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Expert must back treatise

Mere reading of it as‘holy writ’ nixed

A live witness must lay a solid foundation before articles in medical journals may be admitted as “holy writ” in a civil trial, according to an opinion this month from the Supreme Court of Virginia. The court’s unanimous decision tightens the requirements for the use of medical literature or other “published treatises” as substantive trial evidence.

The case of Bostic v. About Women Ob/Gyn, P.C. (VLW 008-6-038) involved a birth-injury case from Prince William County. The issue was whether the infant’s nerve damage was caused by improper delivery technique or by the natural forces of childbirth. The defendants’ expert testified that the cause could have been either factor; he could not say which. That expert, however, ac-knowledged using a medical journal article that suggested that natural forces of childbirth were the only cause of the child’s condition.

In closing argument, defense counsel John Fitzpatrick read that medical article to the jury while the words were displayed on a projected slide. The jury returned a verdict for the defendants – an obstetrical practice and a midwife – and the plaintiff appealed.

The Supreme Court reversed and remanded for a new trial, holding that the expert witness statute, Virginia Code § 8.01-401.1, requires that the testifying witness fully vouch for the opinions in the literature: “If the testifying witness does not, based upon his own knowledge and expertise, fully accept the views of the absent author, but simply reads them into the record as holy writ, the opposing party is subjected to … ‘overwhelming unfairness’….”

“The danger of using medical literature is that it is very authoritative and there is no way to cross examine it,” said Arlington attorney William Artz, who represented the plaintiff.

The Supreme Court essentially agreed, noting that, despite only partial endorsement by its expert, the defense was able to read the article to the jury, to display the article on projected slides, and to argue the opinion of the article to the jury “as a fact in evidence.”

“No expert witness testified to that view, the jury was unable to see and hear the author who expressed it, and the plaintiff was, of course, unable to subject the opinion to the test of cross-examination,” according to the court’s opinion, written by Senior Justice Charles S. Russell.

Artz believes the new opinion will put an end to what he saw as abuse of the “published treatises” law. “It’s pretty clear now what you have to do to admit medical literature at trial,” he said.

The case caught the attention of the Virginia Trial Lawyers Association which filed an amicus curiae brief written by Roanoke’s Charles H. “Trey” Smith III. “From the VTLA’s point of view, the concern was allowing junk science in the courtroom when there wasn’t an expert who could support the opinions found in the treatise,” Smith said.

The Bostic opinion is helpful, he said, “because it will require a connection between the defendant’s expert and evidence they are trying to put in.”

As explained by the court, the Virginia Code requires two preconditions for allowing a published treatise to come in as substantive evidence on direct examination. First, the testifying witness must have “relied upon” the published statements. Secondly, the statements must be established as “a reliable authority” by testimony or by stipulation.

With these qualifications, the court said, the General Assembly “insured that the testifying witness fully vouched for the opinions of the absent authors of the articles and was prepared to withstand the test of cross examination on the truthfulness and accuracy of their statements.”

In Bostic, the expert’s live testimony was less supportive of the defense theory than the article he was asked to endorse. The defense expert witness agreed that the article in question was “reasonably reliable” and that he relied upon it “to talk to this jury.” When he was read a key portion of the article and asked if he agreed, he said that he would have used different wording.

The court deemed this an “insufficient foundation” for the article. “The statutory standard is not met by an expert’s testimony that he relied upon it only to use ‘to talk to this jury’…. The witness must testify that he relied on the article in forming his opinion, which is consistent with the views expressed by the author.”

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