Maybe yes and, then again, maybe no. That’s what Kace v Liang , 472 Mass. 630 (Sup. Ct.; 2015), was all about. The learned treatise exception to the hearsay rule was first articulated by Justice Hugo Black in 1949. The rule allows for authoritative texts and journal articles on scientific, medical, and other scholarly subjects to be used at trial during the examination of expert witnesses for impeachment or establishing bias. Justice Black stated that “it is certainly illogical, if not actually unfair, to permit witnesses to give expert opinions based on book knowledge, and then deprive the party challenging such evidence of all opportunity to interrogate them about divergent opinions expressed in other reputable books.” (Cit. Omit.)
So, what happened in Kace ? The patient, a 23-year-old man, came to the emergency room at 10:56 am with chief complaints of chest congestion and discomfort, fever, cough, and pain when taking deep breaths; his heart rate showed mild tachycardia. A chest x-ray was taken; it was read as normal, and an EKG was not performed. The defendant, an emergency room physician, examined the patient at 11:15. The same clinical signs were noted. He performed a history and physical, completing the examination at 11:20. The patient was diagnosed with bronchitis and was discharged at 11:25 am with prescriptions for Tylenol and an antibiotic. He was found dead in his bed the next morning. The cause of death was determined to be cardiac dysrhythmia stemming from viral myocarditis that was secondary to bronchitis.
During pretrial expert witness disclosures, it was noted that the plaintiff’s expert was expected to testify that the standard of care was breached because the 5-minute history and physical examination were totally inadequate and that the defendant (1) “failed to recognize and appreciate fever, chest pain, malaise, and tachycardia as signs and symptoms of viral myocarditis”; (2) “failed to order an [EKG] and cardiac enzyme testing to rule out myocarditis”; and (3) “failed to immediately admit [Jeffrey] for cardiology and infectious disease consultations, steroid treatments, and monitoring.”
At trial, the jury found the defendant negligent and awarded the plaintiff’s estate just under $3 million. The defendant motioned for a new trial or reduction of the award, the trial judge refused, and the ruling was appealed, but the Massachusetts Supreme Court transferred the case to itself on its own motion.
One claim on appeal concerned the testimony about the 5-minute examination and the lack of notice that was given to the defendant regarding that aspect of the evidence. The claim deals with convoluted testimony and legal analysis and won’t be discussed here. This article will focus on the use of Web-page information as a learned treatise and how the court addressed that issue. During the redirect examination of the defendant, the plaintiff’s attorney showed him 2 printouts of Internet Web pages. The first was from the Mayo Clinic, and the second was from Johns Hopkins University School of Medicine. Both were entitled “Myocarditis,” and both listed the common symptoms associated with the malady. He was asked to read both pages. Both noted the symptoms of myocarditis to be fatigue, shortness of breath, rapid heartbeat, chest pain, fever, and other signs. The defendant was then asked to confirm that the patient exhibited these signs and symptoms at his presentation to the emergency room and at the defendant’s examination of the deceased. The defense council objected to the questioning on 2 grounds. The first was that the defendant was not testifying as an expert witness; the second was that the Web pages should have been excluded as unreliable because they were both undated and without a named author. The trial judge overruled the objection.
Mass. G. Evid. Sec. 803(18)(B) sets out the learned treatise exception to the hearsay rule. It allows for this type of hearsay evidence to be admissible “on cross-examination of an expert witness to bring the expert’s attention to, question the expert about, and read in evidence 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.” This must be done to the judge’s satisfaction that these publications are reliably authoritative. The court noted that the standard for reliability depends a lot on the context in which it was published and stated the following.
With regard to a “treatise,” we have held that “the rule contemplates that an authored treatise, and not the statements contained therein,” must be established as reliable. As to a periodical or journal, however, in these days of quantified research, and pressure to publish, an article does not reach the dignity of a ‘reliable authority’ merely because some editor, even a most reputable one, sees fit to circulate it. Accordingly, a statement within “an article in a journal or periodical would be admissible under [§ 803(18)(B)] if an opponent of the expert witness establishes that the author of the …article is a reliable authority.
