Shaw v. Bolduc

• Decision Date: 15 May 1995
• Citation: 658 A.2d 229
• Parties: Richard SHAW and Lillian Massie v. Jean L. BOLDUC and Mid-Maine Medical Center.
• Court: Maine Supreme Court

Page 229

658 A.2d 229

Richard SHAW and Lillian Massie v. Jean L. BOLDUC and Mid-Maine Medical Center.

Supreme Judicial Court of Maine.

Argued Nov. 4, 1994.

Decided May 15, 1995.

Jonathan C. Hull (orally), Damariscotta, for plaintiffs.

George Singal (orally), Daniel Pileggi, Gross, Minsky, Mogul & Singal, Bangor, David C. Norman, Christopher C. Taintor (orally), Norman, Hanson & Detroy, Portland, for defendants.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

RUDMAN, Justice.

Lillian Massie and Richard Shaw, the parents of Ricky Shaw, appeal from the judgment entered in favor of Mid-Maine Medical Center (Mid-Maine) and Dr. Jean Bolduc (Bolduc) on jury verdicts in the Superior Court (Kennebec County, Chandler, J.) in a medical malpractice case. The parents challenge an evidentiary ruling, the instructions to the jury, and the consistency of the verdict. We affirm the judgment.

The parents filed suit in June 1988 against Mid-Maine and Bolduc alleging negligence resulting in injuries to Ricky. At trial, they contended the attending nurses violated the standard of care in not notifying a supervisor about certain signs of distress Lillian Massie exhibited before delivery, and in not preventing certain actions of Bolduc. They alleged that Bolduc violated the standard of care in beginning delivery too late, in dunking Ricky in cold water, and in using inappropriate methods of resuscitation. Bolduc and Mid-Maine presented an alternate theory of causation. Their witnesses testified that an intrauterine infection, unrelated to the care at delivery, caused Ricky's injuries.

By agreement of counsel, the verdict form separated the questions of negligence and proximate cause and did so for each defendant, a practice that is neither necessary nor desirable. Although seven jurors found both Mid-Maine and Bolduc negligent, they also found that their negligence was not the proximate cause of Ricky's injuries. One juror found Bolduc and one juror found Mid-Maine both negligent and liable. Six jurors concurred with the verdict, two did not, indicating that the votes finding liability with respect to each defendant represented different jurors.

A. Extracts from Learned Treatises

We first address the question whether the court erred in allowing the defendants to read statements from various studies, articles and professional statements while cross-examining witnesses without informing the parents of his intention to use them and without first establishing the sources as authoritative, in violation of M.R.Evid. 803(18). Although the parents did not renew their objection every time counsel for Mid-Maine read such a statement, they did object on the basis of M.R.Evid. 803(18) at the first opportunity and the trial court fully considered the issue. We consider the issue preserved. See Sullivan v. Johnson, 628 A.2d 653, 655 (Me.1993).

At the trial, causation was vigorously contested. The parents claimed that the negligent failure of Bolduc and Mid-Maine to properly treat the asphyxia of Ricky Shaw at and immediately following his birth, aggravated by their negligent inducement of hypothermia, proximately caused the permanent mental and physical impairment suffered by Ricky. Bolduc and Mid-Maine were united in the defense that an intrauterine infection suffered by Ricky's mother at the time of his birth, unrelated to Bolduc and Mid-Maine's care of Ricky, was the proximate cause of Ricky's injuries.

During Mid-Maine's cross-examination of Henry G. Cramblett, the parents' first expert medical witness on causation, Cramblett was asked whether he was acquainted with a 1985 publication by the National Institute of Health. The witness testified he had no knowledge of the publication. When Cramblett was further asked whether he agreed or disagreed with certain statements obviously contained in that publication, the parents objected on the ground that pursuant to the "learned treatise rule" the witness could not be asked whether he agreed or disagreed with a publication from a source not previously established as authoritative and of which the parents had no prior notice. The court overruled the parents' objection. Thereafter, throughout the course of the trial, the defendants followed this pattern of cross-examination of expert witnesses relative to various publications without further objection by the parents.

