Court Finds Hyperbaric Surgery Articles & Manual Inadmissible Under Learned Treatise Exception

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

As the rule makes clear, in the absence of judicial notice, an expert must establish that a purported “learned treatise” is a reliable authority. And that part of the rule was the problem for the plaintiff in Lasko v. Mobile Hyperbaric Centers, LLC, 2021 WL 733768 (E.D. Ohio 2021).

According to the court in Lasko, 

Plaintiff Anna Lasko has Complex Regional Pain Syndrome (“CRPS”), which caused her to have foot pain and hypersensitivity to sound. From January through February 2017, Lasko received hyperbaric oxygen therapy for her CRPS-related foot pain at Mobile Hyperbaric Centers, LLC (“Mobile Hyperbaric”). On February 12, 2019, plaintiff Anne Lasko sued Mobile Hyperbaric, Dr. Michael Huber (the “Defendants”), and several yet unnamed parties in Cuyahoga County Court of Common Pleas….In her complaint, Lasko alleged that the Defendants discriminated against her in violation of Ohio Revised Code § 4112.02(G) and the Americans with Disabilities Act, 42 U.S.C. § 12128(b)(1)(A)(i), when: (1) staff at Mobile Hyperbaric refused to reduce the volume of a treatment room television (“TV”), change its channel, or turn it off to accommodate her hypersensitivity to sound; and (2) Dr. Huber cancelled her remaining treatments.

In response to the defendants’ motion for summary judgment, Lasko sought to introduce articles about hyperbaric surgery and a manual about hyperbaric guidelines. The court, however, found this evidence inadmissible, concluding that

The Defendants are correct that the lack of expert testimony in this case bars the admissibility of the articles and manual…that Lasko says are admissible as “learned treatises.” Statements in learned treatises are not excluded by the rule against hearsay only when: “(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.”…But Lasko has not shown that she called any expert’s (or Defendants’) attention to these materials in direct or cross-examination, pointed to an expert report relying on the materials, had any of these materials authenticated as reliable by an expert, or sought judicial notice that these materials are reliable….Lasko could have conceivably accomplished such reliance and authentication if she had used the documents in a deposition, but she did not request a deposition until the twice-extended discovery period had closed. And, although Lasko could conceivably use the documents at a trial by meeting the requirements of Fed. R. Evid. 803(18) during cross-examination, that possible future use does not satisfy the requirements for the learned treatise exception at this time….Thus, the articles and manual in (ECF Doc. 30-1 at 1-4; ECF Doc. 30-5; and ECF Doc. 30-7) are inadmissible hearsay at this time and cannot be considered as part of the Rule 56 evidence.

-CM