By Alex Stein
Whether a medical publication – a book or an article – can be used in court as evidence for its truth is determined by the “learned treatise” exception to the hearsay rule. This exception provides that a court can admit into evidence an excerpt from a treatise or periodical when it “is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination” and when “the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.” Federal Rule of Evidence 803(18) and its state equivalents.
The Supreme Judicial Court of Massachusetts has recently narrowed this exception.
Specifically, it held that organizations such as hospitals and even universities cannot satisfy the “reliable authority” requirement by their institutional credentials. This requirement – the Court explained – can only be satisfied by the person who authors the publication. The Court also expressed skepticism about credibility of academic and other publications driven by the pressure to publish. Kace v. Liang, — N.E.3d —- 2015 WL 5253356 (Mass. 2015).
Based on this understanding, the Court ruled that the Johns Hopkins Medicine and Mayo Clinic web pages do not meet the “reliable authority” requirement because they “did not reference a particular author or authors.” Johns Hopkins’ and Mayo Clinic’s stellar reputation in medical research, teaching, and patient care was thus held to be of no consequence.
This decision is problematic. There is no good reason to exclude medical information authored by a hospital or medical school when a medical expert testifies about that information in court. The Massachusetts Supreme Court’s decision also strengthens the pro-incumbent bias of academic and professional publishers, who tend to prefer reputable authors over young and not yet established academics and professionals. Those publishers now have an additional reason for acting upon that preference: it will make their publications admissible as evidence and increase sales.