Monday, October 28, 2013
Allow Me To Illustrate: Supreme Court of Ohio Finds Learned Treatise Limitation Applies to Illustrations
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] 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.
But does the limitation on admitting evidence from learned treatises as exhibits merely cover theories and opinions or also illustrations? That was the question addressed by the Supreme Court of Ohio in its recent opinion in Moretz v. Muakkassa, 2013 WL 5746117 (Ohio 2013).In Muakkassa, Dr. Kamal Muakkassa diagnosed Larry Moretz with an anterior sacral meningocele, a type of congenital cyst.
Dr. Muakkassa recommended that Mr. Moretz consult Gary B. Williams, M.D., a general surgeon, for removal of the cyst using a laparoscopic approach. Ultimately, because Dr. Williams's attempt to remove the cyst laparoscopically was not successful, he surgically opened Mr. Moretz's abdomen, according to the contingency plan. Dr. Williams moved the organs and other structures out of the way in order to expose the cyst....
As a result of the surgery, Mr. Moretz permanently lost bladder, bowel, and sexual function. The Moretzes filed [an] action against Drs. Williams and Muakkassa and alleged that their malpractice had caused Mr. Moretz's injuries. The case against Dr. Muakkassa proceeded to trial.
At trial, the Moretzes contended that Dr. Muakkassa should never have recommended that the cyst be accessed through Mr. Moretz's abdomen. Also central to their case was the nature of the role Dr. Muakkassa was supposed to play in the removal of Mr. Moretz's cyst, once it was exposed through the abdomen.
At trial, over the plaintiffs' objection, the judge allowed the defendant to admit as an exhibit an illustration from a learned treatise depicting an anterior sacral meningocele. After the jury found that the plaintiffs were entitled to some but not all of the damages that they sought, both parties appealed, with the plaintiffs claiming, inter alia, that the trial court erred in allowing the illustration to be admitted as an exhibit.
The Court of Appeals disagreed, concluding
that Evid.R. 803(18) “is primarily aimed at passages in treatises containing ‘theories and opinions' ” of the author....The court of appeals concluded that Evid.R. 803(18) did not apply because the rule was meant to address “statements” and the only statement that the medical illustration asserted was that it accurately depicted an anterior sacral meningocele....Because in its view, Dr. McLaughlin adopted that assertion as his own, the court concluded that the illustration was not hearsay and therefore was not subject to the rule.
The Supreme Court of Ohio disagreed, concluding as follows:
We hold that illustrations from medical textbooks are subject to the learned-treatise hearsay exception set forth in Evid.R. 803(18) and therefore shall not be admitted into evidence as an exhibit over the objection of a party. The purpose of a medical illustration is to explicate the medical text. Because an illustration gives meaning to written statements, textbook authors use them to more fully explain complex medical concepts, anatomical structures, and conditions. Thus, they do not differ from text for purposes of the rule. When a party uses a medical illustration in connection with an expert's testimony, the illustration is inextricably intertwined with both the author's statements and the testimony of the expert witness. The simple act of separating the illustration from the text by photocopying does not divorce it from its context or somehow transform it into a neutral artist's rendering.
The exhibit at issue in this case has a heading that reads, “Chapter 83: Anterior Sacral Meningocele.” The medical illustration depicts what appears to be a cross-section of a spine and various other structures, identified by name, including a “ventral nerve root transversing pedicle” and the “terminal syrinx.” A large balloon-like structure (not identified, but presumably the meningocele) protrudes in front of the spine, near the end of its length. The balloon has a darkened spot that is labeled “tumor.” Two thin tubes begin at what is labeled “spinal cord” and extend to the balloon-like structure. One of the tubes appears to wrap around it. The tubes are labeled, “nerve root stretched over sac.” Nothing is labeled “sac.” Underneath the illustration is the following caption: “Figure 83.1 Illustration of a typical anatomic scenario regarding a congenital anterior sacral meningocele. Intrathecal (filum terminale), intracystic, and extracystic-intrapelvic tumors may be associated.”
Exhibit 36 is a highly technical medical illustration that lacks clear meaning without interpretation from a medical expert. Although the context is not readily understandable, the illustration plainly makes the “statement” that nerves coming from the spinal cord are wrapped around a sac. The title and the caption invite the inference that the sac is a meningocele. And the caption makes the assertion that the illustration depicts a “typical anatomic scenario.”
The inescapable conclusion is that the exhibit was offered for the truth of the matter asserted by Dr. Benzel: anterior sacral meningoceles have nerves. Accordingly, in light of the objection, the trial court was required to prevent the jury from receiving the illustration as independent evidence.