Traditionally, the substantive use of learned treatises at trial has been barred as hearsay because the declarant is not available for cross-examination.(1) For more than a century, however, New York courts have recognized the right of a party to cross-examine an expert witness from a published source that the expert has acknowledged to be a standard work in a field of science. As early as 1896, the Appellate Division observed that cross-examination of experts from treatises was "the custom, in this state," and the court was "not aware of any well-founded objection to" such questioning.(2)
In the federal courts, and in a majority of states, the hearsay objection to the use of scientific literature has been abandoned. In those jurisdictions, the authority of professional literature need not be established exclusively by the expert under cross-examination.(3) Rather, in most jurisdictions, the validity of a learned treatise may be verified by the testimony of any expert or even by judicial notice, and the contents of a treatise can be admitted into evidence as substantive proof on both direct and cross-examination.(4) In New York, however, for more than 100 years, the rule remains that the use of scientific literature at trial is limited to cross-examination, and only then if the witness being examined acknowledges the source to be authoritative.(5)
As it stands, the New York rule is widely misunderstood, and the manner in which it is applied is inconsistent. Although stating the rule is simple enough,(6) there is a paucity of judicial guidance to enable the bar and the courts to properly apply the rule to the rigors of day to day litigation practice. Serious questions remain. What is an authoritative source, and what is necessary for an expert to recognize or acknowledge it as authoritative?
The primary purpose of this Article is to articulate the standards that have been, and should be, utilized in New York to sufficiently establish recognition and authoritativeness so as to enable cross-examination from professional literature. In addition, it is important to examine whether the New York rule is likely to remain intact in the face of evolving judicial and societal attitudes about the proper use of, and basis for, expert testimony.
The dramatic expansion of the use of expert testimony over the last century has been accompanied by increasing skepticism about the opinions expressed by such experts at trial. The litigation process in general, and expert testimony in particular, continue to be debated. In fact, the standards applicable to expert testimony were recently reexamined by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.(7) As a result, it has become increasingly important not only to develop meaningful safeguards to assure that expert opinions are supported by the professional literature, but to simultaneously encourage fact finding based on the best available medical and scientific information. In this changing atmosphere, it is likely that an expanded right to cross-examine from scientific literature as well as measures to prevent unsupported expert opinion will be given serious consideration in New York.
Accordingly, this Article will: (a) examine the relevant evidentiary principles inherent in the proper application of the New York rule on the use of treatises to cross-examine experts; (b) compare the New York restrictions on the use of professional literature with the more liberal approach under the Federal Rules of Evidence and in the majority of jurisdictions; (c) evaluate the effect of Daubert and changing attitudes toward the use of expert witnesses; and (d) explore the common law process by which other jurisdictions have adopted a more expansive use of scientific literature.
Background: Learned Treatises as Hearsay
For at least 150 years, litigants have attempted to utilize learned treatises to both bolster the opinions of their experts and undermine the testimony of their adversaries.(8) As Professor Wigmore wrote over 90 years ago:
More than one reason has been advanced for prohibiting the
use of learned treatises in evidence; but the only legitimate
one, and the one generally pointed out and relied upon in
judicial opinion, is that such an offer of evidence purports to
employ testimonially a statement made out of court by a
person not subjected to cross-examination; i.e. purports to
violate the fundamental doctrine ... of the Hearsay rule.(9) Thus, a learned treatise is considered hearsay. As a result, under New York practice, it has long been reversible error to allow counsel to read, for example, from a medical text that his expert has identified as authoritative.(10)
The traditional objection to the use of scientific literature as direct evidence has been that it is unfair to permit a litigant to prove his case from a scientific textbook because the author is not sworn and cannot be cross-examined.(11) Unfortunately, judicial concern that a textbook cannot be cross-examined has created an injustice of even greater magnitude. Preventing a party from offering evidence from a standard textbook in a field of science or medicine grants virtual immunity from meaningful cross-examination to experts who testify in court.(12) Moreover, unduly restricting reference to published sources permits an expert witness to ignore even well accepted principles of his or her profession in rendering an opinion. If an expert cannot be challenged by sources that articulate the standards and principles of his or her profession, a case will likely be determined on the basis of which experts are more glib in expressing professional opinions, rather than on the validity of the opinions themselves.
In response to this problem, jurisdictions across the country have permitted the use of learned treatises in various ways.(13) Essentially, there are three approaches. Each approach is characterized by the purposes for which scientific literature may be utilized at trial and the method by which it may be authenticated.(14)
Most states and the federal courts permit the use of books of science both as direct substantive proof and on cross-examination.(15) A source can be authenticated by one or more of three methods: judicial notice, expert testimony, or acknowledgement by the adverse expert.(16) Several other states limit the use of learned treatises to cross-examination, but unlike New York, permit the source to be authenticated by any of the three methods available under the federal rule.(17) An increasingly small number of states, including New York, limit the use of scientific literature to cross-examination and require that the witness being examined accept the text as authoritative.(18) Each of these approaches is examined below.
II. THE NEW YORK RULE
The New York approach to the use of learned treatises is easy to describe. In practice, however, the rule is far more difficult to apply in a manner consistent with the purposes of cross-examination, especially when a witness asserts that a work is not authoritative.
New York has long recognized the right of a party to cross-examine an expert from a learned treatise for impeachment purposes, but only after the expert has recognized the source as a standard work.(19) In Egan v. Dry Dock, E.B. & B.R. Co.,(20) the court described what was apparently standard practice more than 100 years ago:
[Ilt is perfectly proper to ask [an expert] whether or not the
opinion he has expressed agrees with the opinion of other
people who are conceded to be learned upon the same subject,
because, if an expert witness admitted that the opinion which
he expressed was contrary to the opinion which was held
upon the same subject by other men who were acquainted
with the same science, it might, unless the reasons which he
gave for his opinion were satisfactory, tend strongly to detract
from the weight which that opinion would otherwise receive.
For the same reason, if the witness admitted that text writers
of acknowledged authority had expressed opinions contrary to
that one which he gave in regard to the matter under
examination, that might go to detract from the weight to be
given to such testimony. Therefore it has been the custom, in
this state at least, to call the attention of expert witnesses,
upon cross-examination, to books upon the subject, and ask
whether or riot authors whom he admitted to be good
authority had not expressed opinions different from that which was
given by him upon the stand. The reference to books in such
cases is not made for the purpose of making the statements
in the books evidence before a jury, but solely for the purpose
of ascertaining the weight to be given to the testimony of the
In Hastings v. Chrysler Corp.,(22) citing and relying on Egan,(23) the court reversed a defense verdict because the trial court unduly restricted the right of the plaintiff to confront an expert with "statements and opinions, in treatises written by recognized authorities, at variance with the opinions expressed by the witness as an expert."(24) On cross-examination, the witness testified "that it was part of his business as an engineer to `read up' on standard practice from recognized textbooks, manuals and periodicals."(25) But the trial judge prevented counsel from asking the witness whether he "had read [a particular textbook] or recognized its authoritativeness."(26) The court noted that "the rule in this state ... is that on cross-examination an expert may, for discrediting purposes, be confronted with a passage from a treatise of recognized authority which is at variance or in conflict with the opinion expressed by the witness on the stand."(27)
More importantly, the court clearly indicated that the right to cross-examine an expert from learned treatises was critical to a fair trial.(28) Quoting approvingly from a New Brunswick case(29) cited by Wigmore, the court declared that
[m]edical works are produced which are recognized by the profession as standard authorities. An expert witness is being examined, who gives evidence as to specified diseases and their remedies. It is found by reference that his statements are at variance with what is laid down by the best authors on the same subject. Surely, it must be the right of counsel to confront the witness with books written by scientific men, leaders in their profession, for the purpose of showing either that the witness is mistaken, or that he may explain and reconcile, if he can, the real or apparent difference between what he has said and what is found in the books. If it was otherwise, men of insufficient learning, or veritable quacks, might palm off their crude opinions on juries as scientific knowledge.(30)
The court then distinguished the direct use of a learned treatise -- which, as noted above, would be barred as hearsay -- from the use of a treatise to test the validity of the opinion of an expert and undermine his credibility.(31) The latter was not hearsay because it was not being offered for its truth.(32)
The testimony of all experts, except perhaps a few celebrated scientists, is based not only on their own experience but on their learning. Certain books and literature are regarded by each profession as authoritative and as truly setting forth the views and experience of authors of recognized standing with respect to accepted scientific theory and practice at the time of publication. When a witness has admitted acquaintance with the literature of his subject and is confronted with one of the books which he accepts as authoritative, the issue presented is not whether the statements in the book are true but whether the witness has really read and intelligently applied what is stated in the book.(33)
The critical nature of the right to cross-examine an expert from scientific literature, as enunciated in Egan and Hastings, was noted approvingly by the Court of Appeals.(34) In People v. Feldman,(35) the court reversed a criminal conviction, in part, because the defendant was not permitted to question a toxicologist from a physiology textbook at which the witness had "glanced."(36)
The right to effective cross-examination generally is considered to be the single most important safeguard to assure that the evidence upon which a case is decided is accurate and complete.(37) An expert witness is given the privilege of expressing an opinion in order to assist the fact-finder in understanding technical information. It is inevitable that experts will express different opinions, particularly if they are not constrained to demonstrate that their position is supported by the published literature. Therefore, the right to meaningful cross-examination, in order to establish inconsistency between the opinion expressed and published material in the field, is crucial to a valid evaluation of the weight to be given to an expert's testimony. As Justice Black wrote for the United States Supreme Court in 1949, "[ilt certainly is illogical, if not actually unfair, to permit witnesses to give expert opinions based on book knowledge, and then deprive the party challenging such evidence of all opportunity to interrogate them about divergent opinions expressed in other reputable books."(38)
Yet, in New York, there is an unjustified tendency to restrict cross-examination from learned treatises. This is attributed to a lack of understanding of the rules applicable to cross-examination of experts from learned treatises. Generations of attorneys in New York have been taught that, no matter how reliable, a learned treatise may only be utilized to cross-examine an expert witness if the publication has been acknowledged by the witness to be authoritative.(39) Thus, attorneys, as well as the expert witnesses whom they utilize, have been led to believe that as long as an expert refrains from incanting the magic phrase that a book is authoritative, he can avoid being cross-examined from such a book. The case law, however, does not support this position.
