Herzfeld & Rubin, P.C.- Publications

Products Liability More on Computer-Generated 'Pedagogical' Devices By Michael Hoenig - New York Law Journal - Monday, November 8, 2004	Print article

Our November New York Law Journal (NYLJ) column¹ featured a review of Senior U.S. District Judge Jack B. Weinstein's thoughtful opinion in Verizon Directories Corp. v. Yellow Book USA, Inc.,² calling for admissibility of so-called computer-generated "pedagogical" presentations as evidence in appropriate settings.

Judge Weinstein acknowledged that general current practice is to exclude these demonstratives as evidence while perhaps allowing their use as aids to the jury in understanding the evidence. Judge Weinstein urged that the technology revolution has strengthened the ability of courts to seek truth and expressed confidence that judges can control against distortions and undue prejudice by informed, sensitive judging and use of the broad balancing discretion inherent in Federal Evidence Rule 403.

Our prior NYLJ columns have discussed pertinent case law involving computer simulations and other computer-generated techniques.³ Additionally, our November column listed many legal writings offering guidelines on how to advocate for or oppose use of the new demonstrative weaponry.⁴

In this article we push forward on this subject by reporting on a New Jersey Appellate Division decision, virtually hot-off-the-press, presenting perhaps the other side of the coin — the danger of unfair distortion and manipulation by use of computer-generated visual aids. The opinion is Rodd v. Raritan Radiologic Associates,⁵ a medical malpractice wrongful death case in which a jury awarded some $3.24 million in damages for the consequences of breast cancer. The defendant radiologist, with a subspecialty in mammography, was alleged to have misinterpreted the decedent's mammography films in 1997 and 1998. Decedent, who had a history of fibrocystic disease, resulting in dense breast tissue that appears white in a mammogram, discovered a lump in her breast in early 1999 and died in August 2002.

Super-Magnified Imagery

Mammography screenings are X-rays taken from vertical and horizontal directions. The radiologist places the mammogram in a view box and analyzes it both with his naked eye and a hand-held magnifying glass. The specialist looks for a number of indications including micro-calcifications, clusters with ill-defined margins and bizarre shapes and calcifications that are "focal" (seen in only a relatively small part of the breast) rather than diffused, among others. Decedent's mammograms through 1995, without dispute, were negative for cancer. Interpretation of the 1997 and 1998 mammograms was, however, a key issue. Defendant had used a 2.5 power magnifying glass, the recognized diagnostic tool of the time, resulting in an image magnified by four times.

In order to assist his case plaintiff's counsel caused select portions of the 1997 and 1998 mammograms to be digitally scanned into a computer, producing super-magnified images projected onto a six-foot by eight-foot screen. Purportedly, this demonstration was offered to aid the jury in explaining the nature of appearance of a malignancy. Instead, the super-magnified images were used, in effect, "to simulate for the jury what defendant actually saw when he viewed the films using the magnifying lens, namely, clustered micro-calcifications in decedent's left breast indicative of cancer." Plaintiff's expert testified that the computerized images on the large screen, from the jury's perspective, were akin to a radiologist closely examining the films on a light box using a four-times magnifying glass.

These digitalized, computerized images were selectively composed by plaintiff's counsel and magnified from 30 to 150 times the size of the X-rays. One image of a 1996 X-ray was blown up so that a 1.5 centimeters distance on the mammogram was represented on the screen to be 15 to 16 inches — a more than 30-times magnification. Defendant unsuccessfully objected to these super-magnified images because of lack of notice during discovery. The judge also rejected the defense request that plaintiff's computer operator and all of the computer images, used and unused, be made available. Only a log or printout of selected images were made available to defendant, and not until midway through the trial.

Defendant also objected because of the potential for distortion and jury confusion engendered by use of the super-magnified images. Defendant's expert testified that "this is such an artificial situation" and that "never having viewed a mammogram of this degree of magnification, I'm having difficulty telling what's a calcification and what is breast tissue."⁶The expert said that plaintiff's images "subtracted the ruler so I can't say whether they're micro-calcifications." Also, there were multiple other areas that plaintiff chose not to image showing white dots or calcifications in groupings.

