Massachusetts has made much ado about expert disclosures in recent years, even going so far as to implement the still “newish” Superior Court Rule 30B, which requires experts to sign party disclosures of the facts, opinions and bases about which the expert is expected to testify at trial. On September 10, 2015, the fundamentals of these all-important disclosures took center stage again.
In Lynn Kace, Administratrix v. Ivan Liang, M.D., Massachusetts Supreme Judicial Ct., No. 11827, slip op. (September 10, 2015), the Court issued a strong reminder to practitioners about the obligation to clearly, accurately and fully disclose all of the expert opinions to which an expert will testify at trial, along with a summary of the grounds on which those opinions are based. The Court’s opinion also includes what amounts to a crash-course in getting a scientific book, article, periodical or other publication to qualify under the “learned treatise” exception to the hearsay rule.
In a wrongful death action based in medical malpractice, the defendant physician raised two main issues in his appeal from a judgment in favor of the plaintiff: (1) whether some of the plaintiff’s expert’s testimony should have been precluded/stricken for failure to adequately disclose it prior to trial and (2) whether certain written medical materials, in this case website articles used by plaintiff’s counsel during his examination of the defendant, qualified as a published treatise or equivalent within the meaning of the “learned treatise” exception to the hearsay rule.
Specifically, the defendant argued that the trial judge abused her discretion in allowing the plaintiff’s expert to opine that the brevity of the defendant’s medical exam of the now-deceased patient fell below the applicable standard of care. The defendant argued that because no such deviation of the standard of care was mentioned in the plaintiff’s expert’s disclosures, the plaintiff had not complied with the obligations imposed by applicable rules of civil procedure. Massachusetts Rule of Civil Procedure 26(b)(4)(A)(i) requires the disclosure of the substance of and grounds for the opinions of an expert witness.
The defendant also appealed with respect to plaintiff’s counsel’s use of Internet printouts during his cross-examination of the defendant physician. The printouts were from websites of two medical facilities, both of which listed symptoms of myocarditis, the condition alleged to have gone undiagnosed and from which the patient died. The defendant did not testify as an expert but rather as a party witness.
Massachusetts Guide to Evidence, Section 803(18)(B) allows for the cross-examination of expert witnesses regarding “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.” Since the defendant did not testify as an expert and did not endorse the printed website articles or their unknown authors as “reliable authority,” defendant argued that the printouts failed to qualify as a “learned treatise” and that their use at trial was impermissible hearsay. The defendant further argued that the printouts could not suffice as published treatises since they merely contained lists of symptoms, were undated, were not attributed to any specific author and were published for the public rather than for other professionals.
Although the Court agreed with the defendant on several key points, it affirmed the judgment in favor of the plaintiff, citing a lack of material prejudice suffered by the defendant. For this reason, focus is best placed on the Court’s discussion of the issues and arguments raised, rather than its ultimate decision.
The Court determined that the plaintiff’s expert’s disclosures satisfied the basic requirements of Rule 26; however, the Court was dismayed at the lack of clarity and completeness and went so far as to chastise plaintiff’s counsel for “inappropriately” using the expert’s testimony. In concluding that the trial court judge did not abuse her discretion by allowing the plaintiff’s expert to opine that the few minutes the defendant took to examine the patient was a deviation from the applicable standard of care, the Court noted that the timing of the defendant’s examination of the patient was mentioned in the plaintiff’s disclosure in a general sense.
The Court explained that the duration of the defendant’s examination of the patient was inherently part of the facts of the case and that those facts were known (through sufficient disclosures) to have been used by the expert in developing his opinion that the defendant deviated from the standard of care when he failed to recognize and appreciate the signs and symptoms of myocarditis. Nonetheless, the Court referred to the plaintiff’s failure to explicitly disclose the opinion about exam duration as “troubling.” It was also noted that plaintiff’s counsel’s attempts to turn the exam duration opinion into a separate and therefore undisclosed departure from the standard of care should not have been permitted.
The defendant’s arguments relating to the Internet web printouts were given full credence. The Court concluded that the printouts were not “learned treatises” and were not demonstrated to be “reliable” by an expert witness on cross-examination and therefore constituted inadmissible hearsay.
While the Court appears to acknowledge that not every single aspect of an expert’s expected testimony can be captured in a disclosure, its opinion underscores the necessity for a detailed and explicit summary. Anything less comes with a risk of preclusion of all or part of an expert’s testimony.
The analysis of the learned treatise exception to the hearsay rule in this case involved Internet printouts; however, the same scrutiny and procedure apply to any writing, article, pamphlet, book, periodical or the like.
It should be made clear that the Court’s reminders, guidelines and instructions in this case are not meant to be limited to cases of medical malpractice and instead should be employed in every case and at every trial.