The unwillingness of experts to concede that a text is authoritative has been the subject of a number of cases around the country and was described almost twenty years ago in a New York Law Journal article advocating the liberalization in New York of the use of published materials both as direct evidence and on cross-examination.(40) It is noted that
[flrequently ... the expert has been advised of these rules of
law by his own counsel, and by simply stating that he does
not recognize a medical textbook as authoritative he may
foreclose any use thereof as a means of impeaching his
credibility. Even if the expert has no ulterior motive to
thwart the cross-examiner, he may not fully comprehend that
his disagreement with some portion of the text does not
necessarily mean that the work is not an authority on the
subject. Because the practical effect of the rule is to give the
witness complete control of the cross-examination, it has been
characterized as inflexible and harsh.(41)
As the Missouri Supreme Court noted, in rejecting the requirement that the witness acknowledge that a work is standard or authoritative, the witness:
need only say that he is not acquainted with the book or its
author to prevent its use in testing his qualifications, no
matter how eminent or accepted the author may be. The
fewer books and authorities the witness knows about or will
acknowledge and the less knowledge he has of what has been
written in the field, the more difficult it will be to
cross-examine him along this line. It gives him full veto power
over the cross-examiner's efforts.42
In no other area of testimony in New York does the witness control the scope of his or her own cross-examination. Thus, in addition to thwarting legitimate cross-examination, inflexible application of the rule encourages the use of less qualified experts, less candid expert testimony, and less examination of the facts and opinions offered at trial.(43) In holding that a source can be established as reliable by judicial notice or direct proof, as well as by the traditional method of admission by the witness, the Michigan Court of Appeals noted that "expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues."(44)
Refusal to accept a broad definition of what constitutes a recognition of an authoritative source will result inevitably in the deterioration of cases into a swearing contest between experts, instead of a search for the truth and a decision made on the most reliable information.(45) Contrary to the belief of most practitioners, there is no requirement in New York that a witness utter the magic words and declare that a publication is authoritative.(46) Rather, the term "authoritative" is merely a shorthand term used by courts and text writers to describe a publication that is considered a source of reliable information by professionals in the field.(47)
There is no definition of the term "authoritative" in Black's Law Dictionary.(48) There is no reported case in New York, or in any other jurisdiction, that specifically defines the term authoritative in the context of a learned treatise. Nor do the evidence textbooks define the term authoritative as they use it to describe the New York rule. The requisite foundation, however, to enable cross-examination of an expert from a published source can be gleaned from the cases where cross-examination has been permitted by acknowledgement.(49)
But even under the restrictive New York rule, it is the substance of an expert's answer about the reliability of the publication and his familiarity with it -- not his unwillingness to use the magic word authoritative -- that determines whether the expert may be examined from a particular text.(50) In fact, use of the term authoritative may be misleading since, in reality, the focus of the inquiry in such cases is the expert's familiarity with the reference and recognition of the source as a reliable repository of information by experts in the field.
By definition, authoritative means nothing more than based on competent authority; reliable because coming from one who is an expert . . . ."(51) It is clear from the cases that familiarity with and recognition of general reliability are the touchstones required to permit use on cross-examination, not an expert's use of the term authoritative.
Recently, the First Department specifically acknowledged that there is no magic-word test. In Spiegel v. Levy,52 an expert relied on an article in his direct testimony. He testified that he found the article "of value" and "agree[d] with a lot of what ... [the authors] said."(53) Yet the witness refused to acknowledge on cross-examination that the article was authoritative.54 Nevertheless, the Court held that questioning the witness from the publication was proper.(55) The court wrote that "the physician could not foreclose full cross examination by the semantic trick of announcing that he did not find the work authoritative.(56)
Until 1992, when it joined the majority of states that permit the direct use of learned treatises, New Jersey followed the restrictive New York rule and required an adverse expert to recognize a text as authoritative in order to permit cross-examination from it.(57) In Ruth v. Fenchel,(58) the Supreme Court of New Jersey specifically addressed the question of whether a work was recognized sufficiently as authoritative to permit its use during cross-examination.(59) In Ruth, one witness responded that the authors of a specific text were "very, very capable" and that he had read the work of "these authors" but not the particular edition in question." Another witness characterized the same text "as an excellent textbook" and "one of the textbooks I have in my library."(61) The court held that cross-examination was appropriate because, based on the substance of their testimony, the witnesses admitted that the textbook was a recognized and standard authority.(62) The court, in its decision, noted an earlier case in which cross-examination was properly allowed.(63)In that case, the expert witness testified that he knew the textbook in question "quite well" and that it was a "standard work" and "referred to as such by scientific men.(64)
More recently, in Jacober v. St. Peter's Medical Center,(65) the Supreme Court of New Jersey eliminated the need for the cross examined witness to acknowledge that a source was authoritative.(66) However, the court determined that even under the old Ruth rule -- the rule still applicable in New York -- questioning would have been appropriate, despite the refusal of the witness to use the word authoritative.(67) The Jacober court held that the appropriate test "requires an expert only to recognize a text as standard authority, not expressly to declare the text `authoritative."(68)
There are relatively few cases describing the parameters of what acknowledgement qualifies a work as recognized authority. There are, however, some general principles and guidelines.(69) For example, an expert need not have read a text in order to permit cross-examination from it.(70) In Mark v. Colgate University,(71) the court reversed judgment for the defendant, in part, because the trial court erroneously prevented the plaintiff from establishing a foundation to prove the authority of two publication.(72) The court noted that "[s]ignificantly, this practice [of cross-examination from a treatise or book of recognized authority] is not limited to those cases in which the expert admits that he has read the book or article concerning which he is being questioned."(73) The Court of Appeals, as noted above, held that it was reversible error to deny cross-examination of an expert who 'glanced" at a text.(74)
In Jacober, the defense expert's testimony that the book was a "standard text" and that the author was an 'eminent neonatologist" who authored a "standard textbook," constituted sufficient acknowledgement that the text was a "recognized and standard authority" despite the expert's refusal to declare on cross-examination that the text was "authoritative.(75) Another "expert's admission that [al textbook was 'commonly use& [was] deemed sufficient to render the work authoritative" or a "standard" work and, therefore, subjected the expert to cross-examination.(76)
Even when an expert was unfamiliar with a text or its authors, his acknowledgement of familiarity with the reputation of the publisher and other aspects of a text has been deemed sufficient to establish the text as authoritative.(77) In Gridley v. Johnson,(78) the expert testified that he was familiar with the well-known medical textbook publisher and the reputation of the Cook County General Hospital where the authors of the text in question were on staff.(79) In reversing the trial court, the Supreme Court of Missouri held that preventing cross-examination from certain passages of the text on the grounds that "the witness was not acquainted with the book and did not recognize it as authoritative" was error.(80)
There is even some question, under New York law, whether the requirement that a witness authenticate a source as reliable is indispensable in the face of a recalcitrant expert who refuses to concede that anything is authoritative, a situation that is, in the authors' experience, quite common.(81) Considering New York law in 1950, the Second Circuit Court of Appeals, after reciting the general requirement that the expert must concede the authority of the text before cross-examination may be permitted, wrote that
where the expert denies all knowledge of what appears to be
a standard governmental manual for the specific purpose, the
issue is substantially different. We are not convinced from
these New York authorities, in the light of the otherwise
favorable trend to this form of examination noted above, that
the state courts would automatically reverse such a test of the
doctor's views as was here permitted.(82)
Furthermore, the relatively few New York cases that have precluded cross-examination of an expert did not give any indication that the New York courts rejected the appropriate definition of what constitutes an authoritative source.(83) For instance, Roveda v. Weiss(84) is commonly cited for the proposition that cross-examination from texts that have not been conceded to be authoritative is prohibited.(85) Roveda, however, provides no guidance about what makes a text authoritative.(86) The court merely held that cross examination of an expert from a neurology textbook was improperly permitted by the trial court, but only because the witness 'had never heard of ... the author of a certain medical book, nor heard of the book itself."(87)
To summarize, even the restrictive New York rule does not eliminate cross-examination of an expert from a text merely because he or she refuses to acknowledge that it is authoritative. Under the case law, and in light of the increasing need to assure reliable expert opinions, a determination of whether to permit cross-examination from a text must be flexible to adapt to the actual testimony. The courts should not allow the witness to foreclose cross-examination by his or her intransigence in acknowledging a book to be authoritative when the substance of the testimony indicates otherwise. The standard to be applied is whether the book is in fact recognized as a source of generally reliable information among practitioners in the field, not whether the witness agrees with the published statement.(88)
