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Mizell v. Glover9/3/2002
ct that credibility assessments of witnesses by judges have on subsequent juries. See Philip Morris, 141 F.Supp. 2d 320 (denying admission of a judge's statement regarding credibility of expert witness for impeachment of that expert at a subsequent trial). Although Philip Morris involved the credibility assessment of a judge and not the assessment of a jury, the jury's factual finding introduced in this case is hearsay nonetheless, and we believe, is equally prejudicial. See U.S. Steel v. Teico (finding appellants were prejudiced by the admission of a previous judge's factual opinion into a subsequent trial because appellees relied on the opinion throughout the trial and advised the jury during closing argument to use the opinion to make their own credibility determinations). As discussed, Dr. Glover's counsel told the jury in this case (incorrectly) that Dr. Marne was found "guilty of fraud" and that the jury should consider that in assessing the credibility of Dr. Marne.
We find the jury interrogatory constituted improper extrinsic evidence, the admission of which constituted reversible error. In addition, the jury interrogatory constitutes inadmissible hearsay. We reverse the Court of Appeals on this issue and remand for a new trial.
II. Medical Treatise
The Mizells argue that the trial court improperly denied admission of a chapter in a podiatric textbook, written by Dr. Glover's expert, as an exhibit at trial. We disagree.
At trial, Dr. Glover called Dr. Buckholz, a podiatrist, to testify as an expert. Dr. Buckholz testified that Dr. Glover had not breached the standard of care in his treatment of Mrs. Mizell or in his failure to diagnose RSD. The Mizells claimed Dr. Buckholz's testimony conflicted with an article he wrote cautioning podiatrists to look for the warning signs of RSD. On cross-examination, the Mizells sought to introduce the chapter from the podiatric textbook in which Dr. Buckholz's article appeared. The trial court ruled the document inadmissible, but allowed the Mizells' counsel to cross-examine Dr. Buckholz extensively about his article, reading portions of the article into the questions.
Dr. Glover argues that Rule 803(18), SCRE controls. Rule 803(18) provides that the following works are not excluded by the hearsay rule:
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. This rule is in addition to any statutory provisions on this subject. (emphasis added).
The Mizells argue the Court of Appeals erred in upholding the trial court's exclusion of the article itself. The Mizells contend that Rule 803(18), SCRE would apply if the article had been written by someone other than the witness, Dr. Buckhloz, but as it was written by Dr. Buckholz, it should have been admitted to impeach him under LaCount v. General Asbestos & Rubber Co., 184 S.C. 232, 192 S.E.2d 262 (1937).
In LaCount, this Court found the trial court committed error by not admitting scientific writings prepared by the testifying experts. However, the Court found the error to be harmless because the court permitted full cross-examination of the witnesses regarding the contents of the articles they had written. LaCount, however, does not control in this case. It was decided long before the ad
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