IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CHRISTOPHER K. ALDRIDGE AND
ANNE-MARIE ALDRIDGE,
ADMINISTRATORS OF THE ESTATE OF
KATHERYNE ELIZABETH ALDRIDGE,
DECEASED,
Appellants
v.
ELIZABETH H. EDMUNDS, M.D.,
PIERANTONIO RUSSO, M.D. AND ST.
CHRISTOPHER'S HOSPITAL FOR
CHILDREN,
Appellees
39 E.D. Appeal Dkt. 1998
Appeal from the Judgment of the Superior
Court entered on April 27, 1998 at No.
4286 PHL 1996 affirming the Judgment
entered on November 7, 1996 in the Court
of Common Pleas, Philadelphia County,
Civil Division at No. 1574 January Term,
1992
ARGUED: October 18, 1999
OPINION
MR. JUSTICE SAYLOR DECIDED: May 1, 2000
The issue presented concerns the use of authoritative texts during the
course of an expert witness's direct testimony. This medical malpractice
action arises out of the death of the Appellants’ infant daughter,
Katheryne Aldridge (“Katheryne”), who was born on September 26, 1990,
with a heart defect which remained undiagnosed until July of the
following year. [1] Other than her small size and
weight, Katheryne exhibited no manifest symptoms at birth, but, beginning
when she reached four months of age, her parents noticed, among other
things, that she was experiencing restlessness and eating difficulties,
and she was failing to gain weight. Katheryne also progressively
developed chronic respiratory congestion. She was under the care
of Appellee Dr. Elizabeth Edmunds, the Aldridges’ family physician.
By six months of age, Katheryne exhibited severe congestion, and
her weight fell below the fifth percentile on a standardized average
scale. At such time, Dr. Edmunds noted that Katheryne appeared thin
and old for her age and described her symptomology as a failure to
thrive. Thereafter, Dr. Edmunds pursued a course of investigation
and treatment which included: blood and fluid tests; weekly weight
assessments; consultation with a pediatric physician; dietary substitutions;
adjustments to caloric intake; and initiation of iron replacement
therapy.
On July 20, 1991, Katheryne developed pneumonia, and her parents brought
her to St. Joseph’s Hospital in Reading. A chest x-ray was taken
and an echocardiogram performed, which showed enlargement of the
heart and other irregularities. From these and other tests, medical
professionals determined that Katheryne was experiencing severe cardiac
and respiratory failures and first diagnosed her heart condition.
Katheryne was transferred to Appellee St. Christopher’s Hospital
for Children (the “Hospital”) for further cardiac assessment, where,
on July 26, 1991, a cardiac catheterization study was performed,
confirming the congenital defects. Corrective surgery was scheduled
on an urgent basis, and, during this period, Katheryne underwent
treatment for a rash in her vaginal area.
Appellee Dr. Pierantonio Russo performed the corrective surgery on July
30, 1991, prior to which femoral catheters were inserted to permit
continuous blood pressure monitoring. Although the surgery initially
appeared to have been successful, two days later, Katheryne’s heart
arrested. Despite efforts to resuscitate her and to sustain breathing
and circulation, a neurologist found no evidence of brain cortical
or subcortical function, and Katheryne was removed from life support
on August 2, 1991. Several days later, in the performance of an autopsy,
a pathologist found evidence of infection with a fungus known as
candida albicans and issued a report indicating as a cause of death
“candida albicans sepsis with septic shock.”
On January 13, 1992, Appellants commenced the present action, alleging
that Dr. Edmunds negligently misdiagnosed Katheryne’s condition,
that Dr. Russo, the Hospital and others negligently performed surgical
techniques, [2] and that the alleged failures to
provide care within accepted medical standards contributed to Katheryne’s
death. At trial, Appellants emphasized that Katheryne’s mother was
a diabetic, a risk factor relative to congenital defects in offspring,
and that despite such risk and Katheryne’s symptoms (including her
failure to thrive and respiration problems), Dr. Edmunds failed to
conduct tests which would have disclosed the heart defects and resulted
in earlier treatment at substantially lower risk. Appellants also
asserted that Hospital personnel inserted the presurgical femoral
catheter into an area infected with candida albicans, thus introducing
the fungus into Katheryne’s system. Appellants presented several
expert witnesses to support their claims of non-conformance to accepted
medical standards.
