Present: Hassell, C.J., Keenan, Kinser, Lemons, Agee, and
Goodwyn, JJ., and Russell, S.J.
JAYA LEE BOSTIC, BY
HER MOTHER AND NEXT FRIEND,
MELANIE M. BROCK OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 070410 April 18, 2008
ABOUT WOMEN OB/GYN, P.C., ET AL.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
The sole question presented by this appeal is whether the
circuit court erred in permitting the defendant, at a jury
trial in a medical malpractice case, to read and exhibit
excerpts from medical literature without proper foundation or
cautionary instructions.
Facts and Proceedings
Melanie M. Brock was the mother of a child, Jaya Lee
Bostic, delivered at Potomac Hospital in Prince William County
on May 8, 2000. Immediately after delivery, Jaya was
diagnosed with Erb's palsy, a permanent paralysis of the arm. 1
The cause of the palsy was determined to be shoulder dystocia
during delivery, an obstetric emergency in which the child's
1
Erb's palsy is a condition resulting in decreased
mobility and functionality of an affected upper extremity.
Harrison v. United States, 284 F.3d 293, 296 n.1 (1st Cir.
2002). The condition is recognized to be permanent. Harrison
v. United States, 233 F.Supp.2d 128, 130 (D. Mass. 2002).
shoulder becomes trapped behind the mother's pubic bone. 2 If
not promptly relieved, shoulder dystocia can result in
stretching and avulsion of the cervical nerve roots in the
child's brachial plexus, 3 the undisputed cause of the child's
injury in this case.
The mother, as next friend, brought this action on the
child's behalf against About Women, OB/GYN, P.C. and Nancy
Kuney, a certified nurse midwife who attended the mother
during the delivery.
The foregoing facts are undisputed. The issue in the
case is whether the child's injury resulted from Nurse Kuney's
negligence or from maternal propulsive forces of labor. The
plaintiff contends that the nurse midwife subjected the
child's head to excessive downward traction during delivery,
causing the stretching and avulsion of cervical nerves. The
defendants contend that Nurse Kuney adhered to the appropriate
standard of care and that the child's injury resulted from the
propulsive forces of labor.
2
See Richard Sloane, The Sloane-Dorland Annotated
Medical-Legal Dictionary 235 (citing Mulligan v. Shuter, 419
N.Y.S.2d 13, 14 (N.Y. App. Div. 1979) (describing "condition
known as shoulder dystocia").
3
"Brachial plexus" refers to the nerves that come down
from the spine in the region of the neck and proceed down the
arm. See The Sloane-Dorland Annotated Medical-Legal Dictionary
556 (citing Pisciotta v. Allstate Ins. Co., 385 So.2d 1176,
1181 (La. 1979)). "Avulsion" is the tearing away of a part of
an anatomical structure. Id. at 74.
2
At a jury trial, the plaintiff produced expert medical
testimony that the child's injury was the result of Nurse
Kuney's application of excessive force to the child's head
during delivery and that maternal propulsive forces of labor
could not account for a permanent Erb's palsy. The defendants
called Nurse Kuney as a fact witness but not as an expert on
either the standard of care or on causation. Plaintiff's
counsel, in her cross-examination, asked Nurse Kuney whether
she agreed or disagreed with several excerpts from medical
literature that had been admitted during the plaintiff's case.
During redirect examination, defense counsel asked her further
questions concerning the same excerpts. Then defense counsel
turned to articles that had not been relied upon or
established as reliable authority by any witness, and asked
Nurse Kuney:
Q. "Obstetrics and Gynecology, Erb's Palsy, 1999.
The overwhelming evidence indicts the propulsive
nature of the stretching of the involved nerves over
which the birth attendant has no control.
Obstetrics and Gynecology, 2000." Do you agree with
that?
A. Yes.
. . . .
Q. Erb's palsy causation. During the past – this
is in the Journal of Reproductive Medicine of 2005.
[Plaintiff's counsel]: If Your Honor, please, let
me note an objection here. There is no expert that
3
they're putting on that's going to testify to this
conclusion.
[Defense counsel]: Dr. Feore will.
[Plaintiff's counsel]: No, he isn't, not if he's
going to be consistent with his deposition.
[Defense counsel]: This is not standard of care.
