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December 20, 1979


The opinion of the court was delivered by: BECHTLE


The United States Court of Appeals for the Third Circuit remanded this case so that this Court could articulate why it granted defendant's motion for a directed verdict as to plaintiff's dental malpractice claim.

 This action against an oral surgeon consisted of a dental malpractice claim and a claim that the defendant performed surgery on the plaintiff without gaining her prior informed consent. The informed consent claim was submitted to the jury, which returned a verdict in favor of the surgeon. However, the malpractice claim was not submitted to the jury because the Court ruled that the plaintiff had not produced any evidence to support her theory of liability.

 The malpractice claim was premised upon a claim of damage to the plaintiff's lingual nerve which caused her to permanently lose sensation throughout a portion of her tongue. The defendant acknowledged that the plaintiff's lingual nerve had been damaged during the extraction of her third lower-right molar but denied that he had been negligent. The plaintiff's sole theory, both at trial and on appeal, was that the defendant had negligently pierced the plaintiff's lingual plate (a bony plate proximate to the tongue). However, there was no evidence presented at trial tending to prove that the lingual plate had, in fact, been pierced. Accordingly, the Court granted the motion for a directed verdict on the ground that no evidence was produced supporting this crucial element of plaintiff's theory of causation.

 Plaintiff argued on appeal, for the first time, that excerpts from two treatises on oral surgery, which had been used by her counsel for impeachment purposes at trial, had in some way become transmuted into substantive evidence admitted into the record under Fed.R.Evid. 803(18). Plaintiff argued on appeal that these treatises fit within the hearsay exception of Fed.R.Evid. 803(18), which provides as follows:

The following are not excluded by the hearsay rule . . .
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct 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.

 (Emphasis added.)

 The two treatises relied upon by the plaintiff are: (1) Oral Surgery (3d ed.), by Kurt H. Thoma ("Thoma"); and, (2) Oral and Maxillofacial Surgery (5th ed.), by Archer ("Archer"). Defendant, called by plaintiff as on cross-examination, authenticated these volumes over objection and thereafter certain passages from Thoma and Archer were simply read To the defendant in the form of questions in the course of cross-examination while he was on the witness stand as Plaintiff's witness. The Court of Appeals was unsure whether the material read was used for impeachment purposes only or whether the plaintiff's attorney was, by this exercise, offering the treatises as substantive evidence under Rule 803(18).

 After examining the record and the notes of testimony, it is perfectly plain now, as it was in the courtroom, that the treatises were used solely for impeachment purposes and not as substantive evidence. Of course, the Court does not and did not decide whether the treatises Could have been admitted under Rule 803(18) because the Court was not asked to decide that issue. Moreover, the pretrial procedures that were utilized by the Court, as well as fundamental hornbook trial practice, require and recommend, respectively, procedures that are designed to permit the Court to make informed rulings on evidentiary matters after full review in an adversary setting. *fn1" Accordingly, the evidence used for impeachment, and never identified as required in pretrial procedures nor proffered during the trial as substantive evidence, cannot be transformed into substantive evidence through some process of jurisprudential absorption.

 It is important to fully understand in some detail from the vantage point of the trial judge the technique employed by plaintiff's counsel in the use of the treatises at the trial, as contrasted with the use that was suggested for the first time in the Court of Appeals. Plaintiff called the defendant as a hostile witness "as of cross examination." (N.T. 1-2.) After exploring certain general matters, plaintiff's counsel asked:

Do you agree with this statement: "Injury to the lingual nerve is not usually caused by the removal of a third molar, although it may occur if a tooth that erupts at the lingual surface of the jaw below the mylohyoid ridge must be removed. In ordinary cases injury of the lingual nerve would occur only by gross negligence, the slipping of a hand chisel or a lever used with uncontrolled application of excessive force."

 N.T. 1-19 (emphasis added). Defense counsel immediately objected to the manner in which his client was being impeached. Id. The Court overruled the objection on the ground that the question was "fair" questioning of a party as on cross-examination. Id. The defendant then testified:

I disagree with that statement wholeheartedly. I know it is written in Thoma's text and ...

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