Appellees maintained that appropriate care had been rendered, denied
that Katheryne’s death was attributable to a fungal infection, and
further asserted that Katheryne had died as a result of her heart
defects and known risks associated with the corrective surgical procedure.
Of particular relevance to this appeal, Dr. Edmunds maintained that
the care she provided was reasonable because, although it was clear
in hindsight that Katheryne’s failure to thrive was due to her congenital
condition, the clinical picture presented at the time of treatment
simply did not suggest heart disease. In support of this defense,
Dr. Edmunds offered testimony from Dr. William Mebane, a pediatric
and family physician, who indicated that congenital heart malformations
are an uncommon cause of failure to thrive; whereas, common causes
of the syndrome include dietary problems, hormonal problems and psycho/social
problems, avenues of Dr. Edmunds' investigation. Over the objection
of Appellants’ counsel, Dr. Mebane was permitted to support his diagnosis
by reference to excerpts from a textbook on pediatrics, Frank A.
Oski et al., Principles and Practice of Pediatrics (J.B.
Lippincott Co. 1990), which were enlarged, mounted on posterboard
and marked as an exhibit. The pertinent testimony from Dr. Mebane
proceeded as follows:
Q. In essence, what I want to find out from you, Doctor, whether
or not your statement to the Jury that there are multiple causes,
some common, some uncommon, some rare for failure to thrive,
is there support for that statement in standard reputable authoritative
texts in pediatrics, and specifically in the Oski text, that
we have referred to?
A. Yes. The Oski text, I think, gives you an overview of the multiple
causes of failure to thrive and can help put the different causes
into some kind of perspective.
Q. I’m going to display, so we can refer to it as necessary, and
so the record is clear, what we have done is taken from the Oski
text pages 2033 and 2034.
* * *
Q. Is it fair to state that the authors put together in groups first
common causes for failure to thrive?
A. Yes. They put together common causes.
Q. And then under common causes, I’m going to skip the area dealing
with neglect, and move down to the second most listed common
cause, something called non-organic failure to thrive; is that
correct?
A. Yes, sir.
* * *
Q. And underneath none organic [sic] failure to thrive, am I correct
that there are a number of sub categories that deal with issues
of feeding?
A. Yes, sir.
Q. And they include, just to read them off, inadequate volume of
feeding; too few feeds per day; too little per feed; inappropriate
foods for the age; a whole bunch of things that are noted there.
And I’m not going to have you or myself read them all --,
A. Yes, sir.
Q. -- but is that kind of the next highest category under failure
to thrive?
A. It certainly is.
Q. The thing that is shown is uncommon causes for failure to thrive;
is that correct, sir?
A. Yes, sir.
Q. And there are -- it’s about four or five major headings?
A. Uncommon causes of failure to thrive, yes.
Q. And then below that there are rare causes, a number of those listed?
A. That’s correct.
Q. And would you tell the Members of the Jury, where on the list
congenital heart disease falls and under which category in the
author’s text that you’re referring to?
A. It falls under the group of uncommon causes, under the sub category
of increased metabolism. And under that is chronic respiratory
insufficiency, congenital heart disease and malignancies.
Q. It is sort of just on the page at the bottom of the uncommon cause
list?
A. Yes, sir.
Dr. Mebane’s testimony also referenced a second pediatric text, Richard
E. Behrman et al., Nelson Textbook on Pediatrics (13th
ed. W.B. Saunders Co. 1987), which was presented to the jury in a
similar manner to establish that the failure to thrive syndrome is
commonly associated with underfeeding. After the excerpts were described,
authenticated and marked as an exhibit, the following interchange
occurred:
Q. Is it fair to state that the first sentence [from the excerpts]
talks about restlessness, crying and failure to gain weight adequately?
A. Yes, sir.
Q. And a little bit further down, when it’s talking about clinical
manifestations of underfeeding, does it talk about constipation,
failure to sleep, irritability and excessive crying?
