## Facts

- During delivery, Amanda Costantino experienced shoulder dystocia, with her shoulder lodged behind her mother’s pubic bone.
- Obstetrician Dr. David Herzog used recognized maneuvers (including McRoberts positioning with suprapubic pressure, Woods corkscrew rotation, and posterior arm sweep) to complete the delivery.
- Amanda was born with Erb’s palsy, an injury to nerves affecting the arm.
- The parents sued in federal court under diversity jurisdiction, alleging Dr. Herzog negligently pulled and rotated the baby’s head and departed from accepted obstetrical standards, causing the injury.
- The defense argued the injury resulted from normal forces of labor rather than negligence.
- At trial, plaintiffs used a written obstetrics treatise to question Dr. Herzog about avoiding head rotation during delivery.
- Plaintiffs’ expert described the American College of Obstetricians and Gynecologists (ACOG) as a major professional body that publishes materials contributing to obstetrical standards of care.
- On cross-examination, the defense used an ACOG instructional videotape depicting recommended methods for managing shoulder dystocia; the district court admitted the videotape under Federal Rule of Evidence 803(18) and allowed it to be played twice.
- The jury returned a verdict for Dr. Herzog, and the district court entered judgment for defendants.

## Issues

1. Whether a professional medical organization’s instructional videotape may be treated as a “learned treatise” under Federal Rule of Evidence 803(18) and shown to the jury during expert cross-examination.
2. If admitting and playing the videotape exceeded Rule 803(18)’s limits, whether the error required a new trial.

## Decision

- The Second Circuit affirmed the judgment for the defendants.
- The court held that admitting and using the ACOG videotape did not constitute reversible error under Rule 803(18) as applied in this trial setting.
- Even if the videotape did not fit the rule’s literal reference to “treatises, periodicals, or pamphlets,” any error in its admission was harmless given how it was used and the trial record as a whole.

## Legal Principles

- Rule 803(18) permits reliable learned-authority statements to be used with expert testimony, based on their professional scrutiny and the safeguard of expert explanation and evaluation.
- The learned-treatise rationale may support use of authoritative educational materials that function like learned treatises, even if the material is not in traditional printed form, where reliability is established and the material is used in conjunction with expert examination.
- Learned-treatise material is meant to assist in examining an expert, not to serve as an independent exhibit; the key appellate question is whether the method of use created unfair prejudice or affected the verdict.
- An evidentiary ruling that arguably extends beyond the rule’s literal terms does not warrant reversal absent a showing that it likely influenced the jury’s decision.

## Conclusion

The Second Circuit left the defense verdict intact, concluding that the district court’s treatment of an ACOG instructional video as learned-authority material—used during expert cross-examination and subject to response by the opposing party—did not justify a new trial, and any arguable error was harmless.


Costantino v. Herzog, 203 F.3d 164 (2d Cir. 2000)