{ "id": 6138022, "name": "Jay B. BRESLAU and Kerri Steele Breslau, Personal Representatives for the Estate of Kaitlyn Nicole Breslau, Deceased, and as the Natural Guardians and Next Friends of Jake Alexander Breslau and Jessica Danielle Breslau v. Mitchell S. McALISTER, M.D., and Northwest Arkansas Clinic for Women", "name_abbreviation": "Breslau v. McAlister", "decision_date": "2000-12-13", "docket_number": "CA 00-445", "first_page": "124", "last_page": "134", "citations": [ { "type": "official", "cite": "72 Ark. App. 124" }, { "type": "parallel", "cite": "35 S.W.3d 321" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "67 Ark. App. 297", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140244 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0297-01" ] }, { "cite": "332 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377661 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0466-01" ] }, { "cite": "246 Ark. 1151", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604133 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/1151-01" ] }, { "cite": "337 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240920 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0125-01" ] }, { "cite": "333 Ark. 603", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703805 ], "weight": 4, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0603-01" ] }, { "cite": "335 Ark. 470", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862766 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0470-01" ] }, { "cite": "340 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365304 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0530-01" ] } ], "analysis": { "cardinality": 879, "char_count": 20307, "ocr_confidence": 0.764, "pagerank": { "raw": 6.36863391241863e-08, "percentile": 0.3902399329072853 }, "sha256": "33cfb9bc2e9a16944287fe257b87a4412a723a51c2285a837e97f073c9989904", "simhash": "1:1f2b944eaece0dbb", "word_count": 3288 }, "last_updated": "2023-07-14T20:58:14.113773+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bird, Koonce, Crabtree, and Roaf, JJ.', agree.", "GRIFFEN, J., dissents." ], "parties": [ "Jay B. BRESLAU and Kerri Steele Breslau, Personal Representatives for the Estate of Kaitlyn Nicole Breslau, Deceased, and as the Natural Guardians and Next Friends of Jake Alexander Breslau and Jessica Danielle Breslau v. Mitchell S. McALISTER, M.D., and Northwest Arkansas Clinic for Women" ], "opinions": [ { "text": "OHN F. STROUD, Jr., Judge.\nThis 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\u2019s twin, Jessica, was born Dr. McAlister failed to properly monitor Kaitlyn\u2019s status, failed to detect Kaidyn\u2019s 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.\nFor 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).\nEven if we were to address this issue on its merits, however, we would find that appellants\u2019 reliance upon Rule 803(18) is misplaced. Rule 803 lists several exceptions to the hearsay rule. Subsection (18) provides:\n(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.\n(Emphasis added.) The gist of appellants\u2019 argument is that the enlarged format of the excerpted portions of the medical treatises and periodicals somehow converted them into \u201cexhibits,\u201d 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:\nThe 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.\nThe 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\u2019s discretion in allowing defense counsel to use the medical treatises and periodicals in this fashion.\nFor their second point of appeal, appellants contend that the trial court abused its discretion when it first ruled that Dr. Robert Arrington\u2019s opinion testimony would be excluded and then changed its decision and ruled that his deposition could be admitted in its entirety. We disagree.\nAppellants\u2019 one-page argument follows in pertinent part:\nThe 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\u2019 contention that this ruhng was well within the Court\u2019s 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\u2019s deposition should not be received into evidence because of a violation of the court\u2019s ruhng on expert opinion testimony.\nBecause the Court was aware that appellant intended to use Dr. Arrington\u2019s deposition on Tuesday, October 5, the reversal of his original ruling was prejudicial and most especially was prejudicial at that point in time.\nDr. Arrington was the neonatologist who treated Kaitlyn when she was transferred to Arkansas Children\u2019s 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 \u201cwas consistent with something that happened more remote from delivery than the last two hours of labor prior to delivery.