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Butler v. Naylor9/10/1999
technique as recognized by the medical community. Over Butler's objections, the portion of the Zollinger text which Dr. Naylor relied upon was introduced into evidence as an exhibit; thereafter, it was delivered to the jury for use in deliberations.
Following the presentation of all evidence and closing arguments, the court excused the jury to commence their deliberations after which the trial court heard counsel's objections to the jury instructions. Butler objected to instruction thirty-eight which read, in sum, that when more than one method of diagnosis or treatment is recognized by a respectable portion of the medical community, a physician is not negligent in selecting one of the recognized methods, even if the method turns out to be a wrong selection, or one not favored by other physicians. The court noted Butler's objection.
The jury returned a verdict in favor of Dr. Naylor. Butler now appeals, contending she is entitled to a new trial because the court committed harmful error by (1) admitting the Zollinger text into evidence as an exhibit and providing it to the jury for use during deliberations; and (2) giving instruction thirty-eight to the jury over her objection.
STANDARD OF REVIEW
Rules of evidence are interpreted according to general rules of statutory construction. See State v. Robertson, 932 P.2d 1219, 1228 (Utah 1997). Where a rule's language is plain and unambiguous we will not look beyond the rule itself for meaning. See id. A trial court errs when it rules contrary to an evidentiary rule's plain meaning; however, an "`"erroneous decision to admit or exclude evidence does not constitute reversible error unless the error is harmful."'" Jones v. Cyprus Plateau Min. Corp., 944 P.2d 357, 360 (Utah 1997) (quoting Jouflas v. Fox Television Stations, Inc., 927 P.2d 170, 173 (Utah 1996)) (quoting Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1378 (Utah 1995)). "Harmful error occurs where `the likelihood of a different outcome in the absence of the error is "sufficiently high so as to undermine confidence in the verdict."'" Id. (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)).
A trial court's ruling concerning a jury instruction is reviewed for correctness. See Billings v. Union Bankers Ins. Co., 918 P.2d 461, 466 (Utah 1996). A new trial will not be granted unless any error of the trial court was prejudicial, meaning that it misadvised or misled the jury on the law. See Vitale v. Belmond Springs, 916 P.2d 359, 363 (Utah Ct. App. 1996).
ANALYSIS
I. EVIDENCE
Butler contends the trial court committed harmful error when, in violation of Rule 803(18) of the Utah Rules of Evidence, it admitted into evidence as an exhibit a single page from the Zollinger medical text. She asserts that the trial court further prejudiced her when it permitted the jury to use the exhibit during deliberations. We review this issue to determine whether the trial court erred. If it did, we must then determine whether the abuse constituted harmful error which would entitle Butler to a new trial.
Dr. Naylor testified that he performed the surgery on Butler according to the procedure described and recommended in the Zollinger text. He stated that the procedure was intended to relax the anal canal and allow it to open normally. He also stated that he did not cut any of the muscle tissue of Butler's external sphincter.
At one point during his testimony, he read a passage aloud from page 456 of the Zollinger text that described how the surgery was to be performed. Following the reading, Dr. Naylor moved to have page 456 admitted into evidence as an exhibit. Butler object
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