THE PRAIRIE BARRISTER LEARNED TREATISE 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 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 of most provided 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 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 , 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 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 . If ad- federal , 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 Opposing the inclusion of the 803(17)[C] 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 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. duce evidence from a medical text tion) is that the passage is only admis- More recently, the Supreme Court in through an expert medical witness sible if called to the attention of the Kumho Tire Company, LTD.,22 held was inappropriate under the then expert who can explain, critic or oth- that while the Daubert factors are not existing Nebraska Rules of Evidence. erwise place the learned treatise in a definitive checklist that apply to the The court held that while medical context. testimony of nonscientific experts

4 THE PRAIRIE BARRISTER who have experienced-based theories treatise or passage contained therein,26 reliance on or the authoritativeness of or methodologies, and further held Rule 803(17) provides for such a pos- the learned treatise. that the reliability inquiry must nec- sibility. An opinion by the Third Cir- Rule 803(17) decreases the likeli- essarily be tied to the facts of the case, cuit Court of Appeals for the United hood that this ploy to avoid cross- the Court opined that "some of States in Jamison v. Kline,21 illustrates examination by denying either Daubert's questions can help to eval- the use of judicial notice to establish reliance on or authoritativeness of a uate the reliability even of experi- the reliability of a passage from a learned treatise will work. For exam- enced-based testimony."23 learned treatise "whose accuracy ple, in McCarty v. Sisters of Mercy 30 As applied to the publication foun- cannot reasonably be questioned." In Health Corp. , a medical malpractice dational issue for learned treatises, Jamison the court judicially noticed case interpreting Michigan's learned certainly the courts are more likely to the reliability of a speed chart pre- treatise rule, the defense expert wit- be persuaded that their "gate keeping" pared for scientific inquiry by the ness who testified that the defendant responsibility for determining the rel- Northwest University Traffic Institute did not breach any standard of care, evancy and reliability of a publication that was merely "a reduction to usable on cross-examination refused to has been satisfied if the publication at form of the operations of the of accept as "authoritative" an article on issue satisfies two of the Daubert fac- physics with regard to speed, mass, obstetrics written by the editor-in- tors of being peer reviewed and gen- and the coefficient of friction between chief of a well-recognized obstetrics erally accepted within the relevant tires and pavement."28 The court per- journal. Even though the expert wit- professional community as a reliable mitted a state trooper with eight years ness being cross-examined agreed that publication. of experience to testify to an opinion the particular obstetrics journal "is probably as close to a bible as obste- 803(17)[D.4] Either the Court deduced by mere application of the tricians have today,"31 and "as reliable Judicially Notices the Published excerpt from the learned treatise to as anything we have in our litera- Text as a Reliable Authority, or the the facts of the case. ture,"32 he testified that he "would Sponsoring Expert Witness Admits never admit to any journal being or Testifies to the Reliability of the 803(17)[D.4.b] authoritative" because to him that Published Treatise, Periodical or The "admission" foundational alter- would signify that "everything within Pamphlet. native for learned treatises follows the traditional practice of asking the that journal would be considered Nebraska's Rule 803(17) shifts the 33 absolute truth." Consequently the common law focus away from the opposing expert on cross-examination trial judge refused to allow cross- witness' reliance upon the treatise in whether he or she "admits" either examination of the expert on the basis forming the expert's opinion, towards reliance on or recognition of the of the subject article, because the the reliability of the treatise, author or learned treatise as "authoritative." expert witness being cross-examined published passage. Focusing on the Under the most restrictive view of refused to accept it as "authoritative." reliability of the learned treatise is prior authority a learned treatise could