                                                     Supreme Court

                                                     No. 2012-87-Appeal.
                                                     (NC 07-238)
                                                     (Dissent begins on page 21)


  Jennifer O’Connor                :

          v.                       :

Newport Hospital et al.            :




  NOTICE: This opinion is subject to formal revision before
  publication in the Rhode Island Reporter. Readers are requested to
  notify the Opinion Analyst, Supreme Court of Rhode Island, 250
  Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
  3258 of any typographical or other formal errors in order that
  corrections may be made before the opinion is published.
                                                                      Supreme Court

                                                                      No. 2012-87-Appeal.
                                                                      (NC 07-238)
                                                                      (Dissent begins on page 21)

                Jennifer O’Connor                  :

                         v.                        :

              Newport Hospital et al.              :

               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


                                           OPINION

         Chief Justice Suttell, for the Court. After a three-week trial, a jury returned a verdict in

favor of the defendants, Newport Hospital (hospital), Gita S. Pensa, M.D., and Newport

Emergency Physicians, Inc. (NEP) (collectively defendants), in this medical malpractice action.

The plaintiff, Jennifer O’Connor, appeals from the Superior Court judgment, claiming that the

trial justice’s erroneous admission into evidence of three documents during the voir dire of the

plaintiff’s standard-of-care expert, exacerbated by an allegedly “biased and incorrect” jury

verdict form, was sufficiently prejudicial to warrant a new trial. We agree, and accordingly we

vacate the judgment and remand the case for a new trial.

                                                  I

                                   Facts and Procedural History

         On June 22, 2006, at the age of thirty-one, O’Connor underwent cervical disk

replacement surgery at Rhode Island Hospital; she was discharged from the hospital two days

later.   In the early morning hours of June 26, 2006, O’Connor experienced a pain behind her

right eye “unlike anything that [she] had ever felt before.” She testified that “it [was as] if


                                                 -1-
someone took an ice pick and stuck it through the eye and it hit the point right behind your eye

* * *.” O’Connor also testified that she experienced numbness around her mouth, confusion, and

the sensation of being hot and cold at the same time. O’Connor was transported to Newport

Hospital by ambulance, at which time she also experienced nausea and sensitivity when her eye

was exposed to light.

       At Newport Hospital, O’Connor was treated by Dr. Pensa. According to O’Connor, Dr.

Pensa thought she had an eye problem or perhaps a migraine headache. O’Connor was admitted,

but a couple of hours later she was discharged from the hospital, and she returned home. Later

that morning, she awoke with worsening symptoms and was driven to Rhode Island Hospital,

where she was joined by the surgeon who had performed the disk replacement surgery.

O’Connor learned she was having a stroke caused by a vertebral artery dissection. She testified

that, after the stroke, she experienced the loss of motor skills on her right side, but that she

regained function through therapy.     She also testified that she continues to have chronic,

debilitating nerve pain, issues with her balance, and difficulty coming up with the correct words

while speaking.

       On March 6, 2007, O’Connor filed suit in Superior Court against defendants, alleging

negligence and lack of informed consent. 1 On May 12, 2011, Dr. Pensa and NEP filed a pretrial

motion to preclude the testimony of Eddy Lang, M.D., one of plaintiff’s disclosed experts on the

standard of care. At the hearing on the motion, Dr. Pensa and NEP’s counsel argued that Dr.

Lang was not qualified to testify as an expert on the standard of care in American emergency

rooms because he was a Canadian physician who was neither board-certified nor licensed to



1
  In plaintiff’s initial complaint, she also named Lifespan (partner to Newport Hospital) and
Christine Gill, M.D. (who allegedly treated plaintiff) as defendants. The claims against these
defendants, however, were dismissed by stipulation before trial.
                                              -2-
practice medicine in the United States. The trial justice denied the motion without prejudice,

noting that “plaintiffs are at their peril * * * if the defendants are able to impeach the expert’s

credibility either on issues of experience, training, education, etc.” Towards the beginning of

trial testimony, a voir dire of Dr. Lang was conducted in the presence of the jury. Doctor Lang

testified that he was familiar with the standard of care required of emergency-room physicians in

the United States, and he also stated that there was no difference between the standard required

in the United States and that required in Canada.

       Counsel for Dr. Pensa and NEP cross-examined Dr. Lang regarding his qualifications and

elicited the fact that, although he is a practicing emergency-medicine physician in Canada and is

certified as an emergency-medicine specialist in the provinces of Québec and Alberta, he has

neither sought, nor received, a license to practice medicine in the United States. The following

colloquy took place regarding Dr. Lang’s eligibility for board certification in the United States:

               “Q And in fact, when I asked you at your deposition as to whether
                  or not you knew if you were even eligible to sit for board
                  certification in the United States with the American Board of
                  Emergency Medicine, you thought you were able to, correct?
                  “***
               “A I think I was uncertain as to whether I was able to.
               “Q * * * You were uncertain or you believed that you were
                  eligible?
               “A I believed I was eligible.
               “Q Okay. You believed you were eligible. In fact, you’re not
                  eligible to even sit for board certification with the American
                  Board of Emergency Medicine, correct?
                  “***
               “A I still do not know for certain whether I would be eligible or
                  not.
               “Q Well, okay. And have you taken time to look at the American
                  Board of Emergency Medicine at their website to even see if
                  you are eligible?
                  “***
               “A I have not.”




