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.