The Use of Learned Treatises in Med Mal Litigation

Learned treatises and medical textbooks have been an important part of many malpractice cases, on both the plaintiff and defendant sides. But although everyone knows that medical journal articles, textbooks and practice guidelines often offer powerful ammunition for the medical malpractice trial lawyer, the law surrounding the so-called “learned treatise doctrine” remains neither well settled nor universally applied.

What is the history, text, and common interpretation of the learned treatise rule found in the hearsay exceptions to the Federal Rules of Evidence (which many states share)? And how may we address a perplexing question impacting the effective use of a learned treatise ' namely, whether the doctrine permits cross-examination with a learned text absent prior authentication as to that source's reliability?

Evolution of the Doctrine

At common law, learned treatises, often referred to as “books of science and art,” were not permitted as direct evidence in the trial of civil or criminal cases. Indeed, at early common law, this seems to have been the law in every state, except Alabama. While medical texts were often used in cross-examinations, a distinction was made when the same material was sought to be introduced as substantive evidence. Historically, although the common law allowed for the introduction of a variety of scientific materials, such as mortality tables or almanacs, it was felt that the “inexact sciences” ' namely, medicine ' ought to be treated differently. See Learned Treatises as Direct Evidence: The Alabama Experience, 6 Duke Law Journal 1967.

Now illustrative of the prevailing rule today, Alabama's exception to the common law rule dates back to 1857 and the case of Stoudenmeier v. Williamson, 29 Ala. 558, which upheld the admission of a medical treatise titled “A Complete and Practical Treatise on Venereal Diseases.” Of note, the text was not offered during the course of an examination of an expert or a physician, but was allowed as direct evidence on its own accord.

In 1904, Dean Wigmore published his famous “Treatise on the Anglo-American System of Evidence in Trials at Common Law,” which advocated the adoption of the Alabama view on what he then termed “learned treatises.”

A few years later, the Harvard Law Review reported a Colorado case that, in keeping with tradition, declined to adopt Dean Wigmore's suggestion. 26 Harvard Law Review 642 (1913). Thereafter, the exclusion of learned treatises continued to garner almost universal criticism by commentators, but few courts embraced the doctrine that was, for many decades, unique to Alabama.

Although the American Law Institute's Model Code of Evidence adopted this view in 1942, which was later incorporated into the Uniform Rules of Evidence, it was not until 1975 that the Federal Rules of Evidence were enacted containing this significant change from common law. The impact of the federal learned treatise rule has resulted in a liberalization of the treatment of medical textbooks and scientific papers, though arguably not to the extent allowed under Alabama's law dating back to the 19th century. Nevertheless, the learned treatise exception to the hearsay rule has not been uniformly interpreted under federal law ' and, it is unclear what portion of the common law, if any, still remains intact.

The Federal learned treatise hearsay exception, copied verbatim by many states, reads as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

…. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judical notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Federal Rules of Evidence ' 803(18).

Dissecting the text of the rule, there are five methods by which to introduce a learned medical text as evidence at trial: 1) It may be admitted on direct examination if authenticated on direct; 2) It may be admitted on cross-examination if the witness testifies about it on direct; 3) It may be admitted on cross-examination if the witness admits its reliability on cross; 4) It may be admitted on direct or cross if another witness establishes its reliability; and 5) It may be admitted on direct or cross if the court takes judicial notice of its reliability.

If any one of these methods is used, the portion of the treatise established as reliable authority is admitted for the purpose of demonstrating its truth ' that is, as direct and substantive evidence, just as in the 1857 case of Stoudenmeier v. Williamson. The exception does require, however, that the learned text be offered into evidence during the course of the examination of an expert, not simply presented to the jury without the aid of an appropriate witness on the stand. Of course, the portion of the treatise offered must also satisfy other evidentiary hurdles, such as being shown to be relevant and not unduly prejudicial, under Rules 401 and 403. In addition, the treatise or the portion selected as reliable, although admitted as evidence for any proper purpose, is not available to the jury as an exhibit. This oddity was no doubt included due to the fear that jurors would be overwhelmed by loads of complex or esoteric material, or that jurors may place undue emphasis on the evidence simply because it was an exhibit.

Uneven Application

A majority of states have adopted ' 803(18)'s exception to the hearsay rule, either in its same words or in substance and interpretation. Yet several states have continued to deny the use of learned treatises as direct evidence. Pennsylvania, Nebraska, and New York, to name a few, still exclude learned treatises as substantive evidence. Ohio has just recently enacted a learned treatise exception, departing from longstanding common law. Florida's rule, a creature of statute, is different still. For example, in Florida, learned treatises are not permitted for any purpose during direct examination and can be used only during cross-examination if the the cross-examined expert recognizes the source “to be authoritative.” F.S.A. SS 90.706. Even when allowed through this restrictive procedure, the learned text cannot be used to prove the truth of the matter asserted. Id.

Next month, we will discuss the use of the learned treatise to impeach the testimony of a witness, and the argument for permitting this on cross-examination even when the document has not been authenticated as reliable.

James R. Moncus III, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton. He concentrates his practice in the areas of medical malpractice, personal injury, wrongful death, breach of contract, product liability and qui tam litigation under the Federal False Claims Act.

