BOTSFORD, J.
In this wrongful death action based on a claim of medical malpractice, the defendant, Ivan Liang, appeals from a judgment against him. His appeal raises two issues of particular relevance to the trial of medical malpractice cases: (1) whether the plaintiff, through her counsel, complied with the obligations imposed by Mass. R. Civ. P. 26 (b) (4) (A) (i), 365 Mass. 772 (1974), to disclose the substance of and grounds for the opinions of an expert witness; and (2) whether certain materials obtained from the Internet qualify as published treatises, periodicals, or the like within the meaning of the "learned treatise" exception to the hearsay rule adopted in Commonwealth v. Sneed, 413 Mass. 387, 395-396 (1992). See Mass. G. Evid. § 803(18)(B) (2015). On the issue of expert disclosure we conclude that the plaintiff met the basic disclosure requirements of rule 26 (b) (4) (A) (i), although the disclosure was not as clear or complete as it could have been and the expert witness's trial testimony was inappropriately used by the plaintiff's counsel. With respect to the Internet materials, we conclude that the pages taken from two Web sites and used during the plaintiff's examination of the defendant did not qualify under the learned treatise exception to the hearsay rule.
Background. We summarize the facts of the decedent's medical treatment and death, taken from the evidence at trial, and reserve additional facts for later discussion in connection with the issues raised on appeal. On August 14, 2006, at approximately 10:56 A.M., twenty-three year old Jeffrey Kace (Jeffrey)
The defendant, who was at the time an emergency medicine physician at the hospital, examined Jeffrey at approximately 11:15 A.M.
According to the medical record, a nurse administered Tylenol to Jeffrey at 11:20 A.M. The defendant testified that typically a nurse would give a patient Tylenol only after the physician had concluded an examination of the patient, indicating that at least according to the medical record, the defendant's examination of Jeffrey lasted for five minutes, from 11:15 to 11:20 A.M. The record also reflected that Jeffrey was discharged from the hospital at approximately 11:25 A.M., twenty-nine minutes after he was first seen by the triage nurse.
The next morning, Jeffrey was found dead in his bed in his apartment. An autopsy revealed that he died of cardiac dysrhythmia
Procedural background. In 2008, Lynn Kace commenced this wrongful death action as the administrator of Jeffrey's estate.
At the close of a jury trial that took place in late February, 2014, the jury found the defendant negligent in his medical treatment of Jeffrey, and that his negligence caused Jeffrey's death; the jury did not find the defendant to have been grossly negligent. They awarded wrongful death damages in the amount of $2,925,000 to Lynn Kace in her capacity as administrator of Jeffrey's estate, but did not award any damages for pain and suffering by Jeffrey. Thereafter, the defendant filed a motion for a new trial or remittitur, in which he raised, among other claims, the issues he raises in this appeal. After a hearing, the judge denied the motion in its entirety. The defendant appealed to the Appeals Court, and we transferred the case to this court on our own motion.
Discussion. 1. Undisclosed expert opinion. a. Background. The parties filed a pretrial memorandum in 2011, three years before
Accordingly, McMeeking was expected to offer opinion testimony at trial that the defendant's treatment of Jeffrey fell below the standard of care for the average qualified emergency medicine doctor when the defendant:
At trial in 2014, prior to McMeeking's testimony, the plaintiff's counsel called the defendant as a witness, and inquired at some length on direct examination about whether a five-minute evaluation of Jeffrey was appropriate, without any objection from defense counsel. The defendant responded, in part, that five
Defense counsel objected. Counsel complained that the plaintiff's pretrial disclosure had focused solely on the defendant's failure to order an EKG in light of Jeffrey's symptoms, and had not included an opinion that the defendant's examination of Jeffrey fell below the standard of care because it was too brief. The judge overruled the objection. Later, in his direct examination of McMeeking, plaintiff's counsel asked:
b. Analysis. The defendant argues that McMeeking's opinion that the defendant's five-minute examination of Jeffrey was too brief and fell below the standard of care (exam duration opinion) was separate and distinct from McMeeking's disclosed opinions on the defendant's deviations from the applicable standard of care in the pretrial memorandum; that the plaintiff did not give any notice of this additional opinion before the trial began; and that the judge abused her discretion by permitting McMeeking to opine on the insufficiency of a five-minute medical evaluation. The defendant was prejudiced, he claims, by the nondisclosure in that he was unprepared to counter the opinion either through discovery aimed at impeaching its foundation or by further development of the factual record concerning the actual duration of Jeffrey's examination. The plaintiff counters that the pretrial memorandum did implicitly disclose that the duration of the defendant's examination of Jeffrey was a factor supporting McMeeking's disclosed opinion on the defendant's deviation from the standard of care; and, by including all the timing details in the "facts and opinions" to which McMeeking would testify, the exam duration issue was raised.
