© 2009 The Medical-Legal News
By Rose Clifford, RN, LNCC, editor
In Heinzerling v. Goldfarb, 359 N.J.Super. 1 (2002), the court allowed a nurse, Audrey Berry, RN, MSN, to be a fact witness. The case, one of first impression, expanded the concept and role of a fact witness, but the facts on which the holding rested, and the outer limits of what a fact witness may or can do, should be kept in mind.
The holding should be applicable to other jurisdictions, however. New Jersey’s Rule of Evidence 1006 says: “The contents of voluminous writings or photographs which cannot conveniently be examined in court may be presented by a qualified witness in the form of a chart, summary, or calculation….” The Federal Rule of Evidence 1006 is nearly identical, but does not contain the words “by a qualified witness.” However, case law regarding the federal rule has held that “testimonial” summaries logically follow from the fact that a “summary” is allowed.
The court explained the types of testimonial summaries that exist:
1) There are first, “primary-evidence summaries” that are typically used to condense voluminous materials that cannot be easily examined in court.
2) There are, second, “pedagogical (teaching)-device summaries,” more commonly described as demonstrative aids, which are presented to summarize, clarify or simplify proofs admitted in the case.
3) Third, there are “secondary-evidence summaries.” These are hybrids of the first two categories, admitted not in place of the evidence they summarize but in addition to it. Secondary-evidence summaries are permitted where, in the judgment of the trial court, “such summaries so accurately and reliably summarize complex or difficult evidence… as to materially assist the jurors in better understanding the evidence. Such devices are not prepared entirely in compliance with Rule 1006 and yet are more than mere pedagogical devices.”
The court concluded that, “Nurse Berry’s proposed testimony should be analyzed under the first and last of these evidential categories, either as a 1) primary-evidence summary… admitted in lieu of Mrs. Heinzerling’s post-diagnosis medical records or 2) as a secondary-evidence summary designed to accompany the admission of those proofs.”
Some points to remember from the case:
• The nurse was not opining on standards of care, causation or other liability issues. The nurse was extracting information from medical records and explaining to the jury the decedent’s treatments and symptoms.
• The nurse was assisting in the damages phase of trial.
• Rule 1006 makes clear “that a summary is only appropriate for documents that are truly ‘voluminous’ and cannot be ‘conveniently’ examined in court.”
• The summary “must fairly condense the underlying material…. The summary cannot embellish with information not contained in the originals.”
• The summary “cannot be jury argument in disguise.”
• The underlying records must be generally admissible as business records.
• The nurse was a “surrogate” supplier of information since Heinzerling, deceased, was unable to speak for herself.
• The nurse in the case had lengthy credentials, with many published articles, so as to comply with Rule 703.
• The court said: “The nurse need not be a physician to describe… the medications and treatments…, or to translate the common medical symbols…. Also, the nurse need not offer any expert opinions in her limited trial role as a summary provider. As Rule 703 explicitly recognizes, an expert may testify in the form of an opinion ‘or otherwise.’”
• The court said: “[since] the operative evidence concept here is one of ‘practical necessity,’ this Court finds that a singular presentation from Nurse Berry offers an efficient and less costly alternative to presenting each doctor in turn…. Moreover, even if plaintiff or defendants choose to call those physicians at trial and admit the underlying records in toto, Nurse Berry’s testimony may still be admitted as a secondary-evidence summary.”
• The court said: “Counsel for plaintiff is admonished to present the nurse’s testimony in a dispassionate manner.”
• Instructively, the court gave some practical advice on how a fact witness must prepare and present a summary: 1) “…the Court will require that Nurse Berry’s actual testimony at trial be presented in a manner that is a substantially balanced and fair summary…, 2) Nurse Berry’s trial testimony must not omit… important developments, and 3) to be admissible as a summary of the records, her testimony must not be skewed to include only the bad and to ignore the good.”
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