Thus, under New York case law, and in cases across the country interpreting rules identical to New York's, cross-examination should be permitted where the expert "glanced" at,(89) or "knew of those books' and agreed that they were "standard works."(90) Furthermore, cross-examination should be permitted where the expert found the article "of value[,] ... agree[d] with a lot of what [the authors] said,"(91) [orl found the authors of a text "very, very capable."(92) If an expert characterizes the text as "an excellent textbook,... one of the textbooks I have in my library,(93) or knew the book "quite well,"(94) cross-examination should be allowed. Cross-examination also should be permitted where an expert found it to be a "standard work," agreed it was "referred to as such by scientific men,"(95) or "was familiar with the book.... studied under the editors of the book, had used it during his studies and ... it was accepted as one of the many books in the field."(96)
In addition, cross-examination from publications should be permitted where the expert testifies that the work was "commonly used,"(97) or was "reasonably relied on by experts in the field."(98) The court also should permit cross-examination if the expert testifies that the text contains a chapter written by him(99) or contains some opinions that "clinicians100 would agree with."(100) Finally, cross-examination should be allowed if the expert states that the text was authored by an "eminent" practitioner,'101 the expert was familiar with the reputation of the hospital where the authors were on staff, or the publisher was a well-known medical textbook publisher.(102)
In light of the critical nature of the cross-examination rights at stake, these should not be the exclusive indicate of authoritativeness. Additional factors should be considered by the court in its analysis: Has the expert read the publication? Did he or she use it or an earlier edition as a student, or to study for professional certification? Is the work published or recommended by a governmental agency or professional organization of which the expert is a member?(103) Did the expert ever use it for research purposes or refer to it? Did he or she purchase or subscribe to the publication? Did the expert maintain it in his or her office or home library? Is the publication in a library that the witness uses or at which he has staff privileges? If so, is it in the reserve section of the library, thus indicating high demand among students and professionals? Has the witness used the book for teaching purposes?
Affirmative responses to one or a combination of the foregoing non-exhaustive lists should suffice as an adequate acknowledgement of reliability to subject the witness to cross-examination. An expert witness, however, may be unwilling to accept anything as a source from which he or she can be cross-examined.(104) Certainly, the unwillingness of an expert to recognize the validity of any professional literature should be a factor to be considered by the court in determining whether the witness is trying to evade examination.(105)
An expert is allowed to render opinions because he or she has technical knowledge in an area of medical or scientific endeavor that a jury or the court lacks.(106) However, in the absence of effective cross-examination from respected professional sources, the expert is in effect given carte blanche to render any opinion, whether or not it is in accordance with accepted scientific thought, knowing that his or her opinion cannot be challenged in a meaningful way. Is it any wonder, therefore, that our judicial system comes under increasing criticism for the use of junk science in the courtroom? Surely our jurisprudence never intended to immunize an expert's opinion from attack by respected sources other than those that the questioned expert himself acknowledges.
In evaluating the validity of an expert's opinion, it is significant to consider that one expert's opinion may be consistent with the leading published works in the field, whereas another expert's opinion is contrary to the professional literature. A party cannot demonstrate either fact without the expanded use of scientific literature. Meaningful use of learned treatises not only encourages well-supported expert opinions, but also discourages an unscrupulous expert who might otherwise be inclined to give a baseless opinion. Given a divergence of expert opinion, expanded use of scientific literature will promote more reliable determinations; the goal of any trial. Thus, the vast majority of jurisdictions and the Federal Rules of Evidence have abandoned the New York approach and, as discussed below, have expanded the right to use published sources in cross-examination and as direct proof.
Cross-examination From Sources Established as Reliable by Means Other
Than Acknowledgement by the Adverse Expert Witness
Even within the constraints of current law, greater flexibility, understanding, and correct application of the restrictive New York rule will promote more effective and meaningful cross-examination from published sources. However, a recalcitrant witness who recognizes how the game is played and refuses to be familiar with even the most widely accepted professional sources may foreclose constructive cross-examination. Under these circumstances, counsel in New York have no means of either cross-examining the witness or alerting the court and jury to the bias, hostility, or perhaps incompetence suggested by a refusal to recognize what are unquestionably reliable sources. Surely this state of affairs cannot be a goal of our fact-finding process.
For this reason, a majority of jurisdictions in the United States, including the federal courts, have abandoned the New York rule.(107) Such jurisdictions not only permit learned treatises to be authenticated by direct testimony and judicial notice, but also permit the publications themselves to be admitted as substantive proof(108) A smaller number of states, however, having also recognized the infirmity of the New York approach, permit a party to directly establish a source as authoritative, but do not allow its admission into evidence.(109)
For example, in Pennsylvania the rule is described as follows:
Experts may be cross-examined with learned treatises but the
treatises are not treated as substantive evidence. The
treatises are admissible to impeach the expert by showing
either that he or she is not familiar with recognized
authorities in the field, or that his or her opinion is inconsistent with
authorities in the field. Such cross-examination may be based
on treatises upon which the expert has relied, treatises which
the expert admits are authoritative, or treatises which are
established as authoritative by other experts.(110)
Under this rule, therefore, a party may establish that a published source is authoritative by one of three means: (a) acknowledgement by the expert being cross-examined; (b) testimony from another qualified expert that the source is accepted by professionals in the field; or (c) judicial notice.(111) Presumably, authoritativeness can be validated by a combination of these methods.
Adoption of this middle road approach in New York would eliminate the charade of a (supposedly) highly trained professional attempting to thwart cross-examination from an unquestionably reliable source merely to gain a tactical advantage over the questioner. Expansion of the scope of cross-examination in this manner Will also assure better analysis of expert opinion by the fact-finder. But why create yet another artificial impediment to meaningful evaluation of expert testimony, when the opportunity exists to correct the problem in its entirety?
III. Use of Learned Treatises as Substantive Proof: The
Federal and Majority Approach
As noted above, the use of a learned treatise as evidence in chief has historically been described as "clearly hearsay"(112) because it is an out of court declaration offered for the truth of the facts asserted therein, and the proponent of the statements made is not available for cross-examination.(113) Even though it is considered hearsay, most commentators, the Federal Rules of Evidence,(114) and now most states have recognized the need and desirability for the expanded use of learned treatises in the trial of an action in order to "improve the quality of information presented to trial courts in litigated cases."(115) Accordingly, an exception to the hearsay objection has been recognized both by statute and at common law.(116)
Section 803 of the Federal Rules of Evidence provides that
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
judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.(117)
By statute or a common law counterpart, the federal rule has now been adopted in as many as thirty-three states.(118) As the Advisory Committee Note to Rule 803 (18) states:
The writers have generally favored the admissibility of
learned treatises, with the support of occasional decisions and
rules .... [T]he hearsay objection must be regarded as
unimpressive when directed against treatises since a high
standard of accuracy is engendered by various factors: the
treatise is written primarily and impartially for professionals,
subject to scrutiny and exposure for inaccuracy, with the
reputation of the writer at stake.(119)
Indeed, for more than fifty years, Professor Wigmore and his successors have, with increasing success, been arguing for what is now the majority rule.(120)
Notwithstanding the hearsay nature of the use of a learned treatise as direct evidence, commentators agree that a treatise's reliability, trustworthiness, and contribution to a more reasoned outcome far outweigh any hearsay exclusion.(121) After discussing the necessity and desirability of evidence from treatises, Wigmore outlined the reasons why use of a treatise in evidence was likely to be at least as trustworthy as an expert's testimony:
[I]n the usual instance [the state of mind of a learned writer]
fulfils the ordinary requirement for the Hearsay exceptions,
namely, that the declarant should have "no motive to
misrepresent." They may have a bias in favor of a theory, but it is a
bias in favor of the truth as they see it; it is not a bias in
favor of a lawsuit or of an individual. Their statement is
made with no view to a litigation or to the interests of a
The writer of a learned treatise publishes primarily for his profession. He knows that every conclusion will be subjected to careful professional criticism, and is open ultimately to certain refutation if not well-founded; that his reputation depends on the correctness of his data and the validity of his conclusions; and that he might better not have written than put forth statements in which may be detected a lack of sincerity of method and of accuracy of results. The motive, in other words, is precisely the same in character and is more certain in its influence than that which is accepted as sufficient in some of the other Hearsay exceptions, namely, the unwelcome probability of a detection and exposure of errors....
