In a recent decision by the Illinois Appellate Court, Third District, the court overturned a jury verdict for the defendant in a medical malpractice case.  The plaintiff alleged that the defendant radiologist failed to timely diagnose her breast cancer.  At trial, the defendant radiologist testified using a PowerPoint presentation containing images of benign tumors from a medical treatise alongside radiological images taken from the plaintiff.  Above the treatise images were headings such as “benign cysts” and “infiltrating ductal carcinoma.”  The plaintiff objected to the use of the PowerPoint exhibit.  The defense argued that the purpose of the exhibit was to educate the jury about complex medical testimony that was being offered by the defendant regarding the characteristics necessary for evaluating breast lesions.  The trial court allowed the defendant to use the PowerPoint exhibit over the plaintiff’s objections.  The jury returned a verdict in favor of the defendant.  The plaintiff filed post-trial motions for a judgment notwithstanding the verdict, for a new trial, and for a rehearing, all of which were denied by the trial court.  The plaintiff appealed.

On appeal, the plaintiff argued, among other things, that the trial court erred in allowing the defendant to use the PowerPoint exhibit as demonstrative evidence.  The plaintiff argued that the defendant failed to lay the necessary foundation for the ultrasound images in the PowerPoint exhibit, the exhibit was not timely disclosed to plaintiff as required by the Illinois Supreme Court Rules, the exhibit was not actually being used as demonstrative evidence but to corroborate the defendant radiologist’s medical opinion that he correctly diagnosed the plaintiff’s lesions as benign and that the use of the PowerPoint exhibit was highly prejudicial.  The appellate court agreed that the trial court committed reversible error in allowing the defendant to use the PowerPoint exhibit as demonstrative evidence during his testimony at trial.

The appellate court began its analysis regarding the use of the PowerPoint exhibit by noting that PowerPoint presentations are commonly used in trial courts when the proper steps have been taken for their use as demonstrative evidence.  Demonstrative evidence generally has no probative value and is merely used as a visual aid to the trier of fact.  The value of demonstrative evidence lies in the trier of fact being able to understand what is seen rather than what is being heard.  Demonstrative evidence may be used to illustrate the verbal testimony of a witness on a matter that is relevant in the case.  The demonstrative evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Demonstrative evidence should only be used when a proper foundation for use of the evidence has been established.  The party seeking to use demonstrative evidence must establish that a witness has personal knowledge of the object depicted in the demonstrative or that it is an accurate portrayal of what it purports to show.  Absent a foundation the demonstrative evidence may not be presented at trial.

In finding that the trial court erred in allowed the PowerPoint exhibit, the appellate court reasoned that the PowerPoint exhibit went well beyond merely trying to educate the jury about the evaluative characteristics a radiologist uses to evaluate breast lesions.  The treatise images and diagrams contained in the PowerPoint were used to help show the basis for the defendant radiologist’s medical opinion.  The appellate court further explained that even if the PowerPoint could be considered demonstrative evidence, the defendant failed to lay a proper foundation for its use at trial.  It was never established that the images taken from the treatise were from a reliable authority that could be used as a basis for an expert opinion under Illinois Rule of Evidence 703.  Illinois Rule of Evidence 703 allows an expert to testify about facts or data upon which he or she bases an opinion if those facts or data are of the type that is reasonably relied upon by experts in that particular field in forming opinions on the subject even if those facts or data are not admissible in evidence.  The appellate court explained that because a proper foundation was not laid to show that the images contained in the PowerPoint exhibit were of the type reasonably relied upon by experts in the field of radiology, the trial court erred in allowing the defense to use the PowerPoint exhibit.  The use of the images in the PowerPoint exhibit to show the basis of the defendant radiologist’s medical opinion was highly prejudicial because its use went to the heart of the malpractice claim.  The appellate court reversed the judgment of the trial court and remanded the case for a new trial.