This is on causation.
Defense counsel resumed his redirect examination by
continuing his quotation of the article:
"During the past 15 years studies have provided
considerable indirect evidence that maternal
propulsive forces are responsible for the injury
leading to Erb's palsy."
[Plaintiff's counsel]: Just note my objection.
[The court]: I'll allow the question and give a
curative instruction if Dr. Feore doesn't testify to
that.
[Defense counsel]: Do you agree with that [, Nurse]?
A. Yes.
The defendants thereafter called Dr. J. Colman Feore, who
qualified as an expert witness on the standard of care in the
field of obstetrics and gynecology as well as the issue of
causation in these fields. He testified that, from his review
of the records and pre-trial depositions, Nurse Kuney had
comported with the appropriate standard of care in the
delivery of the child. He further testified that he was
unable, however, to form an opinion as to the cause of the
child's Erb's palsy:
4
Q. But, Doctor, she had – there's a permanent
injury. Doesn't that mean by definition you had to
pull too hard?
A. No, it doesn't mean that. It means that there
was pressure on the shoulder that created the Erb's
palsy, in fact, affecting the brachial nerves in the
neck. But that was caused by pressure of the
shoulder against the pubic bone. Whether it came
from the traction or downward of the baby's head or
whether it was caused by other forces, I don't know.
I don't think anybody can say that because, you
know, during the labor process, everything is coming
into the pelvis; and as the head progresses down,
the body may not because the shoulders are caught on
the pelvis and so as the head comes down, you get
the stretching. So that stretching occurs during
the labor process during contraction, so I couldn't
say one way or the other.
Defense counsel then exhibited to the jury, in the form
of a projected slide, an article from the Journal of
Reproductive Medicine, 2005, entitled "Erb's Palsy Causation:
Iatrogenic or Resulting from Labor Forces?" Plaintiff's
counsel objected that the article should not be shown to the
jury until a foundation had been laid. The court responded,
"Proceed." Defense counsel asked the witness if the article
was "reasonably reliable on issues causing shoulder dystocia."
The witness answered in the affirmative. Defense counsel then
asked the witness if he agreed with the article. Plaintiff's
counsel again objected: "In order to use any treatise on
direct, this witness has to say two things: One, that . . .
he's relying upon these in forming his opinions and he finds
the treatise to be reliable and authoritative. . . . until he
5
says his opinions were based upon the article, he can't use it
on direct." The court directed defense counsel to "[a]sk the
question." Defense counsel then further examined the witness:
Q. Doctor, in reaching your opinions in this case,
is that something you relied upon to talk to this
jury?
A. Yes.
Q. Now, try again. Do you agree with the
following: "During the past 15 years, studies have
provided considerable indirect evidence that
maternal propulsive forces are responsible for the
injury leading to Erb's palsy." Do you agree with
that?
A. I would use the word "could be responsible."
Plaintiff's counsel then cross-examined Dr. Feore as
follows:
Q. Now, when did you arrive at the theory that an
Erb's palsy injury in this case was caused by the
propulsive forces of labor coming down the birth
canal?
A. I didn't arrive at that conclusion.
Q. In fact, that didn't happen at all in this case;
did it, Doctor?
A. I don't know if it did or not. That's the whole
point.
. . . .
Q. So that I'm clear, are you saying that it's your
opinion in this case that the propulsive forces of
labor, regardless of where this fetus was in the
birth canal, the propulsive forces of labor are what
the cause of the injury is?
6
A. What I'm saying is they could have been, not
that they were.
Q. I want to know within a reasonable medical
degree of probability whether that's your opinion.
I'm not interested in possibility.
A. There is no reasonableness involved in this
because we do not know. The baby was delivered and
the baby had a Erb's palsy when it came out. What
the cause of that particular Erb's palsy, I do not
know.
Nevertheless, the witness reiterated his opinion that Nurse
Kuney had adhered to the appropriate standard of care.