[T]he probabilities of accuracy, such as they are, at least are greater than those which accompany the testimony of so many expert witnesses on the stand.... It must be conceded that those who write with no view to litigation are at least as trustworthy, though unsworn and unexamined, as perhaps the greater portion of those who take the stand for a fee from one of the litigants.(122)
Thus, sworn testimony from an expert retained for the purposes of litigation is no more reliable than the unsworn professional literature created without any litigation bias. In fact, such literature is likely to set forth the technical principles involved with greater reliability. The majority of states have adopted the federal rule or something very similar precisely for these reasons.(123)
The hearsay rule was adopted to prevent a fact-finder from basing a determination on unreliable information.(124) It Was never intended to permit a party to hide behind unreliable information such as an expert's opinion based on nothing more than an expert's credentials and willingness to testify.(125) Where an expert can compel a court to disregard the published literature in a professional field, the hearsay rule, as applied to learned treatises, must be re-examined.
IV. The Impact of Daubert
In 1940, Professor Wigmore wrote that "[t]he abuses of expert testimony, arising from the fact that [experts] are too often ... paid to take a partisan view and are practically untrustworthy, are too well-known to repeat.(126) Since that time, criticism of unreliable expert opinions has increased and references to "junk science" in the courtroom are commonplace. Yet, the New York courts have refused, thus far, to give litigants the most effective weapons to combat unworthy expert opinions, namely, meaningful cross-examination and reliable professional information.
In 1993, the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals.(127) Although Daubert addressed the standard to be applied for the admission of expert testimony in the federal courts, its underlying rationale is also applicable to the use of learned treatises.(128)
Daubert held that, in deciding whether expert testimony will be accepted, the court must make a threshold determination "of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."(129) Justice Blackmun outlined some of the criteria that may be applicable to this exercise.(130) Significantly, he noted that one of the most important considerations is whether
the theory or technique has been subjected to peer review and
publication. Publication (which is but one element of peer
review) is not a sine qua non of admissibility; it does not
necessarily correlate with reliability.... But submission to
the scrutiny of the scientific community is a component of
"good science," in part because it increases the likelihood that
substantive flaws in methodology will be detected. The fact
of publication (or lack thereof) in a peer reviewed journal thus
will be a relevant, though not dispositive, consideration in
assessing the scientific validity of a particular technique or
methodology on which an opinion is premised.(131)
In addition, the court should consider the degree of "general acceptance" of the basis, for the opinion in the scientific community.(132) As the Court wrote, "[w]idespread acceptance can be an important factor in ruling particular evidence admissible, and 'a known technique which has been able to attract only minimal support within the community,' may properly be viewed with skepticism."(133)
The Frye standard,(134) still applicable in New York(135) for the admissibility of an expert opinion, provided that an opinion based on scientific principle is admissible only if the theory has gained general acceptance."(136) Therefore, it would appear that under both Frye and Daubert, the court must initially determine the level of acceptance of the basis for an opinion within the applicable professional community. It is not only relevant, but indeed critical to ascertain whether the opinion expressed by the witness is generally accepted or at least falls within the ambit of a significant minority view on an as yet unresolved issue.
The threshold determinations required under both Frye and Daubert can be assisted, as Justice Blackmun noted, by reference to the professional literature in the field.(137) Certainly, if the court is encouraged to ascertain whether the basis for an opinion is in accord with published professional material that was not prepared for litigation, it should be equally helpful to a jury to know whether the expert's opinion is supported by the professional literature. In making this threshold evaluation, the court is in a position to decide that a published source is authoritative, without relying exclusively on an adverse witness, as is required in New York.(138)
Clearly, an expansive right to demonstrate on cross-examination that an expert's opinion is contrary to independently established standard professional sources assures the reliability of expert opinions. Justice Blackmun specifically addressed this concern in Daubert:
Respondent expresses apprehension that abandonment of
"general acceptance" as the exclusive requirement for
admission will result in a "free-for-all" in which befuddled
juries are confounded by absurd and irrational
pseudoscientific assertions. In this regard respondent seems to us to be
overly pessimistic about the capabilities of the jury and of the
adversary system generally. Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate me s
of attacking shaky but admissible evidence.(139)
The archaic New York practice that prevents such "vigorous cross-examination" by prohibiting independent authentication of professional literature promotes the very "absurd and irrational pseudoscientific assertions" to which Justice Blackmun was alluding in Daubert.(140)
V. Getting From Here to There
Perhaps there was a time when an expert witness was willing to candidly acknowledge the authority of a recognized treatise and thereby subject himself to cross-examination. But if such an era ever in fact existed, it has long since expired. It is time for New York to join the majority of American jurisdictions and recognize a hearsay exception for the use of learned treatises.
It has been said that exceptions to the hearsay rule "resemble an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists."(141) Indeed, the rules of evidence in general, and hearsay exceptions in particular, have evolved over the years, by statute and common law, in order to recognize changing sources of information, meet the needs of litigation, and promote a more just outcome.(142)
Sanctioning a new hearsay exception is not a radical step. It merely acknowledges that a certain type of information is sufficiently reliable to enable its use at trial despite the absence of the declarant in court. For example, as recently as 1974, the Court of Appeals recognized a common law hearsay exception to permit expert opinion to be based on hearsay "data ... ordinarily accepted by experts in the field."(143) A review of the common law evolution of the hearsay exception that permits the direct use of learned treatises in other jurisdictions demonstrates how this process can emerge in New York.
A. The Illinois Experience
Professor Robert Spector traced the development of the learned treatise hearsay exception in Illinois.(144) As early as 1878, Illinois law on this subject paralleled the rule in New York and most other jurisdictions.(145) The Supreme Court of illinois permitted an expert to be questioned from standard texts on alcohol related delirium tremens even though the expert had not specified any particular text.(146) Spector wrote: "[t]he court discerned little difference whether the questions ... were read out of a textbook or framed independently by counsel; there was no better way to test fully the expert's knowledge."(147) By the early 1900s, the use of treatises in Illinois was limited to those instances where the expert relied on a specific treatise.(148)
By 1965, there was increasing criticism of the restrictive rules by commentators and the bar.(149) In Darling v. Charleston Community Memorial Hospital,(150) the defendant had claimed that it was prejudicial error for the trial court to "permit the cross-examination of its expert witnesses concerning the views of recognized authorities in their fields ... [because] the experts did not purport to base their opinions upon the views of these authorities."(151)
Instead of addressing the particular facts of the case, the court took the opportunity to reject New York-type restrictions on cross-examination from authoritative sources.(152) It wrote, "we are satisfied that the rule [requiring a witness to rely on a particular source or recognize it as authoritative] is not supported by sound reasons, and should no longer be adhered to."(153) Thus, the Illinois Supreme Court expressly permitted cross-examination from published sources whose competence "is established if the judge takes judicial notice of it, or if [the authority of the source] is established by a witness expert in the subject."(154)
Thereafter, Illinois courts grappled with the impact of Darling. For example, in People v. Gillespie,(155) an expert was allowed to testify about blood type frequency statistics published in a pharmaceutical company study.(156) In People v. Behnke,(157) a case in which cross-examination from a government training manual for forensic chemists was not permitted because it was not established as authoritative, the court's dicta interpreted Darling as "a partial recognition of the learned treatise exception to the hearsay rule."(158) A similar result occurred in Roddy v. Chicago & Northwestern Railroad,"(159) where the court refused to permit an expert on direct testimony to quote from a National Safety Council bulletin on stopping distances, but only because the bulletin had not been established as authoritative since there was no indication of the author or whether the author was a recognized expert in the field.(160) According to Spector, "Roddy assumed a learned treatises exception to the hearsay rule and confined its discussion to whether the bulletin qualified for that exception."(161) He concluded that
Illinois is on the verge of joining those jurisdictions that recognize learned treatises as an exception to the hearsay rule. Learned treatises have a reliability equivalent to most other hearsay exceptions. Their substantive [sic] use would eliminate the confusing and anomalous method that these texts presently serve in the trial process. This is another step in the reconstruction of expert testimony in Illinois.(162)
B. New Jersey's Recognition of the Learned Treatise Exception
The common law journey to recognition of a learned treatise exception in New Jersey was far less tortuous than in Illinois. It resulted from a well prepared attorney who presented a receptive court with the opportunity to speak on an issue whose time had come.(163)