                                               -3-
       Following this exchange, Dr. Pensa and NEP offered three exhibits purporting to relate to

the policies of the American Board of Emergency Medicine (ABEM). 2 Exhibit A reflected a

printed version of a web page that purported to outline the ABEM’s policies on training

requirements. Exhibit B was also a printed version of what appeared to be an ABEM web page,

stating that, in Canada, the Royal Association of Physicians and Surgeons of Canada (RAPSC)

reviews and accredits Canadian residency programs. 3 Finally, exhibit C purported to reflect a

printed version of an email from the Associate Executive Director of the Academic and Board

Relations section of the ABEM. The printed version of the email stated that training through the

College of Family Physicians of Canada (CFPC) did not fulfill the ABEM’s eligibility

requirements. All three documents were admitted as full exhibits over plaintiff’s objections. At

the conclusion of the voir dire and over defendants’ objections, the trial justice ruled that Dr.

Lang was qualified to provide expert testimony on the standard of care and causation.

       After a three-week trial, the jury returned a verdict in defendants’ favor on June 14, 2011,

finding that plaintiff had failed to prove by a preponderance of the evidence that Dr. Pensa had

breached the standard of care. In her appeal of the final judgment, plaintiff argues that: (1) the

trial justice erred by admitting exhibits A-C during Dr. Lang’s voir dire; (2) the trial justice erred

by including the language “physician practicing in the United States at a community hospital” in

question one of the jury verdict form; and (3) that these errors sufficiently prejudiced plaintiff to

warrant a new trial. This case initially came before us pursuant to an order directing the parties

to show cause why the issues raised in this appeal should not be summarily decided. After oral




2
  The trial exhibits were not submitted with the record on appeal. The descriptions of the content
of exhibits A-C were taken from the testimony at trial and from photocopies of the documents
that were provided in plaintiff’s appendices.
3
  Doctor Lang trained under the College of Family Physicians of Canada.
                                                -4-
argument, however, we concluded that this Court would benefit from additional briefing and

argument, and we reassigned this case to the full argument calendar.

                                                   II

                                         Standard of Review

          “It is well established that ‘the admissibility of evidence is within the sound discretion of

the trial justice, and this Court will not interfere with the trial justice’s decision unless a clear

abuse of that discretion is apparent.’” Notarantonio v. Notarantonio, 941 A.2d 138, 149 (R.I.

2008) (quoting DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 690 (R.I. 1999)). When the

complaining party can show that the trial justice abused his or her discretion, we will reverse the

ruling only if the abuse of discretion resulted in prejudice to the complaining party. State v.

Martin, 68 A.3d 467, 475 (R.I. 2013).

                                                   III

                                              Discussion

                                                   A

                                             The Exhibits

                                          1. Authentication

          The plaintiff first argues that the trial justice abused his discretion by admitting exhibits

A-C because none of them was properly authenticated. She contends that Dr. Lang, the only

witness to whom questions were posed regarding these documents, was not capable of

authenticating them simply by reciting some of the information contained therein. She also

contends that these three documents were neither self-authenticating nor subject to judicial

notice.




                                                  -5-
       Doctor Pensa and NEP first argue that plaintiff failed to properly preserve her

authentication objections to exhibits A and B because plaintiff interposed only a general

objection to their admission and did not specify lack of authentication as a ground thereof. To

effectively preserve an issue for appeal, a litigant’s objection must be “sufficiently focused so as

to call the trial justice’s attention to the basis for said objection.” State v. Brown, 9 A.3d 1240,

1245 (R.I. 2010) (quoting State v. Warren, 624 A.2d 841, 842 (R.I. 1993)).              The entire

discussion after defendants moved to admit exhibits A and B in full was as follows:

                      “[DEFENSE COUNSEL]: By the way, at this time if I may
               I would ask that A and B be full.
                      “[PLAINTIFF’S COUNSEL]: Objection.
                      “THE COURT: Grounds?
                      “[PLAINTIFF’S COUNSEL]: Foundation, admissibility
               and hearsay.
                      “THE COURT: Overruled. It may be marked as full.”

Rule 901(a) of the Rhode Island Rules of Evidence is clear that authentication is a “condition

precedent to admissibility.” We are satisfied that plaintiff’s use of the words “foundation” and

“admissibility” sufficiently “call[ed] the trial justice’s attention” to the threshold issue of

authentication. See Brown, 9 A.3d at 1245 (quoting Warren, 624 A.2d at 842). The plaintiff’s

argument that none of the three documents was properly authenticated prior to admission as full

exhibits, therefore, was properly preserved for our review.

