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?

Consider the following scenario at trial in cross-examining an opposing expert: “Q. Dr. Smith, can I please direct your attention to this textbook I'm holding up for the jury. Do you recognize this? A. Yes sir, that's Braunwald on Heart Disease. Q. Is it a good textbook? A. I'd say it is widely read. Q. Okay, is it a reliable authority in the field of heart disease? A. You'll have to define what you mean; like I said, it's widely used. Q. Do you consider it authoritative? A. Again, I'm not sure what you mean by that. Q. Well, is this a reliable source for information about heart disease? A. It may be as to some portions, but I'd really have to see exactly what you are referring to in order to comment.”

This abbreviated hypothetical scenario plays out over and over again in malpractice trials and in depositions of medical malpractice experts. When finally confronted with the particular sentence, paragraph, or chart at issue, the expert will predictably deny its reliability ' after all, this is cross-examination and impeachment. Typically, the well-prepared expert will never concede to the reliability of any source, and may even eventually state that, although he teaches his students from Tintinalli's Emergency Medicine, “no single source is reliable or authoritative in and of itself.”

Putting the ethics of this witness preparation issue aside for the purposes of this article, this line of inquiry may put the cross-examiner in a difficult position unless the literature has already been previously authenticated by “other expert testimony or by judicial notice.” At first glance, this line of questioning may seem like sloppy planning on the part of the cross examiner, but consider these two potential scenarios. First, as a defense lawyer, you wish to cross-examine the plaintiff's expert on a key journal article, but, because you've not had the opportunity to call any witnesses, you are forced to rely on the opposing expert to independently authenticate your article. Second, as a plaintiff's lawyer, you wish to cross-examine a defense expert with an article contradicting a theory he just espoused on direct examination, but the article was not previously authenticated by your own expert because it either wasn't relevant to your case in chief, or because you didn't anticipate she would make such a statement. In either scenario, unless the opposing expert admits the reliability of the article on cross, the cross-examiner clearly cannot introduce the portion of the treatise as direct evidence. Whether the cross-examiner may use the learned text on cross at all for purposes of impeachment, would seem to be a different issue.

In the Courts

Still, courts have rarely recognized this distinction, and when they have, some courts have nonetheless required the treatise, be authenticated as reliable authority before being used for any purpose. As stated, Florida courts require authentication by the cross-examined expert, and still don't allow substantive evidentiary use. Similarly, New York law requires prior authentication prior to the use of a learned treatise during cross-examination. Labate v. Plotkin, 195 A.D.2d 444 (2d Dept.1993). In the vast majority of reported cases, it is entirely unclear whether a learned text may be used during cross-examination for a non-substantive purpose if not already authenticated as reliable.

For Impeachment Purposes

Drawing on the above history of the learned treatise doctrine as well as the hypothetical dilemma during cross examination of a recalcitrant expert, it appears that nothing in Rule 803 supports the notion that an expert cannot be cross examined with a learned treatise for a non-substantive evidentiary purpose ' e.g., impeachment. Indeed, the history of the learned treatise doctrine supports such an interpretation, as learned texts were traditionally used for non-substantive evidentiary purposes. Professor Wigmore's recommendation that the rule be broadened to allow learned treatises as “direct evidence” was not a creation out of whole cloth, but merely an expansion of pre-existing use. After all, hearsay is defined as an out-of-court statement offered for the truth of the matter asserted. Rule 803 simply operates to exclude matters meeting the defined criteria (i.e., published, reliable authorities) from the hearsay definition; thus, certain learned treatises are allowed to prove the truth of the matter asserted. However, it says nothing of the permitted use of learned treatises to prove those other than the truth of the matter asserted. For such matters, the rule of impeachment, and the right to a through and complete cross-examination, should be the controlling concepts.

For example, although Nebraska courts restrict the use of learned treatises as direct evidence, it has been noted that “[c]ases generally sustain the right to cross-examine an expert witness with reference to what medical or other authorities teach on the subject under investigation … in order to test the knowlege and accuracy of the witness.” Fonda v. Northwestern Public Service Co., 292 N.W. 712, 720 (Neb. 1940) (upholding the use of medical authorities without regard to proof of reliability in the context of impeachment on cross-examination, but not admitting them as direct evidence).

And, shortly after adoption of the Federal Rules of Evidence, the U.S. Court of Appeals for the Second Circuit considered the appeal of a medical malpractice case involving the trial court's refusal to allow questions in cross-examination as to whether an expert agreed with certain statements published by the American Heart Association. Tart v. McGann, 697 F.2d 75, 77 (2nd Cir. 1982). Although not reversing the decision based on the record, the appellate court did note that “[p]rior to the enactment of [803], learned treatises were generally usable only on cross-examination and then only for impeachment purposes.” Id. at 78. The fact that the common law has been broadened to allow the use of learned treatises, under certain threshold conditions, to be admitted as direct evidence, should not be confused with the issue of the proper use of a learned text for another purpose, such as impeachment of an opposing expert.

Conclusion

Barring the use of medical resources during expert cross-examination for impeachment absent testimony by the witness as to its reliability impedes and obstructs the right of a thorough cross-examination. As Justice Hugo Black pointed out over 60 years ago, allowing an expert to give specialized medical opinions on direct, presumably based in part on medical texts, while forbidding the confrontation of the same witness with other medical texts, is “illogical, if not actually unfair.” Reilly v. Pinkus, 338 U.S. 269, 275 (1949) (finding an “undue restriction on the right to cross examine”).

