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Univ. of South Carolina School of Law

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Monday, October 15, 2007

(Un)learned decision? Delaware Supreme Court reverses trial court's learned treatise ruling

In Berry v. Cardiology Consultants, P.A., the Delaware Supreme Court reviewed a trial court ruling allowing pages from a learned treatise into evidence as an exhibit.  At trial, Anne Berry claimed that her husband died as the result of deficient care he received from Cardiology Consultants and Dr. Andrew Doorey.

Relying partially upon a set of guidelines that he published in a medical journal, the defendant's expert witness, Dr. Eric Prystowsky, testified that the defendants acted properly in performing atrial fibrillation treatment on Mr. Berry.  Specifically, the guidelines contained an algorithm, and Dr. Prystowsky testified about the applicability of the algorithm to the atrial fibrillation treatment.

After this testimony, defense counsel sought, over plaintiff's objection, to have portions of the guidelines admitted into evidence.  Delware Rule of Evidence 803(18) is identical to its federal counterpart in that it allows statements contained in, inter alia, published treatises to be read into evidence; however, those statements may not be received as exhibits. 

The trial court partially granted defense counsel's motion and allowed four pages of the Guidlines -- consisting of the algorithm, charts, and explanatory text -- to be admitted as exhibits as demonstrative evidence that would better allow the jury to understand the doctor's technical testimony.

The Delaware Supreme Court reversed, concluding that the four pages constituted "text," which meant that they were inadmissible as exhibits pursuant to Rule 803(18).  Presumably, according to the Court, charts and algorithms in learned treatises might be admissible under Rule 803(18) because they are not "text," but the explanatory text was, well, "text," and thus inadmissible as an exhibit under Rule 803(18).  I'm not quite sure what distinction the Delaware distinction was trying to draw (Rule 803(18) does not contain the word "text"), and a quick review of Delaware case law reveals no prior Rule 803(18) cases dealing with the distinction between learned treatise "text" and "non-text."

The bigger problem, though, is that the Delaware Supreme Court failed to address the trial court's decision that the four pages were admissible as demonstrative evidence that could assist the jury in understanding the doctor's testimony.  In its opinion, the trial court cited to cases from Tennessee and New York in which courts allowed parties to introduce pages from learned treatises as exhibits as demonstrative  that would better allow the jury to understand the doctors' technical testimony. See Berry v. Cardiology Consultants, P.A., 909 A.2d  611, 617-18 (Del. Super. 2006).

The rule against hearsay only precludes a statement from being introduced to prove the truth of the matter asserted in the statement.  Therefore, if pages from a learned treatise are not offered to prove the truth of the matter asserted in those pages but only as demonstrative evidence, Rule 803(18) would not even apply, and the trial court's ruling would be correct.  I'm unconvinced that using pages from a learned treatise as demonstrative evidence means that a party is not using them to prove the truth of the matter asserted, but the Delaware Supreme Court clearly erred by not even addressing the basis upon which the trial court admitted the evidence.

-CM

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