Our rules of civil procedure require a party to respond to expert witness interrogatories by disclosing the identity of each expected expert witness as well as "the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Mass. R. Civ. P. 26 (b) (4) (A) (i). The rules also require supplementation of an expert interrogatory response if there are any changes or additions to it. Mass. R. Civ. P. 26 (e) (1) (B). The goal is obvious: to facilitate the fair exchange of information about critical witnesses and to prevent unfair surprise.
There is no question that the spirit and purpose of our discovery rules would have been better served by a direct disclosure of the exam duration opinion. Ultimately, however, we disagree with the defendant that the exam duration opinion was qualitatively different from McMeeking's standard of care opinions disclosed in the pretrial memorandum. We understand McMeeking's trial testimony about the duration of the defendant's examination of Jeffrey as a form of explanation for — and therefore as linked to — his disclosed opinion that the defendant deviated from the standard of care by failing to recognize that Jeffrey's chest pain, fever, tachycardia, and malaise could be symptoms of myocarditis, and by failing to order an EKG to rule out that possibility. Fairly considered in its entirety, McMeeking's exam duration opinion did not assert that a five-minute evaluation was always insufficient, but that it was insufficient time for the defendant to conduct a proper physical examination and gather an appropriate medical history in Jeffrey's case. Because a history and examination are necessary to understand the meaning and context of a patient's
Moreover, the pretrial memorandum specifically disclosed the facts supporting McMeeking's exam duration opinion and testimony, namely, that Jeffrey arrived at the hospital at 10:56 A.M., the defendant examined Jeffrey at 11:15 A.M.; the nurse administered Tylenol at 11:20 A.M.; and Jeffrey was discharged at 11:25 A.M. From this, the defendant was or should have been aware well before trial that the timing details surrounding the defendant's examination of Jeffrey were in play.
That said, the plaintiff's failure to disclose explicitly McMeeking's exam duration opinion is troubling, particularly when considered in light of how the plaintiff's counsel used that opinion at trial. Although McMeeking ultimately did tie his exam duration opinion to his disclosed opinion that the defendant failed to recognize Jeffrey's symptoms as indicative of myocarditis, the plaintiff's counsel worked assiduously to separate them into two independent failures by the defendant to meet the standard of care — as counsel's opening statement,
Expert witnesses are both legally essential and factually key witnesses in a medical malpractice case. The plaintiff's counsel and his law firm specialize in this field. We expect counsel to litigate medical malpractice cases in good faith and with adherence to our disclosure principles under our procedural rules including, in particular, Mass. R. Civ. P. 26 (b) (4). The overarching obligation to conduct litigation with fairness and integrity demands no less. Cf. Polansky v. CNA Ins. Co., 852 F.2d 626, 632 (1st Cir. 1988) ("we remind counsel that we do not view favorably any attempt `to play fast and loose' with our judicial system.. . . Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide `zealous advocacy' for his client's cause, we encourage this only as a means of achieving the court's ultimate goal, which is finding the truth. Deceptions, misrepresentations, or falsities can only frustrate that goal and will not be tolerated within our judicial system" [quotations, citations, and footnote omitted]).
Counsel's conduct makes reversal of the judgment in this case a close question, and unnecessarily so: disclosure of the exam duration opinion was available.
2. Learned treatises. a. Background. During his redirect examination of the defendant, plaintiff's counsel showed the defendant and questioned him about two printouts of Web site pages, both titled "Myocarditis" and both listing what the pages described as common symptoms of myocarditis, from the Web sites of Johns Hopkins University School of Medicine (Johns Hopkins) and Mayo Clinic, respectively. The defendant testified that he was familiar with the two medical institutions, but not with the content of their Web sites concerning myocarditis.
b. Analysis. The defendant argues that the use by the plaintiff's counsel of these Web pages to cross-examine him was impermissible under this court's prior decisions as well as Mass. G. Evid. § 803(18)(B), because (1) the defendant was not testifying as an expert witness, and (2) in any event, the printed Web pages should have been excluded as unauthenticated and unreliable because they were undated and without a named author. We agree with the defendant.
Section 803(18)(B) sets out the general learned treatise exception to the hearsay rule. It allows a party 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."
Id.