\u201d He further explained what he meant by questionable intrauterine insult, a term that appeared in the \u201cimpression\u201d portion of the medical records:\nWe put questionable intrauterine insult because we weren\u2019t sure what, what had happened. Intrauterine refers to it happened sometime in \u00fatero. . . . That\u2019s a general term, intrauterine, meaning that we didn\u2019t know for sure what happened, but it happened sometime before birth.\nFollowing the deposition, appellants moved in limine to strike Dr. Arrington\u2019s cross-examination testimony as to the causation and timing of the injury, i.e., that the child\u2019s brain damage occurred prior to the mother\u2019s 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.\nThe trial court heard the motion on October 1, 1999, prior to the start of trial on October 4, 1999. Th\u00e9 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:\nIt is the Court\u2019s opinion that the defense has not turned plaintiffs\u2019 fact witness into their expert witness. Defense has the right under the Rules of Evidence and Procedure to wide latitude on cross examination. Defense has the right to cross-examine the witness on the diagnosis. Dr. Arrington states on direct examination that it is before a certain time and then goes into more precise timing. Contrary to what I indicated last Friday based on statements made to me by counsel, it was my intention to strike all kinds of opinion testimony on either side. I find in reality this is fact testimony of what he determined as his diagnosis back at the time he treated the child at Arkansas Children\u2019s Hospital.\nIt is also important to note that Dr. Arrington was held in abeyance in case he was needed to testify live at the trial. Thus, appellants had the opportunity to try to avoid the problems about which they complain on appeal by calling Dr. Arrington as a live witness and reformulating their direct examination of him in an attempt to avoid opening the door for the type of cross-examination that occurred during the deposition. Appellants did not call Dr. Arrington, but rather introduced his deposition testimony into evidence. Moreover, the timing of the trial court\u2019s change of position may have been inconvenient for appellants, but the problem could have been addressed by asking for a continuance, which they did not do. Finally, trial courts are afforded considerable discretion in ruling on such matters, regardless of whether it is viewed as a ruling involving discovery deadlines (See generally Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998)), introduction of evidence (Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999)), or proper cross-examination (Clark v. State, 246 Ark. 1151, 442 S.W.2d 225 (1969)), and we will not reverse in the absence of a showing of abuse of that discretion. Appellants have not convinced us that the trial court abused its discretion in allowing this deposition testimony.\nFor their final point of appeal, appellants contend that the \u201ctrial court erred in allowing Dr. Bruce Berg to testify outside his area of expertise and to offer expert opinions that were not to a reasonable degree of medical certainty on the issue of whether dead tissue, debris, or blood clots from the placenta in \u00fatero can travel by fetal circulation to the brain and on the issue whether appellees did or failed to do something in labor and delivery that caused injury to Kaitlyn Breslau.\u201d We find no reversible error.\nDr. Berg testified that he is a professor of child neurology and pediatrics; that he is board certified by the American Board of Pediatrics, board certified by the American Board of Psychiatry and Neurology in adult neurology, and board certified by the American Board of Psychiatry and Neurology in neurology with special competence in child neurology; that he authored the book, Principles of Child Neurology; and that he is involved in the practice of neonatal neurology at the University of California at San Francisco. He stated that he has training, experience, and education regarding the cause and timing of an injury to a child\u2019s brain. He expressed his \u201copinion within a reasonable degree of medical certainty that the injury to Kaitlyn Breslau\u2019s brain occurred before labor had begun,\u201d and that it had \u201cnothing to do with the perinatal period, which involves labor and delivery time.\u201d\nWith respect to the issue raised by appellant, the following colloquy occurred at trial:\nDefense COUNSEL: Can you tell the ladies and gentlemen of the jury can something occur in \u00fatero with fetal circulation that can transmit a clot, debris, lesion to a brain?