Present: All the Justices
ROBERT A. MAY, EXECUTOR OF THE ESTATE
OF VIRGIL R. MAY, M.D., DECEASED
OPINION BY
v. Record No. 012560 JUSTICE LAWRENCE L. KOONTZ, JR.
September 13, 2002
ANTHONY C. CARUSO, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
In this appeal, we consider whether the trial court erred
in excluding certain evidence proffered by the plaintiff in a
medical malpractice action. The trial court ruled that the
plaintiff had not satisfied the requirements of the hearsay
exception for statements published in authoritative treatises
and articles contained in Code § 8.01-401.1 and, thus,
prohibited the introduction into evidence of statements
contained in certain published medical literature relied upon by
the plaintiff’s expert witness. The trial court also excluded
certain medical treatment records proffered by the plaintiff,
ruling that this evidence was cumulative of prior testimony.
Following a jury verdict for the defendant, plaintiff appealed,
assigning error to these two actions of the trial court. We
will address each issue seriatim, stating within our discussion
the relevant facts.
On September 29, 2000, Robert A. May, executor of the
estate of Virgil R. May, M.D., filed a motion for judgment
alleging that Dr. May’s death was the result of medical
malpractice. Anthony C. Caruso, M.D. and his incorporated
medical group, Cardiovascular Associates of Virginia, P.C.,
(collectively “Dr. Caruso”) were named as defendants to the
action. For purposes of our analysis of the issues presented in
this appeal, the principal allegation of the motion for judgment
was that Dr. May suffered a severe stroke and ultimately died as
a result of Dr. Caruso’s breach of the standard of care by
failing to provide anticoagulant therapy to Dr. May as part of
his course of treatment related to the implantation of a
temporary pacemaker.
Prior to trial, the executor provided Dr. Caruso with
copies of nine medical journal articles and three abstracts of
medical articles totaling fifty-one pages of text that the
executor had identified in his designation of medical literature
relied upon by his expert witness, Dr. Albert Waldo. Dr. Caruso
filed a motion in limine to exclude the introduction of any
statements contained in this literature. In that motion, he
asserted that the executor had failed to identify, as required
by Code § 8.01-401.1, the specific statements Dr. Waldo had
relied upon to reach his expert opinion that Dr. Caruso had
breached the applicable standard of care. The executor
contended, and continues to contend on appeal, that the
requirements of Code § 8.01-401.1 are satisfied by providing
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copies of the published literature containing the statements
relied upon by an expert witness, and that identification of
discrete, specific statements is not required. The trial court
disagreed with the executor and sustained the motion in limine.
The executor’s first two assignments of error address the
trial court’s interpretation and application of Code § 8.01-
401.1. In previously construing Code § 8.01-401.1, we held that
although this statute authorizes the admission into evidence of
an expert’s opinion that may be based in whole or in part on
inadmissible hearsay, it did not authorize the admission of any
hearsay opinion on which the expert’s opinion was based. McMunn
v. Tatum, 237 Va. 558, 566, 379 S.E.2d 908, 912 (1989); accord
Todd v. Williams, 242 Va. 178, 181, 409 S.E.2d 450, 452 (1991).
In 1994, the General Assembly amended Code § 8.01-401.1. In
relevant part, this amendment to Code § 8.01-401.1 provides:
To the extent . . . 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.
In Weinberg v. Given, 252 Va. 221, 225, 476 S.E.2d 502, 504
(1996), we held that the 1994 amendment to Code § 8.01-401.1 “is
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clear and unambiguous.” We further held that this amendment
made a substantive change in Code § 8.01-401.1 to permit, in
certain limited circumstances, the hearsay content of certain
statements contained in published and authoritative literature
to be read into the record as substantive evidence, provided no
other evidentiary rule prohibits such admission. Id. at 226,
476 S.E.2d at 504. In Weinberg, however, we were not called
upon to address any distinction the amendment makes between the
admissible statements and the “treatises, periodicals or
pamphlets” in which the statements are contained. The present
appeal requires that we do so.
