EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, December 13, 2013

Court of Appeals of Georgia Deems Evidence of Plaintiff's Past Abortions Admissible

A plaintiff sues  her OBGYN and her practice group, alleging that she suffered serious injuries as a result of Dr. Montano's negligent performance of an intrauterine surgical procedure. Can the defendants present evidence that the plaintiff had previously undergone several abortion procedures? According to the recent opinion of the Court of Appeals of Georgia in Cartledge v. Montano, 2013 WL 6085238 (Ga.App. 2013), the answer is "yes."

In Montano, the facts were as stated above. According to the court,

It is well established that “[e]vidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” Thus, even if the evidence offered by a party is “of doubtful relevancy, it should nevertheless be admitted and its weight left to the jury.” Nevertheless, a trial court may exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.” And when an issue is raised as to whether the probative value of evidence is outweighed by its “tendency to unduly arouse the jury's emotions of prejudice, hostility, or sympathy, a trial court's decision regarding admissibility is a matter of discretion.”

Applying these principles, the Court of Appeals of Georgia found that the abortion evidence was admissible:

In this matter, both Dr. Montano and her expert witness testified that abortion procedures can compromise or weaken the uterine wall and render it more susceptible to perforation. Indeed, when questioned as to how the perforation of Cartledge's uterus could have occurred, if not during surgery, Dr. Montano theorized that Cartledge's previous abortions and other surgical procedures could have weakened her uterus to the extent that the perforation resulted from her straining during a bowel movement. And although there is no direct or unequivocal evidence that Cartledge's uterus, in fact, has been compromised by the prior abortion procedures, the radiologist—who conducted the imaging studies on Cartledge after she sought treatment in the hospital's emergency room—testified that he could not examine all the areas of Cartledge's uterus and could not specifically identify the area where the perforation occurred. Thus, as Montano implies, the possibility that a thinning of Cartledge's uterus led to her injury could not be conclusively eliminated. Given these circumstances, we simply cannot conclude that the trial court abused its discretion in finding that the probative value of this evidence was not substantially outweighed by any potentially prejudicial effect.

That said, the court recognized the danger of unfair prejudice inherent in the abortion evidence and thus limited the scope of such evidence as follows:

Nevertheless, we certainly recognize that evidence of Cartledge's previous abortion procedures could prejudice her right to a fair trial, and, thus, we take this opportunity to caution the trial court regarding the narrow purpose for which this evidence may be admitted. Specifically, based on this record, this evidence is relevant only for the limited purpose of its potential medical impact, i.e., that the prior abortion procedures could have weakened Cartledge's uterine wall, possibly leading to a perforation that occurred independently from any allegedly negligent act by Dr. Montano.FN25 Accordingly, any evidence pertaining to this issue beyond the mere fact that Cartledge underwent these abortion procedures, that such procedures may cause uterine thinning, and that as a result of those prior procedures the perforation in question may have occurred independently from any alleged negligence, would be substantially prejudicial and, thus, inadmissible.



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