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BRESLAU v. MCALISTER12/13/2000
This is a medical malpractice case. Appellants are the parents of the deceased child, Kaitlyn. 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 Kaitlyn'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.
[1, 2] 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 be 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.
[2, 3] 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 tha
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