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Evidence Law: Comparing the Pennsylvania Rules to the Federal Rules

INTRODUCTION

In May of 1998, the Pennsylvania Supreme Court adopted the Pa Rules of Evidence (Pa.R.E.). While the Pa.R.E. and the Federal Rules of Evidence (F.R.E.) employ the same numbering system and are quite similar in content as well, there remain at least five substantive differences between the two bodies of evidence law. The civil practitioner should be aware of these differences, not only as matter of general knowledge, but also because they may influence one's choice of forum in those cases where jurisdiction exists in both the state and federal systems. Those five areas shall be the focus of this article, and they include the following:

• Impeachment by prior conviction - Rule 60

• Admissibility of expert testimony - Rule 702

• Prior inconsistent statements - Rule 801 and 803.7

• Business records hearsay exception - Rule 806(6)

• Learned treatise hearsay exception - Rule 803(18)

While this group of five is not intended to encompass all of the differences between the Pa.R.E. and F.R.E.,1 it does appear to represent the most significant areas of disagreement. In order

1In addition to the subjects discussed in the body of this article, differences are also apparent in the following rules:

• Rule 405. Methods of Proving Character - Pennsylvania does not permit proof of character by opinion testimony, whereas federal court does.

• Rule 608. Evidence of Character - Pennsylvania permits character for truthfulness to be shown only by reputation evidence, whereas federal court admits opinion testimony on the subject.

• Rule 613. Prior Statements - In Pennsylvania, extrinsic evidence of a prior inconsistent statement can be admitted only if the examiner has first given the witness the opportunity to explain or deny the prior statement, whereas in federal court the witness must be given the opportunity to deny it, but not necessarily before extrinsic evidence is admitted.

• Rule 705. Disclosure of Facts Underlying Opinion - Pennsylvania requires an expert to explain the facts underlying his/her opinion, but federal court does not.

To make the discussion below most meaningful, each issue will be raised in a practical context and then the differences between the two sets of rules will be discussed.

I. IMPEACHMENT BY PRIOR CONVICTION - Rule 609

Practical Context --- The plaintiff has filed a civil suit and is now on the witness stand. Since his credibility is an issue in the case, the defendant wants to impeach him by introducing the fact that plaintiff was convicted of aggravated assault some eight years ago and received a sentence of 18-36 months in jail. Plaintiff's counsel objects, citing the prejudicial nature of the proffered evidence.

The Issue --- Under what circumstances is it admissible to impeach a witness in a civil case with a prior criminal conviction?

Federal Law --- Under Rule 609, only those convictions which are less than ten (10) years old are potentially usable, unless the court determines that the probative value of a more remote conviction outweighs its prejudicial impact. In the example above, since the conviction was only eight years old, it would meet the time limitation in Rule 609.

In addition to the time element, however, Rule 609 also limits use of prior convictions depending upon the nature of the crime. For example, if the crime involved dishonesty or false statement (crimen falsi), it can be used regardless of the punishment for the crime; however, if the crime did not involve dishonesty or false statement, it can be used only if the crime was punishable by death or imprisonment in excess of one year. In the example above, while aggravated assault does not appear to be a crime involving dishonesty or false statement, the conviction could nevertheless be used to impeach the plaintiff since it was punishable by a term in excess of one year.

Pennsylvania Law --- Like the Federal Rule, the state law also contains a ten (10) year time limitation unless the court concludes that, on balance, the probative value of a more remote conviction outweighs its prejudicial effect. As to the character of the crime, however, Pennsylvania is more restrictive than Rule 609. Pennsylvania limits impeachment to those crimes which involve dishonesty. Thus, unlike the federal practice, in state court the conviction cited in the example above would not be admissible since it was not in the nature of crimen falsi. The fact that the crime carried a punishment in excess of one year is of no moment under Pennsylvania law. The Pennsylvania case establishing these principles on the admissibility of prior convictions in civil cases is Russell v. Hubicz, 624 A.2d 175 (Superior 1993). As to what constitutes crimen falsi, see Allen v. Kaplan, 653 A.2d 1249 (Superior 1995), holding that a doctor's conviction for writing improper prescriptions for a controlled substance satisfies that criterion.