       The hospital argues that plaintiff was on notice that defendants intended to use these

exhibits to challenge Dr. Lang’s qualifications during the trial because defendants’ pretrial

motion in limine to preclude Dr. Lang’s expert testimony referred to these three documents and

included each as an appendix to the motion. Doctor Pensa and NEP contend that plaintiff did not

challenge the accuracy of the information contained within the three documents during the trial.

Furthermore, all defendants assert that Dr. Lang’s acknowledgement of the purported content of



                                               -6-
the documents, coupled with the “inherent reliability” of the ABEM website, was sufficient for

purposes of authentication.

       Rule 901(a) provides that “[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” The advisory committee’s note to Rule 901

informs that “authentication and identification are regarded as a special aspect of relevancy”;

evidence is relevant only if it is in fact what the party seeking its admission claims it to be.

“[T]he burden of proof for authentication[,] [however,] is slight.” United States v. Reilly, 33 F.3d

1396, 1404 (3d Cir. 1994) (quoting Link v. Mercedes-Benz of North America, Inc., 788 F.2d

918, 927 (3d Cir. 1986)). To that end, we recently stated that “[a]uthentication is not a high

hurdle to clear.” McGovern v. Bank of America, N.A., 91 A.3d 853, 860 (R.I. 2014). “This

Court has taken a flexible and pragmatic approach to Rule 901 by allowing ‘a document’s

authenticity [to] be established in any number of different ways.’” McGovern, 91 A.3d at 860

(quoting Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island,

996 A.2d 684, 691 (R.I. 2010)). We have previously held that “document authenticity need not

be established by any particular means * * * [but] may be accomplished by any of the methods

enumerated in Rule[s] 901 or 902.” 4 State v. Oliveira, 774 A.2d 893, 925 (R.I. 2001) (quoting

Superior Boiler Works, Inc. v. R.J. Sanders, Inc., 711 A.2d 628, 632 n.3 (R.I. 1998)). “In

making Rule 901 determinations, trial justices must decide whether there is enough support in

the record to conclude that it is ‘reasonably probable’ that the evidence is what its offeror

[pro]claims it to be. * * * If so, then the evidence’s suasive force is for the jury to decide.” Id. at



4
  Rule 901(b) of the Rhode Island Rules of Evidence sets forth, “[b]y way of illustration only,
and not by way of limitation,” a non-exclusive list of ways to authenticate evidence; Rule 902 of
the Rhode Island Rules of Evidence lists documents that are self-authenticating.
                                                 -7-
926 (quoting State v. Griffin, 691 A.2d 556, 558 (R.I. 1997)). Thus, a trial justice “need not find

that the evidence is necessarily what the proponent claims, but only that there is sufficient

evidence that the jury ultimately might do so.” United States v. Safavian, 435 F.Supp.2d 36, 38

(D.D.C. 2006); see 31 Federal Practice and Procedure: Evidence § 7102.

       The issue of authentication of documents printed directly from either an Internet website

or an email account is a matter of first impression in Rhode Island. While Rule 901(b) provides

several illustrations of how to properly authenticate various kinds of evidence, none of the

illustrations provided therein includes either documents printed from pages located on the

Internet or from email accounts. Although a proponent of evidence need not meet a particularly

high standard for an authenticity determination, defendants in this case undoubtedly have failed

to cross even the most minimal of thresholds. We address the contested documents in turn.

                                           a. Web Pages

       Exhibits A and B consist of printouts of web pages purportedly printed from the ABEM

website. One commentary on Rule 901 of the Federal Rules of Evidence, which essentially

mirrors Rule 901 of the Rhode Island Rules of Evidence, 5 suggests that:

                “To authenticate a printout of a web page, the proponent must
               offer evidence that: (1) the printout accurately reflects the
               computer image of the web page as of a specified date; (2) the
               website where the posting appears is owned or controlled by a
               particular person or entity; and (3) the authorship of the web
               posting is reasonably attributable to that person or entity. Evidence
               that may corroborate these points could include testimony of others
               who saw the posting on the website, continuation of the posting on
               the website so that it is available to be seen by the court, or
5
  When, as here, the Rhode Island rule is substantially similar to the federal rule, we often look to
federal courts’ decisions for guidance and interpretation. Miller v. Metropolitan Property and
Casualty Insurance Co., 88 A.3d 1157, 1161 (R.I. 2014); Greensleeves, Inc. v. Smiley, 942 A.2d
284, 290 (R.I. 2007); Crowe Countryside Realty Associates, Co., LLC v. Novare Engineers, Inc.,
891 A.2d 838, 840 (R.I. 2006). We find federal treatises to be similarly instructive.



                                                -8-
               evidence that the party to whom the posting is attributed made
               similar postings or published the same information elsewhere.”
               Christopher B. Mueller and Laird C. Kirkpatrick, 5 Federal
               Evidence § 9:9 (4th ed.) (database updated May 2014).

