Breslau v. McAlister

35 S.W.3d 321, 72 Ark. App. 124, 2000 Ark. App. LEXIS 790
CourtCourt of Appeals of Arkansas
DecidedDecember 13, 2000
DocketCA 00-445
StatusPublished
Cited by3 cases

This text of 35 S.W.3d 321 (Breslau v. McAlister) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breslau v. McAlister, 35 S.W.3d 321, 72 Ark. App. 124, 2000 Ark. App. LEXIS 790 (Ark. Ct. App. 2000).

Opinions

OHN F. STROUD, Jr., Judge.

This is a medical malpractice case. Appellants are the parents of the deceased child, Kait-lyn. They brought this action against appellees, Northwest Arkansas Clinic for Women and its employee, Dr. Mitchell McAlister, alleging that after Kaitlyn’s twin, Jessica, was born Dr. McAlister failed to properly monitor Kaitlyn’s status, failed to detect Kaidyn’s distress, failed to act on the distress shown, and failed to deliver Kaitlyn by Caesarean section. Kaitlyn was born with severe brain damage, and she died when she was ten months old. The jury returned a verdict for the appellees. We affirm.

For their first point of appeal, appellants contend that the trial court erred in allowing defense counsel to display for the jury quotations from medical treatises and periodicals in an enlarged form. At trial, appellants objected repeatedly to the use of blow-ups and their publication to the jury, including at times an objection to portions of the enlargements being highlighted in yellow. No particular rule of evidence was relied upon in making the objection, and it was not couched in terms of violating the hearsay rule. On appeal, however, appellants rely upon Rule 803(18) of the Arkansas Rules of Evidence as support for their position. Parties are bound on appeal by the scope and nature of their objections as presented at trial. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000).

Even if we were to address this issue on its merits, however, we would find that appellants’ reliance upon Rule 803(18) is misplaced. Rule 803 lists several exceptions to the hearsay rule. Subsection (18) provides:

(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, 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 testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may he read into evidence but may not be received as exhibits.

(Emphasis added.) The gist of appellants’ argument is that the enlarged format of the excerpted portions of the medical treatises and periodicals somehow converted them into “exhibits,” even though they were not admitted into evidence nor allowed to go to the jury room with the jury. We disagree. The advisory committee note to Federal Rule of Evidence 803(18), the federal counterpart to Arkansas Rule of Evidence 803(18), explains in pertinent part the purpose of the last sentence of the subsection:

The rule avoids the danger of misunderstanding and misapplication by limiting the use of treatises as substantive evidence to situations in which an expert is on the stand and available to explain and assist in the application of the treatise if declared. The limitation upon receiving the publication itself physically in evidence, contained in the last sentence, is designed to further this policy.

The items challenged by the appellants clearly fall within the category of demonstrative evidence. The admissibility and use of demonstrative evidence is a matter falling within the wide discretion of the trial court. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). We find no abuse of the trial court’s discretion in allowing defense counsel to use the medical treatises and periodicals in this fashion.

For their second point of appeal, appellants contend that the trial court abused its discretion when it first ruled that Dr. Robert Arrington’s opinion testimony would be excluded and then changed its decision and ruled that his deposition could be admitted in its entirety. We disagree.

Appellants’ one-page argument follows in pertinent part:

The trial court had ruled on October 1, 1999, prior to the start of the trial on October 4, 1999, that expert opinion testimony of Dr. Arrington would not be permitted because Dr. Arrington had not been named as an expert by the deadline set by the Court. . . . The trial court has wide discretion in imposing sanctions for failure to provide discovery. See Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998) and Arkansas Rule of Civil Procedure 37. In this case the trial court imposed deadlines for the naming of expert witnesses. In the hearing on October 1, the trial Court found that because Dr. Arrington had not been named as a witness, neither party would be allowed to use any expert testimony from him but would be allowed to use only that testimony arising as a result of his involvement with Kaitlyn Breslau as a treating physician. It is appellees’ contention that this ruhng was well within the Court’s discretion as described in the above-styled case. The trial court requested and received from both sides, their positions on which portions of Dr. Arrington’s deposition should not be received into evidence because of a violation of the court’s ruhng on expert opinion testimony.

Because the Court was aware that appellant intended to use Dr. Arrington’s deposition on Tuesday, October 5, the reversal of his original ruling was prejudicial and most especially was prejudicial at that point in time.

Dr. Arrington was the neonatologist who treated Kaitlyn when she was transferred to Arkansas Children’s Hospital. Appellants took his evidentiary deposition prior to trial. During the cross-examination by appellees, Dr. Arrington explained that it was his judgment that the injury Kaitlyn suffered “was consistent with something that happened more remote from delivery than the last two hours of labor prior to delivery.” He further explained what he meant by questionable intrauterine insult, a term that appeared in the “impression” portion of the medical records:

We put questionable intrauterine insult because we weren’t sure what, what had happened. Intrauterine refers to it happened sometime in útero. . . . That’s a general term, intrauterine, meaning that we didn’t know for sure what happened, but it happened sometime before birth.

Following the deposition, appellants moved in limine to strike Dr. Arrington’s cross-examination testimony as to the causation and timing of the injury, i.e., that the child’s brain damage occurred prior to the mother’s labor. They based their motion to strike on the fact that Dr. Arrington was not listed as an expert witness by appellees during discovery, arguing that the failure to do so amounted to a discovery violation. Appellees responded in part that they were not required to disclose him as a witness because they had never expected or intended to call him as a witness prior to his deposition being taken by appellants.

The trial court heard the motion on October 1, 1999, prior to the start of trial on October 4, 1999. Thé court ruled that any opinions offered by Dr. Arrington, for either party, should be excluded. However, by the first day of trial, October 4, the trial court had read the deposition and had determined:

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Cite This Page — Counsel Stack

Bluebook (online)
35 S.W.3d 321, 72 Ark. App. 124, 2000 Ark. App. LEXIS 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breslau-v-mcalister-arkctapp-2000.