Conclusion --- Both jurisdictions generally prohibit the use of convictions more than ten (10) years old absent a special finding by the court. Beyond that, Pennsylvania also requires that the conviction involve dishonesty, whereas under Federal Rule 609 crimes not in the nature of crimen falsi are admissible if they were punishable by a term of imprisonment in excess of one year.

II. ADMISSIBILITY OF EXPERT TESTIMONY - Rule 702

Practical Context -- Let's be a little impractical and have some fun with this hypothetical.

Imagine you are an attorney in Spain, circa 1485. A dispute has arisen been two of the world's leading trading companies concerning shipping rights and lanes of travel over the high seas. Your opponent in the case offers expert testimony concerning certain distances, boundaries and territories which are relevant to the underlying dispute, said testimony being based on the assumption that the surface of the earth is flat. You are now set to begin your case-in-chief and as your first witness you propose to call a well-known, though controversial, local mariner of some repute, one Cristóbal Colón (a/k/a Christopher Columbus) who will offer contrary testimony concerning the true location of the shipping lanes. His opinion is based on the rather novel premise that the surface of the earth is curved. Your opposing counsel objects to the proffered testimony by Columbus, the basis of the objection being that his theory concerning the configuration of the earth's surface is not "generally accepted" by men of science. (Though first advanced as early as the 6th century B.C. by the Greek philosopher Pythagoras, the idea that the earth was round was still not a commonly held belief as of the mid-15th century.) He also objects that the calculation underlying the conclusion that "the earth is round," although derived from recognized scientific methodology, has never been verified, endorsed or tested by any reputable scientific institutions.

The Issue --- Should Columbus be permitted to testify? i.e., in Spain circa 1485, can you prove that the earth is round?

Federal Law --- Prior to the enactment of the F.R.E., the leading case in the federal courts on the "reliability" (and thus admissibility) of expert testimony was Frye v. United States, 283 F. 1013 (D.C. Cir. 1923). Under the Frye rule, scientific theories, techniques and the like were only admissible if they had achieved "general acceptance" in the relevant scientific community. Thus, in our hypothetical case, Columbus would not be permitted to testify because as of 1485 it was "generally accepted" that the world was flat, not round.

In its 1993 decision of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court re-examined the Frye rule in light of the subsequent adoption of F.R.E. 702. In Daubert, the dispute was not over the shape of the earth, but rather whether a certain drug could cause birth defects in an unborn fetus. The defendant pharmaceutical company sought summary judgement on the ground that, as a result of numerous studies done on human beings, the "generally accepted" view was that the drug in question did not cause such defects. In opposition to the defendant's motion, however, the plaintiffs proffered the expert testimony of a scientist who was prepared to opine that, based on test tube studies, animal research and a "re-analysis" of previous human studies, the drug could cause defects in an unborn fetus. The trial court refused to permit the plaintiff's expert to testify on the ground that his theory was not "generally accepted" by medical science and, therefore, summary judgement was granted.

While saying that the Frye test was too restrictive, the implicit assumption being that it required one to establish "general acceptance" of the ultimate opinion at issue, the Court went on to announce a multi-factor test which, in hindsight, has proved to be more restrictive than Frye.

Under that test, the judge serves as a "gatekeeper" and looks to the following factors to determine whether, the proffered expert testimony is both reliable and relevant:

• Has the theory or hypothesis been verified by appropriate testing?

• Has the theory been subjected to peer review?

• What is the potential error of the technique?

• Has the technique obtained widespread acceptance?

As applied to our hypothetical about Columbus, it is at least debatable whether his opinion would be admissible. While arrived at by using "generally accepted" methods of calculation, his theory has not been verified through testing nor has it been subjected to peer review. Although the absence of no single factor is conclusive in the Daubert balancing test, the underpinning of the opinion offered by Columbus may be inadequate.

Pennsylvania Law - After Daubert was decided, there was much speculation about the continuing validity of the Frye rule in Pennsylvania. One of the earliest civil cases to be decided after Daubert was the Commonwealth Court's decision in McKenzie v. Westinghouse Electric Corp., 674 A.2d 1167 (Pa. Cmwlth. 1996) wherein the court was asked to pass on the admissibility of a cardiologist's opinion that a certain chemical found in ground water caused heart damage to an unborn fetus. The court determined that Frye remained the rule in Pennsylvania and endorsed a strict interpretation of Frye under which not merely the expert's methodology, but the conclusion itself, must be "generally accepted." Applying that interpretation of Frye, the court deemed the opinion to be in admissible since the link between the chemical and birth defects was not widely accepted.

