Tuesday, November 16, 2021
Court of Appeals of Mississippi Interprets Disclosure Portion of Mississippi Learned Treatise Exception
Mississippi Rule of Evidence 803(18) provides an exception to the rule against hearsay for
A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit. A treatise used in direct examination must be disclosed to an opposing party without charge in discovery.
So, does it matter that the Rule uses the word "disclosed" instead of "produced" in the last sentence? According to the recent opinion of the Court of Appeals of Mississippi in Fonville v. Zeid, 2021 WL 4165947 (Miss.App. 2021), the answer is "yes."
In Zeid, Daphane Fonville, on behalf of her son Derek Fonville, sued Dr. Louay Zeid and Dr. Usha Mehta (the Defendants) for alleged negligence during Derek's delivery. After the jury returned a verdict for the defendants, the plaintiff appealed, with plaintiff's counsel claiming, inter alia, that he was ambushed by the defense's use of a2014 American College of Obstetricians and Gynecologists (ACOG) monograph "on neonatal brachial plexus palsy. The [defense's] doctors relied on that monograph as well as other medical literature to opine that maternal forces of labor were strong enough to cause both transient and permanent brachial plexus injuries."
The plaintiff's counsel, however, acknowledged that the defense gave notice that it would use the monograph before trial. He simply claimed that it did not produce it during discovery, i.e., give him a copy. The Court of Appeals of Mississippi disposed of this issue as follows:
On appeal, the only argument Daphane makes as to Mississippi Rule of Evidence 803(18) is that the word “disclose” means “produce,” and because the Defendants never produced the ACOG monograph in its entirety, reversible error occurred. The language in the Rule states that “[a] treatise used in direct examination must be disclosed to an opposing party without charge in discovery.” MRE 803(18) (emphasis added). Daphane would ask: why would the rule address the costs of production if the use of the word “disclosed” only means to notify and not produce? First, it is important to note that Mississippi's Rule of Evidence 803(18)(B) is the only state to include the additional language concerning costs of production. No other state includes such language. The federal rules of evidence do not include such language either. However, the “cost” language can easily be reconciled with the use of the word “disclosed” in answering the question posed by this issue.
If a party discloses an intent to use an article or some literature pursuant to Rule 803(18), and the opposing party cannot locate it for preparation for trial, it follows that a motion to compel could be filed for the “disclosed” article or literature to then be produced. The rule's “cost” provision would then guide the court on which party would bear the cost of production. In this case, no such motion to compel was ever filed in part most likely because the Plaintiff had a copy, as admitted by her attorney at oral argument. Therefore, the cost provision of Rule 803(18) would not apply. Since the defense clearly “disclosed” the ACOG monograph, compliance with the rule occurred, and no prejudice to the Plaintiff can be shown. Thus, this issue is without merit.