Thomas A. Moore and Matthew Gaier Evidentiary Use of Learned Treatises
In a recent column in the New York Law Journal, Professor Michael Hutter raised the question of whether New York should adopt FRE 803(18), the Federal Rule of Evidence pertaining to the admissibility at trial of statements contained in treatises, periodical or pamphlets. Hutter's position was that adoption of the rule would be "a progressive step forward." In this edition of their Medical Malpractice column, Thomas Moore and Matthew Gaier explain why they "respectfully disagree."
August 02, 2021 at 02:00 PM
15 minute read
We are once again inspired by our friend and colleague, Michael J. Hutter, to address an evidentiary question that has particular importance in medical malpractice litigation. In his most recent New York Law Journal column on evidence, Professor Hutter raises the question of whether New York should adopt FRE 803(18), the Federal Rule of Evidence pertaining to the admissibility at trial of statements contained in learned treatises, periodical or pamphlets. See Hutter, NY's Position Regarding Evidentiary Uses Of Learned Treatises: Time To Change?, N.Y.L.J June, 2021, p. 3. Professor Hutter posits that adoption of the rule, at least with respect to "treatises that are unquestionably reliable," such as Gray's Anatomy, "would be a progressive step forward." For the reasons described below, we respectfully disagree.
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