United States: Massachusetts Supreme Judicial Court Reinforces The Standard For Detailed And Complete Expert Disclosures And Clarifies The "Learned Treatise" Exception To The Hearsay Rule

Massachusetts has made much ado about expert disclosures in recent years, even going so far as to implement the still "newish" Superior Court Rule 30B, which requires experts to sign party disclosures of the facts, opinions and bases about which the expert is expected to testify at trial. On September 10, 2015, the fundamentals of these all-important disclosures took center stage again.

In Lynn Kace, Administratrix v. Ivan Liang, M.D., Massachusetts Supreme Judicial Ct., No. 11827, slip op. (September 10, 2015), the Court issued a strong reminder to practitioners about the obligation to clearly, accurately and fully disclose all of the expert opinions to which an expert will testify at trial, along with a summary of the grounds on which those opinions are based. The Court's opinion also includes what amounts to a crash-course in getting a scientific book, article, periodical or other publication to qualify under the "learned treatise" exception to the hearsay rule.


In a wrongful death action based in medical malpractice, the defendant physician raised two main issues in his appeal from a judgment in favor of the plaintiff: (1) whether some of the plaintiff's expert's testimony should have been precluded/stricken for failure to adequately disclose it prior to trial and (2) whether certain written medical materials, in this case website articles used by plaintiff's counsel during his examination of the defendant, qualified as a published treatise or equivalent within the meaning of the "learned treatise" exception to the hearsay rule.

Specifically, the defendant argued that the trial judge abused her discretion in allowing the plaintiff's expert to opine that the brevity of the defendant's medical exam of the now-deceased patient fell below the applicable standard of care. The defendant argued that because no such deviation of the standard of care was mentioned in the plaintiff's expert's disclosures, the plaintiff had not complied with the obligations imposed by applicable rules of civil procedure. Massachusetts Rule of Civil Procedure 26(b)(4)(A)(i) requires the disclosure of the substance of and grounds for the opinions of an expert witness.

The defendant also appealed with respect to plaintiff's counsel's use of Internet printouts during his cross-examination of the defendant physician. The printouts were from websites of two medical facilities, both of which listed symptoms of myocarditis, the condition alleged to have gone undiagnosed and from which the patient died. The defendant did not testify as an expert but rather as a party witness.

Massachusetts Guide to Evidence, Section 803(18)(B) allows for the cross-examination of expert witnesses regarding "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." Since the defendant did not testify as an expert and did not endorse the printed website articles or their unknown authors as "reliable authority," defendant argued that the printouts failed to qualify as a "learned treatise" and that their use at trial was impermissible hearsay. The defendant further argued that the printouts could not suffice as published treatises since they merely contained lists of symptoms, were undated, were not attributed to any specific author and were published for the public rather than for other professionals.


Although the Court agreed with the defendant on several key points, it affirmed the judgment in favor of the plaintiff, citing a lack of material prejudice suffered by the defendant. For this reason, focus is best placed on the Court's discussion of the issues and arguments raised, rather than its ultimate decision.

The Court determined that the plaintiff's expert's disclosures satisfied the basic requirements of Rule 26; however, the Court was dismayed at the lack of clarity and completeness and went so far as to chastise plaintiff's counsel for "inappropriately" using the expert's testimony. In concluding that the trial court judge did not abuse her discretion by allowing the plaintiff's expert to opine that the few minutes the defendant took to examine the patient was a deviation from the applicable standard of care, the Court noted that the timing of the defendant's examination of the patient was mentioned in the plaintiff's disclosure in a general sense.

The Court explained that the duration of the defendant's examination of the patient was inherently part of the facts of the case and that those facts were known (through sufficient disclosures) to have been used by the expert in developing his opinion that the defendant deviated from the standard of care when he failed to recognize and appreciate the signs and symptoms of myocarditis. Nonetheless, the Court referred to the plaintiff's failure to explicitly disclose the opinion about exam duration as "troubling." It was also noted that plaintiff's counsel's attempts to turn the exam duration opinion into a separate and therefore undisclosed departure from the standard of care should not have been permitted.

The defendant's arguments relating to the Internet web printouts were given full credence. The Court concluded that the printouts were not "learned treatises" and were not demonstrated to be "reliable" by an expert witness on cross-examination and therefore constituted inadmissible hearsay.


While the Court appears to acknowledge that not every single aspect of an expert's expected testimony can be captured in a disclosure, its opinion underscores the necessity for a detailed and explicit summary. Anything less comes with a risk of preclusion of all or part of an expert's testimony.

The analysis of the learned treatise exception to the hearsay rule in this case involved Internet printouts; however, the same scrutiny and procedure apply to any writing, article, pamphlet, book, periodical or the like.

It should be made clear that the Court's reminders, guidelines and instructions in this case are not meant to be limited to cases of medical malpractice and instead should be employed in every case and at every trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.