Kace v. Liang (Lawyers Weekly No. 10-154-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11827 LYNN KACE, administratrix,[1] vs. IVAN LIANG. Suffolk. April 6, 2015. – September 10, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Wrongful Death. Negligence, Wrongful death, Medical malpractice, Expert opinion. Medical Malpractice, Expert opinion. Evidence, Expert opinion, Learned treatise, Hearsay, Redirect examination, Cumulative evidence, Cross-examination, Medical record. Internet. Witness, Expert, Redirect examination, Cross-examination. Practice, Civil, Wrongful death, Hearsay. Civil action commenced in the Superior Court Department on October 23, 2008. The case was tried before Elizabeth M. Fahey, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Carol A. Kelly for the defendant. Adam R. Satin (Robert M. Higgins with him) for the plaintiff. John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief. 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 Internet Web sites and used during the plaintiff’s examination of the defendant did not qualify under the learned treatise exception to the hearsay rule.[2] Despite the evidentiary errors at trial, however, we further conclude that reversal of the judgment is not required because in the circumstances of this case, the errors did not result in undue prejudice […]