Kace v. Liang

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

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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.