“Learned treatise” may be used to cross-examine an expert even if he or she does not recognize the publications as an “authority”
It’s not uncommon during the trial of any medical malpractice case for a lawyer to try and cross-examine an opposing expert witness with a medical publication, or “learned treatise,” that contradicts or refutes that expert’s sworn testimony. A cagey medical expert can try and deflect such tactics by claiming not to recognize the publications as ‘reliable’ or ‘authoritative.’ That way, the expert can try and prevent the lawyer from asking him or her about the contents of an article or text that is intended to poke holes in the expert’s opinions. Not so fast, said the Appellate Division in the March 26, 2009 decision in Mohrle v. Kim (A-4509-07T2)
In this case, the expert for the plaintiff criticized Dr. Kim for the manner in which he performed an excisional breast biopsy. When confronted with a textbook on Breast Disease, the expert refused to acknowledge it as an authority, and the plaintiff (after an adverse result), complained that, as such, it should not have been used in cross-examination of the expert. Of course, the text validated Dr. Kim’s testimony on how an excisional biopsy ought to be done, and, strongly refuted the plaintiff’s expert’s testimony to the contrary.
No foul said the Appellate Division, clarifying that the very purpose of the so-called “learned treatise” rule (NJ Rule of Evidence 803(c)(18)) was to allow its admissibility so long as ANY WITNESS at the trial recognized it as a reliable publication. This would allow its use in cross-examination of an expert, who knowing its potentially harmful contents, tried to block its use by claiming it not be reliable.
Of course, the expert can still disagree with its contents, and, then, it is for the jury to evaluate the expert’ s credibility, given all of the evidence and circumstances in the case, in light of any contradictory statements contained in a publication.
Related Articles:
- De Laroche v. Advanced Laparoscopic Association et al. (A-5403-1474) Decided 2/28/2017
- Clarification on the Statute of Limitations for “Survival” Claims – Warren v. Muenzen, 448 N.J. Super. 52, (Super. Ct. App. Div. 2016) December 7, 2016)
- Settling Defendant Charge Need Not Always Be Given – Hernandez v. Chekenian, No. L-11038 14, 2016 WL 6024008, (N.J. Super. Ct. Law Div. July 15, 2016)
- Vascular Surgeon Not Qualified to Testify Against Family Practitioner Who Performed a Vascular Procedure – Afonso v. Bejjani – A-1623-15T4
- Federally Qualified Health Center Entitled to New Jersey’s Cap on Charitable Immunity for Hospitals – S.M. v. United States of America – CA No. 13-5702, USDC – DNJ