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LEARNED TREATISE HEARSAY EXCEPTION Richard Collin Mangrum

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LEARNED TREATISE HEARSAY EXCEPTION Richard Collin Mangrum THE PRAIRIE BARRISTER LEARNED TREATISE HEARSAY EXCEPTION Richard Collin Mangrum Editor's Note: On February 26, amending the Nebraska Rules of Evi- On January 20, 1999, Senator 1999, the Nebraska Legislature dence to include the learned treatise Hilgert reintroduced to the Judiciary adopted LB64 which amended the exception.3 Senator Hilgert of the Committee the learned treatise hear- Nebraska Rules of Evidence to Judiciary Committee recommended say exception as LB 64. As an illus- include the learned treatise hearsay the amendment for the purpose of trative example of the usefulness of exception. The following article is an harmonizing the Nebraska Rules of the exception, Senator Hilgert sug- excerpt from the recently revised Evidence with the Federal Rules of gested that if the tobacco industry Mangrum on Nebraska Evidence Evidence and the current law of most provided testimony that there is no (1999). Richard Collin Mangrum, states. To illustrate the usefulness of link between cancer and cigarettes, Professor of Law, Creighton Univer- the exception, Senator Hilgert sug- the learned treatise exception would sity School of Law. ©1999. Our gested that in a case alleging the allow the introduction of reputable thanks to Professor Mangrum for his faulty construction of a home wherein medical journal articles to the con- permission to reprint. the architect had used Krazy Glue to trary.7 John Lindsay, a registered lob- fasten the beams, the learned treatise byist appearing on behalf of the exception would permit the plaintiff Nebraska Association of Trial Attor- SECTION 27-803(17): to read into evidence a statement in an neys, further testified before the Judi- LEARNED TREATISE accepted construction manual that ciary Committee that without the HEARSAY EXCEPTION beams should be fastened with braces, learned treatise exception an expert bolts and lug nuts. Senator Hilgert witness could not be cross-examined 803(17)[A] Statement of the Rule explained that the use of the learned on the basis of reputable cutting edge Statements contained in published treatise exception would both reduce research unless the expert being cross- treatises, periodicals, or pamphlets on the cost of trials and avoid the diffi- examined accepted the research as a subject of history, medicine, or other 8 culty faced by many claimants of reliable. science or art, established as a reliable finding experts willing to testify The Judiciary Committee advanced authority by the testimony or admis- against their colleagues.4 Tom Massey the learned treatise exception amend- sion of the witness or by other expert testified in favor of the learned trea- ment on a 7 to 0 vote. LB 64 was pre- testimony or by judicial notice, to the tise exception on behalf of the sented to the Unicameral for debate extent called to the attention of an Nebraska Association of Trial Attor- on February 2, 1999. Senator Hilgert expert witness upon cross-examina- neys. Mr. Massey testified that testified that adopting the learned tion or relied upon by the expert wit- between 35 to 40 states, as well as the treatise exception would bring Neb- ness in direct examination. If ad- federal courts, have adopted the raska's hearsay rule more in line with mitted, the statements may be read learned treatise exception. He ex- the federal courts and most state into evidence but may not be received plained that the exception provides a 1 courts. The bill was adopted February as exhibits. reliability check to the proliferation of 5 26, 1999 on a 45 to 1 vote. 803(17) [B] Legislative History expert opinions. When the Nebraska Supreme Court Opposing the inclusion of the 803(17)[C] Foundation Committee on Practice and Procedure learned treatise exception, Jim Snow- 1. The examining counsel on either in 1973 considered the Federal Rules den, who characterized himself as a direct or cross-examination calls to of Evidence for purposes of adoption, medical malpractice defense attorney, the attention of an expert witness a the learned treatise exception (Federal argued that the learned treatise hear- published statement. Rule of Evidence 803(18)) was only say exception too liberally admits 2. The subject of the published one of two hearsay exceptions that the hearsay testimony. He explained that statement relates to history, medicine, Committee rejected.2 The Committee the present system which limits use of or other science or art. gave no explanation why the excep- such scientific treatises to cross-exam- 3. The statement is published in a tion was rejected, but undoubtedly ination, "is a better, more reliable, treatise, periodical, or a pamphlet. the lack of Nebraska common law more trustworthy system for adminis- 4. Either the court judicially authority supporting a learned treatise tering justice."6 While the Judiciary notices the published text as a reliable exception convinced the Committee Committee advanced the bill on a 5 to authority, or an expert witness admits to reject it. 2 vote, the bill was never