       Here, there is no indication on the record that Dr. Pensa and NEP’s counsel made any

representations to the trial justice regarding when or by whom the documents reflected in

exhibits A and B were accessed and printed from the ABEM website. Counsel did not offer, by

affidavit or otherwise, a witness to confirm that the exhibits in question accurately reflected what

the witness saw after he or she logged onto the ABEM website. Instead, defendants attempted to

admit the exhibits through the testimony of Dr. Lang himself by merely showing him the

documents and asking him if it was “something taken directly off a public website.”

       It is clear from the record that counsel simply asked Dr. Lang a few leading questions

about the content of the documents, the answers to which were based on Dr. Lang’s cursory

review of the documents in the moments prior to the posing of the questions. Alternatively,

defendants could have provided a witness with personal knowledge to testify to the source of the

exhibits. See United States v. Bansal, 663 F.3d 634, 667 (3d Cir. 2011) (holding that screenshots

from a website were properly authenticated when the proponent of the evidence called a witness

who explained the website’s archive process and testified, based on personal knowledge, that the

screenshots were authentic); United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000)

(affirming a trial justice’s exclusion of web postings on the basis of lack of authentication

because the defendant had not shown that the postings were actually created by the group that the

defendant claimed). Another option would have been to obtain a copy of the policies and

guidelines purportedly contained within exhibits A and B that had been either certified by the

keeper of records at ABEM, or attached to an affidavit that attested to the accuracy of the copies.




                                               -9-
       McCormick on Evidence states that “[p]rintouts of [w]eb pages must first be

authenticated as accurately reflecting the content of the page and the image of the page on the

computer at which the printout was made. Testimony of a percipient witness, even the trial

judge, can testify to such accuracy.” 2 Kenneth S. Broun et al., McCormick on Evidence § 227 at

74 (6th ed. 2006). Here, the trial justice did not make any comments or findings with respect to

authentication of any of the documents in overruling plaintiff’s objections to the exhibits. It is

our considered opinion that insufficient evidence was proffered to support the authenticity of the

two printouts of the ABEM web pages and that, accordingly, the admission of exhibits A and B

into evidence was clearly erroneous.

                                              b. Email

       Exhibit C is a printout of a purported email from the Associate Executive Director of the

Academic and Board Relations section of the ABEM to “K. Lafontaine.” Doctor Lang was

asked questions about the contents of the email, and it was admitted into evidence without any

attempt on the record to verify its authenticity. Doctor Lang simply answered the questions

about the identity of the sender of the email and the message contained therein—answers that

were based on his reading of the email to himself at counsel’s request during the few moments

before the questions were asked. There was no indication that Dr. Lang had previously seen this

email, or that he had any familiarity with either the sender or recipient of the email.

       Clearly, an email, like any other item of evidence, may be authenticated in any number of

different ways, by either direct or circumstantial evidence. Perhaps the most direct method

would be through the testimony of a witness with personal knowledge that the proffered exhibit

is what it is claimed to be, such as the author or recipient of the email. See Rule 901(b)(1).

Additionally, Rule 901(b)(4) provides for a variety of ways that an email might be authenticated



                                                - 10 -
by circumstantial evidence, including “[a]ppearance, contents, substance, internal patterns, or

other distinctive characteristics, taken in conjunction with circumstances.” If an email is not

clearly identifiable on its own, and if there is no witness with personal knowledge, a forensic

expert witness might be able to trace an email back to the Internet address from which it

originated. As one well-respected treatise on evidence instructs:

               “E-mails can be authenticated by their authorship. The electronic
               signature that they bear may not be sufficient, however, because of
               the risk of manipulation of e-mail headers.[] Additional data such
               as the address that an e-mail bears, the use of the ‘reply’ function
               to generate the address of the original sender, the content of the
               information included in the e-mail and other circumstances, can
               suffice.” 2 Kenneth S. Broun, § 227 at 73.

       Here, Dr. Lang was neither the sender nor the recipient of the email. Doctor Lang’s mere

recitation of the identity of the purported sender of the email and summary of its message (viz.,

that one with Dr. Lang’s credentials would not be eligible for board certification by the ABEM)

was insufficient to authenticate the email. Moreover, the record is silent as to any distinctive

features of the email that would support its authentication, and our review of exhibit C does not

reveal any characteristic that would authenticate it as an email sent from a representative of

ABEM.

       While we have not set a “high hurdle to clear” with respect to authentication, McGovern,

91 A.3d at 860, we hold that the trial justice abused his discretion by admitting exhibits A-C

based solely on the brief testimony of one witness who was clearly unfamiliar with all three

documents.