Objections Rejected

Defendant radiologist testified that the great magnification blurred calcifications that were actually sharp images. He expressed concern that plaintiff may have created the appearance of the cluster by compressing the image, creating the impression that a cluster was focal rather than diffuse. Defendant said that if these super-magnified images were accurate, X-ray films would not be used by radiologists. Even plaintiff's expert conceded he examines mammograms with a hand-held magnifying glass and does not project them to the size used in court. The expert conceded during cross-examination that, while a dot on the screen could possibly be a calcification, it might actually be a dust particle. Certainty was impeded because of the "grain on the film when you magnify it."⁷

The trial judge rejected defense objections, allowed the large-screen computer projections and explained that they would aid the jury. No instruction was given to the jury limiting the use of this evidence for the narrow purpose. Instead, plaintiff's counsel used the computer imagery extensively throughout the trial to suggest that, because the cluster was so clear in the blow-ups, it was equally clear when the radiologist viewed the films under a hand-held magnifying glass. The computer images were exploited in a variety of ways, as the appellate court elaborated.

In his opening statement, plaintiff's counsel projected a cluster of irregularly shaped micro-calcifications, blown up on the screen and circled in red, saying it was a suspicious cluster, unreported by defendant, even though "it was cancer, clear as a bell." Similarly, during direct examination of his expert, plaintiff's counsel zoomed in on the images to demonstrate a cluster of more than a dozen calcifications within one cubic centimeter area. Plaintiff's counsel had the computer operator magnify certain clusters and bring select views in focus to make it "brighter" and increase the magnification. His expert also was prompted to remark that the computerized magnifications made it "actually easier to see." The computer projections were heavily relied on during cross-examination of defendant's expert to challenge his testimony. Finally, in summation, plaintiff's counsel argued the suspicious cluster in the computer image was "clear as day" and asked, "why did Dr. [defendant] miss it?"⁸

Following the sizable verdict, defendant's motion for a new trial was denied. The judge reasoned that juries are disadvantaged in radiology cases by lack of experience interpreting X-rays. Super-magnification of images helps reduce this handicap. He compared blowing up the mammogram to blowing up an intersection of a highway. He also injected his opinion about the profession's practice: "The message may get out now, that in radiology, and I know the radiologist is under awesome pressure reading these films, that maybe they ought to blow it up like that." He continued, "maybe the whole industry is negligent. Maybe in this case, something ought to be done . . . maybe this message is gonna get out . . . it seems, to me, to be very simple and very easy to implement, in a radiology group, blowing it up on a screen."⁹

The appellate court went right to the heart of the matter: was the computer imagery unduly prejudicial, warranting a new trial? The court answered this question, "Yes." First, the court noted the wide latitude trial courts enjoy in admitting or rejecting replicas, illustrations and demonstrations. However, the probative value must not be offset by undue prejudice, unfair surprise, undue consumption of trial time or possible confusion of issues due to introduction of collateral matters.¹⁰ Here plaintiff claimed that the computer enlargement was not meant as substantive evidence, but only demonstrative as a visual aid in understanding the radiologists' expert opinions and to explain the nature of a malignancy in a mammogram. However, the jurors were never instructed as to the limited purposes for which the computer images were shown. "From the jury's point of view, the computer images were indistinguishable from any other evidence."

'Aid' or Evidence?

Compounding this problem, the gross magnification of the mammography films, according to defendant and his expert, had a tendency to distort, rather than clarify what defendant had actually viewed. Since the "very essence of the malpractice claim was error in visual observation, the so-called 'visual aid' took on testimonial significance and its contents were highly susceptible of being perceived by the jury as substantive evidence." Indeed, the jury was repeatedly told by plaintiff's expert that the super-magnification was an identical representation of the images apparent on mammogram films when viewed under the standard magnifying glass. The real question was whether defendant had deviated from the accepted standard of care when he viewed the X-rays. Computerized magnification was not the standard of care recognized in the medical community which, indisputably, viewed films with a 2.5 power magnifying lens. Thus, the super-magnifications had the "clear potential to confuse the jurors and distract them from assessing defendant's conduct under the correct standard of care."

There was a danger the jury could assume that defendant should have used the computer technology presented at trial, despite no evidence of a medical consensus that images are accurate when X-rays are scanned into a computer, blown up and projected on a large screen. In short, the jury was provided with testimonial evidence — independent proof — of that which could and should have been seen using a hand-held magnifying glass. Although jurors could, if they wanted, see the mammogram films on a light box during their deliberations, the very real danger persisted that the jurors could not erase from their minds the images continually projected on the screen.

