The full case caption appears at the
end of this opinion. OPINION MR. JUSTICE SAYLOR DECIDED: May 1, 2000 The issue presented concerns the use of authoritative texts during the course of anexpert witness’s direct testimony. This medical malpractice action arises out of the death of the Appellants’ infantdaughter, Katheryne Aldridge (“Katheryne”), who was born on September 26, 1990, witha heart defect which remained undiagnosed until July of the following year.
[FOOTNOTE 1] Other than her small size and weight, Katheryne exhibited no manifest symptoms at birth, but, beginningwhen she reached four months of age, her parents noticed, among other things, that shewas experiencing restlessness and eating difficulties, and she was failing to gain weight.Katheryne also progressively developed chronic respiratory congestion. She was underthe care of Appellee Dr. Elizabeth Edmunds, the Aldridges’ family physician. By six monthsof age, Katheryne exhibited severe congestion, and her weight fell below the fifth percentileon a standardized average scale. At such time, Dr. Edmunds noted that Katheryneappeared 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 replacementtherapy. On July 20, 1991, Katheryne developed pneumonia, and her parents brought herto St. Joseph’s Hospital in Reading. A chest x-ray was taken and an echocardiogramperformed, which showed enlargement of the heart and other irregularities. From theseand other tests, medical professionals determined that Katheryne was experiencing severecardiac and respiratory failures and first diagnosed her heart condition. Katheryne wastransferred to Appellee St. Christopher’s Hospital for Children (the “Hospital”) for furthercardiac assessment, where, on July 26, 1991, a cardiac catheterization study wasperformed, confirming the congenital defects. Corrective surgery was scheduled on anurgent basis, and, during this period, Katheryne underwent treatment for a rash in hervaginal area. Appellee Dr. Pierantonio Russo performed the corrective surgery on July 30, 1991,prior to which femoral catheters were inserted to permit continuous blood pressuremonitoring. Although the surgery initially appeared to have been successful, two dayslater, Katheryne’s heart arrested. Despite efforts to resuscitate her and to sustain breathingand circulation, a neurologist found no evidence of brain cortical or subcortical function, andKatheryne was removed from life support on August 2, 1991. Several days later, in theperformance of an autopsy, a pathologist found evidence of infection with a fungus knownas candida albicans and issued a report indicating as a cause of death “candida albicanssepsis 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 andothers negligently performed surgical techniques,
[FOOTNOTE 2] and that the alleged failures to providecare within accepted medical standards contributed to Katheryne’s death. At trial,Appellants emphasized that Katheryne’s mother was a diabetic, a risk factor relative tocongenital defects in offspring, and that despite such risk and Katheryne’s symptoms(including her failure to thrive and respiration problems), Dr. Edmunds failed to conducttests which would have disclosed the heart defects and resulted in earlier treatment atsubstantially lower risk. Appellants also asserted that Hospital personnel inserted the pre-surgicalfemoral catheter into an area infected with candida albicans, thus introducing thefungus into Katheryne’s system. Appellants presented several expert witnesses to supporttheir claims of non-conformance to accepted medical standards. Appellees maintained that appropriate care had been rendered, denied thatKatheryne’s death was attributable to a fungal infection, and further asserted thatKatheryne had died as a result of her heart defects and known risks associated with thecorrective surgical procedure. Of particular relevance to this appeal, Dr. Edmundsmaintained that the care she provided was reasonable because, although it was clear inhindsight that Katheryne’s failure to thrive was due to her congenital condition, the clinicalpicture presented at the time of treatment simply did not suggest heart disease. In supportof this defense, Dr. Edmunds offered testimony from Dr. William Mebane, a pediatric andfamily physician, who indicated that congenital heart malformations are an uncommoncause of failure to thrive; whereas, common causes of the syndrome include dietaryproblems, hormonal problems and psycho/social problems, avenues of Dr. Edmunds’investigation. Over the objection of Appellants’ counsel, Dr. Mebane was permitted tosupport his diagnosis by reference to excerpts from a textbook on pediatrics, FRANK A. OSKIET AL., PRINCIPLES AND PRACTICE OF PEDIATRICS (J.B. Lippincott Co. 1990), which wereenlarged, mounted on posterboard and marked as an exhibit. The pertinent testimony fromDr. Mebane proceeded as follows: Q. In essence, what I want to find out from you, Doctor, whetheror not your statement to the Jury that there are multiplecauses, some common, some uncommon, some rare for failureto thrive, is there support for that statement in standardreputable authoritative texts