Kace v. Liang

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SJC-11827
LYNN KACE, administratrix,1 vs. IVAN LIANG.
Suffolk. April 6, 2015. - September 10, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Wrongful Death. Negligence, Wrongful death, Medical
malpractice, Expert opinion. Medical Malpractice, Expert
opinion. Evidence, Expert opinion, Learned treatise,
Hearsay, Redirect examination, Cumulative evidence, Cross-
examination, Medical record. Internet. Witness, Expert,
Redirect examination, Cross-examination. Practice, Civil,
Wrongful death, Hearsay.
Civil action commenced in the Superior Court Department on
October 23, 2008.
The case was tried before Elizabeth M. Fahey, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Carol A. Kelly for the defendant.
Adam R. Satin (Robert M. Higgins with him) for the
plaintiff.
John J. Barter, for Professional Liability Foundation,
Ltd., amicus curiae, submitted a brief.
1
Of the estate of Jeffrey Kace.
2
BOTSFORD, J. In this wrongful death action based on a
claim of medical malpractice, the defendant, Ivan Liang, appeals
from a judgment against him. His appeal raises two issues of
particular relevance to the trial of medical malpractice cases:
(1) whether the plaintiff, through her counsel, complied with
the obligations imposed by Mass. R. Civ. P. 26 (b) (4) (A) (i),
365 Mass. 772 (1974), to disclose the substance of and grounds
for the opinions of an expert witness; and (2) whether certain
materials obtained from the Internet qualify as published
treatises, periodicals, or the like within the meaning of the
"learned treatise" exception to the hearsay rule adopted in
Commonwealth v. Sneed, 413 Mass. 387, 395-396 (1992). See Mass.
G. Evid. § 803(18)(B) (2015). On the issue of expert disclosure
we conclude that the plaintiff met the basic disclosure
requirements of rule 26 (b) (4) (A) (i), although the disclosure
was not as clear or complete as it could have been and the
expert witness's trial testimony was inappropriately used by the
plaintiff's counsel. With respect to the Internet materials, we
conclude that the pages taken from two Internet Web sites and
used during the plaintiff's examination of the defendant did not
qualify under the learned treatise exception to the hearsay
3
rule.2 Despite the evidentiary errors at trial, however, we
further conclude that reversal of the judgment is not required
because in the circumstances of this case, the errors did not
result in undue prejudice to the defendant.
Background. We summarize the facts of the decedent's
medical treatment and death, taken from the evidence at trial,
and reserve additional facts for later discussion in connection
with the issues raised on appeal. On August 14, 2006, at
approximately 10:56 A.M., twenty-three year old Jeffrey Kace
(Jeffrey)3 entered the emergency room at Caritas St. Elizabeth's
Medical Center (hospital) in Boston. A triage nurse noted that
Jeffrey had chest congestion and discomfort, fever, cough, and
pain in taking deep breaths. The nurse recorded Jeffrey's heart
rate as 115 beats per minute; a heart rate over one hundred
indicates the condition of tachycardia.
The defendant, who was at the time an emergency medicine
physician at the hospital, examined Jeffrey at approximately
11:15 A.M.4 According to the defendant's notes in the medical
2
The defendant also challenges in this appeal a ruling by
the trial judge relating to the scope of defense counsel's
cross-examination of the plaintiff's expert witness.
3
Because the plaintiff Lynn Kace, Jeffrey Kace's mother and
the administrator of his estate, shares the same last name, we
refer to Jeffrey Kace by his first name.
4
The trial in this case took place in February, 2014,
approximately seven and one-half years after Jeffrey's visit to
4
record, Jeffrey presented with a cough, fever, slight sore
throat, malaise, pleuritic chest pain,5 and the need to cough
with deep inspiration. The defendant's notes indicate, contrary
to those of the triage nurse, that Jeffrey had a regular heart
rate. The defendant took Jeffrey's medical history, which
included asking Jeffrey about his past medical issues and those
of his family members,6 and conducted a physical examination.
The defendant then ordered a chest x-ray, which revealed no
abnormalities and showed a normal silhouette of the heart; he
did not order an electrocardiogram (EKG) or any blood tests.
The defendant diagnosed Jeffrey with bronchitis and prescribed
an antibiotic as well as Vicodin, a narcotic pain reliever. He
did not consider as a diagnosis myocarditis, which is a
condition that typically begins as a respiratory infection and
spreads to the heart, inflaming and infecting it.
According to the medical record, a nurse administered
Tylenol to Jeffrey at 11:20 A.M. The defendant testified that
the hospital's emergency department in 2006. The defendant did
not have any recollection of treating Jeffrey; the information
concerning his treatment is derived from the hospital's medical
record relating to the visit.
5
Pleuritic chest pain occurs where the lungs and heart rub
against each other, causing painful deep breathing.
6
The defendant inferred from the boxes he had checked off
on the medical record that he asked Jeffrey about his medical
history and that of his family members.
