. Calculations made, or diagrams drawn, thereon are of course not evidence. Like statements of counsel in oral argument, they should have reasonable foundation in the evidence or in inferences fairly arguable from the evidence. Just as oral argument may be abused, so may such visual argument; and its abuse may be so flagrant as to require a new trial. Control of the arguments of counsel, with regard to the use of such visual aids, as with regard to oral statements, rests in the sound discretion of the trial judge.

Id. at 277-78, 136 S.E.2d at 708-09 (citations and internal quotation marks omitted).

In one of the federal cases to which Gibson cites, the party who sought to introduce summary exhibits as evidence under Rule 1006, FRE, appealed the trial court’s denial of the introduction of the evidence. Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 6-7 (1st Cir.1996). The trial court did not allow the evidence because the party had not brought the documents from which the summaries were drawn and the opposing party had not seen the documents, despite having access to the documents. Id. at 7-8.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Karrie Gurwood v. GCA Services Group, Inc.
Court of Appeals of South Carolina, 2025
Kim v. County of Richland
Court of Appeals of South Carolina, 2019

Cite This Page — Counsel Stack

Bluebook (online)
742 S.E.2d 49, 403 S.C. 32, 2013 WL 1830955, 2013 S.C. App. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-wright-scctapp-2013.