Picture a lawyer standing in open court several feet from the witness and holding up a fat, hard covered book with an impressive title, like Sabiston on Thoracic Surgery. The lawyer slowly opens the book to a pre-marked page and begins reading its contents to the witness and a jury:

“Ladies and gentlemen, you’ve heard from experts paid by each side, but what I’m about to read to you is from a reliable authority in the field of thoracic surgery, used by physicians across the United States to educate and train doctors. It is objective, neutral, and authoritative source. It is unimpeachable.”

Imagine the power that such an authority carries in a courtroom. In the right circumstances, the learned treatise may overwhelm other competing testimony and skew the result heavily in favor of its proponent.

However, there are some inherent problems with trying a case—particularly a medical malpractice case—through the presentation of statements contained in learned treatises.

First, a statement contained in a learned treatise is classic hearsay. The declarant of such statement (the author of the article) is not in the courtroom. He or she is not subject to cross-examination—either regarding his or her qualifications, credibility, bias, methodology or conclusions.

Second, particularly because the article’s author is not present and subject to examination, it can be easy for one side or the other to distort the statements contained with a learned treatise, either by taking statements out of context or cherry-picking articles or statements contained therein that support one point of view, while selectively omitting articles or statements that refute it.

Because of the inherent power and inherent risks of learned treatise evidence, Maine’s Rules of Evidence—unlike the federal counterpart—circumscribes the use of such evidence at trial.  Under Maine Rule of Evidence 803(18), a learned treatise may not be used in direct examination; it may be used only on cross-examination. The treatise may not be used to bolster the opinions of the proponent’s own expert. This is a significant departure from the Federal rule, which permits learned treatise evidence to be used on both cross and direct examination.

Before any statement contained in a learned treatise may be read to the jury, the proponent must first lay an adequate foundation that the publication is a reliable authority in the field.  Although statements from the treatise cannot be read during direct examination, the rule permits the proponent’s own expert on direct examination to lay the foundation for the publication as a reliable authority.  If the witness is successful in laying the foundation, the treatise may be used during cross examination of the opposing expert.

If the proponent’s own expert has not laid a foundation, the rule affords that judge discretion to recognize the learned treatise as a reliability authority in the field, even if the witness, on cross examination, disagrees with this conclusion. Factors that a court will likely consider in deciding whether a publication is a reliable authority include whether it is peer reviewed; whether it is commonly used by practitioners within the profession; and whether the witness subscribes to the publication, has served on its editorial board, and/or published articles in the publication.

Once the learned treatise has been accepted as reliable authority, rules permit the proponent, on cross examination, to read “statements” from the treatise into evidence.  Unlike earlier versions of the rule, which limited the use of learned treatise evidence to impeachment, the new rule permits the statement to come in as substantive evidence.  This means, for example, that the statement can be read to the jury again in closing argument.

Importantly, the learned treatise itself is not admissible—only the selected “statements” contained therein that are read to the jury are admissible.  The remainder of the learned treatise remain inadmissible hearsay.

If a proponent of the learned treatise reads statements on cross examination, does that open the door for the opposing party to admit the article in full or to read additional statements into evidence?  The answer to that appears to be “no,” although fairness likely precludes one side from reading an incomplete statement or taking it entirely out of context.  Accordingly, if a party anticipates that learned treatise evidence will be utilized in cross-examination of its own expert, it may be strategically advantageous to use the same learned treatise in cross-examination of the opposing expert, to read any favorable statements from the document or to point out flaws in its methodology or conclusions at that time.

The rationale underlying Maine’s more restrictive approach to the use of learned treatise evidence is that such evidence can be so persuasive that forcing a party to use it only upon cross of an opposing expert reduces the opportunity for mischief.  By forcing the proponent to introduce learned treatise statements during cross examination of the opposing expert, the rule sets up a fair fight, in which the witness will be positioned to challenge the logic and conclusions of any statements contained within a learned treatise, limiting the likelihood that the learned treatise will be misused, or its methodology and conclusions improperly distorted.

The learned treatise exception should not be confused with Rule 703, which permits an expert to base an opinion upon facts and data of the sort reasonably relied upon by experts in the field.  If a learned treatise contains facts or data of this type, such facts and data may be used by an expert in forming an opinion, but this does not make the underlying learned treatise, or any statement contained therein, admissible on direct examination of the expert.  That said, if an expert testifies that he or she relied upon facts or data contained in a learned treatise, then Rule 705 permits the opposing party, on cross examination, to force the expert to disclose the facts or data relied upon.  Of course, as stated above, Rule 803(18) already permits the use of properly qualified learned treatise evidence on cross-examination of the opposing expert, even if that expert did not testify that he or she relied upon any facts or data contained therein (or even consulted the treatise at all).

Finally, because courts frown on trials by ambush, Rule 26 requires that the basis for an expert’s opinion be disclosed during discovery.  Thus, if an expert is planning to testify that he or she relied upon a learned treatise in forming his or her opinions, then the party must disclose this information during discovery.  Stated differently, an expert likely will not be able to testify that he or she reviewed and relied upon information contained in a learned treatise as a basis for his or her opinions if this was never disclosed to the other side during discovery.

In conclusion, while learned treatise evidence can be very powerful in a courtroom, the proponent of it must be fully versed in the Maine Rules of Evidence that apply and think proactively and strategically about this issue well in advance of trial. Contact our team today to learn more.