ELIZABETH K. MAZZARO & another [Note 1] vs. THOMAS PAULL.

QUIRICO, J. The plaintiffs, wife and husband, appeal from jury verdicts for the defendant physician on claims for injuries to the wife and consequential damages to the husband resulting from the physician's alleged negligence in the performance of a hysterectomy operation. The appeal was entered in the Appeals Court, and we transferred the case here. G. L. c. 211A, Section 10 (A).

The sole issue presented is the validity of the trial judge's exclusion from evidence of a copy of the Directory of Medical Specialists (directory), also known as Marquis

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Who's Who, Inc., which the plaintiffs sought to introduce to establish the expertise of authors of various medical treatises. We find there was no error in the exclusion, and therefore affirm the judgments for the defendant.

The plaintiffs did not present evidence bearing on negligence through the testimony of expert witnesses; they rather sought to obtain such evidence by examining the defendant, and also intended to submit statements from various medical treatises or textbooks under G. L. c. 233, Section 79C. [Note 2] Because the statute requires "that the writer of such statements [be] recognized in his profession or calling as an expert on the subject," the plaintiffs sought to elicit from the defendant whether he was familiar with the authors of certain medical treatises and whether such authors were recognized in their field as experts. The defendant had not heard of several of the authors of the treatises; he was unwilling to express any view on the qualifications or training of those he had heard of. Thus, the plaintiffs were unable to supply directly the necessary authentication of expertise of the authors of the treatises through the testimony of the defendant.

Later in the trial, the plaintiffs' counsel continued the

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direct examination of the defendant and brought to his attention a Directory of Medical Specialists, which was said to be known as Marquis Who's Who, Inc., vol. 2, dated 1963-1964. The defendant's counsel objected. After the colloquy quoted in the margin, [Note 3] the judge excluded

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the directory. There was no offer of proof relating to the contents of the directory; it was not marked as an exhibit; and the plaintiffs did not ask the judge to make any preliminary findings of fact regarding the directory.

The only question before us is whether it was error to exclude the directory from which, it may be assumed, the plaintiffs sought to show that various authors of medical treatises were recognized experts and that the treatises would therefore be admissible under G. L. c. 233, Section 79C. No question of the ultimate admissibility of the treatises is presented in this case [Note 4] because the plaintiffs were unable to pass the threshold test of establishing the expertise of the authors. Nonetheless, the exclusion at issue must be considered in the context of a remedial legislative mandate (G. L. c. 233, Section 79C) to permit the introduction of authoritative medical texts and thereby overcome the longstanding obstacle of the hearsay rule. [Note 5]

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While the plaintiffs did not urge upon the trial judge any particular grounds of admissibility of the directory, in this court they contend that it should have been admitted under G. L. c. 233, Section 79B.

General Laws c. 233, Section 79B, inserted by St. 1947, c. 385, Section 1, provides that "[s]tatements of facts of general interest to persons engaged in an occupation contained in a list, register, periodical, book or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated."

This statute appears to have been based to some extent on Rule 528 of Model Code of Evidence (1942). See Eighteenth Report of the Judicial Council (December, 1942), 28 Mass. L.Q. (No. 1) 23-24 (1943); Twenty-First Report of the Judicial Council (December, 1945), 30 Mass. L.Q. (No. 4) 56 (1945); Twenty-Second Report of the Judicial Council (February, 1947), 32 Mass. L.Q. (No. 1) 78-79 (1947). The Judicial Council, in its several annual reports cited above, urged passage to permit the introduction of newspaper reports of market prices, city and telephone directories and the like, to modify the rule of exclusion stated in National Bank of Commerce v. New Bedford, 175 Mass. 257 (1900). In that case, Chief Justice Holmes, for the court, held that newspaper reports of stock quotations were inadmissible hearsay. Id. at 261. [Note 6] See Doherty

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v. Harris, 230 Mass. 341 (1918) ("The Commercial Bulletin," a trade journal publishing prices of goods, excluded). The sketchy legislative history contained in the reports of the Judicial Council and the comment to rule 528 does not expressly mention professional directories such as the one at issue.

The rationale for this limited exception to the hearsay rule is twofold. First, admitting commercial lists and registers is necessary because of the inaccessibility of the authors and compilers, and the practical inconvenience in summoning them. 6 J. Wigmore, Evidence Section 1702 (Chadbourn rev. 1976). Second, the trustworthiness of such lists is assured through general reliance on them by those in a particular profession, and the consequent motivation of the compiler to foster this reliance by his accuracy. 6 J. Wigmore, supra. See Fed. R. Evid. 803 (17); 4 J.B. Weinstein's Evidence, par. 803 (17) [01] (1976); Note, Commercial Lists, 46 Iowa L. Rev. 455 (1961).

