In contrast to the Federal Rules of Evidence, pursuant to which a statement in a “learned treatise” is recognized as an exception to the hearsay rule and admissible in evidence if established as reliable,1 New York law severely restricts the circumstances under which a medical textbook or journal article may be used at trial. An expert who advances an unreliable theory cannot be cross-examined with medical literature unless he or she accepts the literature as authoritative.2 Conversely, a reputable expert cannot support his or her testimony by citing to scientific studies on direct examination because the studies would be considered impermissible hearsay.3 In short, statements in a learned treatise may only be used during the cross-examination of an expert witness for purposes of impeaching the witness’ credibility, and only if the expert acknowledges that the work is “authoritative.”
Practical experience demonstrates that many expert witnesses, including those who testify regularly for plaintiffs in medical malpractice actions, are well versed in the applicable rules. When confronted by an established work such as Williams on Obstetrics or a publication of the American Academy of Ophthalmologists, these experts will refuse to acknowledge any portion of the publication as “authoritative,” thereby preventing the jury from learning that the position taken by the expert is contrary to what is instructed by relevant publications in the field. In fact, some experts will go so far as to take the position that no work is authoritative.
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