5
typically a nurse would give a patient Tylenol only after the
physician had concluded an examination of the patient,
indicating that at least according to the medical record, the
defendant's examination of Jeffrey lasted for five minutes, from
11:15 to 11:20 A.M. The record also reflected that Jeffrey was
discharged from the hospital at approximately 11:25 A.M.,
twenty-nine minutes after he was first seen by the triage nurse.
The next morning, Jeffrey was found dead in his bed in his
apartment. An autopsy revealed that he died of cardiac
dysrhythmia7 stemming from viral myocarditis. Myocarditis, which
can cause sudden death, is often secondary to bronchitis, and
the autopsy determined that bronchitis was a contributing cause
of Jeffrey's death.
Procedural background. In 2008, Lynn Kace commenced this
wrongful death action as the administrator of Jeffrey's estate.8
The complaint alleged, among other things, that the defendant's
medical care and treatment of Jeffrey was negligent and grossly
negligent, and that the defendant's substandard medical care
caused Jeffrey's death.
7
Cardiac dysrhythmia refers to an irregular heartbeat the
result of which is that the heart stops beating.
8
The original complaint also named Charles Kace, Sr.,
Jeffrey's father and Lynn Kace's husband, as a plaintiff in his
capacity as administrator of the estate, but he died prior to
trial, and the action proceeded with Lynn Kace as the sole
plaintiff.
6
At the close of a jury trial that took place in late
February, 2014, the jury found the defendant negligent in his
medical treatment of Jeffrey, and that his negligence caused
Jeffrey's death; the jury did not find the defendant to have
been grossly negligent. They awarded wrongful death damages in
the amount of $2,925,000 to Lynn Kace in her capacity as
administrator of Jeffrey's estate, but did not award any damages
for pain and suffering by Jeffrey. Thereafter, the defendant
filed a motion for a new trial or remittitur, in which he
raised, among other claims, the issues he raises in this appeal.
After a hearing, the judge denied the motion in its entirety.
The defendant appealed to the Appeals Court, and we transferred
the case to this court on our own motion.
Discussion. 1. Undisclosed expert opinion. a.
Background. The parties filed a pretrial memorandum in 2011,
three years before trial, that included expert witness
disclosures and in particular summarized the anticipated
testimony of their identified expert witnesses. In the pretrial
memorandum, the plaintiff indicated that she would call as an
expert witness Dr. Alexander McMeeking, and then set out the
"facts and opinions" to which he would testify, including, as
part of the "facts," Jeffrey's constellation of symptoms (cough,
chest pain, malaise, and fever), the details of when Jeffrey
arrived at the hospital (10:56 A.M.), when the defendant
7
examined him (11:15 A.M.), when Jeffrey was administered Tylenol
(11:20 A.M.), when he was discharged (11:25 A.M.), and that he
died of cardiac dysrhythmia due to viral myocarditis. For
"opinions," the memorandum stated that McMeeking would opine at
trial that the standard of care in 2006 required a doctor in the
defendant's position to:
"recognize and appreciate that fever, chest pain,
malaise, and tachycardia could be signs and symptoms of
viral myocarditis;
"order an [EKG] and cardiac enzyme testing to rule out
viral myocarditis; and
"immediately admit the patient for cardiology and
infectious disease consultations and steroid treatments
if the diagnosis was considered."
Accordingly, McMeeking was expected to offer opinion testimony
at trial that the defendant's treatment of Jeffrey fell below
the standard of care for the average qualified emergency
medicine doctor when the defendant:
"failed to recognize and appreciate fever, chest pain,
malaise, and tachycardia as signs and symptoms of viral
myocarditis;
"failed to order an [EKG] and cardiac enzyme testing to
rule out myocarditis; and
"failed to immediately admit [Jeffrey] for cardiology and
infectious disease consultations, steroid treatments, and
monitoring."
At trial in 2014, prior to McMeeking's testimony, the
plaintiff's counsel called the defendant as a witness, and
inquired at some length on direct examination about whether a
8
five-minute evaluation of Jeffrey was appropriate, without any
objection from defense counsel. The defendant responded, in
part, that five minutes was insufficient to take and conduct a
proper medical history and examination of a patient with
Jeffrey's symptoms. McMeeking testified next.9 He opined that
the defendant's treatment of Jeffrey fell below the standard of
care of the average qualified emergency room doctor in 2006, a
standard that required a doctor to recognize that pleuritic
chest pain could be a sign of myocarditis and to administer an
EKG to a patient presenting with pleuritic chest pain. He noted
that the standard of care also demanded that a doctor, upon a
suspicion of myocarditis, order blood tests to confirm the
diagnosis and then admit the patient to a hospital for
monitoring and treatment, and that myocarditis can be
successfully treated if timely diagnosed. The plaintiff's
counsel then asked the following:
Q.: "I'd like you to assume that [the defendant] saw
[Jeffrey] at approximately 11:15, based upon the
records, and had written an order for Tylenol and
had completed his exam by 11:20, or possibly
earlier. Do you have an opinion to a reasonable
degree of medical certainty, in a patient like
[Jeffrey], whether it would ever be appropriate
to do a history and physical exam . . . in five
minutes or less[?]"
