697 F.2d 75 (2nd Cir. 1982), 482, Tart v. McGann

• Docket Nº: 482, Docket 82-7454.
• Citation: 697 F.2d 75
• Party Name: William D. TART and Marion Tart, Plaintiffs-Appellants, v. John P. McGANN and Ronald E. Costin, Individually and as Partners of The Life Extension Institute, and Dr. Robert Mooney, Defendants-Appellees.
• Case Date: December 29, 1982
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

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697 F.2d 75 (2nd Cir. 1982)

William D. TART and Marion Tart, Plaintiffs-Appellants,

v.

John P. McGANN and Ronald E. Costin, Individually and as

Partners of The Life Extension Institute, and Dr.

Robert Mooney, Defendants-Appellees.

No. 482, Docket 82-7454.

United States Court of Appeals, Second Circuit

December 29, 1982

Argued Nov. 15, 1982.

Bruce G. Habian, Martin, Clearwater & Bell, New York City, for defendants-appellees.

Paul Edelman, New York City (Kreindler & Kreindler, Diane Paolicelli, New York City, of counsel), for plaintiffs-appellants.

Before FEINBERG, Chief Judge, and FRIENDLY and OAKES, Circuit Judges.

FEINBERG, Chief Judge:

Plaintiffs William D. Tart and Marion Tart appeal from a judgment for defendants

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entered in the United States District Court for the Southern District of New York after a jury trial before Judge Edmund L. Palmieri on plaintiffs' medical malpractice claims. On appeal, plaintiffs contend that a supplemental jury instruction by the trial judge misled the jury on a critical issue, and that the judge erroneously excluded evidence admissible under Rule 803(18) of the Federal Rules of Evidence, the "learned treatises" exception to the hearsay rule. For reasons set forth below, we reverse the judgment of the district court, and remand for further proceedings in accordance with this opinion.

I. Background

Prior to the events at issue in this case, plaintiff William D. Tart was employed by the Celanese Corporation as an Assistant Chief Pilot. ¹ His employer required him to take an annual physical exam, which included a stress test. During the course of a stress test of the type at issue here, a patient walks or jogs at varying speeds and varying inclines on a treadmill while the physician monitors various lead systems attached to the patient's chest. Since 1973, plaintiff had been taking stress tests at the Life Extension Institute, a partnership of defendants Dr. John P. McGann and Dr. Ronald E. Costin. In September 1979, plaintiff took another such test there, administered by defendant Dr. Robert Mooney. Fifteen to twenty minutes after completing the test, while still at the Life Extension Institute, plaintiff suffered a heart attack. He was subsequently hospitalized for over a week. As a result of the heart attack, plaintiff lost his pilot license, and could therefore no longer continue to serve as a pilot for his employer.

According to plaintiffs, defendants failed to monitor and administer the stress test properly, in violation of good medical practice. Among other things, plaintiffs allege that Dr. Mooney should have stopped the test during the fourth stage, when Tart complained of "heavy fatigue." Instead, Dr. Mooney continued the test for several minutes, until the fourth stage of the test was completed. The jury found for defendants. Whether it did so on flawed instructions is the first issue before us.

II. The Supplemental Instruction

On the fourth day of the trial, Judge Palmieri charged the jury in the morning. The jury deliberated the rest of the day and in the evening, and had certain testimony re-read. Finally, at 9:30 PM, the jury asked Judge Palmieri the following question:

Your Honor, can Mr. Tart's expression of fatigue be legally...