Virginia Supreme Court Limits Use of Learned Treatises in Lieu of Experts to Establish Facts at Trial

Article excerpt

Expert witnesses are often employed during judicial proceedings in an attempt to establish the existence of facts that are in dispute. For example, if it is contended that a mental health professional failed to provide adequate care and treatment to a client, an expert may be asked to testify regarding the standard of care that can be expected of a competent mental health professional and whether this particular mental health professional conformed to this standard.

An alternative means of establishing such facts could be to introduce into evidence information contained in a "learned treatise"--a text that is viewed as authoritative within its field--or a review article or research study published in a leading journal. There are advantages to relying on these sources of information rather than an expert. An attorney may find them more readily available, less expensive, and easier to interweave into the attorney's trial strategy. However, because the authors of these sources of information are generally not available to provide related testimony and thus cannot be cross-examined, a hearsay objection will typically be raised in opposition to the introduction of these materials. Courts, in turn, have generally refused to allow attorneys to build the factual foundations of their cases with these materials, although they may be able to use the materials to impeach an opponent's experts during cross-examination if the material can be established to be sufficiently reliable.

In a Virginia case, the attorney for a health care provider facing claims of medical malpractice incorporated a pair of articles from the medical literature into her defense. …

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