Along the continuum from treatises to journals, it is readily apparent that the Johns Hopkins and Mayo Clinic Web pages are very different from a treatise and resemble far more closely articles in a journal or a periodical (learned treatises “are subjected to careful professional criticism”)…. (Internet encyclopedia “Wikipedia” is not learned treatise). The content of the Web pages indicates that they are not medical “treatises” of any sort intended to be read and used by physicians, but rather are directed at laypersons: both Web pages list symptoms of myocarditis and direct the reader to call a doctor if he or she develops them (Federal rule of evidence on learned treatises notes treatises are ”written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake). (Cits. Omit.)
The court noted that regardless of the stellar reputation of the 2 institutions from which the Web pages were taken, for them to be admissible as leaned treatises, they had to come from a reliable authority; since there was no indication of who wrote the pages, it is questionable whether the unnamed author was an appropriate source of the information in them. In addition, there was no indication of when they were penned. In short, they could not be used for the purpose intended. The court was also quick to point out that it was not banning Internet data from ever being used as a learned treatise; it just must meet certain specific qualifications.
A minor but important distinction noted in the learned-treatise exception, applies only to expert witnesses; in this case, it was used against the defendant himself. The whole purpose behind allowing learned treatises to be used is to “challenge an expert’s opinion and to question that expert regarding a relevant, divergent opinion on cross examination.”
The supreme court upheld the trial court’s ruling.
We see this all the time. Patients access information from various Web sites and then believe that they have properly educated themselves; they think nothing of going head to head with their orthodontist about the best way to treat whatever condition they or their children have. It is worse when predoctoral and postdoctoral students take to Google to research whatever the question or issue happens to be. Even worse than this is that everybody believes what they read, not knowing who wrote it or the purpose for which it was written. Some would say that, insofar as do-it-yourself Web-based education is concerned, as a society we have reaped the rewards of that which we have sowed.
David Kluft, a member of the Boston Bar Journal Board of Editors, wrote the following post describing the case that was the basis of this article and listed the key elements necessary for a court to find that a Web page meets the criteria for acceptance as a leaned treatise ( https://bostonbarjournal.com/2016/01/13/learnedtreatise-com-the-sjc-addresses-the-use-of-website-pages-to-examine-experts/ ). These elements are the following.
Identify that a published Web site pertains to a specific subject of science or art.
Establish that a specific statement in the Web site’s pages is both relevant and material to a question or issue being litigated.
Establish both the date of publication of the Web site page and the date it was accessed.
Identify the authors by name.
Establish that the author is a reliable authority. This can be accomplished by way of an admission by the expert witness, through the expert’s trial testimony be it direct or cross examination, or by judicial notice.
Be prepared to establish the authenticity of the Web site pages; in other words, show that these particular pages are not forgeries but are what they purport to be.
The bottom line for all of us is that we must understand that the judicial system is there to protect us not only from overzealous lawyers, but also from ourselves. When we develop new technology, particularly communicative technology, human nature will immediately see how far the envelope of this new development can be stretched, how far it can take us. When this “advancement” feeds into our limitations, such as a lack of knowledge, we will turn to it to enhance those frailties and shortcomings. It is akin to finding an oasis in a desert. Think about it. Instant knowledge at our fingertips. No longer do we need to memorize or spend hours learning the esoteric or developing the skill set of logical analysis necessary to come up with the answer or solution; we can just look it up. Is it any wonder that during the last decade or so that a recurring lamentation of orthodontic educators is that many students no longer know how to think. Capable of doing X, Y or Z, yes. Aping a procedure they have been exposed to, certainly. Regurgitate information or practice by rote, naturally. But using the computer between their ears to its fullest extent? Well, maybe I’m being a little harsh …but not much.
The Web is a wonderful place. It can speak for us, to us, and about us. The problem as was brought out in the Kace decision is that we do not know how reliable the information is that we are relying on. If nothing else, we owe ourselves the duty to find out not just the answer, but the correct answer. However, if we choose not to exercise intellectual due diligence, and we find ourselves in the legal arena trying to be held to a standard of care espoused by an unknown person on a Web site posting, at least we know that the gatekeeper sitting on the bench will do his or her best to protect us when we choose not to pursue the truth.