9
The plaintiff's counsel interrupted his direct examination
of the defendant to accommodate the schedule of the plaintiff's
expert witness, Dr. Alexander McMeeking. The defendant
completed his testimony following McMeeking's testimony.
9
A.: "I do, sir."
Q.: "What is your opinion?"
A.: "[I]t's . . . impossible to do a . . . competent
history and a physical in five minutes. It would
take at least 20 minutes to get an appropriate
history and examination from a patient like
[Jeffrey]" (emphasis added).10
Defense counsel objected. Counsel complained that the
plaintiff's pretrial disclosure had focused solely on the
defendant's failure to order an EKG in light of Jeffrey's
symptoms, and had not included an opinion that the defendant's
examination of Jeffrey fell below the standard of care because
it was too brief. The judge overruled the objection. Later, in
his direct examination of McMeeking, plaintiff's counsel asked:
Q.: "Doctor, do you have an opinion, to a reasonable
degree of medical certainty, whether the
deviations from the standard of care that you've
listed here today, including the length of the
interaction between [Jeffrey] and [the defendant]
and his failure to obtain an EKG, do you have an
opinion as to whether those failures were a
substantial contributing factor in causing
[Jeffrey's] death?"
A.: "I do, sir."
Q.: "And what is your opinion?"
A.: "[M]ost definitely and unfortunately, these all
contributed directly to [Jeffrey] dying."
(Emphases added.)
10
During redirect examination, McMeeking again testified
that "[y]ou can never get an adequate history and physical exam
in five minutes."
10
b. Analysis. The defendant argues that McMeeking's
opinion that the defendant's five-minute examination of Jeffrey
was too brief and fell below the standard of care (exam duration
opinion) was separate and distinct from McMeeking's disclosed
opinions on the defendant's deviations from the applicable
standard of care in the pretrial memorandum; that the plaintiff
did not give any notice of this additional opinion before the
trial began; and that the judge abused her discretion by
permitting McMeeking to opine on the insufficiency of a five-
minute medical evaluation. The defendant was prejudiced, he
claims, by the nondisclosure in that he was unprepared to
counter the opinion either through discovery aimed at impeaching
its foundation or by further development of the factual record
concerning the actual duration of Jeffrey's examination. The
plaintiff counters that the pretrial memorandum did implicitly
disclose that the duration of the defendant's examination of
Jeffrey was a factor supporting McMeeking's disclosed opinion on
the defendant's deviation from the standard of care; and, by
including all the timing details in the "facts and opinions" to
which McMeeking would testify, the exam duration issue was
raised.
Our rules of civil procedure require a party to respond to
expert witness interrogatories by disclosing the identity of
11
each expected expert witness as well as "the substance of the
facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion." Mass. R. Civ.
P. 26 (b) (4) (A) (i). The rules also require supplementation
of an expert interrogatory response if there are any changes or
additions to it. Mass. R. Civ. P. 26 (e) (1) (B). The goal is
obvious: to facilitate the fair exchange of information about
critical witnesses and to prevent unfair surprise. See Resendes
v. Boston Edison Co., 38 Mass. App. Ct. 344, 351 (1995). Cf.
Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992),
quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682
(1958) (Fed. R. Civ. P. 26 is "consonant with the federal
court's desire to 'make a trial less a game of blindman's buff
and more a fair contest with the basic issues and facts
disclosed to the fullest practical extent'"); Licciardi v. TIG
Ins. Group, 140 F.3d 357, 363 (1st Cir. 1998) (discussing Fed.
R. Civ. P. 26). Preventing untimely disclosure of expert
testimony is particularly important in a medical malpractice
action because expert testimony is almost always required, and
it is often the central feature of the case. See Palandjian v.
Foster, 446 Mass. 100, 105-106 (2006). It is also true,
however, that a judge has broad discretion to admit or exclude
"expert testimony when the proponent has not given proper notice
of . . . the subject matter of the expert's anticipated
12
testimony, either in his answers to interrogatories or in his
supplementary responses." Elias v. Suran, 35 Mass. App. Ct. 7,
10 (1993). In the absence of "prejudicial error resulting from
an abuse of discretion," we "will not disturb a judge's exercise
of discretion" regarding expert witness disclosures (citation
omitted). See Wilson v. Honeywell, Inc., 409 Mass. 803, 809
(1991).
