Reliable Authority
Saim Khan
If admitted, relevant portions of the publication may be read into evidence but may not be received as an exhibit. The role of corporate attorneys is to advise clients of their rights, responsibilities in company or corporation and business.
Subsection (b) appears clear enough on its face - an expert can be cross-examined on medical literature if he referred to, considered or relied on it in forming his opinion; if the publication is admitted into evidence; if the expert to be cross examined, or any “other expert” testifies that the publication is a “reliable authority.”
Therefore, if plaintiff’s expert testi-fies during trial that the Physician’s Desk Reference PDR is a reliable authority commonly referred to by doctors about the risks of particular drugs, plaintiff’s
counsel should be able to cross-examine the defendant's expert about the contents of the PDR pursuant to Evidence Code section 721(b)(3), whether or not that expert states that he consulted that publication.
Unfortunately, judges are not interpreting section 721 (b)(3) consistently. Despite the clear language of subsection (b)(3), the Law Revision Commission Comments that follow section 721 predate the 1997 amendment and conclude that “subdivision (b) does not permit cross-examination of an expert witness on scientific, technical, or professional works not referred to, considered, or relied on by him.” A judge who sustains an objection to cross-examination of the defense expert about a medical text another expert has established as authoritative, may be relying on these comments.
It is clear from the legislative analysis of SB 73, that the amendment to Evidence Code section 721(b)(3) was intended to “substantially'' adopt Rule 803(18) of the Federal Rules of Evidence. Therefore, federal court cases interpreting Rule 803(18) can be used as persuasive authority in support of the right to cross-examine a defense expert based on a text established as a reliable source by the plaintiff's expert.
As helpful as the amended rule may be for plaintiffs, it can also be a powerful weapon for the defense. In Constantino v. David M. Herzog, M.D., P.C. (2d Cir. 2000)
203 F.3d 164, the trial court permitted cross-examination of the plaintiff's expert on a medical text which contradicted his testimony, that when shoulder dystocia is encountered, downward traction on the baby’s head during delivery should never be used because of the risk of injury. The court also allowed the defense to show a video produced for the American College of Obstetrics and Gynecology as a “learned treatise.”
The video identified limited traction on the baby’s head as an acceptable technique. It also contained the following language: “unfortunately, babies cannot always be delivered without injury even when the management is optimal” and “sometimes...injuries cannot be avoided.” Plaintiff appealed the trial court’s decision after a defense verdict. The Court of Appeals affirmed, holding that there was effectively no distinction between use of an authoritative book and the videotape.