Practice Tip: How to Send Learned Treatises to the Jury Room

Many practitioners and judges are so used to the learned treatise rule that they treat it as an automatic rule for the evidentiary treatment of learned treatises, not thinking about the fact that it is an exception to the hearsay rule. As such, the rule, and the underlying exclusion of learned treatises from evidence, applies only when they are being offered to prove the truth of the matters asserted therein ' as, of course, they ordinarily are in a clash between experts.

When offered for a non-hearsay purpose, learned treatises should be admissible into evidence. Most notably, learned treatises are often probative of a party's state of mind, as for example when the plaintiff accuses a corporate defendant of negligently, recklessly, or maliciously selling a product while it knew or should have known that the product was dangerous. The defendant should be able to present to the jury the publications and treatises that were available at the relevant time upon which it relied in forming its opinion that its product was safe. The argument to the court is, for example, that the proffered scientific study is not being offered to prove the matter asserted (eg, that Product X is not associated with cancer), but to demonstrate the innocence of the defendant's state of mind in relying on the study and continuing to market Product X. The study is admissible not with regard to causation, but liability.