There is no question that the spirit and purpose of our
discovery rules would have been better served by a direct
disclosure of the exam duration opinion. Ultimately, however,
we disagree with the defendant that the exam duration opinion
was qualitatively different from McMeeking's standard of care
opinions disclosed in the pretrial memorandum. We understand
McMeeking's trial testimony about the duration of the
defendant's examination of Jeffrey as a form of explanation for
-- and therefore as linked to -- his disclosed opinion that the
defendant deviated from the standard of care by failing to
recognize that Jeffrey's chest pain, fever, tachycardia, and
malaise could be symptoms of myocarditis, and by failing to
order an EKG to rule out that possibility. Fairly considered in
its entirety, McMeeking's exam duration opinion did not assert
that a five-minute evaluation was always insufficient, but that
it was insufficient time for the defendant to conduct a proper
physical examination and gather an appropriate medical history
13
in Jeffrey's case. Because a history and examination are
necessary to understand the meaning and context of a patient's
symptoms,11 McMeeking's exam duration opinion expresses the point
that the defendant's brief evaluation of Jeffrey was inadequate
for the defendant to acquire the information necessary to
recognize the significance of Jeffrey's particular symptoms and
arrive at an appropriate diagnosis. As such, it is a
development of McMeeking's disclosed opinion that the defendant
deviated from the standard of care by failing to recognize that
Jeffrey's symptoms indicated a possible diagnosis of
myocarditis. See Gay v. Stonebridge Life Ins. Co., 660 F.3d 58,
63-64 (1st. Cir. 2011) (defense expert's pretrial disclosure
stated opinion that stroke was contributing cause of death but
did not say it was dominant cause; admission of expert's
testimony at trial implying that stroke was, in fact, dominant
cause of death was not error because testimony was linked to
disclosed opinions that decedent suffered stroke and that
decedent's excessive bleeding suggested she suffered from more
than skull fracture).12
11
The defendant indicated as much at trial, testifying that
a physician is to identify possible diagnoses after taking the
patient's medical history and conducting a physical exam.
12
The defendant relies on Licciardi v. TIG Ins. Group, 140
F.3d 357 (1st Cir. 1998), which interpreted Fed. R. Civ. P.
26(e). In that case, the court found an abuse of discretion in
a judge's decision to admit expert testimony that was not
14
Moreover, the pretrial memorandum specifically disclosed
the facts supporting McMeeking's exam duration opinion and
testimony, namely, that Jeffrey arrived at the hospital at 10:56
A.M., the defendant examined Jeffrey at 11:15 A.M.; the nurse
administered Tylenol at 11:20 A.M.; and Jeffrey was discharged
at 11:25 A.M. From this, the defendant was or should have been
aware well before trial that the timing details surrounding the
defendant's examination of Jeffrey were in play.13 Contrast
Hammell v. Shooshanian Eng'g Assocs., Inc., 73 Mass. App. Ct.
634, 636-638 & n.3 (2009) (expert opinion disclosed prior to
disclosed prior to trial. Id. at 359, 363. In Licciardi, a
pretrial report concerning the defendant's expert doctor's
medical examination of the plaintiff indicated the doctor's
opinion that the plaintiff suffered a bruise as a result of an
amusement park ride accident; the doctor then changed course at
trial and opined that the accident did not cause the plaintiff's
bruise. Id. at 360-361. In addition, the doctor testified at
trial to "the engineering and physics of the ride" even though
this testimony was not discussed in his medical report. Id. at
362. Accordingly, Licciardi is distinguishable from the facts
before us because, unlike McMeeking, the expert in Licciardi
testified contrary to his pretrial report and included in his
testimony opinions that were wholly unrelated to his pretrial
disclosure.
13
The plaintiff argues that the defendant also was put on
notice that the duration of his examination of Jeffrey was in
issue by the series of questions plaintiff's counsel posed to
him, before McMeeking testified, about the adequacy of the
defendant's five-minute examination of Jeffrey, and the
defendant's response that five minutes probably was not an
adequate amount of time for a proper examination. The defendant
did not object to these questions. However, there is some truth
in the defendant's position that posing such questions to the
defendant does not, in and of itself, disclose that the
plaintiff's expert will opine that this amount of time for an
examination is insufficient and below the standard of care.
15
trial faulted multiple defendants, but opinion at trial changed
to fault only one of these defendants; court held that trial
testimony was not timely disclosed).
That said, the plaintiff's failure to disclose explicitly
McMeeking's exam duration opinion is troubling, particularly
when considered in light of how the plaintiff's counsel used
that opinion at trial. Although McMeeking ultimately did tie
his exam duration opinion to his disclosed opinion that the
defendant failed to recognize Jeffrey's symptoms as indicative
of myocarditis, the plaintiff's counsel worked assiduously to
separate them into two independent failures by the defendant to
meet the standard of care -- as counsel's opening statement,14
closing argument,15 and direct examination of the defendant
14
The plaintiff's counsel stated in his opening, for
example:
"[I]n this case you'll hear a lot of medicine, but
this case is going to be about how much time [the
defendant] really spent with a gentleman who came to
his emergency room with a significant condition. It
will be about how much time is appropriate to spend
with somebody who comes in with chest pains and I
expect you'll hear the evidence to be less than five
minutes is certainly not an appropriate amount of time
to do a complete evaluation."
15
In his closing argument, the plaintiff's counsel stated:
"I would submit to you, ladies and gentlemen, that when a young
man comes into an emergency department, feeling lousy enough to
go to an emergency department at 23 years old and he has chest
pain, discomfort -- call it what you want -- the standard of
care is spend a little bit more than five minutes." He added
16
reflect.16 In the circumstances, it is difficult to interpret
the plaintiff counsel's words as anything other than intentional
encouragement for the jury to find the defendant liable simply
for spending too little time in evaluating and treating
Jeffrey.17 We recognize that the duration of the defendant's
examination was plainly embedded in the facts of the case, and
that independently of the plaintiff's expert McMeeking, the
plaintiff's counsel was entitled to ask the defendant about the
duration of his examination of Jeffrey, and to comment on the
length of this examination in counsel's opening and closing.
