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Costantino v. Herzog

United States Court of Appeals for the Second Circuit
203 F.3d 164 (2000)


Dr. Herzog (defendant) was the obstetrician who delivered the Costantinos’ baby. During childbirth, the baby suffered an injury that caused her to develop a condition called Erb’s Palsy. The Costantinos (plaintiffs) filed a medical-malpractice action against Dr. Herzog, alleging that he improperly rotated the baby’s head during childbirth, causing the injury. At trial, Dr. Herzog sought to cross-examine the Costantinos’ medical expert using a videotape from the American College of Obstetricians and Gynecologists (ACOG). The videotape showed recommended methods to remedy the type of injury sustained by the Costantinos’ baby. Although Dr. Herzog acknowledged that the video was hearsay, he argued that it fell under an exception found in Federal Rule of Evidence 803(18) as a learned treatise. The Costantinos objected, arguing that videotapes were not expressly listed in the Federal Rules of Evidence as a form of learned treatises. The trial court ultimately admitted the videotape and it played twice at trial. The Costantinos appealed to the court of appeals, seeking reversal.

Rule of Law


Holding and Reasoning (McLaughlin, J.)

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