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Peat v. University Hospitals Health System Bedford Medical Center2/3/2005
the hearsay rule: that videotapes were "nothing more than a contemporary variant of a published treatise, periodical, or pamphlet." See Costantino v. Herzog (C.A.2 2000), 203 F.3d 164, 171; Loven v. State (Tex.Ct.App.1992), 831 S.W.2d 387, 397. However, those videotapes are distinguishable because they were produced and released by medical organizations to the medical community and used for educational purposes. The videotapes were not created by a university solely for that university, as in the instant case. Instead, they were created by various organizations and circulated to the medical community.
{ } Therefore, because we find that the Guidelines are not a learned treatise, the trial court erred when it granted Peat a new trial on the basis that the Guidelines could be used to impeach Dr. Eckerline. Accordingly, Kranitz's first assignment of error is sustained.
{ } The first assignment of error having been sustained, the second assignment is moot. The judgment is reversed, and the jury verdict is reinstated.
Judgment reversed.
DIANE KARPINSKI, J., concurs.
JAMES J. SWEENEY, P.J., dissents.
JAMES J. SWEENEY, P.J., dissenting.
{ } I respectfully dissent. I believe that the majority has too narrowly interpreted the definition of what should be considered published for purposes of Evid.R. 706. I think it misses the point to consider the Guidelines unpublished simply on the theory that they are not circulated or distributed to the general public. Defendant's expert identified the University of Kentucky, Department of Emergency Medicine, Evaluation and Treatment Guidelines ("Guidelines") as one of his "publications" on his curriculum vitae ("CV"). These Guidelines certainly were or are circulated for use and reference at least at the University of Kentucky's Department of Medicine, if not the medical community at large. Otherwise, what was the purpose of their creation?
{ } In addition to the foregoing, I believe that for purposes of this litigation the Guidelines were published even under the definition cited by the majority. The Guidelines came to plaintiff's attention because defendant produced their expert's CV.
The defendant's expert published the Guidelines by circulating his CV, which lists them.
{ } Independent of Evid.R. 706, I believe it is an abuse of discretion to prohibit a party from cross-examining an expert witness about information the expert identifies as a credential in his or her own resume regardless of whether it is considered a learned treatise under Evid.R. 706. The defendant's expert must intend those reviewing his CV to consider the Guidelines relevant to his credentials as an expert. Examination of the expert concerning his identified credentials is relevant to the expert's overall credibility. For the foregoing reasons, I would affirm the judgment of the trial court.
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