However, counsel was not entitled to convert McMeeking's
comments into an expert opinion about a separate deviation from
the standard of care.
that Jeffrey "was in that emergency room for half an hour" and
left ten minutes "after [the defendant] first laid eyes on him
and [Jeffrey] was seen by the doctor, whose job it is to care
for him, for less than five minutes." He then implored the jury
to "consider five minutes or less" in their deliberation.
16
Before calling McMeeking as a witness, the plaintiff's
counsel began his direct examination of the defendant and,
perhaps in anticipation of McMeeking's exam duration opinion
testimony, asked the defendant repeatedly whether a five-minute
evaluation of Jeffrey was adequate; the defendant conceded that
such an evaluation was inappropriately brief.
17
It appears that the jury did not follow the plaintiff's
counsel down the decisional path he proposed. In his closing,
counsel argued that "not ordering an EKG on a patient with chest
pain" is negligence, but that "[s]pending less than five minutes
with that person, that's gross [negligence], because that's not
even trying to do your job." The jury, however, did not find
the defendant grossly negligent.
17
Expert witnesses are both legally essential and factually
key witnesses in a medical malpractice case. The plaintiff's
counsel and his law firm specialize in this field. We expect
counsel to litigate medical malpractice cases in good faith and
with adherence to our disclosure principles under our procedural
rules including, in particular, Mass. R. Civ. P. 26 (b) (4).
The overarching obligation to conduct litigation with fairness
and integrity demands no less. Cf. Polansky v. CNA Ins. Co.,
852 F.2d 626, 632 (1st Cir. 1988) ("we remind counsel that we do
not view favorably any attempt 'to play fast and loose' with our
judicial system. . . . Too often a lawyer loses sight of his
primary responsibility as an officer of the court. While he
must provide 'zealous advocacy' for his client's cause, we
encourage this only as a means of achieving the court's ultimate
goal, which is finding the truth. Deceptions,
misrepresentations, or falsities can only frustrate that goal
and will not be tolerated within our judicial system"
[quotations, citations, and footnote omitted]).
Counsel's conduct makes reversal of the judgment in this
case a close question, and unnecessarily so: disclosure of the
exam duration opinion was available.18 In the end, however, we
18
Given that the plaintiff's counsel raised the duration of
the defendant's examination of Jeffrey as a theme in his opening
statement, used it in his direct examination of the defendant,
and returned to it in his closing argument, it is certainly
18
conclude that reversal is not required. Although McMeeking's
exam duration opinion should have been more clearly disclosed as
the grounds of his ultimate opinion regarding the defendant's
deviation from the standard of care, the exam duration opinion -
- as testified to by McMeeking himself -- served as a
permissible explanation for, and development of, the expert's
disclosed opinion regarding the defendant's failure to meet the
standard of care by not recognizing the significance of
Jeffrey's symptoms. To the extent the plaintiff's counsel
improperly sought to characterize the exam duration opinion as
an ultimate or independent opinion regarding the standard of
care, as previously stated (see note 17, supra), we conclude
that the jury did not accept his view.19 Accordingly, reversal
on the ground of prejudicial nondisclosure of the expert's
opinion is not called for. See Wilson, 409 Mass. at 809;
Resendes, 38 Mass. App. Ct. at 350.
reasonable to infer that counsel knew that the examination's
duration was going to be a major thrust of his presentation of
the case well before the trial began. The appropriate approach
would have been to disclose the exam duration opinion in a
timely manner before trial.
19
Moreover, as discussed previously, separate and apart
from McMeeking and his expert opinion, the plaintiff's counsel
was well within his rights to question the defendant about the
duration of his examination of Jeffrey and to comment on that
duration during counsel's opening statement and closing
argument. It also is the case that the defendant's counsel did
not object to the plaintiff counsel's opening, closing, or
examination of the defendant.
19
2. Learned treatises. a. Background. During his
redirect examination of the defendant, plaintiff's counsel
showed the defendant and questioned him about two printouts of
Internet Web site pages, both titled "Myocarditis" and both
listing what the pages described as common symptoms of
myocarditis, from the Web sites of Johns Hopkins University
School of Medicine (Johns Hopkins) and Mayo Clinic,
respectively. The defendant testified that he was familiar with
the two medical institutions, but not with the content of their
Web sites concerning myocarditis.20 After the defendant reviewed
these Web site pages (Web pages), plaintiff's counsel asked him
to read the text of each. The defendant complied, which
amounted to him testifying that Johns Hopkins's Web site
referenced fatigue, shortness of breath, rapid heartbeat, fever,
chest pain, and congestive heart failure as symptoms of
myocarditis, and that Mayo Clinic's Web site listed as common
symptoms chest pain, rapid heartbeat, shortness of breath, fluid
retention, fatigue, aches, and fever. The defendant then
confirmed that Jeffrey exhibited certain of these symptoms when
the defendant examined him. The Web pages themselves were
marked for identification but not admitted in evidence. Defense
20
No other expert witness testified to the reliability of
these two Web site pages, and the judge did not take judicial
notice that they were reliable authorities.