We consider first the defendant's argument that neither of the Internet Web pages qualified as a "reliable authority" that could be used in cross-examining an expert witness under § 803(18)(B) and Sneed, 413 Mass. at 396. The standard for establishing the reliability of a statement varies depending on the context in which the statement is published. 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. Brusard v. O'Toole, 429 Mass. 597, 602-603 (1999). As to a periodical or journal, however, "[i]n 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." Id. at 603-604, quoting Meschino v. North Am. Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988). 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.'" Brusard, supra at 604 n.8.
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. Cf. Jasper v. Tomaiolo, 20 Mass.App.Ct. 201, 204 (1985) (learned treatises "are subjected to careful professional criticism"). Cf. also Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 976 n.19 (C.D. Cal. 2010), and cases discussed (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
To establish the admissibility of the statements taken from the Johns Hopkins and Mayo Clinic Web sites, the plaintiff's counsel was obligated to show that the author or authors of the Web pages was or were "a reliable authority." See Brusard, 429 Mass. at 603, 604 n.8.
In the present case, given that the Web pages in question did not reference a particular author or authors, it was not possible for the plaintiff's counsel to establish their reliability as required by the evidence rule. See Evans v. Toledo Neurological Assocs., 20 N.E.3d 333, 343 (Ohio Ct. App. 2014) ("foundation could not be laid for establishing" Internet article as "authoritative and reliable" under analogous learned treatise exception to hearsay rule because "author and original publication date of the article could not be ascertained"). See also Bullock v. Lott, 964 So.2d 1119, 1133-1135 (Miss. 2007) (judge erred in permitting counsel to use article printed from Internet to cross-examine expert witnesses where article was not established as reliable by these witnesses or other experts, and judge did not take judicial notice of article's reliability).
The defendant contends that independent of the question whether the Johns Hopkins and Mayo Clinic Internet Web pages qualified as "learned treatises" under § 803(18)(B), that section did not permit plaintiff's counsel to use the Web pages in his redirect examination of the defendant. The defendant is correct. Sneed and its progeny make clear that § 803(18)(B) shields a treatise from exclusion as hearsay only where the treatise is brought to the attention of an expert witness on cross-examination. See Sneed, 413 Mass. at 395 (noting that this court's Advisory Committee, in proposing rule 803[18], "commented that the rule was limited to statements called to the attention of an expert witness on cross-examination"; noting further "potential benefit, and little risk of harm" in allowing "a party challenging an expert's opinion to interrogate that expert" about learned treatise). See also Brusard, 429 Mass. at 602; W.G. Young, J.R. Pollets, & C. Poreda, Evidence § 803.18 (2d ed. 1998) (learned treatises "are admissible to challenge an expert's opinion and to question that expert regarding a relevant, divergent opinion on cross examination"). Here, however, the plaintiff's counsel referenced and used the Web sites of Johns Hopkins and Mayo Clinic in his redirect examination of the defendant, who, although a licensed physician and experienced in the field of emergency medicine, was not testifying as an expert witness at this trial; he was a party to the case, and was testifying solely in his capacity
We turn to the question of prejudice. The Web pages presented to the jury evidence that Jeffrey had certain symptoms of myocarditis when the defendant examined him. It was evidence that may have been enhanced in significance by the reputation of the two renowned institutions of medicine, and enhanced even more by the plaintiff's counsel mischaracterizing the Web pages as "studies" in his closing. However, in light of other evidence properly admitted in this case, we cannot conclude that the defendant was materially prejudiced. The symptoms of myocarditis read from each Web page were cumulative: the defendant and his own expert witness, Dr. John Benanti, both testified, independently of the Web pages, that substantially all of these symptoms are associated with myocarditis. Reversal on account of the judge's error relating to the Web pages is not warranted. See Doyle v. Dong, 412 Mass. 682, 688 (1992).
3. Use of Jeffrey's prior medical record on cross-examination of the plaintiff's expert. Finally, the defendant argues that the trial
The relevant background to the claim is the following. Included in the agreed-upon trial exhibits were (1) pages of Jeffrey's medical records from the health center at the university that Jeffrey had attended, dated October, 2003, and May, 2004; and (2) a page from a pediatric medical record of Jeffrey's that was dated September, 2000. In his direct examination of McMeeking, the plaintiff's counsel asked the witness about these earlier medical records, beginning with those dated 2003 and 2004. In particular, counsel asked whether the records reflected that Jeffrey had been treated for bronchitis in 2003 and 2004, and whether they indicated any complaint of chest pain at that time.
The ruling was error. Where the medical record was in evidence by agreement and the plaintiff's counsel had specifically used it in his direct examination of the witness, defense counsel should have been permitted to ask questions about the same record in his cross-examination of the same witness. See Commonwealth v. Cataldo, 326 Mass. 373, 377 (1950) ("cross-examination on the same subject as the direct examination" is
Judgment affirmed.