Two of our prior cases have touched on the admissibility of a professional directory under G. L. c. 233, Section 79B. In Reddington v. Clayman, 334 Mass. 244 (1956), this court found no error in the exclusion of medical treatises offered by the plaintiff under G. L. c. 233, Section 79C. The problem in that case, as in this one, was compliance with the statutory requirement that the writer of the treatise be "recognized in his profession or calling as an expert." The court first rejected the claim that biographical data in the front of the book itself could permit the judge to find this preliminary question of fact. Id. at 247. The court then discussed the method of proof at issue here: "The offer of the Directory of Medical Specialists and of an English edition of Who's Who (1946) to vouch the professional standing of the authors and the text was not supported by [G. L. c. 233] Section 79C .... There is no basis for asking the court to take judicial notice of these books .... These books were not offered below under G. L.... c. 233, Section 79B ... so there was no opportunity for the judge to make the necessary preliminary findings under that statute that they were compilations issued to the public and published

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for the use of persons engaged in the particular occupation and commonly used and relied on. Such compilations conceivably might by their own statements show that they are issued to the public for a stated use, but it would appear necessary, at least in the usual case, that there be some independent evidence that they are commonly used and relied on to permit such a finding to be made" (citations omitted). Id. at 247-248. Several points in the discussion are relevant here. First, where the trial judge was not informed about G. L. c. 233, Section 79B, he could not make the findings which were the prerequisite foundation for admitting the directory. Second, independent evidence of the statutory requirements of common use and reliance was called for. Third, judicial notice was deemed inappropriate. In these circumstances, this court did not decide the admissibility of the directory under G. L. c. 233, Section 79B.

In Ramsland v. Shaw, 341 Mass. 56, 63-64 (1960), the plaintiff sought to introduce excerpts from a medical treatise under Section 79C, and sought to establish the necessary preliminary finding of the expertise of the author through the testimony of the city librarian of Lowell who produced a 1957 edition of "Who's Who." On exception, the portions of the treatise and the "Who's Who" which were excluded were made part of an offer of proof. The trial judge, in the exercise of his discretion, excluded the treatise and the "Who's Who" excerpt.

This court did not decide whether the "Who's Who" excerpt was admissible. [Note 7] The court commented, however,

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that "[s]uch evidence, of course, would not be admissible at common law.... Its admissibility must be found in G. L. c. 233, Section 79B." Id. at 64.

It may well be that these two cases, as commentators have asserted, [Note 8] have made introduction of medical treatises difficult. Yet our past cases have not foreclosed the use of a factual compilation under G. L. c. 233, Section 79B, as a means of establishing the authentication and expertise of medical treatises under G. L. c. 233, Section 79C. Section 79B requires, at the minimum, persuading the trial judge to make the preliminary findings that the proposed exhibit is (1) issued to the public, (2) published for persons engaged in the applicable occupation, and (3) commonly used and relied on by such persons. See Ricciutti v. Sylvania Elec. Prods. Inc., 343 Mass. 347, 350 (1961). We think "compilation," as used in the statute, connotes simple objective facts, and not conclusions or opinions. Perhaps the most expeditious means of satisfying these requirements would be by the testimony of a physician who used and relied on the directory, but there would no doubt be other means. If the plaintiffs had satisfied these threshold requirements, the trial judge in his discretion could have admitted the directory in issue.

Yet in this case, there was no offer of proof relating to the proffered contents of the directory, nor was it marked as an exhibit. [Note 9] Furthermore, the plaintiffs did not refer to any common law or statutory basis for permitting the directory to be introduced in evidence. The plaintiffs did not inform the court of G. L. c. 233, Section 79B, the statute on which they now claim error, nor did they assert or seek

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to establish that the directory was anything other than a collection of unverified self-serving statements as suggested by the trial judge.

On this state of the record, it was not error to exclude the directory. See Ricciutti v. Sylvania Elec. Prods. Inc., supra at 351; Reddington v. Clayman, supra at 248. Yet we do not suggest that it would have been error to admit it. A professional directory that was the authorized publication of medical boards, which verified or certified the information contained therein, or was based on adequate investigation and authentication, would be admissible under G. L. c. 233, Section 79B. The matter is entrusted by statute to the discretion of the trial judge, who should consider the remedial purpose of Section 79C, and who should not frustrate legitimate attempts to qualify authoritative treatises through Section 79B.

The trial judge had no way of knowing whether the Directory of Medical Specialists satisfied these requirements and was provided with no basis for making preliminary findings of fact. His exclusion was not error. While the plaintiffs now argue that the trial judge should have permitted further inquiry before excluding the exhibit, the colloquy quoted above shows that the plaintiffs provided no intimation that further inquiry would have been productive.

Judgments affirmed.