Learned treatises and medical textbooks have been an important part of many malpractice cases, on both the plaintiff and defendant sides. But although everyone knows that medical journal articles, textbooks and practice guidelines often offer powerful ammunition for the medical malpractice trial lawyer, the law surrounding the so-called “learned treatise doctrine” remains neither well settled nor universally applied.

What is the history, text, and common interpretation of the learned treatise rule found in the hearsay exceptions to the Federal Rules of Evidence (which many states share)? And how may we address a perplexing question impacting the effective use of a learned treatise ' namely, whether the doctrine permits cross-examination with a learned text absent prior authentication as to that source's reliability?

Evolution of the Doctrine

At common law, learned treatises, often referred to as “books of science and art,” were not permitted as direct evidence in the trial of civil or criminal cases. Indeed, at early common law, this seems to have been the law in every state, except Alabama. While medical texts were often used in cross-examinations, a distinction was made when the same material was sought to be introduced as substantive evidence. Historically, although the common law allowed for the introduction of a variety of scientific materials, such as mortality tables or almanacs, it was felt that the “inexact sciences” ' namely, medicine ' ought to be treated differently. See Learned Treatises as Direct Evidence: The Alabama Experience, 6 Duke Law Journal 1967.

Now illustrative of the prevailing rule today, Alabama's exception to the common law rule dates back to 1857 and the case of Stoudenmeier v. Williamson , 29 Ala. 558, which upheld the admission of a medical treatise titled “A Complete and Practical Treatise on Venereal Diseases.” Of note, the text was not offered during the course of an examination of an expert or a physician, but was allowed as direct evidence on its own accord.

In 1904, Dean Wigmore published his famous “Treatise on the Anglo-American System of Evidence in Trials at Common Law,” which advocated the adoption of the Alabama view on what he then termed “learned treatises.”

A few years later, the Harvard Law Review reported a Colorado case that, in keeping with tradition, declined to adopt Dean Wigmore's suggestion. 26 Harvard Law Review 642 (1913). Thereafter, the exclusion of learned treatises continued to garner almost universal criticism by commentators, but few courts embraced the doctrine that was, for many decades, unique to Alabama.

Although the American Law Institute's Model Code of Evidence adopted this view in 1942, which was later incorporated into the Uniform Rules of Evidence, it was not until 1975 that the Federal Rules of Evidence were enacted containing this significant change from common law. The impact of the federal learned treatise rule has resulted in a liberalization of the treatment of medical textbooks and scientific papers, though arguably not to the extent allowed under Alabama's law dating back to the 19th century. Nevertheless, the learned treatise exception to the hearsay rule has not been uniformly interpreted under federal law ' and, it is unclear what portion of the common law, if any, still remains intact.

The Federal learned treatise hearsay exception, copied verbatim by many states, reads as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

…. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judical notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Federal Rules of Evidence ' 803(18).

Dissecting the text of the rule, there are five methods by which to introduce a learned medical text as evidence at trial: 1) It may be admitted on direct examination if authenticated on direct; 2) It may be admitted on cross-examination if the witness testifies about it on direct; 3) It may be admitted on cross-examination if the witness admits its reliability on cross; 4) It may be admitted on direct or cross if another witness establishes its reliability; and 5) It may be admitted on direct or cross if the court takes judicial notice of its reliability.

If any one of these methods is used, the portion of the treatise established as reliable authority is admitted for the purpose of demonstrating its truth ' that is, as direct and substantive evidence, just as in the 1857 case of Stoudenmeier v. Williamson. The exception does require, however, that the learned text be offered into evidence during the course of the examination of an expert, not simply presented to the jury without the aid of an appropriate witness on the stand. Of course, the portion of the treatise offered must also satisfy other evidentiary hurdles, such as being shown to be relevant and not unduly prejudicial, under Rules 401 and 403. In addition, the treatise or the portion selected as reliable, although admitted as evidence for any proper purpose, is not available to the jury as an exhibit. This oddity was no doubt included due to the fear that jurors would be overwhelmed by loads of complex or esoteric material, or that jurors may place undue emphasis on the evidence simply because it was an exhibit.

Uneven Application

A majority of states have adopted ' 803(18)'s exception to the hearsay rule, either in its same words or in substance and interpretation. Yet several states have continued to deny the use of learned treatises as direct evidence. Pennsylvania, Nebraska, and New York, to name a few, still exclude learned treatises as substantive evidence. Ohio has just recently enacted a learned treatise exception, departing from longstanding common law. Florida's rule, a creature of statute, is different still. For example, in Florida, learned treatises are not permitted for any purpose during direct examination and can be used only during cross-examination if the the cross-examined expert recognizes the source “to be authoritative.” F.S.A. SS 90.706. Even when allowed through this restrictive procedure, the learned text cannot be used to prove the truth of the matter asserted. Id.

Next month, we will discuss the use of the learned treatise to impeach the testimony of a witness, and the argument for permitting this on cross-examination even when the document has not been authenticated as reliable.

James R. Moncus III, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton. He concentrates his practice in the areas of medical malpractice, personal injury, wrongful death, breach of contract, product liability and qui tam litigation under the Federal False Claims Act.