On appeal, the court interpreting lan- consistent with the judge's Rule only be used for impeachment or cor- guage similar to Nebraska's 803(17) 104(1) (Daubert-]\ke) gate keeping roboration if the witness admitted his but limiting the use to impeachment responsibility to make preliminary or her reliance upon the treatise in the 34 only, held that the trial judge had findings regarding the relevancy and forming of the expert opinion. This abused his discretion in precluding reliability of expert testimony gener- view was rejected by the United 24 cross-examination despite the wit- ally. In keeping with this gate keep- States Supreme Court in Reilly v. 35 ness' inferential concessions. More- ing responsibility, the court could Pinkus,29 which held that restricting over, under Nebraska's Rule 803(17) reasonably permit cross-examination cross-examination to only those if an expert refuses on cross-exami- of an expert witness prior to estab- learned treatises an expert relied upon 36 nation to even "inferentially" admit lishing the reliability of the treatise in forming his or her opinion unduly the authoritativeness of a learned trea- upon the condition that another expert restricted the right of cross-examina- tise, the expert can be cross-examined will later establish the authoritative- tion. Following Pinkus, most courts on the learned treatise if another ness of the treatise.25 The rule pro- began permitting impeachment or cor- expert establishes by testimony the vides that the treatise's authorita- 37 roboration if the expert merely admit- reliability of the treatise. tiveness can be established by (1) ted that the learned treatise is judicial notice, (2) admission or (3) authoritative upon the subject to 803(17)[D.4.c] Testimony the testimony of the witness. which the expert has expressed an If the opposing expert will not 803(17) [D.4.a] Judicial Notice opinion. Under either view an expert admit either reliance on or the author- While most courts will be reluctant could entirely avoid cross-examina- itativeness of the learned treatise on to judicially notice the reliability of a tion by refusing to admit either (continued on next page)

5 THE PRAIRIE BARRISTER

LEARNED TREATISE, continued from page 5 cross-examination, then the founda- Committee's Notes to Federal Rule of recognized that pretrial identification is inad- tion may be established by the "testi- Evidence 803(18) explained that missible hearsay in Nebraska in State v. Salmon, 241 Neb. 878, 891, 491 N.W.2d 690 mony" of an expert on direct. restriction on use was imposed to avoid (1992), citing Mangrum, Doesn't Anyone in Because of the nature of the adversar- the fear that learned treatises may be Nebraska Realize that Pretrial Identifica- ial process, the courts are most likely "misunderstood or misapplied without tion Testimony Raises Hearsay as well as Constitutional Issues?, 20 CREIGHTON L. to require the most extensive founda- expert assistance and supervision." REV. 335 (1986-87). tion for this method of establishing While an expert reading into evi- legislative Bill 244 was offered to relevancy and reliability of a learned dence and explaining passages from Nebraska's Ninety-Fifth Legislature on Jan- treatise. Again in establishing the rel- learned treatises ordinarily will not uary 13, 1997, by Senator John Hilgert of the Judiciary Committee on behalf of the evancy and reliability of a learned cause any particular problem, diffi- Nebraska Association of Trial Attorneys. treatise by expert testimony, the four- culty may arise if the relevant section The bill was advanced to the General File on part Daubert38 factors for determining of the treatise is a chart, photograph a 5 to 2 vote of the Judiciary Committee. 4 whether a theory or technique is suf- or diagram, which cannot be effec- LB 244, at 93-94, Transcript prepared by the Clerk of the Legislature, March 13, 1997. ficiently reliable to be admissible as tively "read into evidence." The fed- 5Id. at 96. expert testimony remain as useful eral courts which have encountered 6Id. at 99-100. guides: (1) testing; (2) peer review; this issue have generally read "state- 7LB 64, at 3, Judiciary Committee, Transcript (3) rate of error; and (4) general ments" reasonably to include demon- Prepared by the Clerk of the Legislature, January 20, 1999. acceptability. However, given the 8 strative passages of treatises and have LB 64, at 7-8, Judiciary Committee, Tran- Nebraska court's rejection of Daubert allowed the passages to be "read into script Prepared by the Clerk of the Legisla- and continued adherence to the Frye evidence" by showing the jury some ture of testimony before the Judiciary standard for expert testimony,39 foun- form of visual depiction, such as an Committee on January 20, 1999. 