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A Strategy for Excluding Evidence (Continued from page 20)


probative value. This argument should be asserted in any motion in limine on the topic as the Maryland rules of evidence support the same conclusion.4 The Virginia Supreme Court revis-


ited the question of informed consent evidence in Holly v. Pambianco, 270 Va. 180, 613 S.E.2d 425 (2005).5


At issue


was the admissibility of evidence of the statistical frequency of perforation of the colon during a colonoscopy. The defense offered the evidence to prove that perfo- ration occurs at a certain rate no matter how careful the practitioner. In essence, the defense was arguing perforation was an inherent risk of the procedure and that perforations were bound to occur in the absence of negligence. The Virginia


4


Maryland Rules of Civil Procedure, Rules 5-401 and 5-403. Smith v. State, 371 Md. 496, 810 A.2d 449 (2002). See also MC- CORMICK ON EVIDENCE, Ch.16 at §185.


5


The Holly case was cited favorably in Atkins v. Com., 631 S.E.2d 93, 272 Va. 144 (2006).


Supreme Court held that the trial court erred in admitting the evidence because the statistical frequency of an event is not relevant to an assessment of negligence. Id. at 185. At trial, the plaintiff ’s expert opined


that the risks of perforation were present when using a “hot biopsy forceps” in a thin part of the colon because the electric current used to remove the polyp was also strong enough to burn a hole in the colon. The plaintiff ’s expert’testified that the defendant should have used a “cold biopsy technique” to permit the polyp to be surgically removed in small pieces with- out use of an electric current. Defense counsel cross-examined the plaintiff ’s expert on the statistical frequency of the perforation of colonoscopies throughout the’United States. This evidence was allowed over the plaintiff ’s objection. During cross-examination of the defense experts, the plaintiff ’s counsel obtained critical admissions that the national sta- tistics contained no breakdown between the cases involving perforation caused by negligence and those that did not. InHolly, the defense was also permitted to introduce evidence that the plaintiff


was informed of risks of perforation on the theory that, by notifying the plain- tiff of perforation as a risk, the plaintiff had a duty to mitigate any damages by promptly reporting any post-operative symptoms. The defense argued that the plaintiff waited four days before reporting his symptoms and, as a result, exacerbated his injuries. The trial court allowed this evidence in, but gave a limiting instruc- tion to the jury that it could not consider the informed consent evidence on the issue of negligence. In Holly, defense counsel’s tactics con-


tinued through closing argument. Over objection, defense counsel argued that no matter how careful the physician, there are a certain percentage of cases where perforation will occur. Not surprisingly, with all of the irrelevant evidence on informed consent, the jury returned a defense verdict. In reversing the judgment and order-


ing a new trial, the Virginia Supreme Court appropriately held that the defense argument and the statistical evidence on which it was based had nothing to do


(Continued on page 24)


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