I am indebted to Professor David Bernstein for calling my attention to the treatment of learned treatises in the new edition of his treatise on expert evidence: David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence – Expert Evidence (2d ed. 2011). Professor Bernstein suggested that I might find the treatment of learned treatises consistent with some of my concerns about the outdated rationale for allowing such works to be admissible for their truth. See “Unlearning The Learned Treatise Exception,” and “Further Unraveling of the Learned Treatise Exception.”
Having used the first edition of the New Wigmore, I purchased a copy of the second edition of the volume on expert evidence. The second edition appears to be a valuable addition to the scholarly literature on expert witness opinion evidence, and I recommend it strongly to students and practitioners who wrestle with expert witness issues.
Chapter 5, a treatment of “Treatises and Other Learned Writings,” is a good descriptive account of the historical development of the common law hearsay exception and its modification by various statutes and codes. Unlike many discussions of the learned treatise exception, The New Wigmore delves into the overlap between 803(18), which specifies “reliable authority,” and the reliability factors set out in the most recent version of Rule 702. Although the case law on the relationship between the two rules is sparse and inconsistent, the authors make a strong case for a reliability criterion for learned treatises when such treatises are offered for the truth of the matters asserted.
The New Wigmore acknowledges that many courts and scholars have assumed that juries and most normal people have a difficult time following a limiting instruction to consider a learned treatise for assessing credibility but not for the truth. Refreshingly, the New Wigmore rejects the notion that difficulty in following a limiting instruction (if real) equates to meaninglessness for the distinction. In the context of Rule 702 or 703 motions to exclude, and accompanying motions for summary judgment, the issue whether a learned treatise statement is admissible for its truth may be outcome determinative of the motions.
The sad truth, touched on but not directly confronted by the New Wigmore, is that so much of the biomedical literature is carelessly written, with only cursory “peer review.” See “Misplaced Reliance On Peer Review to Separate Valid Science From Nonsense” (Aug. 14, 2011). Professor Wigmore was impressed by the desire of treatise authors to offer trustworthy opinions to avoid ridicule by their peers; in our era, scientists are not so impressed by publication as a guarantor of trustworthiness. See, e.g., Douglas G. Altman, “Poor Quality Medical Research: What Can Journals Do?” 287 J. Am. Med. Ass’n 2765 (2002). There is a good deal of rubbish out there in the published literature, and most courts have not considered how to stem the flood of this rubbish into the courtroom through the 803(18) loophole.
There are yet other problems with Rule 803(18) discussed in New Wigmore. The language of the rule is ambiguous. Does the requirement of “reliable authority” apply to the author, the text or journal, or the statement itself? If the author or the publication, then there really is no assurance that the work satisfies reliability in the way required by 702. If the status of the text, the journal, or the author is the sole criterion under 803(18), then we have a Ferebee-like rule that countenances the opinion of any willing, available, qualified author. And the bar to publication these days is probably lower than the bar to being selected as a suitable testifying expert witness.
Authority is not a concept that is much at home in scientific discourse. Nulla in verba, and all that. If a statement in a publication is truly “authoritative,” it is because it is well supported by the facts and data on which it is based.
The New Wigmore goes beyond the coincidence of the word “reliable” in Rules 702 and 803(18), and argues that the logic of using a hearsay “learned treatise” for the truth of the matter asserted requires that the statement itself is reliably based. Here is how the second edition states its case for importing the requirements of Rule 702 into Rule 803(18):
“It would be not so difficult to conclude that assertions in a treatise that are not ‘the product of reliable principles or methods’ under Rule 702(2), for example, also are not ‘a reliable authority’ under Rule 803(18).”
Id. at 228, § 5.4.2. The triple negative may obscure the gist of the authors’ meaning, but I think their point is clear. Let me attempt to restate their point without the negatives:
It is easy to conclude that treatise opinions that fail 702 would fail to qualify for 803(18) exception.
Of course, if a treatise statement satisfies 702, then that statement would not necessarily qualify for the 803(18) exception. The learned treatise also has a “recognition” requirement; one of the testifying expert witnesses must recognize the treatise as “authoritative,” “learned,” or whatnot, or the court must take judicial notice of its status. The treatise could have the most detailed discussion and documentation of its opinions, with flawless reasoning and evidential assessment, but if it were just translated from Georgian, and unknown to the expert witnesses and the court, it would not qualify as a learned treatise. More than epistemic reliability seems to be required in terms of the status of the publication: the renown of the author and/or text. The status of the publication creates a normative obligation upon the expert witnesses to be aware of its pronouncements and to reconcile or to incorporate the publication’s statements into their courtroom opinions.
The New Wigmore’s rejection of “authoritarianism” for Rule 803(18) is commendable, but difficult to achieve in practice. Rule 702 has evolved into an important tool to ensure that opinions offered in court are “evidence based,” rather than predicated solely on the professional status of their authors. Along with the epistemic requirements of Rule 702, the procedural requirements of Federal Rule of Civil Procedure 26 ensure that the opinion’s author has stated all opinions, and all bases, as well as everything considered along the way in forming the opinion. The reality is that most textbooks and treatises have short, conclusory consideration of issues that are likely important to the resolution of a lawsuit. Frequently, a textbook cites a few studies that support the author’s opinion, without a sustained discussion of conflicting evidence, study validity, and the like. An opinion that might be the subject of a 50 page Rule 26-compliant report may be reduced to a sentence or two in a textbook, which was published several years before the close of discovery in the case. These are hardly propitious conditions for a truly learned treatise, and a 702-sufficient opinion.
Perhaps more promising is the development of the “systematic review,” which sets out to provide an evidence-based basis for causal claims. See, e.g., Michael B. Bracken, “Commentary: Toward systematic reviews in epidemiology,” 30 Internat’l J. Epidem. 954 (2001). Such reviews identify a research question, pre-specify the methodological approach to varying study designs and validity questions, search for all the data available that can contribute to answering the question, and provide a disciplined attempt to answer the research question. Systematic reviews come very close to satisfying the needs of the courtroom, and the requirements of both Rules 702 and 803(18). The trouble is, of course, that most traditional textbooks and narrative reviews, and “learned treatises,” are far off course from the epistemic path taken by systematic reviews.
The New Wigmore also raises the interesting question whether individual published studies are “learned treatises.” If they were, then an expert witness could rely upon them, per Rule 703, and the sponsoring party could actually offer them into evidence (or at least as an exhibit, with some right to show the jury their results). An individual study, however, would seem to fall way short of the mark of the comprehensiveness required for a Rule 702 opinion, at least in the situation where there were other studies.
An irreducible problem in this area is that Rule 702 separates the “authority” of the speaker, in the form of qualifications to give an expert opinion, from the “reliability” of the opinion itself. This separation, when followed, has been a huge achievement for the improvement of science in the courtroom. Qualifications are a rather minimal necessary requirement, and even at best are a weak proxy for the reliability of the opinion given in court. Many key 702 decisions involved expert witnesses with substantial, impressive qualifications. Despite these qualifications, courts excluded the witnesses’ proffered opinions because they were inadequately or unreliably supported. Reliability under Rule 702 is thus an “evidence-based” requirement. The New Wigmore authors are correct that it is time to abandon “authority” as the guarantor of reliability in favor of “evidence-based principles.