A. It does.
Q. And a little further down in the same sentence, does it talk about
the infant assuming the appearance of a, quote, old man, end
quote?
A. Yes, it does.
Q. And, Doctor, those particular statements, signs and symptoms,
were those ones that you observed in your review of these records
as pertaining to Katheryne Aldridge at that general point?
A. Yes. This is the description in the chart.
Q. And in the area that we’ve been talking about as one of the causes
for failure to thrive, one of the common causes, this comes under
the heading of what?
A. Underfeeding and/or feeding problems.
Q. And what is it that the Nelson text set forth [sic] as the treatment
to try to address that concern? And I’ll refer you specifically
to the second paragraph, it says what?
A. Well, the treatment consists of increasing the fluid and caloric
intake, correcting deficiencies, vitamin, mineral intake, and
instructing the mother in the art of infant feeding.
Dr. Edmunds’ counsel moved both exhibits into evidence at the close of
her defense case.
At the trial’s conclusion, the jury rendered a verdict against Appellants
and in favor of all Appellees. On appeal, among other issues, Appellants
contended that the trial court erred in permitting the use of the
excerpts from the texts of Drs. Oski and Nelson in the direct examination
of Dr. Mebane. The Superior Court, however, disagreed. Although recognizing
the principle that texts and publications may not generally be relied
upon to prove the truth of their contents, the Superior Court cited
its prior decision in Nigro v. Remington Arms Co., 432
Pa. Super. 60, 637 A.2d 983 (Pa. Super. 1993), appeal dismissed,
540 Pa. 49, 655 A.2d 505 (1995), for the proposition that such materials
may be used to bolster or support the credibility of an expert witness.
As it also found no merit to the other issues presented by Appellants,
the Superior Court affirmed. See Aldridge v. Edmunds,
718 A.2d 335 (Pa. Super. 1998) (table).
Appellants filed a petition for allowance of appeal raising the sole
question of whether the trial court abused its discretion by permitting
Appellants’ counsel and Dr. Mebane to reference the learned treatises,
and we allowed appeal to address this evidentiary question. When
offered at a trial to establish principles or theories from their
contents, texts and periodicals fall within the traditional definition
of hearsay -- an extrajudicial declaration offered to prove the truth
of the matter asserted. See Majdic v. Cincinnati Machine Co.,
370 Pa. Super. 611, 621-22, 537 A.2d 344, 338-39 (1988) (en banc).
Thus, at common law, the evidentiary rules restricting the presentation
of hearsay statements precluded parties from employing treatise materials
as substantive proof of their contents. See generally 29A AM. JUR.
2D EVIDENCE §1413 (1994); Jones v. Constantino, 429
Pa. Super. 73, 88-89, 631 A.2d 1289, 1297 (1993) (finding that learned
writings which are offered to prove the truth of their contents are
hearsay and may not properly be admitted into evidence), appeal dismissed,
538 Pa. 671, 649 A.2d 673 (1994). The common law rule frequently
has been justified on the ground that a lay jury may be confused
by the technical nature of the information and therefore place undue
emphasis upon or misapply it. See id.; W. Kobylak, Annotation, Treatises,
Periodicals, or Pamphlets as Exception to Hearsay Rule Under Rule
803(18) of the Federal Rules of Evidence, 64 A.L.R. Fed. 971 §2 (1999)(stating
that “[t]he prohibition against receiving learned treatise materials
as exhibits is designed to keep the often voluminous works out of
the jury room where they would receive undue attention and emphasis,
and to prevent a jury from rifling through a work and drawing improper
inferences from technical language it might not be able properly
to understand without expert guidance” (footnotes omitted)). While
other jurisdictions, including the federal courts, have moved away
from the common law exclusion in favor of an exception permitting
the admission of treatise materials as substantive evidence on a
limited basis, see, e.g., F.R.E. 803(18), [3] Pennsylvania
has not done so. See P.R.E. 803(18) (providing that “Pennsylvania
does not recognize an exception to the hearsay rule for learned treatises”
(citing Madjic, 370 Pa. Super. at 611, 537 A.2d at 334)).
