Ross v. Foss

• Decision Date: 15 September 1958
• Docket Number: No. 9680,9680
• Citation: 77 S.D. 358,92 N.W.2d 147
• Parties: Frances Cox ROSS, Plaintiff and Respondent, v. Marion C. FOSS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 147

92 N.W.2d 147

77 S.D. 358

Frances Cox ROSS, Plaintiff and Respondent, v. Marion C. FOSS, Defendant and Appellant.

No. 9680.

Supreme Court of South Dakota.

Sept. 15, 1958.

Rehearing Denied Oct. 22, 1958.

Woods, Fuller, Shultz & Smith, J. B. Shultz, Sioux Falls, for defendant and appellant.

Davenport, Evans, Hurwitz & Smith, Robert C. Heege, Sioux Falls, for plaintiff and respondent.

RENTTO, Presiding Judge.

This action was brought by plaintiff to recover damages for a whiplash injury received in an automobile collision on July 27, 1956, near the intersection of south Minnesota Avenue and 18th Street in Sioux Falls, South Dakota. She sought damages in the sum of $25,000. A verdict of $8,690 was returned in her favor on May 21, 1957. Defendant appeals from the judgment entered thereon and from the order denying her motion for a new trial.

On this appeal defendant's principal contentions are that the trial court erred to her prejudice in the following respects:

(1) In not permitting the use of medical treatises in her corss-examination of Dr. Walter Van Demark, an orthopedic physician who testified for plaintiff as a medical expert.

(2) In permitting plaintiff to testify as to the amount she paid for medications without proof of the reasonableness of such charge.

(3) In refusing a requested instruction as to damages.

Defendant's motion for a new trial claimed that these and other errors in law were committed at the trial and that the verdict was excessive, appearing to have been given under the influence of passion and prejudice.

During cross-examination of Dr. Van Demark, defendant's counsel proposed to read to the witness as excerpt from an article written by Dr. Nicholas Gotten, a neurosurgeon of Memphis, Tennessee, appearing in the October 27, 1956 issue of the Journal of the American Medical Association, concerning a study of cases involving whiplash injuries made by the Department of Neurology of the University of Texas. This is the excerpt:

'The conclusion we draw from this study of one hundred patients whose cases have been to a great extent freed of litigation or compensation claims, is that the emotional factor plays an important part in the ability of the physician to obtain a satisfactory result from treatment. There seems every reason to believe that the personal reaction of the patient to his injury complicated the evaluation of his symptoms, treatment and recovery. The apprehension, nervous tension and anxiety that these patients developed subsequent to the injury as a result of fear for future health and as a result of the litigation tended to accentuate the formation of a profound posttraumatic neurosis. This profound emotional reaction depended to a great extent upon the personality pattern of the patient as well as the degree of his physical injury. Once the psycho-neurotic symptoms had developed, they persisted for many months and were refractory to treatment, being finally resolved to a great extent by a settlement of the litigation.'

He further proposed to ask the witness whether he agreed with it. Objection to the proposed cross-examination was sustained.

He also proposed to read to the witness a statement made by Dr. G. W. N. Eggers of the Department of Surgery, Orthopedic Division of the University of Texas, Medical Branch, Galveston, Texas, in his article, 'Whiplash Injuries' presented at a Medical-Legal Forum at Houston, Texas, on August 24, 1956, and ask him whether he agreed with it. This is the statement:

'The medical-legal aspect of practically all whiplash injuries accounts for the tendency of those involved to prolong treatment. Extended treatment is, of course, undesirable because of the mental attitude that the patient may assume. When this situation is present, the responses are usually evident to the physician but very often difficult to prove. The prolonged use of cervical collars is an example of the type of situation. After all, the collars really do not accomplish much because the patients move the neck inside the collar. All apparatus should be discarded early in whiplash injuries.'

This likewise was not permitted. Cases concerning this type of injury are appearing with increasing frequency in the decisions. They present many new and difficult medical- legal problems. One of the more recent dissertations in this field appears in Vol. 12, Arkansas Law Review, p. 76.