In Blum v, Merrell Dow, 764 A.2d 1 (Supreme 2000), the Pennsylvania Supreme Court had an opportunity to weigh in on the Frye debate. The issue in Blum, 764 A.2d 1 (Supreme 2000) was whether or not the drug Bendectin caused certain birth defects. Unfortunately, the Court found it unnecessary to resolve the dispute about Frye because it concluded that under either interpretation the proffered testimony failed to pass muster, i.e., neither the expert's conclusion or his methodology was "generally accepted." Subsequently, an en banc panel of the Superior Court adopted the more liberal interpretation of Frye under which only the expert's methodology needs to be generally accepted. See Trach v. Fellin, 817 A.2d 1102 (Superior 2003).

Finally, one year later in Grady v. Frito Lay, 839 A.2d 1038 (Supreme 2003) our Supreme Court resolved all questions concerning both the continued viability of Frye and its true meaning. In that case, the Court first re-affirmed that Frye was the preferred rule to apply to expert testimony, not Daubert. In the Court's view, Daubert required the trial judge to become too enmeshed in scientific inquiry and it also was more likely to produce inconsistent results from different judges. The Court then went on to declare once and for all that Frye only required that the "methodology" be generally accepted, not the conclusion itself.

Applying the rule as announced in Grady, therefore, the testimony of Columbus would likely be admissible. Even though it was not "generally accepted" that the earth was round, his methodology for arriving at that conclusion was generally accepted, hence the opinion is admissible.

One note of irony. When the U.S. Supreme Court in Daubert "rejected" Frye as being too restrictive, it presumably did so with the understanding that Frye required the conclusion to be "generally accepted," not merely the methodology. After deciding not to follow Daubert, the Pennsylvania Supreme Court, in effect, concluded that Frye was never as restrictive as the Supreme Court apparently assumed it to be.

Although our hypothetical about Columbus does not raise the issue, it should be noted that there is another significant difference between federal and state practice on the whole Daubert debate. Federal courts seem much more inclined to apply Daubert to virtually any type of expert testimony being proffered in court. See, for example, Kuhmo Tire Company v. Carmichael, 526 US 137 (1999), whereas the Superior Court in Pennsylvania has gone out of its way to make the point that "Frye only applies when a party seeks to introduce novel scientific evidence." Trach, supra, at p. 1109.

Conclusion --- In federal court, Columbus may not be permitted to testify even though his methodology for concluding the shape of the earth is "generally accepted," whereas under current Pennsylvania law his testimony would be admissible.

III. PRIOR INCONSISTENT STATEMENTS - Rule 803 and 803.1

Practical Context --- Plaintiff and defendant are involved in an intersection collision where the sole issue is which party had the green light. Unfortunately, the plaintiff is so severely injured in the accident that he remains in a vegetative state and is incapable of offering any information as to which party had the right-of-way. Much to the plaintiff's good fortune, however, there was a single witness to the accident, a pedestrian standing on the corner of the intersection. That single witness has provided a tape-recorded statement to the defendant's insurance company in which he states that the plaintiff had the green light.

The case is now called to trial, and the plaintiff calls as his only liability witness the individual who was standing on the corner. To the great surprise of the plaintiff's lawyer, the witness now says that the defendant had the green light. Immediately, the plaintiff's lawyer confronts the witness with the prior inconsistent statement. While the witness acknowledges having given the prior statement, he believes that he was mistaken when he talked to the insurance adjuster and that indeed the defendant had the green light. The plaintiff has no other witness to call on liability and rests his case. The defendant moves for a nonsuit (or in federal court for judgment as a matter of law under Rule 50(a), Fed. R. Civ. Pro.) on the ground that plaintiff has offered no evidence that defendant ran the red light. The plaintiff responds by citing the content of the prior inconsistent statement.

The Issue --- Is the prior inconsistent statement admissible only for impeachment purposes (i.e., to attack the veracity of the witness) or as substantive evidence of the truth of the matter asserted therein (i.e., that plaintiff had the green light)? If the prior statement is only admissible to attack the witness's veracity, then plaintiff has no affirmative evidence that the defendant ran the red light, and the defendant's motion would be granted.

