Can Internet publications be reliable enough to qualify for the learned treatise exception to the hearsay rule? It is generally agreed that Wikipedia entries don’t make the cut, but what about the websites of indisputably credible healthcare institutions? In Kace v. Liang, 472 Mass. 630 (2015), the Supreme Judicial Court (SJC) addressed whether certain pages on the websites of the Mayo Clinic and Johns Hopkins Hospital would qualify. They did not, but the Court signaled that similar Internet material may qualify in some future case, provided certain foundational requirements are met.
The Learned Treatise Exception
The learned treatise exception to the hearsay rule allows authoritative texts on scientific and scholarly subjects to be used at trial during the examination of an expert witness. The rationale for the exception was described by Justice Black in Reilly v. Pinkus, 338 U.S. 269, 275 (1949), where he wrote that “it certainly is illogical, if not actually unfair, to permit witnesses to give expert opinions based on book knowledge, and then deprive the party challenging such evidence of all opportunity to interrogate them about divergent opinions expressed in other reputable books.”
Two separate learned treatise exceptions have developed in Massachusetts. The first exception, stated in G. L. 233, § 79C, and Massachusetts Guide to Evidence § 803(18)(A) (2015), permits learned treatises to be admitted in evidence in medical malpractice actions, provided that the adverse party is given thirty-days’ notice and the treatise author “is recognized in his or her profession . . . as an expert.” The second exception, adopted by the SJC in Commonwealth v. Sneed, 413 Mass. 387 (1992) and stated in Massachusetts Guide to Evidence § 803(18)(B), is not limited to medical malpractice actions and provides that:
To the extent called to the attention of an expert witness upon cross-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.
Unlike Federal Rule of Evidence 803(18), on which it is partly based, and unlike G. L. 233, § 79C, the Sneed exception is limited to the cross-examination of experts.
Kace v. Liang
In 2006, Jeffrey Kace visited a hospital emergency room with a fever, chest congestion and other symptoms. Although Kace allegedly was exhibiting symptoms of viral myocarditis (a serious heart condition), Dr. Ivan Liang sent him home with Tylenol and a prescription for antibiotics. Kace died during the night.
Kace’s estate brought a wrongful death action based on a claim of medical malpractice against Dr. Liang. On cross-examination, plaintiff’s counsel asked Dr. Liang if he was familiar with Johns Hopkins and the Mayo Clinic; of course he was. Counsel then asked Dr. Liang if he was familiar with those institutions’ website pages regarding viral myocarditis; he was not. These website pages, written for a lay audience, included lists of symptoms which Dr. Liang did not dispute were accurate, and which counsel asked Dr. Liang to read to the jury. Dr. Liang’s attorney objected, but was overruled on the grounds that the website pages went to the “standard of care.” In his closing statement, plaintiff’s counsel referred to the website pages as “studies.” The jury found that Dr. Liang had been negligent, but not grossly negligent, and awarded Kace’s estate approximately three million dollars. Dr. Liang’s appeal was transferred directly to the SJC sua sponte.
How the Exception Applies to the Internet
On appeal, the principal issue in Kace v. Liang was whether the website pages qualified as a “reliable authority” pursuant to the hearsay exception set forth in Sneed and Massachusetts Guide to Evidence § 803(18)(B). Dr. Liang argued that the pages did not qualify as reliable, notwithstanding the pedigree of the two institutions, because these particular pages were undated and without a named author. The plaintiff, on the other hand, argued in its brief that in the “internet world in which lawyers, litigants and judges all now live . . . the statements appearing in the websites of the Mayo Clinic and Johns Hopkins certainly qualify as a periodical or pamphlet on a subject of medicine, satisfying [the reliable authority] element of the rule.” Brief of Plaintiff-Appellee, p. 22.
The SJC, in an opinion written by Justice Botsford, agreed with Dr. Liang that the website pages did not qualify for the learned treatise exception under Massachusetts Guide to Evidence § 803(18)(B). The SJC first reiterated that the standard for establishing reliability depends on the context of the publication. For a publication written or compiled by a single author (e.g., a well-respected medical textbook), it is enough that the single author is established as reliable and authoritative. But with respect to periodicals (e.g., a peer-reviewed medical journal) it is not enough that the publication is considered authoritative; the author of an article must personally qualify as a reliable authority. The SJC then went on to observe that “[a]long the continuum from treatises to journals, it is readily apparent that the Johns Hopkins and Mayo Clinic Web pages are very different from a treatise and resemble far more closely articles in a journal or a periodical.” Kace v. Liang, 472 Mass. at 643. Accordingly, the individual author of each website page had to be independently reliable. But because no authors were listed on the website pages (the Mayo Clinic page, for example, was written by “staff”), it was not possible to meet this requirement. “This is not to say,” wrote Justice Botsford, “that materials published on the Internet may never qualify.” Id. at 644. Had the authors been identified and established as reliable, the website pages might have been admissible.
The Court also held that the learned treatise exception requirements stated in Sneed and Massachusetts Guide to Evidence § 803(18)(B) were not satisfied because Dr. Liang was not testifying in an expert capacity. Furthermore, the Court noted that, because the requisite notice was not given to Dr. Liang’s counsel, the exception stated in G. L. 233, § 79C and Massachusetts Guide to Evidence § 803(18)(A) was not applicable. However, the Court found that no prejudice resulted from the erroneous admission of the website pages, which were cumulative of other properly-admitted evidence, and therefore the Court let the jury verdict stand.
Based on the Court’s ruling and the authorities it cited, practitioners seeking to admit website pages as learned treatises should be prepared to lay the following foundation:
- Identify a published website about a subject of science or art;
- Establish that a specific statement on one of the website’s pages is relevant and material;
- Establish the date of publication of the website page;
- Identify the author by name;
- Establish that the author is a reliable authority. This can be accomplished by way of an admission, through expert testimony or by judicial notice.
- Finally, be prepared to establish the authenticity of the website pages; in other words, to show that these particular pages are not forgeries but are what they purport to be. The SJC recently addressed the foundational requirements for the authentication of Internet materials in Commonwealth v. Purdy, 459 Mass. 442 (2011).
David Kluft is an IP and Litigation partner at Foley Hoag LLP, and a member of the Boston Bar Journal Board of Editors.