Of the 50 states of the union, 46 states1 and the federal courts permit the admission of medical literature as part of a party's case in chief. Such material is classic hearsay, but it has some circumstantial guarantees of reliability based on the peer review process. In addition, some courts add to that existing "guarantee" the requirement that the expert of the party seeking to introduce the medical literature testify that it is authoritative or reliable. Because of the immutable nature of the written word, medical literature tends to be perceived as more reliable than expert medical testimony.
Expert testimony can be modified from case to case, and it certainly carries an opportunistic element. Experts bring their own perspectives to a case and have an inescapable motive to be less than completely candid. Given the New York Pattern Jury Instruction's requirement that a practitioner stay abreast of the literature,2 it seems inconsistent that such literature is excluded from evidence in favor of expert testimony on topics that the literature may address in a more disinterested and trustworthy fashion.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