in pediatrics, and specifically in theOski text, that we have referred to? A. Yes. The Oski text, I think, gives you an overview of themultiple causes of failure to thrive and can help put thedifferent causes into some kind of perspective. Q. I’m going to display, so we can refer to it as necessary, and sothe record is clear, what we have done is taken from the Oskitext pages 2033 and 2034. * * * Q. Is it fair to state that the authors put together in groups firstcommon causes for failure to thrive? A. Yes. They put together common causes. Q. And then under common causes, I’m going to skip the areadealing with neglect, and move down to the second most listedcommon 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 correctthat there are a number of sub categories that deal with issuesof feeding? A. Yes, sir. Q. And they include, just to read them off, inadequate volume offeeding; too few feeds per day; too little per feed; inappropriatefoods 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 tothrive? A. It certainly is. Q. The thing that is shown is uncommon causes for failure tothrive; 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 thoselisted? A. That’s correct. Q. And would you tell the Members of the Jury, where on the listcongenital heart disease falls and under which category in theauthor’s text that you’re referring to? A. It falls under the group of uncommon causes, under the subcategory of increased metabolism. And under that is chronicrespiratory insufficiency, congenital heart disease andmalignancies. Q. It is sort of just on the page at the bottom of the uncommoncause list? A. Yes, sir. Dr. Mebane’s testimony also referenced a second pediatric text, RICHARD E.BEHRMAN ET AL., NELSON TEXTBOOK ON PEDIATRICS (13 th ed. W.B. Saunders Co. 1987),which was presented to the jury in a similar manner to establish that the failure to thrivesyndrome 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] talksabout restlessness, crying and failure to gain weightadequately? A. Yes, sir. Q. And a little bit further down, when it’s talking about clinicalmanifestations 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 talkabout the infant assuming the appearance of a, quote, oldman, 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 theserecords as pertaining to Katheryne Aldridge at that generalpoint? A. Yes. This is the description in the chart. Q. And in the area that we’ve been talking about as one of thecauses for failure to thrive, one of the common causes, thiscomes under the heading of what? A. Underfeeding and/or feeding problems. Q. And what is it that the Nelson text set forth [sic] as thetreatment to try to address that concern? And I’ll refer youspecifically to the second paragraph, it says what? A. Well, the treatment consists of increasing the fluid and caloricintake, correcting deficiencies, vitamin, mineral intake, andinstructing 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 favorof all Appellees. On appeal, among other issues, Appellants contended that the trial courterred in permitting the use of the excerpts from the texts of Drs. Oski and Nelson in thedirect examination of Dr. Mebane. The Superior Court, however, disagreed. Althoughrecognizing the principle that texts and publications may not generally be relied upon toprove 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), appealdismissed, 540 Pa. 49, 655 A.2d 505 (1995), for the proposition that such materials maybe used to bolster or support the credibility of an expert witness. As it also found no meritto 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 ofwhether the trial court abused its discretion by permitting Appellants’ counsel and Dr.Mebane to reference the learned treatises, and we allowed appeal to address thisevidentiary question. When offered at a trial to establish principles or theories from their contents, textsand periodicals fall within the traditional definition of hearsay — an extrajudicial declarationoffered 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 commonlaw, the evidentiary rules restricting the presentation of hearsay statements precludedparties from employing treatise materials as substantive proof of their contents. Seegenerally 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 toprove the truth of their contents are hearsay and may not properly be admitted intoevidence), appeal dismissed, 538 Pa. 671, 649 A.2d 673 (1994). The common law rulefrequently has been justified on the ground that a lay jury may be confused by the technicalnature 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 RuleUnder Rule 803(18) of the Federal Rules of Evidence, 64 A.L.R. Fed. 971 �2 (1999)(statingthat “[t]he prohibition against receiving learned treatise materials as exhibits is designedto keep the often voluminous works out of the jury room where they would receive undueattention and emphasis, and to prevent a jury from rifling through a work and drawingimproper inferences from technical language it might not be able properly to understandwithout expert guidance” (footnotes omitted)). While other jurisdictions, including thefederal courts, have moved away from the common law exclusion in favor of an exceptionpermitting the admission of treatise materials as substantive evidence on a limited basis,see, e.g., F.R.E. 803(18),