9251 Neb. 287, 556 N.W.2d 623 (1996). dational testimony that the author, enlargement or computer assisted dis- 10251 Neb. 287, 295, 556 N.W.2d 623, 628-29 publication or specific passage is gen- play, but not necessarily allowing the (1996) (the court held that while opposing erally accepted as authoritative or reli- chart, photograph or diagram to be counsel's foundation objection did not pre- able in the relevant scientific or expert 47 serve the hearsay objection for appeal, it is introduced as an exhibit. The ap- generally improper to introduce as substan- community will likely be the most proach of permitting a demonstrative tive evidence the text of a learned treatise). critical factor in establishing the passage of a learned treatise to be "248 Neb. 103, 532 N.W.2d 26 (1995). 12 admissibility of a learned treatise in visually depicted to the jury, but not 248 Neb. 103, 109, 532 N.W.2d 26, 30 (1995), citing Fonda v. Northwestern Public Nebraska. received as an exhibit is the most Service Co., 138 Neb. 262, 292 N.W. 712 Under Federal Rule of Evidence consistent with the language and leg- (1940); Winters v. Ranee, 125 Neb. 577, 251 803(18) the courts have permitted islative history of the learned treatise N.W. 167 (1933); Hutchinson v. State, 19 Neb. 262, 27 N.W. 113 (1986). expert who have testified to exception. 13Stang-Starr v. Byington, 248 Neb. 103, 109, the authoritativeness of learned treatises 532 N.W.2d 26, 30 (1995); citing Oliverius v. 40 803(17)[E] Federal Variations Wicks, 107 Neb. 821, 187 N.W. 73 (1922). regarding medical literature, safety 14 codes,41 Department of Transportation Nebraska Rule of Evidence 803(17) 248 Neb. 103, 109, 532 N.W.2d 26, 30 42 43 adopts verbatim Federal Rule of Evi- (1995). reports, a magazine on arson, and I5 tax shelter arrangements.44 On the other dence 803(18) and variations in appli- 248 Neb. 103, 110, 532 N.W.2d 26, 31 cation are, therefore, not expected. (1995). hand, the courts have excluded testi- 16248 Neb. 103, 110, 532 N.W.2d 26, 31 mony from learned treatises on medical References (1995). literature,45 and the National Institute of 'Nebraska Rules of Evidence 803(17) will be "248 Neb. 103, 110-11, 532 N.W.2d 26, 31 effective 90 days from the close of the leg- (1995). Occupational Health and Safety islative session, approximately August 29, l8 46 For example, in United States v. Jones, 712 manual where no expert testimony 1999. F.2d 115 (5th Cir. 1983) the court held that has established the authoritativeness of 2Nebraska Supreme Court Committee on 803(18) did not provide a hearsay exception the learned treatise. Practice and Procedure, Proposed Nebraska for cross-examining a government expert on Rules of Evidence 153 (1973). The only gambling regarding the testimony of an 803(17) [D.5] The Statement Is other Federal Rules of Evidence hearsay another government expert in another case. Read Into Evidence, but Is Not exception rejected by the Committee was The court explained that 803(18) "is con- 803(1), , still has fined to published works that have been Received as an Exhibit. not been adopted in Nebraska. The Commit- subjected to widespread collegial scrutiny." Although 803(17) permits the sub- tee also rejected the nonhearsay category "In Meschino v. North American Drager, Inc., stantive use of passages from learned 801(d)(1)(C), pretrial identification. Neb- 841 F.2d 429 (1st Cir. 1988) the court rejected plaintiff's argument that the contents treatises, the contents may only be raska still has not adopted the pretrial iden- tification nonhearsay category, although of any "highly regarded" periodical are nec- "read into evidence," and cannot be many practitioners fail to recognize this essarily admissible under 803(18). Also in "received as exhibits." The Advisory omission. The Nebraska Supreme Court first Schneider v. Revici, 817 F.2d 987 (2d Cir.

6 THE PRAIRIE BARRISTER

1987) the court upheld the exclusion of a (1981). The chart showed that those characteristics book authored by the defendant in a medical 43Allen v. Safeco Ins. Co., 782 F.2d 1517, which the prosecution expert had testified malpractice case where defense counsel 1519-20, modified on other grounds, 793 were identifying were actually common • failed to establish its authoritativeness F.2d 1195 (11th Cir. 1986) (permitting plain- characteristics. Judge Friendly remarked: "It despite repeated instructions from the court tiff's counsel during the cross-examination is not altogether clear to us how a chart can on the specific need for such foundation. of defendant's expert to read statements from 'be read into evidence,' and good sense 20113 S.Ct. 2786, 2798-99, 509 U.S. 579, 596- a magazine entitled the Fire Arson Investi- would seem to favor its admission into evi- 98 (1993). gator). dence, at least in a case where ... its signif- 21113 S.Ct. 2786, 2799 (1993). The other two 44Burgess v. Premier Corp., 727 F.2d 826 (9th icance had been fully explored with the Daubert criteria for determining reliability Cir. 1984) (treatise published by the preem- expert." 