                                           2. Hearsay

       The plaintiff next argues that the exhibits were “textbook hearsay documents,” offered

for the truth that Dr. Lang was ineligible for board certification in the United States. The



                                              - 11 -
plaintiff contends that the trial justice erred by not requiring defendants to provide an applicable

hearsay exception as well as by not making any findings with respect to the hearsay objections

other than to summarily overrule them. “Hearsay is defined in Rule 801(c) of the Rhode Island

Rules of Evidence as ‘a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.’” Martin, 68 A.3d at

475 (quoting Rule 801(c)). Hearsay statements are inadmissible except as provided by law. Rule

802 of the Rhode Island Rules of Evidence.           Here, the trial justice summarily overruled

plaintiff’s hearsay objections without requiring either a response from defendants or further

argument from plaintiff regarding the specific grounds for her hearsay objections. The three

documents entered into evidence as exhibits A-C were unquestionably hearsay. Exhibits A and

B were clearly offered to prove ABEM’s eligibility standards for board certification. Exhibit C

was offered to establish that Dr. Lang’s training under the CFPC does not meet ABEM’s

eligibility requirements.

       Doctor Pensa and NEP contend that “[t]he challenged evidence carries the necessary

imprimatur of reliability and inherent trustworthiness necessary to meet the ‘catch-all’ exception

to the hearsay rule.” With respect to exhibits A and B, Dr. Pensa and NEP argue that each would

qualify under Rule 803(24) of the Rhode Island Rules of Evidence because the documents are

from an official website and not a blog or comment section to an online article. The hospital, for

its part, contends that “[t]he URL address, date of printing, email addresses and date and time of

transmittal, coupled with counsel’s representations, provide adequate circumstantial guarantees

of trustworthiness to permit the admission of these documents into evidence.”

       Rule 803(24)—known colloquially as the “catch-all” exception—allows for the

admission of hearsay statements that, while not covered by any of the other hearsay exceptions,



                                               - 12 -
have “equivalent circumstantial guarantees of trustworthiness.” In order for the evidence to be

admissible, the trial justice must determine that:

               “(A) the statement is offered as evidence of a material fact; (B) the
               statement is more probative on the point for which it is offered
               than any other evidence which the proponent can procure through
               reasonable efforts; and (C) the general purposes of [the Rhode
               Island Rules of Evidence] and the interests of justice will best be
               served by admission of the statement into evidence.” Rule 803(24).

We have said, however, that this “residual exception is ‘meant to be reserved for exceptional

cases’ and is ‘not intended to confer a broad license on trial judges to admit hearsay statements

that do not fall within one of the other exceptions * * * .’” In re Steven D., 23 A.3d 1138, 1165

(R.I. 2011) (quoting Conoco Inc. v. Department of Energy, 99 F.3d 387, 392 (Fed. Cir. 1996)).

       In the case under review, we decline defendants’ invitation to hold that the exhibits were

properly admitted under the catch-all exception to the hearsay rule. The trial justice did not

make any of the requisite findings concerning admissibility under Rule 803(24), nor do we

discern from the record such exceptional circumstances as would warrant the admission of

exhibits A-C. We are satisfied, therefore, that all three documents were erroneously admitted in

violation of Rule 802.

                         3. Extrinsic Evidence of Character and Conduct

       The plaintiff also argues that exhibits A-C were extrinsic evidence admitted in violation

of Rule 608(b) of the Rhode Island Rules of Evidence. The plaintiff contends that defendants

were trying to prove that Dr. Lang was not eligible to become board-certified in emergency

medicine by the ABEM, a collateral and extraneous point given Dr. Lang’s admission prior to

the introduction of these documents that he was not board-certified to practice emergency

medicine in the United States. The plaintiff, however, raises a Rule 608(b) challenge for the first

time on appeal, and plaintiff’s objections to the exhibits on the grounds of foundation,

                                               - 13 -
admissibility, authentication, and hearsay were insufficient to call the trial justice’s attention to

Rule 608(b). See Brown, 9 A.3d at 1245. In addition, we have stated that, if “the introduction of

evidence is objected to for a specific reason, other grounds for objection are waived and may not

be raised for the first time on appeal.” Robideau v. Cosentino, 47 A.3d 338, 341 (R.I. 2012)

(mem.) (quoting In re Jazlyn P., 31 A.3d 1273, 1280-81 (R.I. 2011)). Accordingly, we find this

argument to be waived.

                                                 B

                                             Prejudice

       The plaintiff argues that the admission of the three documents was sufficiently prejudicial

to warrant a new trial, and also that the prejudice was intensified by defendants’ repeated

references to Dr. Lang’s nationality and his ostensible inability to become board-certified in the

United States, 6 as well as by the wording of the first question on the jury verdict form. She

contends that defendants’ goal was to suggest that Dr. Lang was “untrustworthy because he

supposedly could not practice in a United States emergency room,” and that this suggestion was

powerful, “extremely damaging and unquestionably prejudicial.” The plaintiff further asserts

that “[t]he expert’s outsized importance suggests that the introduction of any inadmissible

evidence intended to influence the jury’s consideration of an expert’s opinion can have an

overwhelming impact on the jury verdict.”