The general rule is that medical books or treatises are not admissible to prove the truth of the statements therein contained. Brady v. Shirley, 14 S.D. 447, 85 N.W. 1002; 32 C.J.S. Evidence Sec. 573; 58 Am.Jur., Witnesses, Secs. 839 and 846; Wigmore, Evidence, 3d Ed. Sec. 1700; McCormick, Evidence, Sec. 296; Annotation, 82 A.L.R. 440. To hold otherwise would allow testimonial use of statements made out of court by a person not subjected to cross-examination. However, there are situations where medical books may be used in cross-examination of a medical witness for the purpose of discrediting him. Annotation, 60 A.L.R.2d 77. In passing it is interesting to note that Rule 529 of the Model Code of Evidence proposes basic changes in this area of the law.

The cases seem to be in substantial accord that books may be used on the cross-examination of such witness when he admittedly has used the treatise in giving his testimony. It is clear that in this situation it is proper to show that the work he admits he relied on discredits his testimony. There are other situations in which the witness in arriving at his opinion has not relied on any specific book but bases his opinion in a general way on all of his study and experience. In these situations there is a marked and sometimes confusing divergence in the cases.

Some of the cases state that under such circumstances books may be used in the cross-examination of the witness for the purpose of contradicting his testimony if it is recognized by him as an authority upon the subject as to which he has given an opinion. People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913; Ruth v. Fenchel, 21 N.J. 171, 121 A.2d 373; Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1; Lawrence v. Nutter, 4 Cir., 203 F.2d 540; Zubryski v. Minneapolis Street Ry. Co., 243 Minn. 450, 68 N.W.2d 489. However, there are cases which under these same circumstances allow the use of a standard authority in the cross-examination even though the witness does not recognize the writing as such. These cases seem to allow the authoritativeness of the book to be established by other means. Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63; Dolcin Corp. v. Federal Trade Commission, 94 U.S.App.D.C. 247, 219 F.2d 742; Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 204 F.2d 721, 37 A.L.R.2d 1270. Farmers Union Federated Co-op. Shipping Ass'n v. McChesney, 8 Cir., 251 F.2d 441. See, also, Reck v. Pacific-Atlantic S. S. Co., 2 Cir., 180 F.2d 866.

The author of the annotation in 60 A.L.R.2d at page 79 distinguishes the lines of authority thus:

'(1) many cases hold that the cross-examiner may use only those treatises which the expert witness has specifically cited as supporting his opinion; (2) other courts have held that where the expert has relied generally or specifically upon the authorities, he may be attacked upon the basis of authorities which are not necessarily the same as those he has himself used; (3) a third group of cases take the view that the expert may be examined upon the basis of treatises which he has himself recognized as having authoritative status, whether or not he relied thereon in forming his opinion; while (4), there are many cases recognizing that the cross-examiner may use treatises the authority of which is established in any acceptable manner, to test the qualifications of the witness regardless of whether that witness has relied upon or recognized the treatise.'

In the circumstances of this case we are not called on to choose between these rules. That question is not presented or argued. To make such choice in this litigation would be but an academic diversion. Under any of these rules, if the witness has not relied on or cited the treatise as supporting his opinion, it may not be used on his cross-examination unless its authoritative status is established either by his admission or otherwise. This is an essential element of the foundation that must be laid for the book before its use is proper.

Pertaining to the article by Dr. Gotten the record made on the examination of Dr. Van Demark is thus:

'Q. Now, Doctor, are you familiar with the recent study of whiplash injuries which was made by the Department of Neurology of the University of Texas where their study is reported in an article appearing on Page 865 of the October 27, 1956 issue of the Journal of the American Medical Association? A. I looked at it when it came out. I haven't read it recently.

'Q. You recall that that article treats with a study that was made of one hundred patients who had sustained whiplash injuries in the vicinity of Memphis, Tennessee? A. I didn't remember the name of the town.

'Q. And the study was made about these patients after they had received awards or settlements from the person responsible for their injury. Do you remember that? A. I remember that. * * *

'Q. Do you get the Journal of the American Medical Society? A. I do.

'Q. Do you read it? A. Yes, sir.

'Q. Now in making a diagnosis and in treating a patient is it not true that you rely on all of the training, the studying and reading and the practical experience that you have up to the time that you make the diagnosis? A. I certainly try to.

'Q. And you relied on that accumulated knowledge at the time that you made this diagnosis as to Mrs. Ross? A. Yes, sir.'

From this factual basis it does not appear that the witness relied on the Gotten article. Nor does it establish the article involved as an authority. Accordingly, there was no foundation for the proposed cross-examination. In view...