Using medical literature on direct examination to win the "battle of the experts".

• Author: Badgley, Jeffrey S.
• Position: Florida

Surviving the gauntlet of a hostile expert medical witness is an essential skill for any trial lawyer who litigates medical negligence and other types of personal injury actions. However, presenting your own expert as a credible authority is also crucial to prevailing on a contested issue of medicine. In a close case, winning this "battle of the experts" during trial can catapult your client to a successful outcome. The purpose of this article is to examine Florida law relating to the use of medical literature during direct examination of the medical expert at trial, and to suggest ways of maximizing the chances of getting this information before a jury.

Using Medical Literature

In the age of the Internet, lawyers and laymen alike have ready access to medical literature. There are free search engines (1) as well as paid Web sites (2) that make a vast body of medical literature available upon request. Additionally, various medical societies and subdivisions of the medical profession maintain Web sites, (3) many of which publish standards of practice, guidelines for care, and ethics codes. (4) These sources may be extremely helpful in understanding whether a client's case is supported by medical science. However, what use is all this information in court? Can you get it into evidence? The answers to these questions will be governed by the Florida Evidence Code.

The Florida Evidence Code

The use of medical literature at trial is governed primarily by two provisions of the Florida Evidence Code, [subsection] 90.704 and 90.706. Section 90.704 defines what an expert witness may rely upon to offer an opinion in court:

Basis for opinion by experts

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to the expert at or before the trial. If the facts or data are a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. (5)

This section provides the platform for direct examination. Simply put, the expert can use any information to formulate an opinion to be offered at trial, provided that the information is "of a type reasonably relied upon" by experts in the field. Inadmissibility of the information does not prevent the expert from expressing the opinion, provided this standard is satisfied. (6)

The purpose of this section, as discussed by the advisory committee note, is to permit experts to base their opinions on the same data they would ordinarily rely upon while rendering opinions in the course of their work. (7) Although [section] 90.704 permits the expert to base an opinion on inadmissible evidence, it is silent as to what, other than the opinion expressed, an expert may actually testify to at trial. As discussed below, the courts have imposed some limitations on the scope of testimony that the expert may offer at trial.

Section 90.706 of the evidence code addresses the use of medical literature in the context of cross-examination:

Authoritativeness of literature for use in cross-examination

Statement of facts or opinions on a subject of science, art or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding non-recognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter. (8)

This section defines the standard by which an expert may be cross-examined with published literature in the subject of his or her testimony. An expert may be cross-examined with any literature that is shown by the preponderance of the evidence to be authoritative. (9)

Under the Florida Evidence Code, medical literature is considered hearsay. (10) In this respect, the Florida Evidence Code is different from the Federal Rules of Evidence, which contain a specific exception to the hearsay rule that permits, under certain circumstances, the admissibility of statements contained in medical literature and other "learned treatises." (11)

The Prohibition Against "Bolstering"

As mentioned above, [section] 90.704 of the Florida Evidence Code permits an expert witness to base an opinion on inadmissible facts or data, provided such "facts or data are of a type reasonably relied upon by experts, in the subject to support the opinion expressed." (12) However, the courts have placed limitations on the potentially wide scope of expert testimony suggested by [section] 90.704. Many decisions have narrowed the scope of [section] 94.704 by holding that an expert cannot be used as a "conduit" of inadmissible evidence. (13) Other cases have prohibited experts from improperly "bolstering" their opinions by testifying that a medical treatise supports their position. (14) Similarly, an expert may not testify that another expert has reached the same conclusion. (15)

The prohibition against "bolstering" an expert's opinion with medical literature warrants closer examination, particularly since this rule is not contained in the evidence code but has been created entirely by the courts. The opinions prohibiting such bolstering never define what it is or under what circumstances bolstering with medical literature is improper. Certainly, there is nothing inherently objectionable with the concept of trying to bolster a material aspect of a case with probative, admissible evidence. Florida case law contains many references to bolstering, terming it both proper and improper, (16) but the case of Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So. 2d 602 (Fla. 1st DCA 1982), appears to be the first case to...