debated on or testifies to the reliability of the pub- The Nebraska Association of Trial the floor and died at the end of the lished treatise, periodical or pamphlet. Attorneys in 1997 first proposed 1998 legislative session. (continued on next page) 3 THE PRAIRIE BARRISTER LEARNED TREATISE, continued from page 3 5. The statement is read into evi- texts and other authorities may be 803(17)[D.2] The Subject of the dence, but is not received as an used for puiposes of impeaching, con- Published Statement Relates to exhibit. tradicting, or discrediting a witness History, Medicine, or Other 12 Science or Art. 803(17)[D] Interpretive Analysis through cross-examination, or dur- The learned treatise hearsay excep- ing rebuttal testimony,13 the text could 803(17)[D.3] The Statement is tion changes the common law restric- not be introduced as substantive evi- Published in a Treatise, Periodical, tion on the use of such publications. dence of the opinions and theories or a Pamphlet. While statements in medical, scien- advanced.14 Moreover, the court held The fact of publication in a treatise, tific or other learned publications that "[n]or does the fact that the out- periodical or pamphlet is a founda- have long been part of the trial of-court statements contained in the tional requirement for admitting testi- process, traditionally their use has authorities were offered in the guise mony under 803(17), Nebraska's been limited either to testing the reli- learned treatise hearsay exception.18 of forming the bases for the testifying ability of an expert opinion on cross- Not only is publication foundational, experts' opinions alchemically trans- examination or corroborating expert the reliability of the publication itself mute them from inadmissible hearsay testimony on redirect or rebuttal. 15 is a relevant factor, although not con- Because of their hearsay nature, state- into admissible nonhearsay." Re- trolling,19 in determining authorita- ments contained in the learned treatise stated, under prior authority while an tiveness. The Advisory Committee were inadmissible as substantive evi- expert under Rule 703 could rely Notes for the identical Federal Rule of dence. Federal Rule of Evidence upon inadmissible evidence in form- Evidence 803(18) suggested that the 803(18) changed the common law ing an opinion if the inadmissible evi- reliability of a published learned trea- rule in 1975, allowing use in federal dence relied upon was the type of tises "is engendered by various fac- courts of learned treatises as indepen- authority reasonably relied upon by tors: the treatise is written primarily dent evidence of the truthfulness of other experts in the field, the expert and impartially for professionals, sub- the claims presented therein if estab- witness could not serve "as a conduit ject to scrutiny and exposure for inac- lished as authoritative and called to for inadmissible hearsay."16 The court curacy, with the reputation of the the attention of an expert. writer at stake." Based upon this leg- explained that "[t]he recitation of a Nebraska's earlier refusal to adopt islative history, the paradigm publica- passage by a nontestifying authority, Federal Rule of Evidence 803(18) tion intended to fit within the learned even if such is in conformity with the effected the manner of presentation of treatise exception would be those pub- opinion of the testifying expert, is lications written for professionals expert testimony. The significance of 17 the difference can be illustrated by hearsay." The result in Stang-Starr (professional journals), subject to two recent Nebraska cases. In Ketteler would clearly be otherwise under the scrutiny (peer reviewed publications), v. Daniel,9 the court held that it was newly enacted Rule 803(17). where the reputation of the author is improper for an expert physician to well established. introduce as substantive evidence 803(17)[D.l] The Examining Questioning whether the publica- statements contained in the New Eng- Counsel on Either Direct or Cross- tion is a peer-reviewed publication land Journal of Medicine ,10 Under the Examination Calls to the Attention that is generally accepted by profes- newly adopted Rule 803(17), the New of an Expert Witness a Published sionals within a recognized field of England Journal of Medicine, a Statement. expertise, is consistent with the highly reputable medical journal, An important justification for per- United States Supreme Court's opin- would likely qualify, upon proper mitting the reading into evidence of ion in Daubert v. Merrell Dow Phar- 20 expert testimony, for admissibility. passages from learned treatises (and maceuticals, Inc., holding that two 803(17). excluding such excerpts from being of the four tests for determining Similarly, in Stang-Starr v. Bying- introduced as an exhibit where the whether a theory or technique is suf- ton,u a medical malpractice case, the ficiently reliable to be admissible as jury may misinterpret or misapply the Nebraska Supreme Court explained scientific knowledge include peer passage on their own during delibera- 21 why the plaintiff's attempt to intro- review and general acceptability.
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