It is uncontroverted that the parents received no pretrial notice that the defendants intended to use the treatises. Whether the trial court erred in its ruling and whether, as argued by the parents, the error, if any, requires that the judgment for Bolduc and Mid-Maine be vacated, necessitates in the first instance consideration of any authority that may be applicable to the issue, and second, whether the challenged cross-examination is governed by that authority.

In promulgating the Rules of Evidence in 1976, the Supreme Judicial Court modeled M.R.Evid. 803(18) after the equivalent federal rule. Maine's rule provides, in pertinent part, that the following is not excluded by the general rule making hearsay inadmissible:

To the extent called to the attention of an expert witness upon cross-examination, ¹ statements contained in published treatises, periodicals, or pamphlets on a subject of ... medicine, ... established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admissible, the statements may be read into evidence but may not be received as exhibits.

M.R.Evid. 803(18) (emphasis added).

This subdivision changed the preexisting law by making published treatises admissible as substantive evidence. Previously, published medical treatises could be admitted only to impeach a medical witness who relied at least in part on any medical authority for an opinion. Giving these treatises a substantive effect accords with the realities of actual practice. "In accepting a treatise as substantive evidence under the prescribed conditions, [the rule] implicitly recognizes that jurors are unlikely to understand and follow instructions as to the limited purpose for which evidence is admissible." Field & Murray, Maine Evidence § 803.18 at 8-75 (3d ed.1992) (hereinafter Field & Murray at ____); see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 803(18) (1994) ("Rule 803(18) avoids the unreality of admitting evidence for one purpose but pretending that the jury will follow instructions not to consider it otherwise.").

To be admitted under this exception, it is necessary that the treatise be established as authoritative. This does not require that the expert being cross-examined relied on the treatise or concedes its authoritativeness. The Rule itself provides that this requirement can be met by the testimony of another expert or by judicial notice. Although the Court has never been called on to determine many of the issues presented in this case, Weinstein's discussion of the Rule is both enlightening and persuasive:

The proponent of the treatise may not read from it or question the expert in regard to it except as to its status as an authority, until its authoritativeness has been established to the satisfaction of the trial judge, and its relevancy to a material, consequential fact has been shown. The Court has discretion to exclude pursuant to Rule 403 if the probative value of the statement in the treatise is substantially outweighed by the dangers of prejudice, confusion or waste of time. Depending on the nature of the fact sought to be proved, its significance to the case, and the availability of other evidence on the point, the trial judge may elect to have the question of the admissibility of the treatise explored outside the presence of the jury. In cases such as medical malpractice litigation, when the admissibility of treatise evidence may be crucial, determination of this issue at a pretrial conference pursuant to Rule 16 of the Rules of Civil Procedure is appropriate.

Weinstein's Evidence p 803(18) (footnotes omitted). Weinstein also states that the trial court may "allow use of the treatise on the premise that a subsequent witness will establish validity." Id. p 803(18) n. 14.

Following the promulgation of the Rules of Evidence, Rule of Civil Procedure 16 was amended in 1976 to require the pretrial memoranda to state the intention of a party to offer a learned treatise as substantive evidence. See M.R.Civ.P. 16(d)(3)(R). ² The Advisory Committee's Note states:

The amendment was recommended by the Evidence Advisory Committee. Evidence Rule 803(18) provides as an exception to the hearsay rule for the use of statements of learned treatises to the extent they are called to the attention of an expert witness upon cross-examination. If a treatise is established as authoritative, it may then be admitted as substantive evidence. For the purpose of preventing the expert from being unfairly surprised, this amendment calls for the identification of the treatise and the part thereof to be offered and specification of the matter intended to be proved.

M.R.Civ.P. 16 advisory committee's note to 1976 amend., 1 Field, McKusick & Wroth, Maine Civil Practice 141 (2d ed. Supp.1981).

As we noted, the parents contend they are entitled to a new trial because the defendants, without complying with necessary prerequisites, were allowed to present their theory of causation by the challenged cross-examination of the parents' experts and to bolster this theory by Bolduc's and Mid-Maine's expert witnesses. Bolduc and Mid-Maine advance several unpersuasive contentions to refute that of the parents. In the first instance, the record does not lend any support to Mid-Maine's contention that M.R.Evid. 803(18) was not applicable because excerpts from the treatises were not being read by Mid-Maine in the course of its cross-examination of the parents' experts; ³ Weinstein makes clear that the witness cannot be...