20
counsel objected to this entire line of questioning; the judge
overruled the objection.
b. Analysis. The defendant argues that the use by the
plaintiff's counsel of these Web pages to cross-examine him was
impermissible under this court's prior decisions as well as
Mass. G. Evid. § 803(18)(B), because (1) the defendant was not
testifying as an expert witness, and (2) in any event, the
printed Web pages should have been excluded as unauthenticated
and unreliable because they were undated and without a named
author. We agree with the defendant.21
Section 803(18)(B) sets out the general learned treatise
exception to the hearsay rule. It allows a party on cross-
examination of an expert witness to bring the expert's attention
to, question the expert about, and read in evidence "statements
contained in published treatises, periodicals, or pamphlets on a
subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or
admission of the witness or by other expert testimony or by
21
We only consider here Mass. G. Evid. § 803(18)(B), and do
not consider G. L. c. 233, § 79C, or Mass. G. Evid.
§ 803(18)(A), both of which permit admission of qualifying
treatises and periodicals in medical malpractice actions so long
as a party gives notice of the intent to offer such evidence at
least thirty days prior to trial. The facts of this case make
clear that the plaintiff could not avail herself of § 79C (or
Mass. G. Evid. § 803[18][A]) because she did not give sufficient
notice of her intent to use the printouts in question.
21
judicial notice."22 We adopted this section in Sneed, 413 Mass.
at 396.23 In doing so, we described the procedure applicable to
using a learned treatise on cross-examination of an expert
witness at trial as follows:
"Proposed rule 803(18) [Mass. G. Evid. § 803(18)(B)]
requires that an opponent of the expert witness bring
to the witness's attention a specific statement in a
treatise that has been established, to the judge's
satisfaction, as a reliable authority. The witness
should be given a fair opportunity to assess the
statement in context and to comment on it, either
during cross-examination or on redirect examination.
The judge, of course, will have to determine the
relevance and materiality of the statement and should
consider carefully any claimed unfairness or confusion
that admission of the statement may create."
Id.
22
Section 803(18) of the Massachusetts Guide to Evidence
(2015) pertains to the use of learned treatises. Section
803(18)(B), titled "Use in Cross-Examination of Experts,"
provides as follows:
"To the extent called to the attention of an expert witness
upon cross-examination, statements contained in published
treatises, periodicals, or pamphlets on a subject of
history, medicine, or other science or art, established as
a reliable authority by the testimony or admission of the
witness or by other expert testimony or by judicial notice.
If admitted, the statements may be read into evidence, but
may not be received as exhibits."
23
Commonwealth v. Sneed, 413 Mass. 387 (1992), predated the
Massachusetts Guide to Evidence. The court in Sneed considered
Proposed Mass. R. Evid. 803(18), which had been proposed by the
court's Advisory Committee to Study the Rules of Evidence (July,
1980). See Sneed, supra at 395 & n.6. The text of Proposed
Mass. R. Evid. 803(18) is identical to the text of Mass. G.
Evid. § 803(18)(B).
22
We consider first the defendant's argument that neither of
the Internet Web pages qualified as a "reliable authority" that
could be used in cross-examining an expert witness under
§ 803(18)(B) and Sneed, 413 Mass. at 396. The standard for
establishing the reliability of a statement varies depending on
the context in which the statement is published. With regard to
a "treatise," we have held that "the rule contemplates that an
authored treatise, and not the statements contained therein,"
must be established as reliable. Brusard v. O'Toole, 429 Mass.
597, 602-603 (1999). As to a periodical or journal, however,
"[i]n these days of quantified research, and pressure to
publish, an article does not reach the dignity of a 'reliable
authority' merely because some editor, even a most reputable
one, sees fit to circulate it." Id. at 603-604, quoting
Meschino v. North Am. Drager, Inc., 841 F.2d 429, 434 (1st Cir.
1988). Accordingly, a statement within "an article in a journal
or periodical would be admissible under [§ 803(18)(B)] if an
opponent of the expert witness establishes that the author of
the . . . article is 'a reliable authority.'" Brusard, supra at
604 n.8.
Along the continuum from treatises to journals, it is
readily apparent that the Johns Hopkins and Mayo Clinic Web
pages are very different from a treatise and resemble far more
closely articles in a journal or a periodical. Cf. Jasper v.