Dr. Feore was the defendants' only expert witness on
causation and the last witness to testify at trial. After his
testimony, the court recessed for the evening. The following
morning, when the court met with counsel to consider jury
instructions, plaintiff's counsel asked for a curative
instruction to caution the jury to disregard the findings
contained in the article to which he had objected, on the
ground that no foundation had been laid for its admission as
substantive evidence. The court refused the curative
instruction, observing that the request came too late. In
final argument, defense counsel read to the jury the article
objected to by the plaintiff, displayed it on a projected
slide, and said: "This is all in the literature. I'm not
making this up. It's not a suspicion."
7
The jury returned a verdict for the defendants and we
awarded the plaintiff an appeal.
Analysis
Code § 8.01-401.1 was amended in 1994 to add the
following paragraph:
To the extent called to the attention of an
expert witness upon cross-examination or relied upon
by the expert witness 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 by stipulation
shall not be excluded as hearsay. If admitted, the
statements may be read into evidence but may not be
received as exhibits. If the statements are to be
introduced through an expert witness upon direct
examination, copies of the statements shall be
provided to opposing parties thirty days prior to
trial unless otherwise ordered by the court.
We interpreted this paragraph in Weinberg v. Given, 252
Va. 221, 476 S.E.2d 502 (1996), in which we held that the
General Assembly had, in enacting it, made a substantive
change in the law of hearsay, permitting the reading of
learned treatises to the fact-finder as substantive evidence
"in certain limited instances" and "provided no other
evidentiary rule prohibits such admission." Id. at 226, 476
S.E.2d at 504. In Weinberg, we quoted our earlier decision in
McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989), in which,
applying the former statute in the light of the common-law
rules against hearsay, we held that an expert witness could
8
not express the opinions of other physicians who were not
available for cross-examination:
The admission of hearsay expert opinion without the
testing safeguard of cross-examination is fraught
with overwhelming unfairness to the opposing party.
No litigant in our judicial system is required to
contend with the opinions of absent 'experts' whose
qualifications have not been established to the
satisfaction of the court, whose demeanor cannot be
observed by the trier of fact, and whose
pronouncements are immune from cross-examination.
Weinberg, 252 Va. at 225, 476 S.E.2d at 503 (quoting McMunn,
237 Va. at 566, 379 S.E.2d at 912.)
In enacting the 1994 amendment to Code § 8.01-401.1, the
General Assembly was clearly aware of those dangers and
sought to avoid them by inserting two preconditions to the
admission of hearsay expert opinions as substantive evidence
on direct examination: First, the testifying witness must
have "relied upon" the statements contained in the published
treatises; second, the statements must be established as "a
reliable authority" by testimony or by stipulation. As we
said recently in construing this same paragraph of Code
§ 8.01-401.1, "we must give effect to the legislature's
intention as expressed by the language used in the statute
unless a literal interpretation of the language would result
in a manifest absurdity." Budd v. Punyanitya, 273 Va. 583,
591, 643 S.E.2d 180, 184 (2007)(citing Boynton v. Kilgore,
271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006); Williams v.
9
Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003);
and Woods v. Mendez, 265 Va. 68, 74-75, 574 S.E.2d 263, 266
(2003)). When the language of a statute is unambiguous, we
are bound by the plain meaning of that language. Campbell v.
Harmon, 271 Va. 590, 597-98, 628 S.E.2d 308, 311-12 (2006);
Virginia Polytechnic Inst. & State Univ. v. Interactive
Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006).
By inserting those qualifications, the General Assembly
insured that the testifying witness fully vouched for the
opinions of the absent authors of the articles and was
prepared to withstand the test of cross-examination on the
truthfulness and accuracy of their statements. If the
testifying witness does not, based upon his own knowledge and
expertise, fully accept the views of the absent author, but
simply reads them into the record as holy writ, the opposing
party is subjected to the "overwhelming unfairness" we
discussed in McMunn. 4
4
An example of this occurred in the present case. In Dr.
Feore's direct examination, defense counsel read from an
article discussing the pounds of pressure exerted by maternal
forces of labor. Asked if he agreed with the article, the
witness replied: "It does affect my opinion, but these people
are using some engineering processes to determine these
things. I'm not an engineer. But numbers like that have been
quoted, so I have to believe it." No engineering testimony
was offered, so these opinions were immune from the test of
cross-examination.
10
"Statutes in derogation of the common law are to be
strictly construed and not to be enlarged in their operation
by construction beyond their express terms." Isbell v.