Federal Law --- Under Rule 801(d)(1), the statement would only come in for impeachment purposes and, therefore, the motion for judgment as a matter of law would be granted. That Rule indicates that a prior inconsistent statement is admissible for the truth of the matter asserted (i.e., as substantive evidence) only if the statement was given under oath in a prior proceeding. Since the statement at issue here was merely a tape-recorded statement to an insurance adjuster and was not under oath, it could not be used as substantive evidence.

Pennsylvania Law-- The law in Pennsylvania stated in Rule 803.1 is more liberal, and at least in this instance, the statement would be admissible as substantive evidence because it is tape recorded .Similarly admissible are statements given under oath or those signed and adopted by the witness.

While the state rule seems straight forward, there are some nuances which emerge from the common law case decisions which pre-date the adoption of Rule 803.1, case decisions which are presumably still good law. Therefore, it is worthwhile to review the evolution of Pennsylvania's position on the use of prior inconsistent statements.

Until 1986, Pennsylvania adhered to the traditional rule that prior inconsistent statements were never admissible as substantive evidence and could only be used for impeachment purposes. Under that practice, when a prior inconsistent statement was admitted, it would be accompanied by a cautionary instruction from a judge that the statement could only be considered to the extent that it was a reflection on the witness's veracity.

In 1986, however, the Pennsylvania Supreme Court in Commonwealth w. Brady, 507 A.2d 668, departed from the traditional rule and held that a prior inconsistent statement could be used for the truth of the matter asserted therein. According to the court, the rationale for the old rule - that such prior statements were inherently unreliable because they were typically not under oath, not subject to cross-examination, and not made in the presence of the jury — "are virtually nonexistent where the out-of-court declarant is a witness in a judicial proceeding." Brady at p. 70. Although the court did observe that the particular statement in question was given under reliable circumstances, there was no express limitation incorporating that notion. Thus, when read alone, Brady arguably suggests that any prior inconsistent statement is admissible as substantive evidence if the declarant is present in court.

Brady dealt with a tape-recorded statement made by a witness who later recanted that testimony at trial. As such, the case did not require the court to consider whether other inconsistent statements (e.g., those which are merely oral or written) were also admissible as substantial evidence. Resolution of these issues and, thus, refinement of the Brady rule would be left to two subsequent cases.

The first of those two later cases was Commonwealth v. Lively, 610 A.2d 7 (Supreme 1992). In Lively, the court specifically considered three different types of prior statements, one given under oath, one oral and not under oath, and one contained in a memo prepared by a person other than the declarant. This variety of prior statements forced the Lively court to recognize that not all prior inconsistent statements are equal and, therefore, to make explicit that which, according to it, was implicit in Brady, namely, that only those prior inconsistent statements which are given under highly reliable circumstances are admissible as substantive evidence. The court then adopted the following bright-line rule:

"In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that a prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness's statements." Lively at p. 10.

This rule seems to state that while the prior inconsistent statement has to be given under reliable circumstances, if the statement meets any of the three qualifications set out in the opinion it is, as a matter of law, reliable and, therefore, admissible as substantive evidence. The subsequent case of Commonwealth v. Grimes, 648 A.2d 538 (Superior 1994), however, suggests that this is not the case. In Grimes, the court was faced with a prior tape-recorded statement by an in-court declarant, one of the three specified circumstances in Lively. Nevertheless, the court refused to admit the prior statement as substantive evidence since at the time it was given the declarant was clearly under the influence of drugs and alcohol.

When read in conjunction, therefore, Lively, and Grimes suggest that in order to be admissible as substantive evidence, a prior inconsistent statement must be of one of the three types described in Lively (i.e., either under oath, a writing signed or adopted, or a verbatim recording) and it must have been given under reliable circumstances. Applying that rule to our practical issue, it would appear that a tape-recorded statement given to an insurance adjuster shortly after the accident would come in as substantive evidence. The statement would fit one of the three categories set out in Lively and, furthermore, there are no circumstances suggesting it is unreliable.