575 F.2d at 48. In comparison, the include "testing" and an established "rate of inent industry expert). Fifth Circuit Court of Appeals in Alexander error," two issues also often discussed in 45Hemingway v. Ochsner, 608 F.2d 1040 (5th v. Conveyers & Dumpers, Inc., 731 F.2d peer reviewed publications. Cir. 1979) (text written by nurses not estab- 1221, 1229 (5th Cir. 1984) held that while 22119 S.Ct. 1167, 1999 WL 152455 (decided lished as reliable); United States v. Turner, the trial court had permitted the plaintiff's March 23, 1999). 104 F.3d 217 (8th Cir. 1997) (medical texts expert to display a photographic enlargement 23119 S.Ct. 1167, 1176, 1999 WL 152455 at 7. properly excluded where no expert testi- of an industry standard safety code, the 24The Daubert issue of reliability of scientific mony established authoritativeness); Schnei- judge had properly excluded the code itself evidence followed the controversy engen- der v. Revici, 817 F.2d 987 (2d Cir. 1987) because while 803(18) permits excerpts from dered by Peter Huber's GALILEO'S (defendant's text in a medical malpractice a learned treatise to be "read into evidence," REVENGE, JUNK SCIENCE IN THE case excluded where no expert testimony on but not "received as exhibits." The Fifth Cir- COURTROOM, 17 (1991) highlighting the the text's authoritativeness, despite the cuit again in Gordy v. City of Canton, 543 author's claim that junk science often has court's warning of lack of foundation). F.2d 558 (5th Cir. 1976) permitted an expert been admitted into the courtroom. 46Dawsey v. Olin Corp., 782 F.2d 1254 (5th to testify regarding a safety code, but con- 25Dawsey v. Olin Corp., 782 F.2d 1254, 1264 Cir. 1986) (no testimony of authoritativeness cluded that the trial court had committed (5th Cir. 1986). of manual). harmless error in allowing the jury to take 26The reluctance of courts to judicially notice 47In United States v. Mangan, 575 F.2d 32, 48 portions of the safety code to the jury room. the authority of learned treatises follows (2nd Cir. 1978), cert, denied, 439 U.S. 931 Also in United States v. An Article of Drug, from Rule 201 which permits judicial notice (1978) Judge Friendly criticized the district etc., 661 F.2d 742 (9th Cir. 1981), the court only if either (a) "generally known within court for refusing to allow the defense to rejected the argument that the jury should the territorial jurisdiction of the trial court (b) introduce on cross-examination a chart on have been granted their request to review capable of accurate and ready determination handwriting contained in a learned treatise. treatises during deliberations. by resort to sources whose accuracy cannot reasonably be question." Few learned trea- tises qualify under Rule 201 criteria. •L 27454 F.2d 1256 (3rd Cir. 1972). P 28454 F.2d at 1257 (3rd Cir. 1972). 29338 U.S. 269, 70 S.Ct. 110 (1949). 30176 Mich.App. 593, 440 N.W.2d 417 (1989). 31176 Mich.App. 593, 598, 440 N.W.2d 417, 420 (1989). 32176 Mich.App. 593, 599, 440 N.W.2d 417, 420 (1989). 33176 Mich.App. 593, 598, 440 N.W.2d 417, 419 (1989). 34Michigan's Rule 706 incorporated most of the language of Federal Rule of Evidence 803(18), but limited the use of such evidence "for impeachment purposes only." RICHARD A. SNYDER, P. E. 35176 Mich.App. 593, 600, 440 N.W.2d 417, SNYDER ENGINEERING COMPANY, INC. 420 (1989). 36 1361 - 26TH AVENUE Dawson v, Chrysler Corp., 630 F.2d 950 (3d COLUMBUS, NEBRASKA 68601 Cir. 1980), cert.denied, 450 U.S. 959 (1981). 37Carroll v. Morgan, 17 F.3d 787 (5th Cir. 1994). PHONE: (402) 563-2236 38509 U.S. 579, 113 S.Ct. 2786, 2799 (1993). FAX: (402) 564-2067 39See State v. Carter, 246 Neb. 953, 524 EMAIL: [email protected] N.W.2d 763 (1994); State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994). 40Tart v. McGann, 697 F.2d 75 (2d Cir. 1982); EXPERT WITNESS Carroll v. Morgan, 17 F.3d 787 (5th Cir. 1994). SANITARY SEWER 41 Alexander v. Conveyors & Dumpers, Inc. AND WATER DRAINAGE PROBLEMS 731 F.2d 1221 (5th Cir. 1984) (excerpts from the 1957 American Standard Safety Code for Conveyors could be read to jury, displayed TOPOGRAPHIC AND SITE by photographic enlargement, but not admit- SURVEYING _ ted as an exhibit); Johnson v. William C. m Ellis & Sons Iron Works, Inc., 609 F.2d 820 LICENSED ASBESTOS EXPERT ^ (5th Cir. 1980) (error to exclude safety codes established as reliable). BUILDING INSPECTION SERVICES 42Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980), cert, denied, 450 U.S. 959 7