Failure to Identify Author Supports Rejection of Publication as Learned Treatise
The use of a learned treatise at trial, either with one’s own expert or on cross-examination of an opposing expert, arises frequently in life sciences cases. When doing so with your own expert, is it helpful for your expert to have actually relied on the publication and to be able to identify who wrote it and why it is reputable? Not surprisingly, the answer, according to a New Jersey court, is yes.
Lawson v. K2 Sports USA, et al. arose out of a mountain biking accident in which the plaintiff flipped over his handlebars and landed on his head, resulting in quadriplegic injuries. His claims against the manufacturer of his helmet proceeded to trial, and his attorney sought to offer testimony from his expert about an article that, according to the expert, mirrored the expert’s opinions regarding defects in the design of the helmet.
Because the case was pending in state court, New Jersey’s version of the learned treatise hearsay exception — which mirrors Federal Rule of Evidence 803(18) — applied:
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by testimony or by judicial notice.
The plaintiff’s expert admitted he did not rely on this article in reaching his opinions and, what is more, could not identify who the author of the article was. In contrast, the defendant’s expert not only identified the author, but characterized him as a consumer advocate and the article as a “blog” that was “not appropriate for any expert to rely on as scientific support for an opinion.”
In upholding the trial court’s exclusion of the article, the New Jersey Appellate Division noted that not only did the plaintiff’s expert not rely on the article, but the plaintiff failed to offer sufficient support to allow the trial court to conclude that the article was, indeed, a “reliable authority.”
The obvious lesson here, of course, is that the proponent of a learned treatise, especially when offered through that party’s own expert, should ensure that the expert is able to provide the necessary evidential basis to establish that the publication is, in fact, a learned treatise — including who wrote it and why it is reputable. On the other side, a party opposing the use of a learned treatise should be prepared to offer proofs as to why the publication is not reliable.