The lack of adequate notice to defense counsel and the failure to lay a complete foundation for the computer evidence heightened the appellate court's concern. Plaintiff's expert introduced the computer imagery but neither created nor directed the underlying X-ray or computer projection. He wasn't present when either was made. He offered no account of how the films were scanned into the computer or how the computer program operated. He was not even aware of the actual level of magnification involved in the computer enlargement. In the court's view, "use of a computer-generated exhibit requires a more detailed foundation than that for just photographs or photo enlargements." There may be reliability problems arising from computer-generated exhibits and the processes by which they are created. There must be testimony by someone with computer expertise and knowledge of the technology who can be cross-examined. Mere visual inspection, as done here by plaintiff's expert, is simply not enough to assure reliability of the exhibit.¹¹

The error in admitting the computer-generated exhibits was not harmless. The enlargements may have created the appearance of a "focal" cluster by showing only a selective image instead of an all-inclusive picture. The images may even have been compressed. But, whether or not such manipulation occurred, the main point is that the computer-generated images were not the medically accepted diagnostic tool. The imagery was unduly influential, potentially confusing, susceptible of being accepted as substantive evidence and clearly capable of producing an unjust result. A new trial was required.

Future Tensions

Is the Rodd case experience emblematic of a rare, singular or extreme anomaly or does it represent a mainstream example of what now occurs, or is likely to occur, when computer-generated exhibits ubiquitously flood trial practice? Judge Weinstein in Verizon Directories, reviewed in our November NYLJ column, was optimistic that informed, sensitive judges could control against prejudice by using Evidence Rule 403. Yet, the New Jersey trial judge in Rodd, even though he had a state version of Rule 403 available, was so impressed by the super-magnifications that he thought the entire radiological profession might be negligent for not using them. If an assumedly dispassionate trial judge was so influenced, what might be said about the potential for lay jurors? If sensitive judging is the guarantor against misuse, it will have to extend to the four corners of state judiciaries across the nation. After all, that is where most trials are held.¹² And what about the role of appellate courts on these issues? Judge Weinstein observed that over-burdened appellate courts may not have the time to fully review computer-generated and other pedagogical evidence.¹³ In Rodd, however, the appellate court's review was what stood between a $3.2 million verdict and a fair trial.

Nevertheless, Judge Weinstein ultimately saw increased flexibility in using educational devices as resulting in courtroom findings more consonant with truth and law. In reality, the Rodd decision should not be read as forbidding pedagogical demonstratives. Although the court does not go so far as to favor their admission into evidence, the court acknowledged the established value of using demonstrative aids. Nevertheless, computer-generated techniques add a measure of complexity requiring timely notice to adverse counsel, foundational predicates as to reliability, limiting instructions and tight judicial control against misuse, distortion and prejudicial influence.

The reality is computer technology is like the proverbial genie that has come out of the bottle. Stuffing it back inside is unlikely. It can be an instrument for good or a weapon of prejudice and manipulation. Our articles have presented both sides of the coin. Technology's tide and march is inexorable. The courts will have to harness this unbound energy and set rules for its appropriate use in the courtroom. And appellate courts will have to accept yet another burden: meaningful policing of the new genie.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________

1. Hoenig, "Computer-Generated 'Pedagogical' Devices: Admissible or Not?" The New York Law Journal, Nov. 8, 2004, p. 3.
2. 331 FSupp2d 136 (EDNY 2004).
3. Hoenig, "Computer Simulations and Other Weapons," NYLJ, March 8, 1993, p. 3; " 'Gatekeeping' Reliability of Computer Simulations," NYLJ, July 10, 2000, p. 3.
4. Hoenig, supra n. 1, at p. 7 n. 3.
5. 2004 N.J. Super. LEXIS 418 (N.J. App. Div. Nov. 24, 2004).
6. Rodd, LEXIS at *7.
7. Id., LEXIS at *8.
8. Id., LEXIS at *9-*11.
9. Id., LEXIS at *11 - *12.
10. Id., LEXIS at *14 - *15 citing N.J.R.E. 403, the state version of Federal Evidence Rule 403.
11. Id., LEXIS at *21 - *22.
12. Judge Weinstein observed in Verizon Directories that "[t]here are now relatively few trials in the district courts . . . ." 331 FSupp2d at 143.
13. Verizon Directories, 331 FSupp2d at 143.