JOHN MARK BROWN, INDIVIDUALLY; STACY MARIA VALDIVIA BROWN, INDIVIDUALLY; AND JOHN MARK BROWN AND STACY MARIA VALDIVIA BROWN, AS PARENTS OF AND NEXT FRIENDS TO MATTHEW STEPHEN BROWN, A MINOR, AND LINSEY MARIE BROWN, A MINOR, APPELLANTS,
v.
CRANE, PHILLIPS, THOMAS & METTS, P.A., D/B/A TAMPA OBSTETRICS AND GYNECOLOGY, A FLORIDA CORPORATION; RICHARD E. CRANE, M.D.; AND N. BYRON METIS, M.D., APPELLEES
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In this medical malpractice appeal arising from injuries sustained by twins during delivery, the Florida District Court of Appeal reversed the trial court's judgment against the parents because the trial court erred in permitting defense counsel to read passages from a medical textbook to cross-examine the plaintiffs' expert witness without first establishing the textbook's authoritativeness as required by Florida Statute § 90.706.
The court held that it was error to permit the defense attorney to read portions of the medical text to the jury during cross-examination because Dr. Katz was unfamiliar with the chapter and did not recognize the text as authoritative, and the defendants failed to independently establish the authoritativeness of the author or text. The error was not harmless and required reversal.
[1] Statements in a published treatise may be used in cross-examination of an expert witness only if the expert recognizes the author or treatise as authoritative, or if the…
[2] A trial court errs by permitting defense counsel to read passages from a medical textbook in the presence of the jury during cross-examination of an expert witness who ha…
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Join FLexlaw to unlock all legal intelligence“Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.”
Statutory framework governing use of medical literature in expert witness cross-examination under Florida Statute § 90.706
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Join FLexlaw to unlock all legal intelligenceJohn and Stacy Brown sued doctors Crane and Metis and their professional association for negligence in the delivery of their twin children, Matthew an…
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PARKER, Judge.
John Brown and Stacy Brown, the plaintiffs, appeal a final judgment entered for the defendants, Crane, Phillips, Thomas & Metts, P.A., Dr. Crane, and Dr. Metis, in this medical malpractice action. The Browns, in their individual capacities and for their two minor twin children, sued the doctors and the professional association, alleging negligence in the events surrounding the delivery of their twins, Matthew and Linsey, which resulted in brain damage and central nervous system damage to the twins. The Browns allege that three separate rulings during trial require reversal. We agree with their position concerning the defense counsel’s cross-examination of an expert witness and reverse the final judgment.
When the attorney for the defendants cross-examined one of the Browns’ expert witnesses, the trial court, over the plaintiffs’ objections, permitted the defense attorney to read passages from a chapter in a medical textbook in the presence of the jury. The expert, Dr. Katz, stated that he had not read that chapter, even though Dr. Katz himself had authored another chapter about a different subject matter in the same book. Dr. Katz testified that he did not recognize any entire book as being authoritative.
Section 90.706, Florida Statutes (1987) provides:
Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter. We conclude that it was error to permit the defense attorney to read portions of a medical text in the presence of the jury while Dr. Katz was under cross-examination. Dr. Katz was unfamiliar with the chapter and did not recognize the text as being authoritative. Further, the defendants failed to establish independently the authoritativeness of the author or the text.
It is settled by statute, case law, and treatises, that statements contained in medical literature cannot be used to cross-examine a witness unless the literature is established to be a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.
Call v. Tirone, 522 So. 2d 538, 534 (Fla. 3d DCA 1988) (citations omitted). From the record before this court, we cannot say this error was harmless.
Reversed and remanded for proceedings consistent with this opinion.
RYDER, A.C.J., and LEHAN, J., concur.
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Kirkpatrick v. Dale Wolford, D.O. & Dale Wolford, D.O., P.A., 704 So. 2d 708 (Fla. 5th DCA 1998)…used to bolster a party’s own witness's testimony because it is hearsay if used as substantive evidence but allowing the use of an ACOG bulletin on cross-examination of the opposing party's witnesses); Brown v. Crane, Phillips, Thomas & Metis, P.A., 585 So. 2d 947, 948 (Fla. 2d DCA 1991) (finding error in allowing attorney to read portions of [*710] medical text aloud during cross-examination where expert did not acknowledge its authoritativeness and proponent "failed to establish independently the authoritat…
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- Cridland v. State, 522 So. 2d 538 (Fla. 3d DCA 1988)