23
Tomaiolo, 20 Mass. App. Ct. 201, 204 (1985) (learned treatises
"are subjected to careful professional criticism"). Cf. also
Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 976
n.19 (C.D. Cal. 2010), and cases discussed (Internet
encyclopedia "Wikipedia" is not learned treatise). The content
of the Web pages indicates that they are not medical "treatises"
of any sort intended to be read and used by physicians, but
rather are directed at laypersons: both Web pages list symptoms
of myocarditis and direct the reader to call a doctor if he or
she develops them. See Fed. R. Evid. 803, Advisory Committee
Note to Paragraph 18 (1972) (commenting on analogous Federal
rule of evidence on learned treatises; noting treatises are
"written primarily and impartially for professionals, subject to
scrutiny and exposure for inaccuracy, with the reputation of the
writer at stake"). And significantly, the Web pages list no
author or authors.24
To establish the admissibility of the statements taken from
the Johns Hopkins and Mayo Clinic Web sites, the plaintiff's
counsel was obligated to show that the author or authors of the
Web pages was or were "a reliable authority." See Brusard, 429
24
The Mayo Clinic "myocarditis" Web page indicates that it
was written by "Mayo Clinic Staff" but does not name a specific
author or further identify or describe the "staff" in question.
24
Mass. at 603, 604 n.8.25 The credibility of Johns Hopkins and
Mayo Clinic as highly respected medical institutions or
facilities is not enough to demonstrate the reliability of
statements on individual pages of each institution's Web site.
There is nothing to say who wrote each Web page, or whether the
author of each Web page was an appropriate source of information
regarding the common symptoms of myocarditis. This is not to
say that materials published on the Internet may never qualify
as "learned treatises" as the term is used in § 803(18)(B).26
The point, rather, is that the reliability of the material that
a party intends to use pursuant to § 803(18)(B) must be
established -- which means establishing that the contents of the
specific article, Web page, or other material was authored or
25
The defendant does not challenge here the authenticity of
the Web pages at issue, that is, whether these Web pages were
actually copied from the official Internet Web sites of Johns
Hopkins University School of Medicine and Mayo Clinic. We
envision, however, that there are likely to be cases in which a
dispute arises about whether a particular Web page is what it
purports to be. See generally Lorraine v. Markel Am. Ins. Co.,
241 F.R.D. 534, 541-562 (D. Md. 2007); United States v. Jackson,
208 F.3d 633, 638 (7th Cir.), cert. denied, 531 U.S. 973 (2000);
Frieden, The Admissibility of Electronic Evidence Under the
Federal Rules of Evidence, 17 Rich. J.L. & Tech. 1, 22-23
(2011). We leave consideration of such issues for another day.
26
See Williams v. Long, 585 F. Supp. 2d 679, 691 (D. Md.
2008) (concluding that in "an age where so much information is
calculated, stored and displayed on a computer, massive amounts
of evidence would be inadmissible" if all information on
Internet is considered "inherently unreliable" [quotations and
citation omitted]).
25
prepared by a "reliable authority" pursuant to one of the means
spelled out in § 803(18)(B). See Mass. G. Evid. 803(18)(B)
(treatise, periodical, etc., may be established as reliable
authority by testimony or admission of testifying witness, other
expert testimony, or judicial notice).
In the present case, given that the Web pages in question
did not reference a particular author or authors, it was not
possible for the plaintiff's counsel to establish their
reliability as required by the evidence rule. See Evans v.
Toledo Neurological Assocs., 20 N.E.3d 333, 343 (Ohio Ct. App.
2014) ("foundation could not be laid for establishing" Internet
article as "authoritative and reliable" under analogous learned
treatise exception to hearsay rule because "author and original
publication date of the article could not be ascertained"). See
also Bullock v. Lott, 964 So. 2d 1119, 1133-1135 (Miss. 2007)
(judge erred in permitting counsel to use article printed from
Internet to cross-examine expert witnesses where article was not
established as reliable by these witnesses or other experts, and
judge did not take judicial notice of article's reliability).
The defendant contends that independent of the question
whether the Johns Hopkins and Mayo Clinic Internet Web pages
qualified as "learned treatises" under § 803(18)(B), that
section did not permit plaintiff's counsel to use the Web pages
in his redirect examination of the defendant. The defendant is
26
correct. Sneed and its progeny make clear that § 803(18)(B)
shields a treatise from exclusion as hearsay only where the
treatise is brought to the attention of an expert witness on
cross-examination. See Sneed, 413 Mass. at 395 (noting that
this court's Advisory Committee, in proposing rule 803(18),
"commented that the rule was limited to statements called to the
attention of an expert witness on cross-examination"; noting
further "potential benefit, and little risk of harm" in allowing
"a party challenging an expert's opinion to interrogate that
expert" about learned treatise). See also Brusard, 429 Mass. at
602; W.G. Young, J.R. Pollets, & C. Poreda, Evidence § 803.18
(2d ed. 1998) (learned treatises "are admissible to challenge an
expert's opinion and to question that expert regarding a
relevant, divergent opinion on cross examination"). Here,
however, the plaintiff's counsel referenced and used the Web
sites of Johns Hopkins and Mayo Clinic in his redirect
examination of the defendant, who, although a licensed physician
and experienced in the field of emergency medicine, was not
testifying as an expert witness at this trial; he was a party to
the case, and was testifying solely in his capacity as such.27
The defendant was asked and answered questions by both counsel
27
Neither party listed the defendant as an expert witness
in their joint pretrial memorandum; in fact, the plaintiff
listed the defendant as an expected witness, but explicitly did
not categorize him as an "expert witness."