Finally, as to what constitutes a "contemporaneous verbatim recording," the case of Commonwealth v. Wilson, 707 A.2d 1114 (Supreme 1998), specifically holds that the statement "must be an electronic, audiotaped or videotaped recording..." This decision clarifies some suggestions in the earlier case of Commonwealth v. Halsted, 666 A.2d 655 (Supreme 1995), that a police officer's handwritten notes taken down while he was speaking to a witness would be a sufficient "contemporaneous verbatim recording." Now, after Wilson there is no confusion; the police officer's handwritten notes would not satisfy the requisite standards.

This strict construction of "contemporaneous verbatim recording" could have wide application to civil cases where police officers routinely interview non-party witnesses at an accident scene and take down notes of their statements. Wilson indicates that even if those statements are then placed in the official police report, they are not admissible as substantive evidence of the truth of the matter asserted therein. Obviously, if the person to whom the police officer was speaking was a party to the litigation, then the statements would be admissible as admissions of a party opponent.

NOTE: Keep in mind that Brady, Lively, and Grimes are criminal cases, and because of the constitutional right of a defendant to confront his accusers, rules prohibiting hearsay testimony are more vigorously enforced there than in the civil arena. That being so, one could argue that a civil court could be more lenient in admitting prior inconsistent statements as substantive evidence since the court is not constrained by constitutional concerns. There is no reported case, however, which relied upon such a distinction.

Conclusion - In federal court, a prior inconsistent statement is admissible as substantive evidence only if it was given under oath in a prior proceeding, whereas under Pennsylvania law, the prior statement may be used for the truth of the matter asserted if it was either under oath, written or otherwise adopted by the declarant, or tape-recorded, and the circumstances surrounding the statement are otherwise reliable.

IV. BUSINESS RECORDS EXCEPTION - Rule 803(6)

Practical Context --- The plaintiff files suit against a local supermarket claiming that he slipped and fell in the store and suffered torn cartilage in his right knee. The defendant acknowledges that the plaintiff fell in its supermarket, but it contends that the knee was not injured in the fall because in the report given to the store manager immediately after the accident, the plaintiff complained only of slight pain in the back. Furthermore, defendant's examining physician says that if plaintiff did injure his knee in the fall, it was a mere sprain, not torn cartilage.

The case is now at trial, and the plaintiff seeks to introduce the Emergency Room record from plaintiff's visit to a local hospital approximately six hours after the fall. In the area of the record titled "Chief Complaint," there is a statement which says, "Patient complains of soreness in back as well as pain and swelling in right knee." In the "Physical Examination" portion of the record, the doctor writes, "Obvious swelling in right knee, particularly on medial side. Limited range of motion. Production of pain at extremes." Finally, in the "Impression" section, the doctor writes, "Tear of medial meniscus, right."

The doctor who examined the plaintiff in the emergency room died unexpectedly before trial, and his deposition was never taken. At trial, plaintiff's counsel calls the medical records custodian from the hospital. She testifies as to the manner in which emergency room records are compiled. Specifically, she states that all of the information contained in the report is hand­written either by a nurse who is speaking to the patient or by a physician who is examining the patient. In either case, the information is written down contemporaneously with the patient being seen by the doctor or nurse. The custodian also indicates that maintaining emergency room records in this fashion is a regular part of the hospital's business.

At the end of the custodian's testimony, the plaintiff's counsel seeks to introduce the emergency room record for the purpose of proving each of the above items, namely, the plaintiff's complaint, the findings on physical examination, and the doctor's diagnosis. The defendant objects.

Issue --- With any business record dispute the argument over admissibility usually involves two questions. The first question is one of authenticity, i.e., has the proponent proven that the document is indeed a "business record"? The second question is one of admissibility, i.e., assuming that the document qualifies as a business record, is everything contained therein admissible for the truth of the matter asserted?

Federal Law --- On the threshold question of authenticity, Rule 803(6) indicates that a document qualifies as a business record if it was "made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly

conducted business activity, and if it was the regular practice of that business activity to make the ... record ..., all as shown by the testimony of the custodian or other qualified witness, ..."

Judged against that standard, it would appear that the testimony of the medical records custodian is sufficient to authenticate the Emergency Room record as a business record. In all three sections of the Emergency Room record, the information came from a person with knowledge, was transcribed contemporaneously with the event, and it was a regular part of hospital business to maintain such records.