Pertinent to the procedural context in which the issue
arose in this case, the clear and unambiguous language of the
statute limits the hearsay exception applicable to statements to
be introduced through an expert on direct examination to those
instances in which “copies of the statements” are provided to
opposing parties thirty days prior to trial or as ordered by the
trial court. Unquestionably, the statements the executor
intended to have Dr. Waldo read into the record were contained
within the copies of the complete medical articles and abstracts
provided to Dr. Caruso by the executor. As such, the provision
of these copies technically complied with the requirements of
Code § 8.01-401.1.
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The statute is equally clear, however, that mere technical
compliance with its requirements does not mandate admission of
the statements into evidence by the trial court. The statute
expressly refers to statements contained in the published
literature rather than the content of that literature in its
entirety. Moreover, the statute expressly provides that such
statements “[i]f admitted . . . may be read into evidence but
may not be received as exhibits.” (Emphasis added). The
General Assembly’s use of this conditional language clearly
indicates its intent that the decision whether to admit such
evidence is committed to the sound discretion of the trial
court. Such discretion is particularly appropriate in light of
the apparent purpose of limiting the hearsay exception to ensure
notice to the opposing party and thereby safeguard the opposing
party’s right to meaningful cross-examination of the expert
witness. See McMunn, 237 Va. at 566, 379 S.E.2d at 912.
A trial court’s exercise of its discretion in determining
whether to admit or exclude evidence will not be overturned on
appeal absent evidence that the trial court abused that
discretion. John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696
(2002). Here, we cannot say that the trial court abused its
discretion in determining that the executor failed to adequately
identify the statements he would seek to introduce into evidence
through Dr. Waldo’s testimony. Accordingly, we hold that the
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trial court did not err in prohibiting the introduction of any
of the statements contained in the literature provided by the
executor to Dr. Caruso.
During trial, the executor proffered as an exhibit over 300
pages of medical records detailing Dr. May’s treatment and test
results. The trial court refused to admit the exhibit into
evidence, ruling that it was cumulative of prior testimony. On
appeal, the executor contends in his third assignment of error
that the trial court abused its discretion in refusing to admit
this exhibit because “[i]t was vital for the jury to have this
. . . exhibit to assess Dr. Caruso’s credibility.” We disagree.
Assuming, without deciding, that the entire content of the
exhibit was relevant to some contested issue before the jury,
the exclusion by the trial court of relevant evidence does not
constitute reversible error if that evidence is merely
cumulative. Pace v. Richmond, 231 Va. 216, 227, 343 S.E.2d 59,
65 (1986); Eason v. Eason, 203 Va. 246, 254, 123 S.E.2d 361, 367
(1962). “It is well settled in this jurisdiction that the
exclusion of evidence favorable to a party in a civil action on
the ground that it is repetitious and cumulative is a matter
within the sound discretion of the trial court and that its
ruling is entitled on review to a presumption of correctness.”
Harrison v. Commonwealth, 244 Va. 576, 585, 423 S.E.2d 160, 165
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(1992); accord Philip Morris Incorporated v. Emerson, 235 Va.
380, 410, 368 S.E.2d 268, 284 (1988).
Applying that standard, we cannot say that the trial court
abused its discretion in excluding the medical record evidence
proffered by the executor. In light of the testimony of Dr.
May’s initial treating physician, Dr. Alston Blount, and the
executor’s other witnesses, the medical records would not have
substantially assisted the jury in weighing the credibility of
Dr. Caruso or otherwise to resolve any disputed issue of fact.
Moreover, the sheer volume of the exhibit potentially could have
overwhelmed and confused the jury. Accordingly, we hold that
the trial court did not err in refusing to admit the medical
records into evidence as an exhibit.
For these reasons, we will affirm the judgment of the trial
court.
Affirmed.
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