\nPlaintiff\u2019s Counsel: Objection on the basis that this opinion is not within Dr. Berg\u2019s area of expertise.\nDefense Counsel: I think he can talk about neurologically what can occur.\nThe Court: You need to ask him if he feels qualified in that area to give an opinion on it.\nDr. Berg: It is hard to know what you mean by qualified to comment on how something in \u00fatero can be transmitted through fetal circulation to a child\u2019s brain. I\u2019ve seen it. Every doctor knows about the anatomy of an infant umbilical cord, so in that regard, yes, I\u2019ve seen it. Most injuries that would produce asphyxia to a child\u2019s brain occur more commonly before delivery.\nDefense Counsel: Dr. Berg, do you have' an opinion within a reasonable degree of medical certainty or within a reasonable degree of medical probability whether there is anything that my client, Dr. Mitch McAlister, did or allegedly failed to do in the management of Mrs. Breslau\u2019s labor and delivery that in your opinion caused injury to Kaitlyn Breslau?\nPlaintiff\u2019s Counsel: Objection to the lack of foundation that Dr. Berg is qualified to give an opinion in the particular area of labor and delivery.\nDefense Counsel: Dr. Berg, do you have an opinion as to whether there was anything done or failed to be done during the time period of labor and delivery that produced and caused the injury to Kaitlyn Breslau\u2019s brain?\nPlaintiff\u2019s Counsel: Same objection, your honor.\nDefense Counsel: I\u2019m talking about timing, your Honor.\nThe Court: \u25a0 I\u2019m going to overrule your objection. He has already told us about his qualifications and experience about the issue of timing, so I am going to overrule it. Go ahead.\nDr. Berg: I did not see anything that should have been done that was not done.\nCross-examination of this witness followed, during which Dr. Berg made it clear that he was not holding himself out to be an obstetrician or gynecologist. Appellant did not move to strike the doctor\u2019s testimony following cross-examination. Where a party objects to a witness\u2019s testimony for lack of foundation and lack of qualification, but does not move to strike following a cross-examination which develops these issues, any error is waived. See New Prospect Drilling Co. v. First Commercial Trust, 332 Ark. 466, 966 S.W.2d 233 (1998).\nMoreover, even if we were to address this issue on the merits, the result would be the same. Rule 702 of the Arkansas Rules of Evidence provides that \u201c[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\u201d Whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of that discretion. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999).\nHere, Dr. Berg testified that all medical doctors have expertise concerning the anatomy and function of an umbilical cord, and that the anatomy of an umbilical cord allows debris, dead tissue, and blood clots to be transmitted from the placenta to the infant. Furthermore, he testified that with respect to how something in \u00fatero can be transmitted through fetal circulation to a child\u2019s brain, he actually \u201chad seen it.\u201d Finally, with respect to Dr. Berg\u2019s testimony that he \u201cdid not see anything that should have been done that was not done\u201d during the labor and delivery process to cause Kaitlyn\u2019s brain injury, the trial court determined that he was qualified to express this opinion based upon his medical opinion as a neurologist that the brain damage occurred prior to labor and delivery. Appellants\u2019 arguments simply have not convinced us that the trial court abused its considerable discretion in allowing Dr. Berg\u2019s testimony.\nAffirmed.\nBird, Koonce, Crabtree, and Roaf, JJ.', agree.\nGRIFFEN, J., dissents.", "type": "majority", "author": "OHN F. STROUD, Jr., Judge." }, { "text": "Wendell L. Griffen, Judge,\ndissenting. Rule 803(18) of the Arkansas Rules of Evidence states:\nThe following are not excluded by the hearsay rale, even though the declarant is available as a witness:\n(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon 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 hut may not be received as exhibits. (Emphasis added.)\nI would hold that the trial court abused its discretion when it overruled appellants\u2019 objection to the appellees use of enlargements of medical treatises and periodicals during direct and cross-examination of expert witnesses. Instead of counsel for appellees merely reading the statements from the treatises into the record when he questioned witnesses, he made enlargements of the statements and displayed them during the examination and cross-examination. Although it is true that the enlargements were not received as exhibits in a formal sense, I see no practical difference between receiving the enlargements as exhibits and what the trial court allowed.