27
that called for his opinion regarding the propriety of his own
medical treatment of Jeffrey. His testimony, however, did not
include an opinion on the appropriate standard of care in 2006,
and did not turn him into an expert witness within the meaning
of § 803(18)(B).28 As a result, § 803(18)(B) did not apply to
plaintiff's counsel's examination of the defendant, and in
particular did not authorize counsel to use the Web pages during
that examination in the manner he did. Therefore, evidence
concerning the content of these Web pages, introduced for its
truth, constituted inadmissible hearsay; the defendant's
objection should have been sustained for this reason as well.
See Commonwealth v. Reese, 438 Mass. 519, 526-527 (2003).
We turn to the question of prejudice. The Web pages
presented to the jury evidence that Jeffrey had certain symptoms
of myocarditis when the defendant examined him. It was evidence
that may have been enhanced in significance by the reputation of
the two renowned institutions of medicine, and enhanced even
28
The plaintiff's reliance on the Superior Court judge's
opinion in Long vs. Roy, 10 Mass. L. Rep. 140 (1999), is
misplaced. The issue in that case was whether a plaintiff in a
medical malpractice action, in deposing the defendant doctor
before trial, was entitled to ask questions about the defendant
doctor's opinion concerning the medical treatment the doctor had
provided. Id. at 141-142. A deposition is not trial, and a
defendant doctor's status as a kind of "expert" to whom opinion
questions may be posed concerning the treatment the doctor
provided the plaintiff in a deposition does not answer whether
that same doctor is to be treated as an expert witness at trial
for the purposes of § 803(18)(B).
28
more by the plaintiff's counsel mischaracterizing the Web pages
as "studies" in his closing. However, in light of other
evidence properly admitted in this case, we cannot conclude that
the defendant was materially prejudiced. The symptoms of
myocarditis read from each Web page were cumulative: the
defendant and his own expert witness, Dr. John Benanti, both
testified, independently of the Web pages, that substantially
all of these symptoms are associated with myocarditis. Reversal
on account of the judge's error relating to the Web pages is not
warranted. See Doyle v. Dong, 412 Mass. 682, 688 (1992).
3. Use of Jeffrey's prior medical record on cross-
examination of the plaintiff's expert. Finally, the defendant
argues that the trial judge abused her discretion and committed
error in precluding his counsel from using one of Jeffrey's
prior medical records in his cross-examination of McMeeking, the
plaintiff's sole expert witness. We agree.
The relevant background to the claim is the following.
Included in the agreed-upon trial exhibits were (1) pages of
Jeffrey's medical records from the health center at the
university that Jeffrey had attended, dated October, 2003, and
May, 2004; and (2) a page from a pediatric medical record of
Jeffrey's that was dated September, 2000. In his direct
examination of McMeeking, the plaintiff's counsel asked the
witness about these earlier medical records, beginning with
29
those dated 2003 and 2004. In particular, counsel asked whether
the records reflected that Jeffrey had been treated for
bronchitis in 2003 and 2004, and whether they indicated any
complaint of chest pain at that time.29 Counsel then asked about
the 2000 medical record, and simply inquired whether that record
mentioned bronchitis (it did).30 The 2000 medical record, fairly
read, included a complaint of pain when coughing that one might
reasonably infer to mean chest pain,31 but it contained no
indication that an EKG was performed. When defense counsel
sought to question McMeeking on cross-examination about the 2000
medical record, plaintiff's counsel objected, stating that one
word of it was illegible. The judge sustained the objection,
asserting that it would not be fair to question McMeeking about
the record because it did not explicitly reference chest pain,
and that she had previously heard counsel "on the standard of
care issue."
29
The 2003 and 2004 medical records did reflect that
Jeffrey received treatment for bronchitis but do not contain any
reference to complaint of chest pain.
30
The unspoken but obvious point of the questions were to
contrast Jeffrey's prior history of bronchitis with the history
he reported when he came to the hospital's emergency department
in 2006, and to suggest that the defendant should have explored
Jeffrey's prior experiences with bronchitis and the differences
between those experiences and his present complaint.
31
The record indicates that Jeffrey had "pain with deep"
inspiration.
30
The ruling was error. Where the medical record was in
evidence by agreement and the plaintiff's counsel had
specifically used it in his direct examination of the witness,
defense counsel should have been permitted to ask questions
about the same record in his cross-examination of the same
witness. See Commonwealth v. Cataldo, 326 Mass. 373, 377 (1950)
("cross-examination on the same subject as the direct
examination" is appropriate). Similarly, the judge erred in
refusing to allow defense counsel to mention Jeffrey's 2000
medical record, a trial exhibit, in his closing argument as part
of his discussion of McMeeking. We are not persuaded, however,
that reversal is required on account of these two errors. This
is so because the record itself was very brief and contained a
minimal amount of information, there was no evidence concerning
the prior medical episode of bronchitis referenced in the
record, and no evidence concerning whether an EKG even could
have been administered at that time and in that setting. See
Adoption of Sherry, 435 Mass. 331, 336-337 (2001) (error in
excluding evidence was not prejudicial where such evidence would
not have affected central issue in case).
Judgment affirmed.