[FOOTNOTE 3] Pennsylvania has not done so. See P.R.E. 803(18) (providingthat “Pennsylvania does not recognize an exception to the hearsay rule for learnedtreatises” (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 competingpolicies, but rather, merely to consider the contours of the existing construct. There is noquestion 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 wouldbe unreasonable to suppose that an expert’s opinion would not in some way depend uponthe body of works preceding it. Pennsylvania courts have thus permitted, subject toappropriate restraint by the trial court, limited identification of textual materials (and in somecircumstances their contents) on direct examination to permit an expert witness to fairlyexplain the basis for his reasoning. See P.R.E. 705 (providing that “[t]he expert may testifyin terms of opinion or inference and give reasons therefor”); see also In re C.R.S., 696 A.2d840, 845 n.7 (Pa. Super. 1997)(suggesting that experts may refer to published worksserving 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 isentirely proper in examination and cross-examination for counsel to call the witness’sattention to published works on the matter which is the subject of the witness’s testimony”).
[FOOTNOTE 4] Since, however, the purpose for which treatises may be referenced on direct examinationis generally limited to explaining the reasons underlying the opinion, the trial court shouldexercise careful control over their use to prevent them from being made the focus of theexamination. Additionally, the trial court should issue appropriate limiting instructions. Seegenerally Pa.R.E. 105 (“[w]hen evidence which is admissible as to one party or for onepurpose but not admissible as to another party or for another purpose is admitted, the courtupon request shall, or on its own initiative may, restrict the evidence to its proper scope andinstruct the jury accordingly”).
[FOOTNOTE 5] In Nigro the Superior Court found that authoritative texts could be offered asnonhearsay for the purpose of bolstering the credibility of an expert witness, see Nigro, 432Pa. Super. at 80-81, 637 A.2d at 993-94, implicitly suggesting that this purpose differs fromthe impermissible objective of attempting to prove the truth of the matter asserted. Thisrationale, however, is unsound, since there can be no bolstering effect if the publishedmaterials are not seen by the jurors as authoritative and thus believable. See generallyCommonwealth v. Sneed, 597 N.E.2d 1346, 1350 n.6 (1992)(equating “bolstering” withproof 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 ruleagainst hearsay statements embodied in F.R.E. 803(18), they have implemented a narrowone. In Nigro the references to published materials (authoritative texts related to firearms)exceeded the bounds of such exception — they were offered for their direct substantiveeffect, as they were not presented to explain the basis for the expert’s own opinion, butrather, to demonstrate more broadly that the opinion “had some concurrence” among theauthorities. See id. at 81, 637 A.2d at 993. In the present case, the excerpts from the texts of Drs. Oski and Nelson wereexpressly presented based upon the Nigro logic. No limiting instruction was given to thejury. 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 opinionevidence was conveyed to the jury. Specifically, the textual excerpts were enlarged onposterboard, and Dr. Edmunds’ counsel guided Dr. Mebane through a lengthy series ofleading questions further emphasizing the specific contents in a manner unnecessary tothe explanation of the expert opinion. Additionally, the published materials should nothave been offered or admitted into evidence. While we reiterate that, subject to control by the trial court, judicious use of learnedtreatises may be made on direct examination of an expert witness in appropriatecircumstances for the limited purpose of explaining the basis for the opinion, here, the trialcourt abused its discretion by failing to impose appropriate constraints. It remains to determine, however, whether Appellants are entitled to a new trial, asan 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]nevidentiary 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. Russoand 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 uponAppellants’ allegations concerning post-diagnosis negligence in the insertion of a pre-surgicalcatheter. 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 heartdisease is an uncommon cause of failure to thrive. Indeed, Dr. Edmunds’ counsel was ableto use the text to guide Dr. Klein through almost precisely the same litany of root causesof 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 . . . withrespect to any other publication which the expert acknowledges to be a standard work inthe field”). In fact, the points made in both examinations seem to be very basic ones whichwere undisputed on the record.