Commonwealth, 273 Va. 605, 613, 644 S.E.2d 72, 75 (2007); see
also Fruiterman v. Waziri, 259 Va. 540, 544, 525 S.E.2d 552,
554 (2000) and Schwartz v. Brownlee, 253 Va. 159, 166, 482
S.E.2d 827, 831 (1997). We therefore interpret the 1994
amendment to Code § 8.01-401.1 as a relaxation of the common-
law rules against hearsay only to the limited extent provided
by the express statutory terms. So construed, the
precondition that the testifying witness must have "relied
upon" the published article before it may be read into
evidence does not mean that he accepts it only partially and
is unwilling fully to subscribe to its views. 5 The statutory
standard is not met by an expert's testimony that he relied
upon it only to use "to talk to this jury," as the testifying
witness did in the present case. The statutory term means
that the witness must testify that he relied on the article in
forming his opinion, which is consistent with the views
5
As noted above, during Dr. Feore's direct examination,
defense counsel asked him whether he agreed with the following
statement contained in one of the articles to which the
plaintiff had objected: "[M]aternal propulsive forces are
responsible for the injury leading to Erb's palsy." Dr. Feore
responded: "I would use the word[s] 'could be' responsible."
(Emphasis added.)
11
expressed by the absent author. Any enlargement of the
statutory limitations leads to the evils mentioned in McMunn
and Weinberg, which the General Assembly clearly sought to
avoid.
Viewed by that standard, an insufficient foundation was
laid for the reading of the articles objected to. Dr. Feore
was candidly uncertain as to causation, and was unable to
choose between two possible causes provided by the other
evidence: Excessive traction on the child's head at birth or
maternal propulsive forces. 6 Nevertheless, the defense was
allowed to read to the jury opinions of absent authors to the
effect that maternal propulsive forces were the cause of Erb's
palsy, to the exclusion of all other causes, to display the
articles on projected slides, and to argue that opinion to the
jury as a fact in evidence. No expert witness testified to
that view, the jury was unable to see and hear the author who
expressed it, and the plaintiff was, of course, unable to
subject the opinion to the test of cross-examination.
We do not agree with the circuit court's conclusion that
the plaintiff's request for a cautionary instruction came too
late. Plaintiff's counsel noted an objection when the defense
6
Some of the literature read to the jury mentioned
uterine malformation as a third possible cause of Erb's Palsy,
but no witness expressed the opinion that such a condition
existed in the present case.
12
first attempted to introduce the articles. The defense
asserted that Dr. Feore would testify to the conclusion
expressed in the articles. The court admitted the articles
conditioned upon Dr. Feore's subsequently doing so and stated,
"I'll allow the question and give a cautionary instruction if
Dr. Feore doesn't testify to that." Plaintiff's counsel could
not determine whether Dr. Feore would indeed endorse the views
expressed in the article (thus changing the opinion he had
expressed in his deposition) until his testimony was completed
at trial. When Dr. Feore failed to endorse the view of the
author of the article, plaintiff's counsel had every reason to
expect that the court would grant the cautionary instruction
that had been promised in just that eventuality. Counsel
reiterated his request for the instruction at the first
opportunity after Dr. Feore's testimony was completed. 7
Conclusion
7
The reliance of the defense on our recent decision in
Bitar v. Rahman, 272 Va. 130, 630 S.E.2d 319 (2006), in this
respect, is misplaced. There, we found an objection to the
admissibility of expert testimony to be too late when it was
first made after the witness had completed his testimony and
left the trial. As we pointed out in Bitar, if an objection
is made when the objectionable evidence is first offered, as
was done here, a motion to strike it made at the end of the
offering party's case is timely. Further, a motion to strike
is timely when made after a witness has completed his
testimony if his reliance on unfounded assumptions only then
becomes clear. Id. at 140, 630 S.E.2d at 324-25.
13
For the reasons stated, we conclude that the circuit
court erred in admitting the opinions contained in published
medical literature without an adequate foundation as required
by Code § 8.01-401.1.
Because we cannot determine to what extent the erroneous
admission of the hearsay opinions stated in the published
articles may have affected the verdict, we will reverse the
judgment appealed from and remand the case for a new trial
consistent with this opinion.
Reversed and remanded.
14