Prior to 1992, New Jersey's rule on the use of learned treatises was identical to the rule in New York.(164) That is, a learned treatise could only be used to cross-examine an expert, and then only if that expert had recognized it as authoritative.(165) Then Jacober v. St. Peter's Medical Center(166) adopted the federal-majority rule. Jacober provides a road map as to how this issue can be presented for appellate review.(167)
Jacober was a medical malpractice action.(168) Astute counsel, perhaps anticipating the winds of change, placed the issue squarely before the trial court:
At the outset of trial, plaintiffs' counsel announced that his
medical expert intended to testify that the medical literature
reflects the nearly unanimous opinion [about the use of a
certain size catheter] and that some of the literature relates
catheter size to the risk of injury. Sustaining the defense's
objections, the court ruled that "[i]t's my understanding of our
law that you may not use medical literature to support the
opinion of your expert." Moreover, the court held that it would
permit medical literature to be introduced by plaintiffs'
counsel only if a defense expert "agrees that some treatise is
authoritative. And then you can question him about the
In addition, plaintiff attempted to use text references to cross-examine defense witnesses, but was thwarted when the witness refused to recognize anything as authoritative.(170) On these facts, the Supreme Court of New Jersey held that even under its prior holding in Ruth v. Fenchel,(171) the textbooks were established as authoritative to permit cross-examination.(172) However, the court specifically used Jacober as an opportunity to-adopt Federal Rule 803(18) as a common law exception to the hearsay rule.(173)
Here, the trial court's exclusion of the statements from learned treatises precluded the jury from adequately assessing the defense experts' credibility. The medical literature that plaintiffs' counsel sought to use on cross-examination strongly supported plaintiffs' theory and challenged the defense experts' testimony... In addition, the trial court prevented plaintiffs' counsel from referring to any medical articles in order to rebut [al factual assertion that no medical literature connects catheter size to the risk of injury. In that instance, the court's ruling forced the jury to resolve the issue regarding the state of the medical literature on grounds of credibility rather than by reference to objective facts.(174)
In adopting the federal rule, the New Jersey Supreme Court explained the need to reject the New York approach, as described in Ruth.(175)
In contrast to the Ruth doctrine, FRE 803(18) permits learned-treatise statements to be admitted as substantive evidence on both direct and cross-examination. The rationale for that approach is largely pragmatic: "the rule avoids the unreality of admitting evidence for the purpose of impeachment only, with an instruction to the jury not to consider it otherwise." Nevertheless, the rule "limit[s] the use of treatises as substantive evidence to situations in which an expert is on the stand and available to explain and assist in the application of the treatise if desired." The rule's emphasis on expert guidance, as well as its prohibition on the receipt of learned treatises as exhibits, limits the risk that fact-finders will misunderstand or misapply learned-treatise statements and discourages the use of learned treatises as substitutes for expert testimony.(176)
The court further explained its rationale for adopting the federal rule:
Adoption of the federal rule will advance the goals of the adversarial
system by enhancing the ability of juries to evaluate
expert testimony. The Ruth doctrine inhibits the fact-finder
from assessing the credibility of an expert's opinion by
reference to that opinion's support in the relevant literature....
The late professor Wigmore long advocated the
greater use of learned treatises at trial, contending that
those who write with no view to litigation are at least as
trustworthy, though unsworn and unexamined, as perhaps
the greater portion of those who take the stand for a fee from
one of the litigants.' Moreover, an opinion must ordinarily
satisfy a certain level of reliability in order to find its way
into publication, and once published, a text is open to ongoing
scrutiny, criticism, and revision by other members of that
In addition, the federal rule will help equalize resources
among parties, permitting a party with less access to expert
witnesses to advance an argument before a jury based on
opinions set forth in learned treatises.(177)
As further justification for the creation of its new common law hearsay exception, the court characterized the direct use of learned treatises as merely another application of the previously recognized principle that an expert could base an opinion on data generally accepted by members of the profession.(178)
The new learned-treatise rule also allows experts to introduce
learned-treatise statements on direct examination if they
relied on them in forming their opinions. Although that
practice marks a sharp break with Ruth, it is consistent with
the liberalized approach to expert testimony .... [Experts
can testify about an opinion based on inadmissible facts or
data [i]f of a type reasonably relied upon by experts in the
particular field in forming their opinions or inferences upon
the subject." . . . [O]ur courts have permitted experts to
testify about statistical evidence they relied on if the evidence
is adjudged sufficiently reliable.(179)
In order to establish that the published material was authoritative, the court held that 'a text will qualify as a `reliable authority' if it represents the type of material reasonably relied on by experts in the field.(180) This standard is no different than the standard that has been applied in New York and other jurisdictions.(181) The only change is that such sources are now admissible as substantive proof, and authentication is not limited to the hostile expert witness.(182)
The experiences in Illinois and New Jersey illustrate two different paths to the common law recognition of expanded use of scientific literature.(183) In Illinois, the courts took an incremental approach to a positive reform; traversing, as Professor Spector observed, 'a twisted path to arrive at an unforeseen [sic] destination; a destination so unanticipated that, in this case, the Illinois courts seem relatively unaware of where they have arrived."(184)
In contrast, the New Jersey Supreme Court was presented with an opportunity to reconsider the juridical and practical ramifications of the artificial restrictions on cross-examination from scientific literature.(185) The court took an enlightened approach to correct the problem and was able to address this issue only because counsel in Jacober carefully articulated his position and preserved the entire issue for appellate review.(186)
Although legislative correction of this problem would be the most expent solution, the bar may have to wait for judicial rectification. Perhaps the Appellate Division decision in Spiegel v. Levy,(187) which held that a physician could not employ the 'semantic trick' of refusing to accept a source as authoritative to avoid cross-examination, foreshadows a change in attitude.(188) But the lesson of Jacober for practitioners who seek to modify the common law rule in New York is clear.(189) An offer of proof should be made at trial to authenticate scientific literature through acknowledgement by the adverse expert, by direct examination of an expert, and/or by judicial notice.(190) Furthermore, an offer of proof of scientific literature in direct support of a party's position should be made.(191)
Physicians, engineers, scientists, and other professionals literally make life and death decisions based on the information contained in textbooks and other literature of their respective professions. In doing so, these professionals do not ask for a certified copy of the textbook. Rather, a professional applies his or her learning and technical understanding of accepted principles to the issue at hand. Indeed, for this reason there is already a hearsay exception in New York that enables an expert to base an opinion on data generally relied upon by members of his or her profession.(192) Is it unreasonable, therefore, to permit the jury to be made aware that the opinion expressed by the expert is in conformance with, or varies from, the very same information that a conscientious professional would necessarily utilize both in daily practice and in forming an opinion?
New York's antediluvian rule restricting the use of learned treatises has long since outlived any basis that once may have justified it. Continuing this rule serves only to undermine the basis for expert opinion and the judicial process. More enlightened understanding by the bar and bench in applying the present New York rule will alleviate some of its perverse results. However, the only real solution to improving the quality of expert testimony is greater flexibility in the means of establishing the authority of a learned treatise and full recognition of the right to use scientific literature substantively. This is not a plaintiffs or defendant's issue. In a given case, the scientific literature may benefit one side or the other, but reasoned fact-finding will always suffer if a jury is prohibited from considering relevant and probative scientific information in making its determination.
In McDermott v. Manhattan Eye, Ear & Throat Hospital,(193) the Court of Appeals observed that [c]ourts are intent upon arriving at just decisions and upon employing properly expedient means to attain such an end."(194) Expansive interpretation of the current New York rule on the use of learned treatises -- and better yet, adoption of the federal-majority rule by statute or common law -- will promote this goal.
(1) For the purposes of this article, learned treatises include books, periodicals, reports, pamphlets, or any other published material that is commonly generated by the scientific or medical community. See generally McCormick on Evidence [section] 321, at 901 (Edward W. Cleary ed., 3d ed. 1984) (discussing the rule in broad terms).
(2) Egan v. Dry Dock, E.B. & B.R. Co., 42 N.Y.S. 188, 200 (App. Div. 1896).
(3) See Robert A. Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts [section] 803(6).2, at 695-86 (1996).
(4) See id.; 6 John Henry Wigmore, Evidence in at Trials at Common Law [section] 1693, at 637-39 (Supp. 1997) (discussing the jurisdictions where the exception is allowed).
(5) See Barker & Alexander, supra note 3, [section] 702.1(f), at 518-19; Prince, Richardson on Evidence [section] 7-313, at 478-79 (Richard T. Farrell ed., 11th ed. 1995).
(6) See Norman Bard, Medical Treatises as Independent Evidence (pt. 1), N.Y. L.J., Apr. 21, 1978, at 1 (discussing the New York rule).
(7) 509 U.S. 579 (1993).
(8) See 3 John Henry Wigmore, A treatise on the System of Evidence in Trials at Common Law [section] 1690, at 2169 (1904) (citing Ware v. Ware, 8 Me. 56 (1831)). Wigmore refers to attempts, to use learned treatises as far back as 1831. See id.
