April 16, 2018 Articles

Tips for Learning the Learned Treatise Exception

By Adrienne Busby, Jessica Cox, and Emily Steeb

Everything must be made as simple as possible. But not simpler.
—Albert Einstein

After months or (more likely) years of toiling over fact discovery and motions practice, you find yourself where drug and device litigators long to be—preparing for trial. And as a drug and device litigator, you know that science and experts are the keys to your defense. So, of course, you identified (and your client retained) a top-flight scientific expert to testify. Among other things, this expert has spent countless hours compiling, reviewing, and applying the relevant scientific literature and has meticulously cited each and every article on which she relied in her report. For your part, you have spent countless hours on PubMed searching and scouring the literature to find those few lines that will help you deliver a kill shot on cross of the plaintiff’s expert. You have the literature, and the literature makes your case. The question is how are you going to use it?

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