In the present case, we are not asked to reevaluate this rule in light
of the competing policies, but rather, merely to consider the contours
of the existing construct. There is no question that if published
material is authoritative and relied upon by experts in the field,
although it is hearsay, an expert may rely upon it in forming his
opinion; indeed, it would be unreasonable to suppose that an expert’s
opinion would not in some way depend upon the body of works preceding
it. Pennsylvania courts have thus permitted, subject to appropriate
restraint by the trial court, limited identification of textual materials
(and in some circumstances their contents) on direct examination
to permit an expert witness to fairly explain the basis for his reasoning.
See P.R.E. 705 (providing that “[t]he expert may testify in terms
of opinion or inference and give reasons therefor”); see also In
re C.R.S., 696 A.2d 840, 845 n.7 (Pa. Super. 1997)(suggesting
that experts may refer to published works serving as the basis for
their opinions). See generally Cummings v. Nazareth Borough,
430 Pa. 255, 265, 242 A.2d 460, 466 (Pa. 1968) (plurality opinion)
(stating that “[i]t is entirely proper in examination and cross-examination
for counsel to call the witness’s attention to published works on
the matter which is the subject of the witness’s testimony”). [4] Since,
however, the purpose for which treatises may be referenced on direct
examination is generally limited to explaining the reasons underlying
the opinion, the trial court should exercise careful control over
their use to prevent them from being made the focus of the examination.
Additionally, the trial court should issue appropriate limiting instructions.
See generally Pa.R.E. 105 (“[w]hen evidence which is admissible as
to one party or for one purpose but not admissible as to another
party or for another purpose is admitted, the court upon request
shall, or on its own initiative may, restrict the evidence to its
proper scope and instruct the jury accordingly”). [5]
In Nigro the Superior Court found that authoritative texts
could be offered as nonhearsay for the purpose of bolstering the credibility
of an expert witness, see Nigro, 432 Pa. Super. at 80-81, 637 A.2d at
993-94, implicitly suggesting that this purpose differs from the impermissible
objective of attempting to prove the truth of the matter asserted. This
rationale, however, is unsound, since there can be no bolstering effect
if the published materials are not seen by the jurors as authoritative
and thus believable. See generally Commonwealth v. Sneed,
597 N.E.2d 1346, 1350 n.6 (1992)(equating “bolstering” with proof of
the truth of the matter asserted); Spragg v. Shore Care,
679 A.2d 685, 697 (N.J. Super. 1996)(same). It is preferable to recognize
the hearsay nature of textual materials, and that, while our appellate
courts have not adopted the broad exception to the rule against hearsay
statements embodied in F.R.E. 803(18), they have implemented a narrow
one. In Nigro the references to published materials (authoritative texts
related to firearms) exceeded the bounds of such exception -- they were
offered for their direct substantive effect, as they were not presented
to explain the basis for the expert’s own opinion, but rather, to demonstrate
more broadly that the opinion “had some concurrence” among the authorities.
See id. at 81, 637 A.2d at 993.
In the present case, the excerpts from the texts of Drs. Oski and Nelson
were expressly presented based upon the Nigro logic.
No limiting instruction was given to the jury. Most important, the
texts were not used to clarify the basis for Dr. Mebane’s opinion;
rather, Dr. Edmunds’ counsel focused upon them as the means through
which opinion evidence was conveyed to the jury. Specifically, the
textual excerpts were enlarged on posterboard, and Dr. Edmunds’ counsel
guided Dr. Mebane through a lengthy series of leading questions further
emphasizing the specific contents in a manner unnecessary to the
explanation of the expert opinion. Additionally, the published materials
should not have been offered or admitted into evidence.