       The hospital contends that, even if the three exhibits were admitted in error, the error was

not unfairly prejudicial because “the question of board certification was a very small piece of the

overall attack on [plaintiff’s] expert’s qualifications.” The defendants also assert that the trial
6
 Doctor Pensa and NEP’s counsel incorporated the phrase “board certified emergency medicine
physician practicing in the United States” into four questions posed to defendants’ own standard-
of-care expert during the direct examination and referred to Dr. Lang’s nationality and lack of
American credentials during his closing argument.

                                               - 14 -
justice issued an instruction to the jury clarifying that: (1) the purpose of the testimony relating to

exhibits A-C was to impeach the doctor’s testimony regarding his qualifications; and (2) as trial

justice, it was his decision whether Dr. Lang had the necessary qualifications to testify as an

expert. Doctor Pensa and NEP argue that this limiting instruction, although given in the context

of testimony regarding a fourth exhibit (exhibit D, a document not challenged on appeal), was

“sufficient to obviate any perceived prejudice as to the other challenged exhibits, which also

addressed [Dr. Lang’s] qualification[s] to testify as an expert.” The plaintiff replies that the trial

justice’s cautionary instruction applied to exhibit D only and that it did not serve to “reduce the

impact these three inadmissible, hearsay documents had on the jury’s deliberations.”

       After exhibits A-C were admitted in full, Dr. Pensa and NEP’s counsel questioned Dr.

Lang about exhibit D, which purported to contain guidelines set forth by the American College

of Emergency Physicians as to how its members may qualify to serve as expert witnesses in the

area of emergency medicine. At the conclusion of the discussion regarding exhibit D, the trial

justice directed the following instruction to the jury:

               “Ladies and gentlemen, I just should say that the purpose of that
               line of questioning was to try to impeach the doctor’s testimony as
               far as his qualifications, specifically, his affiliation with the journal
               -- the American Annals or the Annals of Emergency Medicine
               which is a publication of this particular organization. It’s not to
               say what qualifies an expert, particularly in this particular case to
               testify -- a physician to testify as an expert in the area of
               emergency medicine. That’s my call. They don’t get to decide
               that just because they say this is what you should be to testify.
               That doesn’t mean that it’s binding on me. So it’s simply offered
               for that limited purpose and I should let you know that.”

We agree with plaintiff that this instruction pertained only to exhibit D. However, even if the

jurors considered the instruction in light of the entire voir dire cross-examination, the weight that




                                                - 15 -
they ultimately gave to Dr. Lang’s testimony may nevertheless have been overly influenced by

the improperly admitted evidence.

       In Marley v. Providence Journal Co., 86 R.I. 229, 238, 134 A.2d 180, 184 (1957), we

stated that “not every admission of improper evidence entitles an adverse party to a new trial

* * * [b]ut if it appears that the evidence objected to was material, in the sense that it probably

influenced the verdict, the verdict should be set aside.” We have also explained:

               “No rule of thumb will provide us with the answer, and there is no
               bench mark against which possible prejudicial effect may be
               measured. Instead, prejudicial effect, if it exists, must be found in
               an examination of the substance of the evidence and of the facts
               attendant upon its admission, and in an evaluation of its probable
               effect upon the outcome of the case.” Heuser v. Goldstein, 107 R.I.
               317, 322, 267 A.2d 420, 422 (1970).

The ultimate test is “whether [the improperly admitted evidence] reasonably tended to exert an

influence upon the determination of the real issue in the case.” Bailey v. Huling, 119 R.I. 250,

255, 377 A.2d 220, 223 (1977) (quoting Heuser, 107 R.I. at 321, 267 A.2d at 422).

       The trial in this case lasted three weeks and the record spans fifteen volumes of

transcripts. The plaintiff offered only one expert witness to testify regarding the standard of care

and Dr. Pensa’s alleged breach of that standard.        The defendants vigorously attacked that

expert’s qualifications and credibility, both in questioning their own expert and when making

their final effort to persuade the jury during their closing argument. We agree with plaintiff that

a medical expert plays a “pivotal role” with respect to meeting the burden of proof in a medical

malpractice case. The weight to be ascribed to Dr. Lang’s testimony was the central issue in this

case because the entire cause of action hinged on whether the jury found that the treatment

provided to plaintiff by Dr. Pensa met the standard of care. As defendants accurately state,

however, the evidence elicited from exhibits A-C was merely cumulative of information that was



                                               - 16 -
already on the record through the testimony of Dr. Lang. Prior to the introduction of the

exhibits, Dr. Lang had already acknowledged that he was not board-certified in the United

States, that he had never sought to be board-certified in the United States, and that he did not

know whether he was eligible to be board-certified in the United States.