(9) Id. See McCormick on Evidence, supra note 1, [section] 321, at 899 ("Learned writings, such as treatises, books, and articles regarding specialized areas of knowledge or skills are, when offered to prove the truth of matters asserted in them, clearly hearsay.").
It should be noted that even though Wigmore classified the use of learned treatises as hearsay, he simultaneously argued for the recognition of an exception to the hearsay rule. Wigmore, over 100 years ago, advocated the use of learned treatises much like what has now evolved as Rule 803(18) of the Federal Rules of Evidence and its counterpart in the majority of jurisdictions. See Fed. R. Evid 803(18); 3 Wigmore, supra note 8, [section] 1690-1692, at 2169-74.
(10) See People v. Feldman, 85 N.E.2d 913, 920 (N.Y. 1949); Morfesis v. Sobol, 567 N.Y.S.2D 954, 955 (App. Div. 1991); Pahl v. Troy City Ry. Co., 81 N.Y.S. 46, 46-47 (App. Div. 1903); McEvoy v. Lommel, 80 N.Y.S. 71, 73 (App. Div. 1903); Foggett v. Fischer, 48 N.Y.S. 741, 741-42 (App. Div. 1897); Edith L. Fisch, Fisch on New York Evidence [section] 431, at 283 (2d ed. 1977); Bard, supra note 6, at 1; Norman Bard, Medical Treatises As Independent Evidence (pt. 2), N.Y. L.J., Apr. 24, 1978, at 4.
(11) See Phillips v. Roux Lab., Inc., 145 N.Y.S.2D 449, 452 (App. Div. 1955) (indicating that it was error to allow plaintiffs' attorney to read from medical textbooks because the defendant did not have the opportunity to cross-examine the authors of those textbooks).
(12) See Gridley v. Johnson, 476 S.W.2d 475, 481 (Mo. 1972) (recognizing that experts need only deny knowledge of the book and the author, regardless of notoriety, to avoid effective cross-examination).
(13) See 6 Wigmore, supra note 4, [section] 693, at 637-39 (listing the jurisdictions and discussing the manner in which they permit the use of learned treatises).
(14) See McCormick on Evidence, supra note 1, [section] 321, at 900; see also W.E. Shipley, Annotation, Use of Medical or Other Scientific Treatises in Cross-Examination of Expert Witnesses, 60 A.L.R.2D 77, 81-98 (1958) (discussing the three separate approaches).
(15) See 6 Wigmore, supra note 4, [section] 1693, at 637-39.
(16) See Fed. R. Evid. 803(18).
(17) See 6 Wigmore, supra note 4, [section] 1693, at 637-39 (listing jurisdictions that follow a rule similar to Rule 803(18)).
(18) See Prince, Richardson on Evidence, Supra note 5, [section] 7-313, at 478-79; see also Barker & Alexander, supra note 3, [section] 803(6).2, at 685-86.
(19) See, e.g., Egan v. Dry Dock, E.B. & B.R. Co., 42 N.Y.S. 188, 199 (App. Div. 1896). The expert witness in Egan did not use the word authoritative; instead, the expert stated under cross examination that "he knew of [the] books" in question and agreed "that they were standard works on engineering subjects." Id.
(20) Id. at 188.
(21) Id. at 199-200.
(22) 77 N.Y.S.2D 524 (App. Div. 1948).
(23) See id. at 526 (noting that the practice of permitting cross-examination from learned treatises "[i]n this state, as in many other jurisdictions ... has been upheld by well-reasoned judicial decisions").
(28) See id. (stating that the trial court's erroneous rulings were " highly prejudicial").
(29) See id. at 528 (citing Brownell v. Black, 31 N.B.R. 594, 595-96 (1890)).
(30) Id. (quoting Brownell, 31 N.B.R. at 595-96).
(31) See id.
(32) See id. (holding that the trial court improperly "curtailed the scope of the cross-examination of the witness").
(34) See People v. Feldman, 85 N.E.2d 913, 920 (N.Y. 1949) (noticing that "[t]his is permitted for the purpose of discrediting or weakening [the expert's] testimony").
(35) Id at 913.
(36) Id. at 920. In Feldman, the trial court interrupted questioning after the witness had testified that he had "glanced" at the textbook, and prevented further questioning unless the text was shown to the witness and he "replie[d] that he [was] in agreement with it or that he adopt[ed] that argument as his own." Id.
(37) See 5 John Henry Wigmore, Evidence in Trials at Common Law [section] 367, at 32 (1976) (describing cross-examination as "beyond any doubt the greatest legal engine ever invented for the discovery of truth"). As the United States Supreme Court wrote in Davis v. Alaska, 415 U.S. 308 (1974), "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Id. at 316.
(38) Reilly v. Pinkus, 338 U.S. 269, 275 (1949).
(39) The authors believe, through their experience, that this is the case in New York.
(40) See Bard, supra note 6, at 1.
(41) Id. at 4 (citation omitted); see infra note 170 (showing an example of a cross-examination where the witness had complete control).
(42) Gridley v. Johnson, 476 S.W.2d 475, 481 (Mo. 1972). It is the authors' experience that in an attempt to foreclose cross-examination from a medical text, experts, presumably aware of the consequences from their answers, will frequently deny that even books that they maintain in their own libraries, both at home and in their offices, or that they have read, taught, and studied from, are authoritative. In fact, experts are instructed in their own peer literature that they can prevent effective cross-examination from a text merely by refusing to accept a text as authoritative. See, e.g., The Practice of Forensic Neuropsychology: Meeting Challenges in the Courtroom 52-53 (Robert J. McCaffrey et al. eds., 1997). It is best not to acknowledge most specific texts as authoritative, as the attorney may challenge experts about any statements in the text that contradict their views.... It is preferable for experts to say that they agree with some of what a respected neuropsychologist has written but that their opinions are based on their own knowledge, experience, and training. Id.
(43) See, e.g., McCay v. Mitchell, 463 S.W.2d 710, 720 (Tenn. Ct. App. 1970). The Tennessee Court of Appeals wrote, in rejecting limitations on the use of learned treatises, "[t]o hold otherwise would be to render more valid, and beyond the realm of contradiction, the opinion of the less read and probably poorer expert over the opinion of the better read and probably more competent expert." Id.
(44) Ravenis v. Detroit Gen. Hosp., 234 N.W.2d. 411, 414 Mich. Ct. App. 1975) (quoting Darling v. Charleston Community Mem'l Hosp., 211 N.E.2d 253, 259 (Ill. 1965)).
(45) As part of the basis for overruling what was akin to the New York rule, and permitting authentication of a learned treatise by judicial notice or by another expert, in Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253, 259 (Ill. 1965) the Supreme Court of Illinois wrote: The unsatisfactory quality of expert testimony has been the subject of frequent comment, and it has induced judicial action. An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. Id. at 259 (citation omitted).
(46) Cf. Spiegel v. Levy, 607 N.Y.S.2d 344, 345 (App. Div. 1994) (allowing the use of a treatise on cross-examination where the expert relied on it in direct examination but would not state it was authoritative).
(47) See, e.g., Jacober v. St. Peter's Med. Ctr., 608 A.2d 304, 315 (N.J. 1992). It is the authors' contention that reading all New York cases on this subject would lead one to come to the same conclusion as the Jacober court.
(48) See Black's Law Dictionary (6th ed. 1990).
(49) See supra note 47 and accompanying text.
(50) Clearly, the trend in New York is to eliminate any perceived requirement that testimony must be couched in particular terms, much less any magic words. For example, the Court of Appeals held that it is unnecessary that an expert recite that his or her opinion is rendered with a reasonable degree of medical certainty." Matott v. Ward, 399 N.E.2d 532, 534 (N.Y. 1979). The court stated, although: "a reasonable degree of medical certainty" is one expression of [the standard required for expert testimony) and is therefore commonly employed by sophisticates for that purpose, it is not, however, the only way in which a level of certainty that meets the rule may be stated.... [T]he requirement is not to be satisfied by a single verbal straightjacket alone, but, rather, by any formulation from which it can be said that the witness' "whole opinion" reflects an acceptable level of certainty. Id. citation omitted). As the limited case law on this subject suggests, the same observation is clearly applicable to an assessment of whether a witness has acknowledged a source sufficiently as to permit cross-examination from it. Cf. Spiegel, 607 N.Y.S.2d at 345.
(51) Webster's New World Dictionary of American English 92 (3d ed. 1988).
(52) Spiegel, 607 N.Y.S.2D at 344.
(53) Id. at 345.
(54) See id.
(55) See id.
(57) See Ruth v. Fenchel, 121 A.2d 373 (N.J. 1956). In 1992, Ruth was overruled by Jacober v. St. Peter's Medical Center, 608 A.2d 304, 316 (N.J. 1992), which permitted the direct use of learned treatises.
(58) Ruth, 121 A.2d at 373.
(59) See id.
(60) Id. at 374 (noting that this particular treatise had several editions).
(62) See id. at 377.
