Relates to the admissibility into evidence of statements in learned treatises, periodicals, or pamphlets

◆ The sponsor's argument

Why the sponsor says this is needed

"Learned treatises" are an essential piece of evidence in litigation, particularly in the areas of products liability, intellectual property, environmental law, and medical malpractice. In federal courts and the majority of other jurisdictions, parties are allowed to use statements from learned treatises as substantive evidence on both direct and cross examination. In New York, both plaintiffs and defendants who seek to introduce published scientific literature are forced to jump through a series of highly legalistic and inefficient hoops to present this evidence to juries, even when the substance of that science is directly relevant to the questions of fact that the jury is asked to resolve. New York law only permits a learned treatise to be used during the cross-examination of an expert and only if the expert concedes that it is authoritative. Egan v. Dry Dock, E.B. & B.R. CO. The consequence of the New York rule is that it gives experts unrestrained "veto power" over treatises that called their conclusions into question. The rule invites gamesmanship by experts who prefer avoid discussion of contra- dictory opinions and data. As a result, the truth seeking function of a trial suffers. The rationale for limiting the use of learned treatises during the cross-examination of experts was to prevent the expert from being ambushed by opposing counsel with references to treatises of question- able credibility. This concern is easily addressed by looking to the experience of federal courts and the majority of states that have adopted the federal rule without encountering such a problem. Federal Rules of Evidence 803(18) addresses reasons for this exception in the advisory committee notes. One such reason is that treatises carry "a high standard of accuracy" since they are "written primarily and impartially for professionals" and "subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake." Until 1992, New Jersey had a nearly identical law related to learned treatises but the NJ Supreme Court determined the rule to have "perva- sive problems" and adopted the more permissive scope allowed under FRE 803(18). Jacober v. St. Peter's Medical Center.

This is the sponsor's own case for the bill, quoted from their memorandum. It is not Agora's description of what the bill does.