 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Butler v. Naylor9/10/1999
ed, stating lack of foundation. Dr. Naylor then laid additional foundation and made a second motion to have the exhibit admitted. Butler objected again, this time citing rule 803(18). The court overruled the objection and allowed the page into evidence for illustrative purposes only.
Utah Rule of Evidence 803(18) creates an exception to the hearsay rule for learned treatises.
It states that even if the declarant is available as a witness:
(18) 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 the 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.
When rule 803(18) is construed according to its plain language, the trial court did err in admitting the Zollinger excerpt as an exhibit. See Robertson, 932 P.2d at 1228. The rule prohibits the admission of published treatises as exhibits.
In reference to rule 803(18), Professor Weinstein states:
o insure that the jurors will not be unduly impressed by the treatise, and that they will not use the text as a starting point for Conclusions untested by expert testimony, the last paragraph bars the admission of treatises as exhibits so that they cannot be taken into the jury room. J. Weinstein & M. Berger, 4 Weinstein's Evidence, para. 803(18) (addressing Federal Rule of Evidence 803(18)).
Thus, the trial court erred by allowing the page to be admitted into evidence as an exhibit and by allowing it to be taken to the jury room for deliberation.
Having determined that the trial court erred, we must next determine whether the error was harmful. An error is harmful only where "the likelihood of a different outcome is sufficiently high that it undermines our confidence in the verdict." Robertson, 932 P.2d at 1227 (citing State v. Hamilton, 827 P.2d 232, 240 (Utah 1992)).
In the absence of the Zollinger text, the jury could have relied upon the testimony of several doctors in finding that Butler's problems with urgency and incontinence were unrelated to the surgery Dr. Naylor had performed. The jury heard the testimony of Dr. McGreevy, who opined that the surgery was performed properly and complied with accepted medical techniques and the appropriate standard of care. Additionally, the jury heard the testimony of Dr. Martin Arena, a board certified internist, who examined Butler at east five times following the surgery. Dr. Arena stated that Butler did not make any claims of urgency or incontinence to him during those examinations. Furthermore, Drs. Kathleen Boynton and Stewart Ellington, both gastroenterologists, independently examined Butler and stated that they were unable to determine the cause of her incontinence but could not link the problems to the surgery. Dr. E. Douglas Slawson, a general surgeon, testified that his examination of Butler showed that the surgery had healed properly and that there was no relationship between it and Butler's incontinence. Drs. J. Preston Hughes and Robert Spencer, both board certified colorectal surgeons, independently examined Butler and each found that she had normal sphincter tone and assigned her problems with incontinence to anal problems which were unrelated to the surgery. Dr. John Leigh, a board certified general surgeon, who performed anoplasty surgery on Butler to extend the length of her anal canal in hopes of relievi
Page 1 2 3 4 5 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|