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?

Consider the following scenario at trial in cross-examining an opposing expert: “Q. Dr. Smith, can I please direct your attention to this textbook I'm holding up for the jury. Do you recognize this? A. Yes sir, that's Braunwald on Heart Disease. Q. Is it a good textbook? A. I'd say it is widely read. Q. Okay, is it a reliable authority in the field of heart disease? A. You'll have to define what you mean; like I said, it's widely used. Q. Do you consider it authoritative? A. Again, I'm not sure what you mean by that. Q. Well, is this a reliable source for information about heart disease? A. It may be as to some portions, but I'd really have to see exactly what you are referring to in order to comment.”

This abbreviated hypothetical scenario plays out over and over again in malpractice trials and in depositions of medical malpractice experts. When finally confronted with the particular sentence, paragraph, or chart at issue, the expert will predictably deny its reliability ' after all, this is cross-examination and impeachment. Typically, the well-prepared expert will never concede to the reliability of any source, and may even eventually state that, although he teaches his students from Tintinalli's Emergency Medicine, “no single source is reliable or authoritative in and of itself.”

Putting the ethics of this witness preparation issue aside for the purposes of this article, this line of inquiry may put the cross-examiner in a difficult position unless the literature has already been previously authenticated by “other expert testimony or by judicial notice.” At first glance, this line of questioning may seem like sloppy planning on the part of the cross examiner, but consider these two potential scenarios. First, as a defense lawyer, you wish to cross-examine the plaintiff's expert on a key journal article, but, because you've not had the opportunity to call any witnesses, you are forced to rely on the opposing expert to independently authenticate your article. Second, as a plaintiff's lawyer, you wish to cross-examine a defense expert with an article contradicting a theory he just espoused on direct examination, but the article was not previously authenticated by your own expert because it either wasn't relevant to your case in chief, or because you didn't anticipate she would make such a statement. In either scenario, unless the opposing expert admits the reliability of the article on cross, the cross-examiner clearly cannot introduce the portion of the treatise as direct evidence. Whether the cross-examiner may use the learned text on cross at all for purposes of impeachment, would seem to be a different issue.

In the Courts

Still, courts have rarely recognized this distinction, and when they have, some courts have nonetheless required the treatise, be authenticated as reliable authority before being used for any purpose. As stated, Florida courts require authentication by the cross-examined expert, and still don't allow substantive evidentiary use. Similarly, New York law requires prior authentication prior to the use of a learned treatise during cross-examination. Labate v. Plotkin , 195 A.D.2d 444 (2d Dept.1993). In the vast majority of reported cases, it is entirely unclear whether a learned text may be used during cross-examination for a non-substantive purpose if not already authenticated as reliable.

For Impeachment Purposes

Drawing on the above history of the learned treatise doctrine as well as the hypothetical dilemma during cross examination of a recalcitrant expert, it appears that nothing in Rule 803 supports the notion that an expert cannot be cross examined with a learned treatise for a non-substantive evidentiary purpose ' e.g., impeachment. Indeed, the history of the learned treatise doctrine supports such an interpretation, as learned texts were traditionally used for non-substantive evidentiary purposes. Professor Wigmore's recommendation that the rule be broadened to allow learned treatises as “direct evidence” was not a creation out of whole cloth, but merely an expansion of pre-existing use. After all, hearsay is defined as an out-of-court statement offered for the truth of the matter asserted. Rule 803 simply operates to exclude matters meeting the defined criteria (i.e., published, reliable authorities) from the hearsay definition; thus, certain learned treatises are allowed to prove the truth of the matter asserted. However, it says nothing of the permitted use of learned treatises to prove those other than the truth of the matter asserted. For such matters, the rule of impeachment, and the right to a through and complete cross-examination, should be the controlling concepts.

For example, although Nebraska courts restrict the use of learned treatises as direct evidence, it has been noted that “[c]ases generally sustain the right to cross-examine an expert witness with reference to what medical or other authorities teach on the subject under investigation … in order to test the knowlege and accuracy of the witness.” Fonda v. Northwestern Public Service Co. , 292 N.W. 712, 720 (Neb. 1940) (upholding the use of medical authorities without regard to proof of reliability in the context of impeachment on cross-examination, but not admitting them as direct evidence).

And, shortly after adoption of the Federal Rules of Evidence, the U.S. Court of Appeals for the Second Circuit considered the appeal of a medical malpractice case involving the trial court's refusal to allow questions in cross-examination as to whether an expert agreed with certain statements published by the American Heart Association. Tart v. McGann , 697 F.2d 75, 77 (2nd Cir. 1982). Although not reversing the decision based on the record, the appellate court did note that “[p]rior to the enactment of [803], learned treatises were generally usable only on cross-examination and then only for impeachment purposes.” Id. at 78. The fact that the common law has been broadened to allow the use of learned treatises, under certain threshold conditions, to be admitted as direct evidence, should not be confused with the issue of the proper use of a learned text for another purpose, such as impeachment of an opposing expert.

Conclusion

Barring the use of medical resources during expert cross-examination for impeachment absent testimony by the witness as to its reliability impedes and obstructs the right of a thorough cross-examination. As Justice Hugo Black pointed out over 60 years ago, allowing an expert to give specialized medical opinions on direct, presumably based in part on medical texts, while forbidding the confrontation of the same witness with other medical texts, is “illogical, if not actually unfair.” Reilly v. Pinkus , 338 U.S. 269, 275 (1949) (finding an “undue restriction on the right to cross examine”).