Please note that the record was authenticated by a person who had no personal involvement whatsoever in the events that transpired in the Emergency Room. The Rule does not require any such personal involvement by the witness providing the foundation for authenticity. Instead, the Rule only requires that the record custodian, or some "other witness," have knowledge as to how the records are compiled and maintained, not that she have any direct role in that process.

NOTE: In actual practice, some types of records are so well-known and universally acknowledged as business records that the opponent often stipulates to authenticity and relieves the proponent of the obligation of calling the records custodian or other such witness. Indeed, that is often the case with hospital records, police accident reports, and the like.

Having determined that the Emergency Room record is an authentic business record, the court must now determine what items of information contained therein are admissible for the truth of the matter asserted. The rule indicates that "acts, events, conditions, opinions, or diagnoses" set forth in the record are admissible as substantive evidence. Thus, in federal court, it would seem that all of the information that the plaintiff seeks to introduce --- his complaint of knee pain, the physical finding of swelling and limitation of motion, and most importantly, the doctor's diagnosis of torn cartilage --- would come in for the truth of the matter asserted.

Pennsylvania Law --- Pa. Rule 803(6) is similar to the Federal Rule on the threshold question of authenticity. Thus, for the same reasons cited above, a Pennsylvania judge would have no trouble concluding that the medical records custodian's testimony is sufficient to establish the Emergency Room record as a business record.

On the subject of admissibility, however, Pennsylvania takes a more restrictive view and does not permit one to admit opinions or diagnoses contained in business records. This principle, which was derived from our common law decisions which pre-date the adoption of state Rule 803(6), has been summarized as follows:

"The law is clear that hospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms given. . . . Medical opinion contained in the records and proffered as expert testimony is not admissible however where the doctor is not available for cross-examination." Commonwealth v. DiGiacomo, 345 A.2d 605, 608 (Supreme 1975).

Pennsylvania's refusal to admit opinions and diagnoses is based on a belief that such conclusions, in the interest of fairness, must be subject to cross-examination. Thus, Pennsylvania courts have held the following mental impressions contained in records to be inadmissible as substantive evidence: a statement by a social worker offering the opinion that stress in the plaintiff's personal life was probably aggravating her physical condition, Williams v. McClain, 520 A.2d 1374 (Supreme 1987); a note in a hospital chart that a patient was "conscious" at a particular point in time, Morris v. Moss, 435 A.2d 184 (Superior 1981); a notation by a doctor in a medical record that a "patient is critical," Richman v. Wallach, 452 A.2d 501 (Superior 1992).

Also, a statement contained in a police report which described how an accident happened is not admissible where the identity of the declarant is not known. Liles v. Balmer, 567 A.2d 691 (Superior 1989).

Conclusion --- While both the federal and state courts look to the same factors in determining whether a document has been properly authenticated as a business record, there is a major difference between the jurisdictions on the matter of whether the information contained within the record is admissible as substantive evidence. In short, Pennsylvania says that only factual information is admissible for the truth of the matter asserted, whereas the more liberal Federal Rule says that virtually anything in the document, be it factual or in the nature of a conclusion or opinion, is admissible.

V. THE LEARNED TREATISE - Rule 803(18)

The Practical Context --- The plaintiff has filed suit against an orthopedic surgeon claiming that the doctor improperly treated his ankle fractures. Specifically, the plaintiff claims that because of the peculiar nature of his fracture, the doctor should have taken him to the operating room, opened up the ankle, and utilized internal fixation to properly reduce or "set" the fracture. In response, the doctor contends that the method that she employed --- reducing and aligning the fracture manually and without surgery --- was appropriate. Thus, the question for the jury is the proper method to treat this fracture, the "open reduction and internal fixation" method argued by the plaintiff, or the "closed reduction" employed by the physician.

The case is now at trial, and the plaintiff's medical expert is on the witness stand. The expert offers the opinion that the proper treatment for plaintiff's type of ankle fracture was open reduction with internal fixation. In order to lend credence to this expert's opinion, the plaintiff's counsel asks the expert on direct examination if he is familiar with a treatise entitled Jones on Bones. The expert indicates that he is not only familiar with it, but it is generally regarded as an authoritative text in the area of orthopedic surgery. The plaintiff's counsel then approaches the witness, points to a particular passage in the book (a copy of which has been provided to defense counsel) and asks the expert to read it aloud. Defense counsel objects. By the way, the passage says in reference to the plaintiff's sort of fracture that "Open reduction with internal fixation is the standard treatment for such fractures." How should the judge rule?

