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Learned Treatises, Cross-Examination and the Hearsay Exception
In last month's newsletter, we looked at the development of statutory and case law surrounding the admission of learned treatises, such as medical books, textbooks and practice guidelines, in medical malpractice cases. Although everyone knows that these documents must be authenticated before they may be admitted into evidence as proof of the facts contained therein, the question remains whether the learned treatise doctrine permits cross-examination with a learned text absent prior authentication as to that source's reliability.
Gaining Entrance
Whatever method is used to introduce a portion of a learned treatise pursuant to the Federal Rules of Evidence ' 803 or its state law counterpart, the treatise must be authenticated as “reliable authority” to be admitted as direct evidence. But what if one wishes to use a portion of a learned text as non-substantive evidence, for impeachment of an opposing expert, for example? Does the hearsay exception of Rule 803 apply? Must the learned treatise be pre-authenticated as a “reliable authority” prior to its use? What if one merely wishes to ask an opposing expert whether she agrees or disagrees with a sentence or a paragraph in Harrison's Principles of Internal Medicine; is that permissible absent prior authentication? Can an opposing expert effectively block cross-examination questions by denying the reliability of all texts sought to be used for impeachment?
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