Perez v. Bagous

833 S.W.2d 671, 1992 Tex. App. LEXIS 2576, 1992 WL 142200
CourtCourt of Appeals of Texas
DecidedJune 25, 1992
DocketNo. 13-91-494-CV
StatusPublished

This text of 833 S.W.2d 671 (Perez v. Bagous) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. Bagous, 833 S.W.2d 671, 1992 Tex. App. LEXIS 2576, 1992 WL 142200 (Tex. Ct. App. 1992).

Opinion

OPINION

DORSEY, Justice.

This case involves the use of one exhibit to create another outside the presence of the jury and without notice to the court or to opposing counsel. By three points of error, appellant contends that the trial court erred by refusing to instruct the jury to disregard both exhibits and by denying his motion to withdraw one of them. We affirm the judgment of the trial court.

Appellant brought suit against the appel-lee doctor alleging medical malpractice. Appellant Perez claimed that he suffered functional problems in his left hand because the defendant physician negligently gave him an injection. Perez contended that the doctor inserted the needle into his forearm, damaging the posterior interosseous nerve (the nerve between the bones). The doctor countered that he properly injected the appellant in the elbow, far from the nerve. The key issue at trial was whether the needle used for the injection was long enough, if inserted into the fore[673]*673arm as appellant contended, to reach the posterior interosseous nerve.

Appellee admitted Defendant’s Exhibit 5, a five-eighths inch needle in its sheath. This needle was the same length as the one used to inject appellant. Opposing experts testified about the ability or inability of a needle that length to reach the nerve.

Throughout the majority of the trial, counsel for both parties used a plastic model arm as demonstrative evidence to assist the jury in its fact-finding role. The model had not yet been admitted into evidence. During a jury recess, the appellee doctor, at his attorneys’ direction, removed the Exhibit 5 needle from its sheath and inserted it into the model arm precisely where appellant testified he received the injection. Ap-pellee did not tell either the court or appellant he had done this, although he claims he did tell the court reporter. Appellee then admitted the model arm with the inserted needle into evidence. Appellant, not realizing that the model arm used throughout the trial now had a needle in it, did not inspect the model and allowed it to be entered into evidence without objection. The model arm with the Exhibit 5 needle in it became Defendant’s Exhibit 9.

Prior to the start of closing arguments, appellant’s counsel accidentally broke the cap off of the needle, leaving only the needle itself protruding slightly. Appellant did not move to withdraw the model with the remains of the needle protruding from it or request an instruction that the model or the remains of Exhibit 5 be disregarded by the jury.

During closing arguments, the first of appellee’s counsel to argue told the jury that a needle had been inserted into the model arm, and he suggested that the jurors dismantle the model to determine whether the needle penetrated the posteri- or interosseous nerve. Appellant’s counsel interrupted, asking if the exhibit had been tampered with, and appellee’s counsel replied that the needle was in the model at the time it was admitted into evidence. Counsel also stated that the only alteration made since the exhibit’s admission was the breaking off of the needle cap. Appellant did not make a request or motion to disregard or withdraw the model arm exhibit at this time.

Appellee’s other counsel, during his portion of closing arguments, referred to the model arm and to the fact that the needle had been inserted into it. Likewise, at this time appellant did not move that the evidence be withdrawn or that the jury be instructed.

After the jury retired to deliberate, all exhibits, including the remains of Defendant’s Exhibits 5 and 9, were delivered to them in the jury room. They recessed for the day, and when they returned the next morning, the exhibits were withheld from them temporarily. Appellant requested that the court withdraw Defendant’s Exhibits 5 and 9 because Exhibit 5, the needle, had been altered when it was taken out of its sheath, and Exhibit 9, the model arm with the remains of the needle in it, was the result of an out-of-court experiment. Appellant also requested that the jury be instructed not to consider the exhibits for any purpose. Appellee’s attorney objected to the requests.

The trial court instructed the attorneys to take the model to a jeweler to have the remains of the needle removed. The jeweler was unable to extract the needle, so he pushed it into the model instead, making it no longer visible. The trial court then denied appellant’s motion to withdraw the exhibits and refused to give the requested instructions. In the meantime, the jury requested that the two exhibits be returned to them. The model arm was returned, and shortly afterward, the presiding juror asked the bailiff whether he knew the needle was missing. No explanation was given to the jury regarding the whereabouts of the needle. Finally, the jury sent a note to the court asking whether monetary damages could be awarded absent a finding of negligence.

The jury ultimately found no liability on appellee’s part, and the court entered a take-nothing judgment against appellant. It is this judgment of which appellant complains. The thrust of the appellant’s contentions is that the needle, already an ex[674]*674hibit in evidence, was surreptitiously inserted into the model arm used as demonstrative evidence throughout the trial with no notice to himself or to the court. This altered the model substantially. The model was then admitted into evidence, and the appellant was not informed of the alteration.

Tex.R.Civ.P. 75b directs that

All filed exhibits admitted in evidence ... shall, until returned or otherwise disposed of as authorized by Rule 14b [not at issue here], remain at all times in the clerk’s office or in the court or in the custody of the clerk....

Once a party has admitted an exhibit into evidence at trial, the exhibit may not be retrieved and used to create another during a jury recess without notifying opposing counsel or the court. It is wholly outside the scope of the rule to then enter this newly created exhibit into evidence without informing opposing counsel of the use of the entered exhibit. In this case, the main issue was whether a needle of the length used by the defendant doctor was long enough to cause the damage the plaintiff alleged to have sustained. The defendant retrieved a needle he had already admitted into evidence — during a jury recess — and inserted it into a model arm both parties had used throughout the trial as demonstrative evidence, with no notice to the plaintiff or to the court. Defendant then admitted the arm with the needle in it into evidence, again with no notice that he had manipulated the evidence. Because the needle did not reach the nerve appellant claimed it did, this demonstration was very persuasive against appellant’s position.

Both parties liken the actions of appellee to an out-of-court experiment. We find this to be an improper analogy. The typical out-of-court experiment is the reenacting of a car accident under the same or substantially similar circumstances of the accident at issue in trial, with the results then being shown to the jury. See Fort Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279 (Tex.1964) (video of out-of-court experiment showing that beam of light similar to train headlight could blind driver of car approaching railroad crossing); Garza v. Cole, 753 S.W.2d 245

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Related

Fort Worth & Denver Railway Company v. Williams
375 S.W.2d 279 (Texas Supreme Court, 1964)
Boyer v. Scruggs
806 S.W.2d 941 (Court of Appeals of Texas, 1991)
Rodriguez v. Universal Fastenings Corp.
777 S.W.2d 513 (Court of Appeals of Texas, 1989)
Montes v. Lazzara Shipyard
657 S.W.2d 886 (Court of Appeals of Texas, 1983)
Commercial Union Insurance Co. v. La Villa Independent School District
779 S.W.2d 102 (Court of Appeals of Texas, 1989)
Garza v. Cole
753 S.W.2d 245 (Court of Appeals of Texas, 1987)
Ford Motor Co. v. Nowak
638 S.W.2d 582 (Court of Appeals of Texas, 1982)

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Bluebook (online)
833 S.W.2d 671, 1992 Tex. App. LEXIS 2576, 1992 WL 142200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-bagous-texapp-1992.