Propriety of Utilizing a Learned Treatise At Trial Reviewed By Pennsylvania Superior Court

In the case of Charlton v. Troy, No. 2020 Pa. Super 170 (Pa. Super. July 16, 2020 Bowes, J., Olson, J., and Ford Elliott, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court addressed the propriety of using a learned treatise to cross-examine a witness at a medical malpractice trial.

In the end, the Superior Court found that the trial court erred in allowing a Plaintiffs’ attorney to cross-examine the Defendant physician, who testified as a fact witness at trial, about the contents of a medical textbook that the witness did not recognize as authoritative. The court ruled that this error caused extreme prejudice to the Defendants. As such, the substantial jury verdict was vacated and the case was remanded for a new trial.

The Superior Court found that there was no foundation laid that would establish that the textbook was a learned treatise for the limited purpose of impeaching the Defendant. The court noted that the Pennsylvania Rules of Evidence did not recognize a hearsay exception for a learned treatise, i.e., any textbook or published work or periodical that has been accepted as authoritative or as reliable authority by members of a specific professional community. Rather, the court noted that the contents of a learned treatise offered at trial to establish principles or theories is inadmissible hearsay as extra-judicial declarations offer to prove the truth of the matter asserted within the treatise.

However, such materials may be utilized to impeach an expert with statements contained in such a text or publication if those statements are deemed authoritative or reliable by that witness or other experts in the relevant field.

The court noted that the Defendant doctor could have been questioned about the contents of the textbook if he was an expert. However, as he was only testifying as a fact witness, the Defendant doctor could only be cross-examined with a publication that he agreed was authoritative or reliable. No such foundation was laid in this regard in this case as the witness did not recognize the work as authoritative.

The appellate court found that this error was exacerbated at trial by the fact that the Plaintiff was allowed to argue the substance of the inadmissible excerpts in the closing argument.

In colorful language, the Superior Court noted that, because the error at trial in the admission of the evidence was "of such a consequence that, like a dash of ink in a can of milk, it cannot be strained out, the only remedy, so that justice may not ingest a tainted fare, is a new trial."  See Op. at p. 37 [citation omitted].

In the end, the appellate court vacated a $40+ million dollar verdict and remanded the case for further proceedings.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (July 28, 2020).