At another point in the trial, plaintiff's counsel is cross-examining the defense medical expert who earlier during direct examination has testified that a closed reduction was consistent with the standard of care. Now, plaintiff's counsel seeks to confront the witness with the passage from Jones on Bones. In response to counsel's question as to whether he recognizes the treatise as authoritative, the defense expert answers "I can say that the treatise in general is an accepted work in our field. However, I am not familiar with the particular chapter in the book on ankle fractures to which you are referring." With that answer, defense counsel objects to any further inquiry of his expert.

The Issue --- As with the business records exceptions, the proper use of a learned treatise actually involves two questions, the first being whether the book has been properly authenticated as "authoritative," and the second being the extent to which the information contained therein can be used.

As to the authentication issue, a dispute may arise over how strong an endorsement must be given to a book to deem it "authoritative" and whether the witness must be familiar with the section of the work to which his attention has been drawn.

If the work is established as authoritative, the question then becomes whether the passage in the text is admissible only for impeachment purposes or as substantive evidence.

The Federal Rule --- The learned treatise issue is covered in Rule 803(18). As to authentication, the rule indicates that a treatise is authoritative if it is "established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice." The first thing to note is that the rule only requires that the book be recognized as "a reliable authority." It is not necessary to show that the book is the authority on a certain subject, nor presumably is it necessary to mouth the magic word "authoritative" so long as some language is used establishing reliability to the satisfaction of the court.

If a witness recognizes a text as authoritative, it is not necessary for the proponent to go further and show that the witness is familiar with a particular chapter of the book. Thus, in the second half of the example given above, the defense expert could not thwart plaintiff's counsel's cross-examination by acknowledging the general authoritativeness of Jones on Bones, but then disclaiming any knowledge of the particular chapter on ankle fractures. If the book itself is authoritative, it may be utilized for all purposes permitted under the rule.

As to those purposes, the main issue is whether the passage may be admitted as substantive evidence, or only for impeachment purposes. Rule 803(18) is an exception to the hearsay rule. Hence, by definition, the passage would be admitted for the truth of the matter asserted once the authoritativeness of the text is established.

The last important point to note about Rule 803(18) (which naturally follows from the fact that the treatise is admissible as substantive evidence) is the provision that the text can be used either on direct or cross. The rule provides that the text can be used "to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, ..." Thus, in the first part of the example above the question of whether the plaintiff's own medical expert would be permitted to read a statement from Jones on Bones which agrees with the opinion he has already offered would depend upon whether the expert was truly relying upon that passage in forming his opinion.

Because of the potential danger that would arise from widespread use of learned treatises on direct examination (the most immediate result being a mad scramble by both sides to find as many textbooks as possible which agree with their position and then inundating the jury with quote after quote, all of which places more focus on opinions offered by people not subject to cross examination), it is suggested that the opponent in most situations such as that faced by defense counsel here can make a credible argument that the plaintiff's expert arrived at his opinion based on his own personal experience and training, and not based on his reading Jones on Bones, i.e., he was not truly relying on the text in formulating his opinion, rather it was an opinion he arrived at independent of the textbook. Again, however, that would be a decision for the federal judge to make in ultimately determining whether the textbook could be utilized on direct examination.

Pennsylvania Law --- The Pa.R.E. contain no specific hearsay exception for a learned treatise because Pennsylvania continues to adhere to the common law rule that such books are indeed hearsay and, therefore, they can only be used for impeachment purposes. Pennsylvania common law on the subject may be summarized as follows.

On the question of authenticity, Pennsylvania law is in accord with the federal rule to the extent that it holds that a textbook can be utilized so long as some witness establishes it as an authoritative text. Thus, for example, in McDaniel v. Merck, 553 A.2d 436 (Superior 1987), the court held that the plaintiff could cross examine a defense medical expert on a textbook with which the expert said he was completely unfamiliar because an earlier expert called during the plaintiff's case in chief had established the authoritativeness of the work.

NOTE: McDaniel also indicates that where an expert on cross examination disclaims any knowledge of a particular work, that may block any further questioning on the content of the book (unless some other expert has authenticated it), but the proponent can cite the opposing expert's complete unfamiliarity with the book as a reflection on his general credentials and qualifications.