(63) See id. (discussing New Jersey Zinc & Iron Co. v. Lehigh Zinc & Iron Co., 35 A. 915 (N.J. 1896)).
(64) Id. at 376. (quoting to the record cited in New Jersey Zinc & Iron Co., 35 A. at 915).
(65) 608 A.2d 304 (N.J. 1992).
(66) See id. at 316.
(67) See id. at 311 (interpreting Ruth as expounding this test).
(68) Id. (citing Eckleberry v. Kaiser Found. N. Hosps., 359 P.2d 1090, 1093-94 (Or. 1961)).
(69) See infra notes 89-102 and accompanying text (discussing the principles and guidelines).
(70) See, e.g., Hastings V. Chrysler Corp., 77 N.Y.S.2d 524, 527 (App. Div. 1948) (stating that "cross-examination for discrediting purposes is not limited to textbooks or literature to which the witness has referred on direct examination nor to such as the witness has read").
(71) 385 N.Y.S.2D 621 (App. Div. 1976).
(72) See id. at 624-25 (indicating that the attorney was prevented from laying a foundation to determine what authoritative meant).
(73) Id. at 625.
(74) See supra notes 35-36 and accompanying text.
(75) Jacober v. St. Peter's Med. Ctr., 608 A.2d 304, 311 (N.J. 1992).
(76) Id. (citing Eckleberry v. Kaiser Found. N. Hosps., 359 P.2d 1090, 1093-94 (Or. 1961)).
(77) See Gridley v. Johnson, 476 S.W.2d 475, 480-81 (Mo. 1972).
(78) Id. at 475.
(79) See id. at 480.
(80) Id. at 480-81.
(81) See Reck v. Pacific-Atlantic S. S. Co., 180 F.2d 866, 869 (2d Cir. 1950) (noting that New York case law permits cross-examination of a witness from a text that is clearly a standard text).
(83) See, e.g., Roveda v. Weiss, 204 N.Y.S.2D 699, 701 (App. Div. 1960) (holding only that cross-examination should not have been permitted where the witness had never heard of the text or its author).
(84) Id. at 699.
(85) See, e.g., Prince, Richardson on Evidence, supra note 5, [Sections] 7-313, at 479.
(86) See Roveda, 204 N.Y.S.2D at 701.
(88) See Jacober v. St. Peter's Med. Ctr., 608 A.2d 304, 311 (N.J. 1992) (noting that where the witness's answers indicated that the source was generally reliable, even though the witness's answers indicated that refused to acknowledge it as such, cross-examination should be allowed).
(89) People v. Feldman, 85 N.E.2d 913, 920 (N.Y. 1949).
(90) Egan v. Dry Dock, E. B. & B. R. Co., 42 N.Y.S. 188,199 (App. Div. 1896).
(91) Spiegel v. Levy, 607 N.Y.S.2D 344, 345 App. Div. 1994).
(92) Ruth v. Fenchel, 121 A-2d 373, 374 (N.J. 1956).
(95) Id. at 376 citing to the record cited in New Jersey Zinc & Iron Co, v. Lehigh Zinc & Iron Co., 35 A. 915 (N.J. 1896)).
(96) Mize v. State, 240 S.E.2d 11, 13 (Ga. 1977).
(97) Eckleberry v. Kaiser Found. N. Hosps., 359 P.2d 1090, 1093 (Or. 1961).
(98) Jacober v. St. Peter's Med. Ctr., 608 A.2d 304, 315 (N.J. 1992).
(99) See id. at 308.
(100) Id. at 309.
(102) See Gridley v. Johnson, 476 S.W.2d 475, 480 (Mo. 1972).
(103) See generally Alfred N. Brandon & Dorothy R. Hill, Selected List of Books and Journals for the Small Medical Library, 83 Bull. Med. Libr. Assoc., 151 (1995) (describing authors' criteria for inclusion on a list of essential writings for the medical library); Joseph J. Mazza, A Library for Internists VIII: Recommendations from the American College of Physicians, 120 Ann. Int. Med., 699 (1994) (listing books recommended for medical libraries, including recommendations from experts, practioners, and the American College of Physicians). (104) See Jenkins v. Parrish, 627 P.2d 533,538 (Utah 1981) (discussing the refusal of a witness to acknowledge any of the authors or standard texts for the purpose of cross-examination).
(105) See, e.g., Jacober, 608 A.2d at 310 (describing how the defense experts refused to recognize any medical literature); Spiegel v. Levy, 607 N.Y.S.2D 344, 345 (App. Div. 1994) (reasoning that an expert could not foreclose cross-examination by declaring the book was not authoritative). The Supreme Court of Utah discussed the issue in Jenkins v. Parrish, 627 P.2d 533 (Utah 1981), when confronted with an expert who "flatly denied all knowledge of the apparently standard textual materials asked about on cross-examination" and "was unable either to acknowledge or to disavow the authority of the books referred to on cross-examination." Id. at 538. The Court wrote:
To allow an expert witness's [sic] inability to authenticate texts, written on the very
subject to which he has testified, to extinguish a cross-examiner's opportunity to discredit
that witness's direct testimony by reference to such texts would establish a rule of
evidence which protects those experts who are undereducated or not current in their field.
Accurate fact-finding is not enhanced by experts who are deficient in their knowledge of
the subject matter of their testimony. To prevent cross-examination based on such texts
"serves only to protect the ignorant or unscrupulous expert witness."
Id. (citation omitted).
(106) See Prince, Richardson on Evidence, supra note 5, [sections] 7-301, at 456-57 (concluding that expert testimony should be received when "helpful").
(107) See 6 Wigmore, supra note 4, [sections] 1693, at 637-39 (listing the states which now follow Federal Rule 803(18) or a similar rule).
(108) See id. (noting the differences among the several jurisdictions).
(109) See id. Illinois, Michigan, and Pennsylvania are states which fall into this category. See, e.g., Darling v. Charleston Community Mem'l Hosp., 211 N.E.2d 253, 259 (Ill. 1965) (indicating the rule in Ilinois); Jones v. Bloom, 200 N.W.2d 196, 206 (Mich. 1972) (indicating the rule in Michigan); Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence [sections] 803.18, at 607-08 (1987) (indicating the rule in Pennsylvania).
(110) Packel & Poulin, supra note 109, (sections) 803.18, at 608.
(111) See id. at 608-09; see also Lee C. Swartz & Richard C. Angino, Pennsylvania Personal Injury Evidence 315 (1990). The authors noted that where a witness refuses to recognize a text as authoritative, a party may produce his own expert to verify that particular publications are authoritative in the field, and the opposing expert witness may be tested by reference to those publications. The practitioner faced with a witness who refuses to accept a treatise should ask the court to take judicial notice of the treatise, since this method has been held to be acceptable by the [Pennsylvania] Supreme Court ....
Id. (citation omitted). It is unclear precisely how a source can be established by judicial notice. However, use of the standard library information, for example, may be one means. See supra note 103.
(112) McCormick on Evidence, supra note 1, [sections] 321, at 899.
(113) See Prince, Richardson on Evidence, supra note 5, [sections] 7-313, at 478. This description, however, begs the issue as to whether there may be circumstances in which the use of a learned treatise is not to establish the truth of the underlying facts, but rather that the statements were made.
(114) See Fed. R. Evid. 803(18).
(115) MCCormick on Evidence, supra note 1, [sections] 321, at 899.
(116) See Fed. R. Evid. 803(18); see also McCormick on Evidence, supra note 1, [sections] 321, at 900 (describing both common law and federal law recognition).
(117) Fed. R. Evid. 803(18).
(118) See David P. Leonard, The New Wigmore -- A treatise on Evidence [sections] 3.6, at 3:57-:58 (1996).
(119) Fed. R. Evid. 803(18) advisory Committee's note (citations omitted).
(120) See 6 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials AT Common law [sections] 1693, at 7 (1940). At the time of Wigmore's first edition, there were only two states that had accepted what is now essentially Rule 803(18). See 3 Wigmore, supra note 8, [sections] 1693, at 2174-75.
(121) See Fed. R. Evid. 803(18) advisory committee's note (discussing the reasons why a learned treatise should be an exclusion to the hearsay rule).
(122) Wigmore, supra note 120, [sections] 1692, at 6 [citations and footnotes omitted). Wigmore recognized the possibility that a particular source may in fact have been created for litigation purposes, and under such circumstances, the court could exclude it. But that is the exception rather than the rule. See id. In contrast, consider the potential bias of the hired expert witness who not only can shade his or her opinion, but, under the New York rule, can thwart effective cross-examination by refusing to concede the authority of a contradictory source. See supra note 12 and accompanying text.
(123) See, e.g., Darling v. Charleston Community Mem'l Hosp., 211 N.E.2d 253, 259 (Ill. 1965); Jacober v. St. Peter's Med. Ctr., 608 A.2d 304, 312 (N.J. 1992); 6 Wigmore, supra note 4, [sections] 1693, at 637-39.
