EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, April 5, 2009

Refreshing Refresher: Supreme Court Of Idaho Opinion Nicely Lays Out Contours Of Refreshing Recollection Rule

The recent opinion of the Supreme Court of Idaho in Thomson v. Olson, 2009 884940 (Idaho 2009), contains a nice explanation of how litigants can and cannot use "documents" to refresh the recollection of a witness.  It also teaches the important but oft-forgotten lesson that the party using a "document" to refresh a witnesses recollection cannot introduce that document into evidence while the opposing party can.

In Olson, in late December 2002, Kenneth Thomson underwent shoulder surgery, with an MRI taken after the surgery revealing a small benign periocardial cyst inside his chest. Thomson elected to have surgery to remove the cyst, and Dr. Craig Olsen performed the elective surgery in February 2003 in Boise, Idaho. After the surgery, Thomson was diagnosed with a paralyzed left hemidiaphragm, which treating physicians believed was caused by injury to his phrenic nerve during Dr. Olsen's cyst removal surgery. Thomson thereafter sued Dr. Olsen for medical malpractice.

At trial, Thomson sought to prove his claim in part through the testimony of Dr, Shuman, a thoracic surgeon from California.  According to Dr. Shuman, he became familiar with the applicable standard of care in Boise, Idaho through a telephone conversation with Dr. Cushman, a physician in Boise, Idaho, and could conclude that Dr. Olsen violated that standard of care. The problem for Thomson is that Dr. Cushman subsequently testified that he never discussed the applicable standard of care with Dr. Shuman

In order to impeach Dr. Cushman's testimony, Thomson sough to introduce, inter alia, Exhibit 85, a letter from his attorney to Bonnie Lee, Dr. Cushman's secretary, which stated, in relevant part, 

"Bonnie: I have attached the Operative Report, the Mayo Clinic Report and the C.V. of Dr. Shuman. Dr. Cushman would potentially talk by telephone with Dr. Shuman regarding the surgical case....Dr. Shuman simply needs to talk with Dr. Cushman and see what he thinks of the phrenic nerve compromise that caused the paralyzed diaghram [sic] in this unfortunate fellow."  

The trial court, however, found that exhibit was inadmissible hearsay, but Thomson's attorney argued that it could be used to refresh the recollection of Lee, who said she did not remember the letter. pursuant to Idaho Rule of Evidence 612. After using the exhibit in this manner with partial success, Thomson's attorney sought to introduce the exhibit into evidence, but the trial court refused, and a verdict was eventually entered in favor of Dr. Olsen.

Thomson subsequently appealed, but the Supreme Court of Idaho eventually affirmed, and in so doing, it nicely laid out the contours when and how Rule 612 can be used:

First, the witness must exhibit the need to refresh his or her memory and, second, the witness must confirm that the notes will assist in refreshing his or her memory....The witness may not testify directly from the notes, but can use them to assist in recollection....The purpose of Fed.R.Evid. 612 is "to promote the search of credibility and memory...." The court must ensure that the witness actually has a present recollection and is not to allow inadmissible evidence to inadvertently slip in for its truth....Two safeguards have been devised for this purpose....First, the district court has broad discretion in determining whether the witness is truly using the writing to refresh his or her memory, or whether he or she is effectively offering the writing for its truth....Second, Fed.R.Evid. 612 gives opposing counsel the right to inspect at trial whatever is used to refresh recollection, to cross-examine the witness on it and to introduce relevant portions into evidence.    

This last sentence explains why Thomson was not allowed to introduce Exhibit 85 into evidence.  His attorney used the letter to refresh the recollection of Lee, meaning that he could not have the letter admitted.  But, if for some reason, Dr. Olsen thought that the letter benefitted his case, his counsel could have had the letter admitted into evidence.



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