While the federal rule and Pennsylvania law are consistent on the matter of authenticating a learned treatise, there is a major difference between the two jurisdictions in the use that can be made of the text once having been authenticated. As noted above, Federal Rule 803(18) is quite liberal in permitting the text to be used for the truth of the matter asserted, whether it be on direct or cross-examination. By contrast, Pennsylvania adheres to a more traditional rule whereby quotes from authoritative texts are only admissible to impeach an adverse witness. Until recently (see below) there was little detailed discussion of this rule by the Pennsylvania Supreme Court, and thus the case most often cited for summarizing the law in this area is the Superior Court's decision in Majdic v. Cincinnati Machine Company, 537 A.2d 334 (1988). In this case, the court ruled that it was error for a trial court to permit an engineer to read from certain articles or trade publications on direct examination, i.e., to admit such evidence for the truth of the matter asserted. The Superior Court summarized the law as follows:

The law in this Commonwealth is well-settled that an expert witness may be cross-examined on the contents of a publication upon which he or she has relied in forming an opinion, and also with respect to any other publication which the expert acknowledges to be a standard work in the field. See: Cummings v. Borough of Nazareth, 430 Pa. 255, 242 A.2d 460 (1968); Walheim v. Kirkpatrick, 305 Pa. Super. 590, 451 A.2d 1033 (1982); and, Brannan v. Lankenau Hospital, 254 Pa. Super. 352, 385 A.2d 1376 (1978), rev'd on other grounds, 490 Pa. 588, 417 A.2d 196 (1980). In such cases, the publication or literature is not admitted for the truth of the matter asserted, but only to challenge the credibility of the witness' opinion and the weight to be accorded thereto. Brannan v. Lankenau Hospital, 385 A.2d at 1383. Learned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury. See: McCormick on Evidence §321, at 899 (3d ed. 1984). Majdic at p. 339.

The plaintiff in Majdic had argued that since his expert relied upon the publications in forming his opinion, he should be able to read them to the jury, i.e., an argument espousing adoption of the federal rule. The Superior Court rejected plaintiff's view saying such a decision "is not for this court to decide."

After years of silence, the Supreme Court in 2000, finally accepted allocatur in a case squarely raising the learned treatise issue. The case of Aldridge v. Edmunds, 750 A.2d 292 (Supreme 2000), involved a pediatrician who was sued for failing to appreciate that a newborn baby's failure to thrive was indicative of a congenital heart problem. The child ultimately died from the cardiac condition. The doctor defended the case on the ground that a reasonable physician would interpret the failure to thrive as suggesting more common problems such as dietary or hormonal abnormalities rather than an obscure cardiac condition. In order to support his argument, the pediatrician put an expert witness on the stand and during direct examination of that expert, the defense counsel introduced excerpts from two pediatric textbooks which discussed this very subject. The defense counsel had the excerpts enlarged, displayed to the jury and then read aloud during the expert's direct examination. The trial court permitted such use of the treatise and the Superior Court affirmed citing its earlier decision in Nigro v. Remington Arms Company, 637 A.2d 983 (Superior 1993). In Nigro, the court held that it was permissible to read from the text of a learned treatise during direct examination of a defense expert since the book was "only" being used to bolster the credibility of the expert.

The Supreme Court reversed in Aldridge saying that the result reached by the Superior Court in Nigro was wrong because using a textbook to "bolster" the credibility of an expert necessarily required that the book be introduced for the truth of the matter asserted, a purpose which makes the text classic hearsay. The Supreme Court, thus, reiterated the traditional common law rule that extra-judicial statements contained in textbooks may not be read into the record for the truth of the matter asserted. The court did acknowledge that there was one limited circumstance when a learned treatise may be introduced on direct examination and that is where it is being referenced merely for the purpose of clarifying the expert's opinion.

Conclusion --- The law in federal court and under state practice concerning learned treatises is the same on the issue of authentication. A book can be utilized so long as some witness (not necessarily the one who has been confronted with the work) establishes it as a reliable authority in the field.

Once having authenticated the book, however, Pennsylvania law says that the text can only be used on cross examination to impeach an opposing witness, whereas Federal Rule 803(18) says that the book is admissible to prove the truth of the matter asserted therein and may even be used on direct examination to the extent that it is relied upon by the expert.

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