(124) See 5 Wigmore, supra note 37, [sections] 1362, at 3-10 (discussing the reasons for the hearsay rule).
(125) See id. at 3-7.
(126) 6 Wigmore, supra note 120, [sections] 1692, at 6 (citation omitted).
(127) 509 U.S. 579 (1993).
(128) See id. at 592-95.
(129) Id. at 592-93.
(130) See id. at 593-95.
(131) Id. at 593-94 (citations omitted).
(132) Id. at 594.
(133) Id, (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).
(134) See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
(135) See People v. Wesley, 633 N.E.2d 451, 451 (N.Y. 1994).
(136) Frye, 293 F. at 1014.
(137) See Daubert, 509 U.S. at 593-94.
(138) See, e.g., Egan v. Dry Dock, E.B & B.R. Co., 42 N.Y.S.2D 188, 199 (App. Div. 1896).
(139) Daubert, 509 U.S. at 595-96 (citation omitted). (140) Id.
(141) Edmund M. Morgan & John MacArthur Maguire, Looking Backward and Forward at Evidence, 50 Harv. L. Rev. 909, 921 (1937).
(142) See supra notes 124-25 and accompanying text (discussing the purpose of the hearsay rule).
(143) People v. Sugden, 323 N.E.2d 169, 172 (N.Y. 1974).
(144) See Robert G. Spector, Learned Treatises in Illinois: Are We Witnessing the Birth of a New Hearsay Exception?, 9 Loy. U. Chi. L.J. 193 (1977) (tracing the creation of a hearsay exception through Illinois case law).
(145) See id. (allowing "the use of textbooks for cross-examining an expert witness"); see also supra notes 1-2 and accompanying text (discussing the New York rule).
(146) See id. (citing Connecticut Mut. Life Ins. Co. v. Ellis, 89 Ill. 516 (1878)).
(148) See id. at 194 n.5 (indicating that if a witness admitted to using a treatise on direct examination, that treatise could be used on cross-examination).
(149) See id. at 194 n.8. For example, Professor Spector noted that "[t]he Illinois Bar Association criticized this line of cases [restricting the use of learned treatises to those relied upon by the expert] by pointing out that the `cagey' or `coached' witness could testify that his opinion was based on his own experience and thus preclude the use of any text on cross-examination." (quoting the Illinois Bar Association, Section on Civil Practice and Procedure).
(150) 211 N.E.2d 253 (Ill. 1965).
(151) Id. at 259.
(152) See id.
(155) 321 N.E.2d 398 (Ill. App. Ct. 1974).
(156) See Spector, supra note 144, at 196 n. 15 & n. 17. Interestingly, Professor Spector noted that in Gillespie. the rationale used by the court to justify use of the statistics, which it analogized to mortality tables, was that "the publisher's lack of motive to fabricate, the potential scrutiny of the material by others in the field, and the dependence of the publisher's reputation on the validity of the materials," are precisely the considerations applied by the commentators to justify an exception to the hearsay rule for learned treatises. Id. at 196.
The rule at that time in Illinois would have barred this type of testimony because it required an expert opinion be based on admissible evidence. However, Illinois, like New York, now permits expert testimony to be based on data relied upon by professionals in the field. See People v. Ward, 338 N.E.2d 171, 173-74 (Ill. 1975) (discussing the Illinois rule); People v. Sugden, 323 N.E.2d 169, 173 (N.Y. 1974) (discussing the New York rule).
(157) 353 N.E.2d 684 (Ill. App. Ct. 1976).
(158) Id. at 688.
(159) 363 N.E.2d 65 (Ill. App. Ct. 1977).
(160) See Spector, supra note 144, at 197 (citing Roddy, 363 N.E.2d at 65).
(162) Id. at 203.
(163) See Jacober v. St. Peter's Med. Ctr., 608 A.2d 304, 309-10 (N.J. 1992).
(164) See Ruth v. Fenchel, 121 A.2d 373, 377 (N.J. 1956).
(165) See id. at 377 (allowing for the use of learned treatises in certain circumstances).
(166) Jacober, 608 A.2d at 304.
(167) See generally id.
(168) See id. at 306.
(169) Id. at 308 (citation omitted).
(170) See id. at 308-10. The testimony on this issue recited by the Court in Jacober clearly points out the shortcomings of the then New Jersey and current New York rule:
Q. [W]hat you are telling us is that you do not accept this textbook as one of the standard texts in the field of neonatology? A. It's a standard text, but I don't think it's authoritative, if that's what you're getting at. .... Q. ... Do you accept your own writing as authoritative? A. Only for me. Q. ... [I]f I were to ask you if anything that was written in medical literature is authoritative on the subject in which it addresses, you would have to say no? A. It depends what you mean by authoritative. If you mean this is the way it's supposed to be done -- Q. Generally accepted in the profession. A. I don't believe that. I think those textbooks are one man's opinion. They're constantly revised, they're never up to date, and I don't believe that they're that type of authority. Medicine doesn't recognize authorities this way. .... Q. Did you, yourself, write a chapter in this book ...? A. Yes. Q. Do you accept this book as one of the standard and authoritative textbooks in the field? A. No. .... Q. Do you know the book Neonatal/Perinatal Medicine ...? A. I recognize it. Q. Do you recognize this as one of the standard treatises in the field? A. It's a standard textbook, yeah. .... Q. By standard, Doctor, do you mean standard in that it is recognized in the field by other practitioners as an authoritative source for reference? A. Well, I don't think any textbook is really authoritative, it has a set of opinions that some ... clinicians would agree with and others would be very controversial. .... THE COURT: ... [T]he proper use of which or to which an authoritative textbook could be used would be to affect the credibility of the expert who accepts it as being authoritative. It does not come in as evidence in chief. ....
I recognize the fact here that we have a defendant in the case saying that ... a textbook standard was applied and identifying the textbook and a fair argument can be made from that that it was an authoritative textbook. But ... whether [it] is an authoritative textbook comes into play only if [the expert witness] agree[s] that it is. [counsel attempted on closing to refer to the defense experts' refusal to recognize medical literature] [PLAINTIFFS' COUNSEL:] Here you have a man ... who wrote 125 articles in an attempt to influence ... the field who says that nothing is authoritative. If I cannot point out that this is a man who found nothing to be authoritative, even his own, I am now seriously handicapped .... THE COURT: Again, I appreciate your frustration, but this is not something of my doing. If I were God, the rule would be different, [counsel], and I am not God.
Let me tell you that the plaintiffs' ox is gored on one occasion and the defendants' ox is gored on another occasion. Id. (alterations to original).
(171) 121 A.2d 373 (N.J. 1956).
(172) See Jacober, 608 A.2d at 311.
(173) See id. at 316.
(174) Id. at 311-12.
(175) See id at 315.
(176) Id. at 313 (quoting Fed. R. Evid). 803(18) advisory committee's note) (citation omitted).
(177) Id. at 315 (quoting 6 WIGMORE, supra note 120, [subsections] 1692, at 7) (citations omitted).
(178) See id. at 316; see also People v. Sugden, 323 N.E.2d 169, 173 (N.Y. 1974) (permitting an expert opinion to be based on out-of-court material generally relied upon by other experts in the profession).
(179) Jacober, 608 A.2d at 316 (citations omitted).
(180) Id. at 315 (citation omitted).
(181) See supra note 47 and accompanying text (indicating that the standard becomes evident by a careful examination of the facts and holdings in the New York case law in this area).
(182) See Jacober, 608 A.2d at 312.
(183) Compare Spector, supra note 144, at 193 (tracing the path taken by Illinois courts), with Jacober, 608 A.2d at 304 Illustrating the path taken by New Jersey courts).
(184) Spector, supra note 144, at 193.
(185) See Jacober, 608 A.2d at 315 (This is case presents a compelling context for adoption of the federal learned-treatise rule. Even remanding this case for retrial under the correct application of Ruth may not prevent the defense experts from blocking cross-examination by refusing to acknowledge plaintiffs' proffered medical texts as recognized and standard authorities.').
(186) See id at 312 (noting that the court was willing to consider the expansion of the learned treatise doctrine after counsel advocated such a position at trial).
(187) 607 N.Y.S.2D 344 (App. Div. 1994).
(188) Id. at 345.
(189) See Jacober, 608 A.2d at 312.
(190) See id. at 312-13 (noting that other states allow the use of learned treatises to be authenticated by judicial notice or through the testimony of other expert witnesses).
(191) Although it will not raise the issue of direct use of learned treatises at trial, in the case where a party is a professional, such as a defendant physician in a medical negligence case, counsel may be able to raise the issue of what constitutes an authoritative source by questioning the defendant on these issues at an examination before trial. This may create a ruling from which an interlocutory appeal may be taken.
(192) See, e.g., People v. Sugden, 323 N.e.2d 169, 173 (N.Y. 1974).
(193) 203 N.e.2d 469 (N.Y. 1964).
(194) Id. at 474…