Excluding inflammatory photographs is not an abuse of discretion where expert testimony describes injuries

Law Reporter, May 1999

Akers v. Miller, 80 Cal. Rptr. 2d 857 (Ct. App. 1998).

A California appellate court held that excluding gruesome pictures is not an abuse of discretion where expert testimony describes a victim's injuries.

Here, a woman sued a nursing home, among others, claiming that a bedsore her deceased mother had developed while at the home could have healed had it been taken care of properly.

At trial, plaintiff sought to introduce photographs of the bedsore that a pathologist had taken during the autopsy. Defendants moved to exclude the photographs on the ground of undue prejudice. The court granted the motion, finding that the prejudicial impact of the photographs outweighed their probative value. The jury found for defendants.

Affirming, the appellate court noted that trial courts have broad discretion under CAL. EVID. CODE 352 to weigh the probative value of inflammatory photographs against their prejudicial impact. Trial judges are in the best position to balance these competing interests and, for this reason, the court said it would not disturb a judge's determination unless one factor clearly outweighed the other.

Here, the court found, there had been extensive testimony by the pathologist and plaintiff's experts regarding the condition of the bedsore as depicted in the photographs. Thus, the trial court had not abused its discretion.

The court also noted that if an error had been made, it was harmless. After reviewing the photographs, the trial court concluded that it was unlikely that an impartial jury would have changed its result had the photographs been admitted into evidence. The admission or rejection of the autopsy photographs, the court said, made no difference with respect to the ultimate question of whether the bedsore was irremediable.

Finally, the court rejected plaintiff's argument that the California legislature, in enacting elder abuse laws-which allow recovery against caretakers who maliciously or recklessly fail to provide an elderly person reasonable medical care-intended to reduce the trial court's discretion under the evidence code to admit or exclude evidence based on its probative and prejudicial effect. The court cited case law finding the statutes do not make a substantial change in California's traditional tort law doctrine.