Intent to Use Computer Generated Evidence

October 15, 2023

VIA FAX AND REGULAR MAIL
410-545-7312

The Honorable Susan Smith
Circuit Court for Baltimore City
111 North Calvert Street – Room 529E
Baltimore, Maryland 21202

Re: Thompson v. St. Agnes Healthcare, Inc.
Case No.: 24-C-12-008071 / Trial on January 12, 2024
Request for Evidentiary Hearing pursuant to Plaintiff’s Notice of Intent to Use Computer Generated Evidence

Dear Judge Smith:

This letter is to request a pre-trial evidentiary hearing under Maryland Rule 2-504.3(e). On August 15, 2013, the plaintiff filed a Notice of Intent to Use Computer-Generated Evidence by Rule 2-504.3.

A copy of this notice was also provided to each Defendant. In the notice, the plaintiff stated his intent to use illustrative/animated computer evidence that falls within the categories of both subsections (a)(1) and (a)(2) of Rule 2-504.3. On September 13, 2023, Defendants St. Jones Healthcare, Inc. and Sarah Stella, R.N. filed their objection to the use of this evidence at trial. Defendants Janet Jackson, M.D., Borow Smith, P.A., and Maryland Provo-I Maryland Services, P.C. also filed an objection on September 17, 2023.

As of this date, the court has not scheduled an evidentiary hearing as the rule requires. (I believe the clerk’s office failed to notify Your Honor of the Plaintiff’s Notice and the requirement to conduct a pre-trial evidentiary hearing.)

The trial is scheduled to start on January 12, 2024. The plaintiff intends to rely upon and refer to several pieces of computer-generated evidence at issue during his opening statement and many points during the trial. Resolving these issues before the trial date is crucial to presenting this evidence. The plaintiff’s counsel has contacted all defense counsel, and all agree that a pre-trial evidentiary hearing is in order. Defense counsel is also aware that the undersigned counsel is sending a letter to Your Honor in this regard.

Could this court kindly schedule a pre-trial evidentiary hearing as soon as possible and, under the rule, advise all parties of the witnesses the court believes are necessary to resolve this matter? Thank you for your time and assistance with this matter.

Respectfully yours,

Ronald V. Miller, Jr.

Computer-Generated Evidence in Medical Malpractice Cases

Computer-generated evidence plays a pivotal role in medical malpractice case like the one the motion above addresses, offering a compelling means to elucidate intricate medical concepts, elucidate procedures, and furnish visual aids that facilitate the comprehension of medical complexities among judges and jurors.

For example, a computer-generated instructional video could substitute an anonymous physician in place of the physician or depict a digitally-animated “patient” who is anatomically identical to the plaintiff.

Here are some other uses in a malpractice trial.

• Medical Illustrations: One prominent utilization of computer-generated evidence involves the creation of meticulously detailed medical illustrations. These visual representations are designed to vividly portray anatomical structures, injuries, or medical procedures. By offering a visual narrative, these illustrations serve to demystify the nature of alleged malpractice and underscore both what the doctor did, why it was wrong, and the harm endured by the patient.
• 3D Animations: Three-dimensional animations serve as a dynamic tool for simulating medical procedures, surgeries, or the evolution of medical conditions. It can effectively replicate scenarios like live births in cases involving brain-damaged infants,  illustrate tumor metastasis in cancer lawsuits, and portray the progression of pressure ulcers in nursing home negligence cases.  Another great use of three-dimensional visuals enables jurors to grasp the depth of anatomical structures in heart attack and stroke cases. For example, a three-dimensional digital animation showcasing a heart pumping blood through its cardiac vessels could vividly demonstrate the impact of ischemia (restricted blood supply) on the heart. Through this three-dimensional view, jurors can gain a precise understanding of the location of major coronary vessels within the heart, effectively illustrating how a heart attack leads to the death of cardiac muscle.
• Reconstruction of Events: Computer-generated reconstructions can recreate the sequence of events leading up to and following a medical procedure or incident. This can help establish a timeline and provide context for the alleged malpractice.
• Virtual Tours: Virtual tours of medical facilities, operating rooms, or treatment areas can help jurors understand the environment in which medical care was provided and the challenges that healthcare professionals may have faced.
• Simulation of Injuries: Computer-generated models can simulate the injuries or medical conditions suffered by the plaintiff. This can be especially useful in cases where the injuries are not easily visible or when the plaintiff’s condition has evolved over time.

What Is Computer-Generated Evidence?

Computer-generated evidence refers to information, data, documents, or visual materials created or produced through computer technology or software. Our lawyers have been using computer-generated evidence forever now, and everyone seems to be hopping aboard as it gets easier and cheaper to present this evidence.   Computer-generated evidence can be used in both civil and criminal trials and can take various forms, such as:

• Digital Documents: These include emails, text messages, contracts, reports, spreadsheets, and any other digital files created or stored on computers. These documents can be submitted as evidence to support or refute claims in a case.
• Digital Images and Videos: Photos and videos captured and stored digitally are often used as evidence in cases involving surveillance, accidents, or criminal activities. These may include security camera footage, smartphone videos, or forensic images.
• Computer Animations and Simulations: In cases related to scientific or technical matters, computer-generated models, animations,  or simulations may be presented to illustrate complex concepts, such as accident reconstructions or the behavior of specific systems. If it is hard to imagine, a simulation is a great way to go. There is an important difference between animations and simulations.
  • Animations are commonly categorized as illustrative tools, primarily used to recreate scenes or processes. They do not constitute substantive evidence and are generally employed to enhance the clarity of expert witness testimony for the benefit of the court or jurors.
  • Simulations involve the input of data into a computer model, which then analyzes this data to draw conclusions. A simulation is generally considered substantive can only be admitted as evidence if all the data and methodologies utilized by the expert to construct the simulation are themselves admissible under the law.

• Data Records: Data logs, records, or metadata from computer systems and devices can provide crucial evidence. This may include GPS location data, internet browsing history, call logs, or financial transaction records.
• Computer-Generated Demonstrative Exhibits: Attorneys may use computer-generated exhibits to present information more effectively to the judge and jury. This could include timelines, charts, graphs, or animations to illustrate key points in a case.

What Are the Big Issues Getting Computer Generate Evidence in a Trial

To use computer-generated evidence at trial, specific procedures must be followed:

1. Authentication: The party presenting the evidence must establish its authenticity, showing that the digital information is what it claims to be and accurately represents the events or facts in question. This may involve demonstrating the integrity of the data and the chain of custody.
2. Admissibility: The evidence must meet the admissibility criteria set by the rules of evidence in the jurisdiction where the trial is taking place. For us in Maryland, the Maryland Rules of Evidence Federal Rules of Evidence govern the admissibility of these materials.
3. Expert Testimony: In cases involving complex computer-generated evidence, expert witnesses may be called to explain the significance and accuracy of the data or to validate the methods used to create the evidence. If you have an expert you want to use computer-generated evidence, you need to ensure you are not guessing and estimating things that matter. Otherwise, a judge will not let you admit the evidence, and you may have spent a small fortune on nothing.
4. Hearsay: Computer-generated evidence may sometimes contain hearsay statements. Courts will assess whether these statements are admissible under exceptions to the hearsay rule. It is rarely a problem, but you have to make sure you are ready to address that objection if it could apply.
5. Chain of Custody: Maintaining a proper chain of custody is critical to ensuring the integrity of digital evidence. Again, going back to authentication, the party offering the evidence must demonstrate that it has been properly preserved and not tampered with.

Related Articles and Samples

• This is the computer-generated evidence we sought to admit at trial
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• More on Maryland malpractice cases
• The pre-trial statement in this case