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. …