       The plaintiff contends, however, that not only was the admission of exhibits A-C

sufficiently prejudicial on its own to warrant a new trial, but that the extent to which these three

documents prejudiced her case was exacerbated by the improper wording of question one on the

jury verdict form. The plaintiff proposed the following language for the first question: “Do you

find by a fair preponderance of the evidence that Defendant Gita S. Pensa, M.D. was negligent in

her care and treatment of Jennifer O’Connor at Newport Hospital on June 26, 2006?” The trial

justice, however, phrased the question in a manner that was substantially similar to the question

proposed by defendants:

               “Did the Plaintiff, Jennifer O’Connor, prove by a preponderance of
               the evidence that the Defendant, Gita S. Pensa, M.D., breached the
               standard of care for an emergency medicine physician practicing in
               the United States at a community hospital on June 26, 2006 in her
               care and treatment of Jennifer O’Connor?”

The plaintiff objected to the wording of this question; she contends that it was biased and

incorrect, and “reinforced the crux of [defendants’] criticism of Dr. Lang and the import of the

three improperly admitted documents.”

       Doctor Pensa and NEP argue that any issue regarding the phrasing of the question may

not be properly preserved for appeal because the record shows that plaintiff agreed to the

question after discussions off the record with the trial justice. A review of the record reveals

that, towards the end of the jury instructions and after the trial justice had read the verdict form

to the jury, the trial justice held a sidebar conference with counsel on the record. Most of the



                                               - 17 -
sidebar discussion is not pertinent to the issues on appeal, but plaintiff’s counsel did begin the

discussion with the following:

               “[Y]our Honor, just briefly under Question 1, the phrase practicing
               in the United States in a community hospital, the question is
               whether she breached obviously the national standard of care but
               the practicing, United States, community hospital incorporates the
               defendant’s argument under the second question of the jury verdict
               form.”

The plaintiff’s counsel then proceeded to discuss his issues with questions two through four of

the verdict form. The trial justice responded with: “Well, frankly, I thought we discussed

Question 1 which I thought we were in agreement on.” It is our opinion that plaintiff’s comment

regarding question one during the sidebar conference was sufficient to preserve her objection for

our review.

       The defendants contend that the verdict form question was appropriate because it

reflected this Court’s adoption of a national standard of care in Sheeley v. Memorial Hospital,

710 A.2d 161 (R.I. 1998). In Sheeley, we rejected the “similar locality” rule in favor of a

national standard for expert witnesses in cases of medical malpractice. Id. at 166, 167. The trial

justice in Sheeley had excluded the testimony of a board-certified obstetrician from New York

whose expert testimony was offered regarding the standard of care for a second-year family-

practice resident in Rhode Island—testimony that was potentially inappropriate under the

“similar locality” rule. Id. at 163, 164. Although defendants are correct that Sheeley heralded

our adoption of a national standard of care, they overlook the fact that Sheeley also liberalized

our view of expert testimony considerably. In adopting the more liberal standard, this Court

stated that “whatever geographical impediments may previously have justified the need for a

‘similar locality’ analysis are no longer applicable in view of the present-day realities of the




                                              - 18 -
medical profession.” Id. at 166. This Court then went on to quote a Maryland decision that

explained why the similar locality rule was outdated:

               “[T]he medical schools of yesterday could not possibly compare
               with the accredited institutions of today, many of which are
               associated with teaching hospitals. But the contrast merely begins
               at that point in the medical career: vastly superior postgraduate
               training, the dynamic impact of modern communications and
               transportation, the proliferation of medical literature, frequent
               seminars and conferences on a variety of professional subjects, and
               the growing availability of modern clinical facilities are but some
               of the developments in the medical profession which combine to
               produce contemporary standards that are not only much higher
               than they were just a few short years ago, but are also national in
               scope.” Id. (quoting Shilkret v. Annapolis Emergency Hospital
               Association, 349 A.2d 245, 252 (Md. 1975)).

       The plaintiff ascribes error to the following language in the jury verdict form: “practicing

in the United States at a community hospital.” With respect to the phrase “at a community

hospital,” she argues that the “language is nearly identical to language that was disapproved by

this Court in Carlson v. Gillie, 723 A.2d 801, 802 (R.I. 1998) [(mem.)] and in [Sheeley, 710

A.2d at 166-67].” The offending language in Carlson was a statement by the trial justice that

“[t]he standard is a community standard. The community is Westerly. The community in which

Dr. Gillie practices in Westerly [sic].” Carlson, 723 A.2d at 802. It is our opinion, however, that

such language is fundamentally different from the jury verdict form in the case under review.

The mere reference to a “community hospital” does not evoke the “same or similar locality

standard” that we rejected in Sheeley and Carlson. See id.; Sheeley, 710 A.2d at 166-67.

Moreover, it can hardly be argued that the phrase “practicing in the United States” does not

reflect a national standard.

       Nevertheless, while the language in the first question on the jury verdict form might pass

muster in another medical malpractice case, we must, however, assess its potential prejudice in



                                              - 19 -
light of the circumstances of this case. In so doing, we conclude that the jury verdict form

highlighted information contained in exhibits A-C and contributed to the prejudicial effect of

those erroneously admitted documents. The phrase “practicing in the United States” certainly

draws attention to the fact that Dr. Lang was not board-certified in the United States. We are

mindful that, even though Dr. Lang testified that he was not board-certified and was uncertain

about his eligibility, it was the email and two web pages, introduced as full exhibits, that were

available to the jury during its deliberations. We conclude, therefore, that these improperly

admitted documents probably influenced the jury’s verdict. See Marley, 86 R.I. at 238, 134 A.2d

at 184.

