About Schmitt: Court Of Appeals Of Iowa Finds Proper Foundation Was Laid For Admission Of Learned Treatise

Like its federal counterpart, Iowa Rule of Evidence 5.803(18) provides an exception to the rule against hearsay

To the extent called to the attention of an expert witness upon cross-examination or relied upon by that witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The recent opinion of the Court of Appeals of Iowa in Schmitt v. Koehring Cranes, Inc., 2011 WL 649650 (Iowa.App. 2011), does a pretty good job of explaining the test for determining whether a writing qualifies as a learned treatise under Rule 803(18).

In Schmitt, Richard Scmitt

was a longtime iron worker...In 2006, Schmitt and Devere Lindquist co-owned AB Construction, which installed machinery and provided ironwork services...AB Construction had purchased a Terex TB42 boom lift in 2002 from Koehring Cranes, the designer, manufacturer, and distributor of the boom lift. The boom lift was designed to allow a worker to use a platform or basket to do ironwork at different heights.

On December 28, 2006, Schmitt was injured while operating the boom lift. Schmitt was lengthening rails on an overhead bridge crane system. He positioned the basket of the boom lift below the crane rail, with the guardrail of the basket directly under the crane rail approximately four to five inches. When Schmitt reached over the guard rail to operate the boom lift controls, the welding glove he was wearing moved the control forward and caused the boom lift basket to move upward. His left arm was caught between the boom lift's guard rail and a steel overhead beam, causing a crushing injury. Lindquist operated the controls at the base of the boom lift to lower the basket and free Schmitt.

Schmitt thereafter filed a design defect products liability suit against Koehring Cranes Koehring Cranes. During trial, Schmitt's expert, Dr. Hall, read excerpts from R. Matthew Seiden, PE, CSP, CPSM, Product Safety Engineering for Managers: A Practical Handbook and Guide (1984). Before reading these excerpts,

Dr. Hall testified the text was a learned treatise that set forth standard engineering principles; the book was written by R. Matthew Seiden, a professional engineer, who had an engineering degree, was a certified safety professional and certified product safety manager, and was currently a consultant; the publisher of the book was Prentice Hall and the general practice before publication is that the book would be peer reviewed and described the material as "well accepted."

After the jury found for Schmitt, Koehring Cranes appealed, claiming, inter alia, "that the district court erred in allowing Dr. Hall to read from the treatise pursuant to rule 5.803(18)because there was not sufficient foundation for the admission of the book as a learned treatise."

The Court of Appeals of Iowa disagreed, noting that a learned treatise is

deemed reliable enough to qualify for an exception to the hearsay rule because generally they are prepared by an author with no bias in a particular case, who is aware that other experts in the field will read the treatise, and whose professional reputation is thus at stake.

As a foundation for introduction, the publication must be identified as a reliable authority and the offered statement within the treatise must be called to the attention of an expert witness on direct or cross-examination. The rule thus avoids the danger that the treatise will be misunderstood or misapplied by lay jurors by limiting its use as substantive evidence to situations where an expert is on the stand and available for questioning. Thus, a party offering a learned treatise may establish reliability through its own expert witness on direct examination or by its opponent's expert witness on cross-examination.

The court then concluded that a proper foundation was laid for the admission of the learned treatise because "Dr. Hall's testimony established that the materials were reliable authority, and he was also cross-examined on the issue." 

-CM