## Facts

- Teri A. Stang-Starr sued Dr. Robert T. Byington, an obstetrician/gynecologist, alleging negligent diagnosis and treatment of cervical abnormalities that later progressed to advanced cervical cancer.
- On May 23, 1986, Byington examined Stang-Starr and obtained a Pap smear sent to an outside laboratory.
- The June 4, 1986 lab report stated cellular changes consistent with moderate dysplasia, classified as Papanicolaou Class II, with a recommendation to repeat smears in two months.
- In October 1986, Byington’s office informed Stang-Starr of an abnormal Class II finding and instructed her to schedule follow-up.
- On October 27, 1986, Byington performed another Pap smear; the November 3, 1986 lab report stated negative for malignant cells, Class I, and she was told to return in six months for another smear.
- Stang-Starr later learned she had stage IV carcinoma and claimed inadequate follow-up and treatment after abnormal results caused progression of disease.
- At trial, Stang-Starr’s medical experts relied on medical writings (texts, technical bulletins, journal articles) in forming their opinions.
- Stang-Starr sought to (a) admit those writings as exhibits and (b) question her experts by having them read or testify from the writings after establishing they were authoritative.
- The trial court excluded the medical literature as hearsay and barred experts from reading it to the jury as substantive proof.
- The trial court admitted an explanatory document describing the laboratory’s Pap smear classification system that Byington testified he relied upon in practice.
- A jury returned a verdict for Byington, and the district court dismissed the action consistent with the verdict.

## Issues

1. Whether the trial court erred by refusing to permit plaintiff to question her medical experts regarding medical texts and treatises on which they relied, including reading from or admitting those materials as evidence.
2. Whether the trial court acted inconsistently or erroneously by admitting the laboratory’s explanation of its Pap smear classification system while excluding plaintiff’s medical texts and treatises.

## Decision

- The Nebraska Supreme Court affirmed the judgment for Byington.
- The court held the trial court properly excluded the medical texts and treatises and properly prevented experts from reading them to the jury as substantive evidence because they were hearsay and Nebraska law provides no learned-treatise exception.
- The court held the laboratory classification explanation was properly admitted because it was offered for a nonhearsay purpose: to show the classification system used and what the categories meant in practice to the lab and the physician relying on them.

## Legal Principles

- Under the Nebraska Evidence Rules, admissibility is governed by the rules themselves; judicial discretion applies only where the rules make discretion a factor.
- Learned writings (including medical texts and treatises) are hearsay when offered to prove the truth of their contents, and Nebraska does not recognize an independent learned-treatise hearsay exception comparable to Fed. R. Evid. 803(18).
- An expert’s reliance on, or characterization of, a publication as authoritative does not make the publication admissible as substantive evidence; experts may not be used as conduits to place otherwise inadmissible hearsay before the jury.
- Writings may be admissible when offered for a nonhearsay purpose (e.g., to explain a classification or coding system used by an entity and relied upon by a witness), rather than to prove the truth of medical assertions within the writing.

## Conclusion

The court upheld a defense verdict in a medical malpractice case, reaffirming that Nebraska treats learned treatises as inadmissible hearsay when offered as substantive proof and distinguishing a laboratory classification document admissible to explain a system relied upon rather than to prove the truth of medical propositions.


Stang-Starr v. Byington, 532 N.W.2d 26 (Neb. 1995)