While we reiterate that, subject to control by the trial court, judicious
use of learned treatises may be made on direct examination of an
expert witness in appropriate circumstances for the limited purpose
of explaining the basis for the opinion, here, the trial court abused
its discretion by failing to impose appropriate constraints. It remains
to determine, however, whether Appellants are entitled to a new trial,
as an erroneous evidentiary ruling will generally require reversal
only if it caused prejudice. See Peled v. Meridian Bank,
710 A.2d 620, 626 (Pa. Super. 1998) (stating that “[a]n evidentiary
ruling which did not affect the verdict will not provide a basis
for disturbing the [fact-finder]’s judgment”)(quoting Hart
v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252
(1989))). This certainly is not the case with respect to the claims
against Dr. Russo and the Hospital, since the purpose for which the
texts were offered (to establish that Dr. Edmund’s evaluation of
Katheryne’s failure to thrive was reasonable) had no bearing upon
Appellants’ allegations concerning post-diagnosis negligence in the
insertion of a presurgical catheter. Although the texts were relevant
to Appellants’ claims against Dr. Edmunds, prior to Dr. Mebane’s
testimony, Appellants’ own expert witness, Dr. Arthur A. Klein, acknowledged
both the authoritativeness of the Oski text and that congenital heart
disease is an uncommon cause of failure to thrive. Indeed, Dr. Edmunds’
counsel was able to use the text to guide Dr. Klein through almost
precisely the same litany of root causes of failure to thrive as
was presented to Dr. Mebane. See generally Madjic, 370
Pa. Super. at 621, 537 A.2d at 339 (stating that “an expert witness
may be cross-examined . . . with respect to any other publication
which the expert acknowledges to be a standard work in the field”).
In fact, the points made in both examinations seem to be very basic
ones which were undisputed on the record. [6] As
Appellants’ counsel cogently argued to both the court and jury, regardless
of whether congenital heart defects are a common, uncommon, or rare
cause of failure to thrive, the central issue was whether Dr. Edmunds
should have appreciated the need to explore the possibility, particularly
in light of the collective patient history and symptoms presented.
Given the nature of the published materials and the limited and essentially
undisputed points for which they were presented, we find that their
use and admission do not require the award of a new trial.
Accordingly, the order of the Superior Court is affirmed.
Mr. Justice Nigro concurs in the result.
-
Katheryne’s congenital condition included
ventricular septum defect, a defect between the left and right ventricles
of the heart which permits blood to be shunted between them; and
patent ductus arteriosus, which allows blood to pass from the aorta
to the main pulmonary artery.
-
The complaint asserted causes of action against
the cardiologist who performed the cardiac catheterization study,
on the theory that he had introduced candida albicans into Katheryne’s
system during the procedure. Allegations material to such claims
were stricken on prelminary objections asserted by the Hospital,
and the parties ultimately stipulated to their dismissal.
-
The exception would appear to be based upon
the view that a substantial degree of reliability should attach to
authoritative, published scientific works, thus supporting the hearsay
exception. See generally Wright & Miller, 31 Fed. Prac. & Proc.
Evid. §803(18) (stating that “[t]he foundation of the [rule permitting
the proffer of texts and periodicals as substantive evidence] is
that a hearsay objection must be regarded as unimpressive when directed
against treatises since a high standard of accuracy is engendered
by various factors: the treatise is written primarily and impartially
for professionals, subject to scrutiny and exposure for inaccuracy,
with the reputation of the writer at stake”).
-
Our evidentiary rules also permit limited
use of treatises on cross-examination for impeachment, see Jones,
429 Pa. Super. at 88-89, 631 A.2d at 1298-99; Majdic,
370 Pa. Super. at 621, 537 A.2d at 339, and this Court has not foreclosed
the possibility that there may be other valid, nonhearsay purposes
that may support the proffer of treatise materials. Cf., e.g., Fletcher
v. Ford Motor Co., 342 N.W.2d 285, 288 (Ct. App. Mich. 1983)(stating
that “[l]earned treatises discussing the safety of a product should
. . . be admissible in the plaintiff’s case-in-chief to raise a presumption
of notice[;] [t]his is a non-hearsay purpose”).
-
Rule 105, on its terms, would not apply to
authoritative texts as it addresses admissible evidence. Nevertheless,
the policy underlying the rule, namely, the prevention of juror reliance
upon proofs for inappropriate purposes, applies equally in the context
of textual materials referenced to explain the basis for an expert
opinion.
-
Similar use was made of Dr. Nelson’s text,
with the additional point being made that appropriate treatments
for one common cause of failure to thrive (underfeeding) include
dietary interventions of the sort pursued by Dr. Edmunds.