Meschino v. North American Drager

841 F.2d 429 (1st Cir. 1988)

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Nature of the Case

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Facts

P was anesthetized on the operating table for a surgical procedure. P suffered an episode of cardiac arrest due to an insufficient oxygen supply, resulting in damage to her brain. P was anesthetized on the operating table for a surgical procedure. P suffered an episode of cardiac arrest due to an insufficient oxygen supply, resulting in damage to her brain. Woitkowski (D), a registered anesthetic nurse, inserted a 'PEEP' valve manufactured by Boehringer (D) into the supply side of P's ventilation circuit instead of into the exhaust side. This was just the beginning of a number of serious errors by her, and the anesthesiologist, Dr. Fleet (D). The medical defendants settled out during trial, and the trial continued against the corporate Ds and others. The issue against the remaining Ds was whether the medical defendants' faults were, a superseding cause. P sought to introduce a December 1985 article entitled 'PEEP Valves' against Boehringer (D), and a July 1981 article entitled 'Ventilation Alarms' against Drager (D). The dispute over Rule 803(18), whether the article had been 'established as a reliable authority.' With respect to Boehringer, P did not even get off the ground. Passing the question of its sufficiency, the testimony on which she relied had been given by her expert, a Dr. Raemer, two days before in connection with another article, and was expressly limited to NAD. Nor do we accept P’s contention of admissibility to impeach the witness than on the stand regardless of whether it had been qualified under the rule. Fed. R. Evid. 803, advisory committee's notes, Exception (18). D's expert labeled the article as “spotty.” The court excluded the evidence The court directed a verdict in favor of Bay State (D) and the jury answered special questions favorably to the other two Ds. The jury had concluded that Ds were free of fault. P appealed contending in part that the contents of all issues of a periodical may be qualified wholesale under Rule 803(18) by testimony that the magazine was highly regarded.