[FOOTNOTE 6] As Appellants’ counsel cogently argued to both the courtand jury, regardless of whether congenital heart defects are a common, uncommon, or rarecause of failure to thrive, the central issue was whether Dr. Edmunds should haveappreciated the need to explore the possibility, particularly in light of the collective patienthistory and symptoms presented. Given the nature of the published materials and thelimited and essentially undisputed points for which they were presented, we find that theiruse 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. :::FOOTNOTES:::
FN1 Katheryne’s congenital condition included ventricular septum defect, a defect between theleft and right ventricles of the heart which permits blood to be shunted between them; andpatent ductus arteriosus, which allows blood to pass from the aorta to the main pulmonaryartery.
FN2 The complaint asserted causes of action against the cardiologist who performed thecardiac catheterization study, on the theory that he had introduced candida albicans intoKatheryne’s system during the procedure. Allegations material to such claims werestricken on prelminary objections asserted by the Hospital, and the parties ultimatelystipulated to their dismissal.
FN3 The exception would appear to be based upon the view that a substantial degree ofreliability should attach to authoritative, published scientific works, thus supporting thehearsay 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 assubstantive evidence] is that a hearsay objection must be regarded as unimpressive whendirected against treatises since a high standard of accuracy is engendered by variousfactors: the treatise is written primarily and impartially for professionals, subject to scrutinyand exposure for inaccuracy, with the reputation of the writer at stake”).
FN4 Our evidentiary rules also permit limited use of treatises on cross-examination forimpeachment, 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 theremay 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)(statingthat “[l]earned treatises discussing the safety of a product should . . . be admissible in theplaintiff’s case-in-chief to raise a presumption of notice[;] [t]his is a non-hearsay purpose”).
FN5 Rule 105, on its terms, would not apply to authoritative texts as it addresses admissibleevidence. Nevertheless, the policy underlying the rule, namely, the prevention of jurorreliance upon proofs for inappropriate purposes, applies equally in the context of textualmaterials referenced to explain the basis for an expert opinion.
FN6 Similar use was made of Dr. Nelson’s text, with the additional point being made thatappropriate treatments for one common cause of failure to thrive (underfeeding) includedietary interventions of the sort pursued by Dr. Edmunds.
Aldridge v. Edmunds IN THE SUPREME COURT OF PENNSYLVANIAEASTERN DISTRICT CHRISTOPHER K. ALDRIDGE ANDANNE-MARIE ALDRIDGE,ADMINISTRATORS OF THE ESTATE OFKATHERYNE ELIZABETH ALDRIDGE,DECEASED, Appellants v. ELIZABETH H. EDMUNDS, M.D.,PIERANTONIO RUSSO, M.D. AND ST.CHRISTOPHER’S HOSPITAL FORCHILDREN, Appellees 39 E.D. Appeal Dkt. 1998 Appeal from the Judgment of the SuperiorCourt entered on April 27, 1998 at No.4286 PHL 1996 affirming the Judgmententered on November 7, 1996 in the Courtof Common Pleas, Philadelphia County,Civil Division at No. 1574 January Term,1992 ARGUED: October 18, 1999
