Appropriate use of scientific literature at trial in New York and other jurisdictions: is 'authoritative' a magic word?

• Author: Kessler, Michael W.

1. Introduction

   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.

2. 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

   witness.(21)

   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...