April 2006
Volume 2, Number 3
Table of Contents

How to Send Learned Treatises to The Jury Room

By Kirby T. Griffis

In product liability, toxic tort, and even medical malpractice litigation, the science in the relevant field is often a crucial battleground, and expert witnesses will do battle over treatises, journal articles, and the like. As every law student knows, scientific publications are inadmissible hearsay. Under the learned treatise rule, an expert witness may testify about scientific publications that have been qualified as learned treatises, but they do not come into evidence and so may not be published to the jury.

Many practitioners and judges are so used to the learned treatise rule that they treat it as an automatic rule for the evidentiary treatment of learned treatises, not thinking about the fact that it is an exception to the hearsay rule. As such, the rule, and the underlying exclusion of learned treatises from evidence, applies only when they are being offered to prove the truth of the matters asserted therein -- as, of course, they ordinarily are in a clash between experts.

When offered for a non-hearsay purpose, learned treatises should be admissible into evidence. Most notably, learned treatises are often probative of a party's state of mind, as for example when the plaintiff accuses a corporate defendant of negligently, recklessly, or maliciously selling a product while it knew or should have known that the product was dangerous. The defendant should be able to present to the jury the publications and treatises that were available at the relevant time upon which it relied in forming its opinion that its product was safe. The argument to the court is, for example, that the proffered scientific study is not being offered to prove the matter asserted (eg, that Product X is not associated with cancer), but to demonstrate the innocence of the defendant's state of mind in relying on the study and continuing to market Product X. The study is admissible not with regard to causation, but liability.

It will be essential to be able to point to deposition testimony or other evidence that the company actually was aware of and relied on the studies that the party seeks to put into evidence, and so the lawyer who is planning ahead to trial will be careful to elicit such testimony during discovery.

Perhaps the most effective response to an attempt to place learned treatises into evidence is Fed. R. Evid. Rule 403 : The jury will be overwhelmed by the science, will be unable to appreciate the purpose for which the learned treatises are provided, and will be unduly swayed on causation. In this Rule 403 battle, the more powerfully the plaintiff has pitched the liability case, the weaker the argument for exclusion of this evidence. In a case seeking millions in punitive damages on the ground that the company knowingly marketed a lethal product to make money, studies that the company relied upon, which show that the product is not dangerous, become substantially more probative and less prejudicial.

Because an attempt to publish treatises to the jury is fairly likely to be met with a reflexive denial under the learned treatise rule, it is often wise to raise the issue and brief it in motions in limine before trial. This will give a judge, who might not be used to the idea, time to analyze it, and may increase the chance of a favorable ruling.


Kirby T. Griffis is a partner at Spriggs & Hollingsworth and works primarily in the area of pharmaceutical products liability defense. He practices in federal and state jurisdictions at both the trial and appellate levels. He has coordinated massive multinational discovery efforts, and he has spoken and written on various issues relevant to pharmaceutical litigation, including scientific evidence and punitive damages.


Copr. (C) 2006 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.

This article first appeared in LJN's Product Liability Law & Strategy, May, 2005

Copyright © 2005 ALM Properties, Inc., All rights reserved; Kirby T. Griffis


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