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Akers v. Miller12/28/1998
eighed their probative effect: "But there is, as you know, a gross aspect of the picture. This is two days . . . after death. [ ] Well, there's a lot of discoloration that can happen in two days. It can happen in two hours, you know that. And I don't think these are fair to show. . . ." The Judge concluded, "There is really nothing in those pictures that can't be detailed by a description. The only purpose of those pictures is to get people a little excited. And it outweighs any probative value that they have to offer."
Plaintiff's medical expert, Ron Teitelbaum, examined the autopsy photographs. He testified the bedsore could have been prevented by turning Doherty frequently, preferably every one to two hours, keeping her off her back, using hot packs and incandescent lamps, and cleaning it with a mild antiseptic every four hours or so. He opined that even a stage IV bedsore could be healed within four to six weeks, and placed blame squarely on Miller: "The buck stops with the doctor. He is responsible for the care of the patient. And it's his total responsibility. He is responsible for the nursing care."
Miller's experts, in contrast, testified, the bedsore was incurable: "But if you're wasting and malnourished and catabolic and you are dying, I won't be able to get [infected bedsores] away very long." There was evidence Doherty could not be turned because of problems with her feeding tube and her respiration , and that she suffered from a blistering skin disease and serum protein level so low as to make it physically impossible for the bedsore to heal. As was argued in closing, " he had seen a number of nurses and doctors, any number of different facilities, hospitals. No one could cure it. And they couldn't cure it because of her overall medical condition. It was incurable. [ ] She had all of the medical factors that patients with [bedsores] have that make them incurable. She was chronically bedridden, disoriented, confused. . . . [ ] And her body didn't even have the capacity to deal with it on her own." Akers appeals from a unanimous jury verdict in favor of Miller.
II.
Trial courts have "broad discretion" under Evidence Code section 352 to weigh the probative value of gruesome or inflammatory photographs against their prejudicial impact. Appellate courts will not disturb this determination on appeal unless one factor clearly outweighs the other. (People v. Scheid (1997) 16 Cal.4th 1, 18.)
One court went so far as to survey cases from "practically every jurisdiction of the United States and Canada dealing with admissibility of photographs of personal injuries," deciding that " ll place determination of the question in the sound discretion of the trial court and most find no abuse." (Twyford v. Weber (Iowa 1974) 220 N.W.2d 919, 926.) Our canvas of case authority paints the same picture; the trial Judge is in the best position to balance the competing interests under Evidence Code section 352. The same principles apply whether the debate is over the admission of gory photographs or, as here, their exclusion.
There was no abuse of discretion. While a picture might be worth a thousand words, the jury heard at least that many. The court permitted extensive testimony by the pathologist and plaintiff's experts regarding the condition of the bedsore as depicted in the photographs. If anything, the court's refusal to allow the jury to actually examine the photographs may have magnified (not diminished) the jury's belief that Doherty's bedsore was too grisly to be seen. Plaintiff's lawyer conceded the subjectivity of the court's decision: "I mean, we've already - I respect the court's ruling. We can't use the pictures. I understand it's too infla
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