          Considering all three exhibits admitted in error and the wording of question one on the

verdict form, there is, in our opinion, sufficient prejudice to warrant a new trial. The improperly

admitted documents could reasonably have influenced the jury’s determination of the central

issue in this case, and the jury could have been misled into lending more weight to Dr. Lang’s

nationality than appropriate, resulting in prejudice to the plaintiff. See Bailey, 119 R.I. at 255,

377 A.2d at 223; Heuser, 107 R.I. at 321, 267 A.2d at 422. We hold that the improper admission

of the three exhibits “ha[d] a natural tendency to affect the fairmindedness of the jury,” resulting

in a prejudicial error that “only a new trial can cure.” Bruyere v. Castellucci, 98 R.I. 129, 138,

200 A.2d 226, 231 (1964).

                                                 IV

                                            Conclusion

          For the reasons stated herein, we vacate the judgment of the Superior Court and remand

this case for a new trial. The record of this case shall be returned to the Superior Court.




                                               - 20 -
          Justice Indeglia, dissenting. While I agree with my colleagues in the majority that the

three documents 1 introduced into evidence may have been improperly admitted, I remain

convinced that they were cumulative in nature and any error in their admission, at most, was

harmless. See Now Courier, LLC v. Better Carrier Corp., 965 A.2d 429, 435 (R.I. 2009) (noting

that the admission of otherwise inadmissible evidence “is harmless when the record demonstrates

that it is merely cumulative of proper evidence”); Flanagan v. Wesselhoeft, 765 A.2d 1203, 1210

(R.I. 2001) (holding that “the use of unauthenticated excerpts from medical treatises and/or

articles did not constitute prejudicial error in light of the totality of the evidence presented”);

Maynard v. Rhode Island Hospital, 536 A.2d 532, 534 (R.I. 1988) (stating that any error in

admission of evidence was “harmless” because complaining party “had already admitted” similar

facts).

          The plaintiff contends that the emphasis of these documents so prejudiced Dr. Lang with

the jury that it could not fairly evaluate his testimony and ultimately her case. Still, it was

plaintiff who opened the gate to this information when she agreed to conduct Dr. Lang’s voir

dire examination before the jury to determine his qualifications as an emergency medicine

expert. 2    During plaintiff’s direct examination or without objection on cross-examination, Dr.

Lang revealed much of the information found in the documents. He told the jury (1) he was not



1
  It is worth noting that plaintiff and the majority place dispositive significance on the impact of
these three documents, yet plaintiff herself failed to ensure that certified copies of these
documents were made part of the record on appeal notwithstanding the requirements of Article I,
Rule 10 of the Supreme Court Rules of Appellate Procedure.
2
  At oral argument, plaintiff contended that she was faced with a Hobson’s choice of employing
this mechanism or being unable to have Dr. Lang complete his testimony before returning to
Canada.
                                               - 21 -
board-certified in emergency medicine in the United States, (2) he was not licensed to practice

medicine in the United States, and (3) he never worked in the United States as a physician.

Nothing in these exhibits changed those facts, especially in light of the trial justice’s caution to

the jury, again without objection, that the trial justice makes the determination as to the expertise

of witnesses and then, shortly thereafter, instructed the jury that he found Dr. Lang qualified as

an expert in the field of emergency medicine both as to the standard of care and causation. Nor

can plaintiff argue that this information was a surprise. As made clear at oral argument, the

documents were appended to defendants’ motion in limine to preclude Dr. Lang’s testimony

heard eight days before the start of trial. At the completion of testimony, the trial justice further

instructed, without additional objection, as to the jury’s consideration of expert witnesses.

       After three weeks of trial, the jury then deliberated “for about one half (1/2) hour” before

returning a verdict for defendants. Besides the three documents, they were able to consider other

exhibits including Dr. Lang’s impressive forty-four page curriculum vitae as well as the

testimony of witnesses.

       Despite the instruction of the trial justice declaring Dr. Lang’s expertise, his timely and

balanced cautionary instruction at the voir dire hearing, and, in my view, his accurate final expert

instruction, the majority suggests that the jury plucked out these three single-spaced documents

to eviscerate the plaintiff’s case. I cannot accept that conclusion, and thus, respectfully dissent.




                                                - 22 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Jennifer O’Connor v. Newport Hospital et al.

CASE NO:              No. 2012-87-Appeal.
                      (NC 07-238)

COURT:                Supreme Court

DATE OPINION FILED: March 17, 2015

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Stephen P. Nugent

ATTORNEYS ON APPEAL:

                      For Plaintiff: Mark B. Decof, Esq.

                      For Defendants: William H. Jestings, Esq.
                                      William F. White, Esq.