\nAppellees\u2019 argument that the use of an enlarged and emphasized statement from a learned treatise does not differ from use of enlarged deposition testimony during cross-examination is unpersuasive. The rules of evidence allow all prior inconsistent statements to be introduced as substantive evidence, in addition to their use for impeachment. But that applies to prior statements by the witness, not by a third-party non-witness who is neither present nor subject to cross examination. In this case, none of the excerpts involved prior inconsistent statements by the witnesses being questioned when the enlargements were displayed to the jury.\nThe essence of Rule 803(18) is that statements contained in published treatises, periodicals, or pamphlets which have been established as reliably authoritative may be read into evidence to the extent that those statements are called to the attention of a witness during cross-examination or relied upon by the witness in direct examination. Those statements are not, however, independently admissible as evidence. But for Rule 803(18), those statements would be deemed hearsay. Rule 803(18) avoids the hearsay problem by allowing them to be read into evidence during questioning but not received for display and publication to the jury. When they are read into evidence as provided by the Rule, the contents of learned treatises merely allow the jury to assess the credibility of a witness whose opinion is either inconsistent with or contradicted by a treatise the witness has acknowledged as authoritative on the subject about which the witness has testified.\nBut when the statements are published to the jury, the focus turns from the testimony of the witness and shifts to the treatise. In the present case, the jury did not need to see the words that were enlarged and prominently displayed on placards in order to know whether witnesses were presenting consistent or contradictory testimony. The transparent reason for enlarging the excerpts from the treatises was to get the contents of the treatises before the jury as substantive evidence. The fact that the enlargements were not marked with exhibit stickers and formally admitted as evidence does not lessen the impact of publishing and prominently displaying the statements to the jury. The trial court\u2019s cautionary statement was inadequate to \u201cunring\u201d the bell after the jury read the statements.\nProof which is addressed directly to the senses of the trier of fact without interposing the testimony of witnesses is generally characterized as visual, real, or demonstrative evidence. 29A Am. Jur. 2d Evidence \u00a7 934 (1994). The enlargements did not demonstrate anything. They were not presented so that the jury could view a scene. They did not diagram, sketch, or otherwise depict a setting. The enlargements were not medicine or science. They were simply placards upon which magnified words from the treatises and periodicals were displayed. It is inaccurate to characterize the placards the same way that we treat photographs, X-ray pictures, maps, models, motion pictures, and videotapes.\nCourts should confine counsel to the terms of the rule by allowing them to read the affected statements into evidence during questioning to demonstrate that witness testimony is either in accord with or contradicts statements found in sources recognized as reliably authoritative. When counsel are allowed to publish statements from learned treatises to the jury in any other fashion, those statements essentially become proof in themselves. When that happens, what our rules intended to not be hearsay becomes, for all effective purposes, implicitly admitted hearsay.\nI respectfully dissent.", "type": "dissent", "author": "Wendell L. Griffen, Judge," } ], "attorneys": [ "Xollie Duncan, for appellants.", "Friday, Eldredge & Clark, by: Phil Malcom and Clifford W. Plunkett, for appellees." ], "corrections": "", "head_matter": "Jay B. BRESLAU and Kerri Steele Breslau, Personal Representatives for the Estate of Kaitlyn Nicole Breslau, Deceased, and as the Natural Guardians and Next Friends of Jake Alexander Breslau and Jessica Danielle Breslau v. Mitchell S. McALISTER, M.D., and Northwest Arkansas Clinic for Women\nCA 00-445\n35 S.W.3d 321\nCourt of Appeals of Arkansas Divisions II and III\nOpinion delivered December 13, 2000\nXollie Duncan, for appellants.\nFriday, Eldredge & Clark, by: Phil Malcom and Clifford W. Plunkett, for appellees." }, "file_name": "0124-01", "first_page_order": 152, "last_page_order": 162 }