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Univ. of South Carolina School of Law

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Wednesday, June 8, 2011

Higher Learning: EDVA Finds Documents Submitted Without Expert Testimony Not Admissible As Learned Treatises

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for learned treatises. Specifically, it provides an exception

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert 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.

Thus, learned treatises can be admitted but only in conjunction with expert testimony, which created a problem for the plaintiff in Hogge v. Stephens, 2011 WL 2161100 (E.D.Va. 2011).

In Stephens, Thomas Hogge, a Virginia inmate proceeding pro se and in forma pauperis, filed a civil action under 42 U.S.C. § 1983. His complaint arose out of allegations that the defendants, including Dr. Alvin Harris, improperly diagnosed and treated him for hepatitis C while he was incarcerated at the Deerfield Correctional Center. Specifically, the plaintiff alleged
that Harris should have requested "some type of imaging study of [P]laintiff's liver," and should have requested that complete blood work be done....Plaintiff also requested hepatitis A and hepatitis B vaccinations from Dr. Harris....Dr. Harris denied the requests....Plaintiff contend[ed] that the denial of this request violate[d] the Eighth Amendment....
Plaintiff admit[ted] that Dr. Harris submitted a request that a liver biopsy be performed..., Harris put Plaintiff on a daily multivitamin..., Harris requested that Plaintiff see a G.I. specialist..., and Harris required routine blood work every six months....Dr. Harris told Plaintiff that Dr. Harris would not submit a request for treatment because the request would be denied due to Plaintiff's low platelet count....Plaintiff underst[ood] that the biopsy and G.I. specialist requests were denied due to Plaintiff's low platelet count....Nevertheless, Plaintiff state[d] that Harris "refused to do anything at all concerning care and treatment."

The defendants eventually moved for summary judgment. In response, Hogge submitted several documents which allegedly supported his claim that Dr. Harris acted improperly. In finding that this evidence was inadmissible, the United States District Court for the Eastern District of Virginia held

that many of the documents Plaintiff submitted in support of his allegations against Dr. Harris, including the medical articles, constitute[d] hearsay. See Cornelius v. Wilkinson,No. 1:05–cv–00545, 2006 WL 2404136, at *5 (N.D.Ohio Aug. 18, 2006) ("Plaintiff submits several medical articles.... However these documents are not authenticated and constitute hearsay."). The Federal Rules of Evidence do provide a hearsay exception for learned treatises. Fed.R.Evid. 803(18). Such documents are only admissible, however, if they are "'called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination.'" Cornelius, 2006 WL 2404136, at *5 (quoting Fed.R.Evid. 803(18)); see Wik v. Shelton, No. CV 07–1726–HA, 2009 WL 2163529, at * 1 (D.Or. July 17, 2009) (disregarding the submission of a medical publication meant to establish a medical standard of care because the document was not relied on by an expert witness). Because "Plaintiff fail[ed] to present these medical articles in conjunction with expert testimony," they "are inadmissible and may not support Plaintiff's allegations." Cornelius, 2006 WL 2404136, at *5; (see Resp. Mot. Summ. J. (Docket No. 63) 7 (calling the documents "valid and legitimate medical research").)

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/06/80318-hogge-v-stephensslip-copy-2011-wl-2161100edva2011.html

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Comments

The court is wrong insofar as it says that the FRE requires a treatise to be brought to the attention of an expert or be relied upon by one. The treatise can be admitted if it can be shown to be an authoritative writing on the topic by asking the judge to take judicial notice. Here, the plaintiff probably did not present the court with any proof (affidavit or some self-authenticating document) that the treatises were authoritative.

Fred

Posted by: Fred Moss | Jun 10, 2011 1:24:35 PM

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