Learned Treatises by Non-Neutral Authors — Identity of Non-Testifying Experts as Work Product

Learned Treatises by Interested Authors. A key issue in In re Welding Fume Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 14319 (N.D. Ohio Feb. 19, 2008), was whether, and to what extent, exposure to welding fumes can cause neurological damage. The parties relied, on direct and cross-examination and on motion practice, on scientific, medical, and epidemiological evidence addressing that issue. As the Court observed, “In a very real way, then, the authors of these articles and studies have a strong presence in the courtroom, providing ‘virtual testimony’ through repeated quotation and citation by the parties' attorneys and experts.” Admissibility turns on Fed.R.Evid. 803(18), which provides:

(18) Learned Treatises. — To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The premise of the learned treatise exception, the Court noted, is “’that learned treatises usually have ‘sufficient assurances of trustworthiness to justify equating them with the live testimony of an expert. First, authors of treatises have no bias in any particular case. Second, they are acutely aware that their material will be read and evaluated by others in their field, and accordingly feel a strong pressure to be accurate’" (citing 2 MCCORMICK ON EVIDENCE §321 (6th ed. 2006) (emphasis added)).

What if this premise is invalid because the parties have themselves commissioned some or all of the studies on which the experts rely?

[T]he the assumption underlying the learned treatise exception that the author has "no bias in a particular case" is not always true. For example, in O'Brien v. Angley, 407 N.E.2d 490 (Ohio 1980), a medical malpractice action, the Ohio Supreme Court reversed a jury verdict for the defendant physicians because the trial court had allowed cross-examination of the plaintiff's expert with an editorial contained in a learned treatise written by a possibly-biased author. The court wrote: "[w]here . . . the author publishes an article with a view toward litigation . . . a probability of bias exists which undermines the logic supporting the admission of this material in evidence as an exception to the rule against hearsay." Id. at 494. Similarly, in Schneider v. Revici, 817 F.2d 987 (2nd Cir. 1987), the appellate court ruled it was not error for the trial court to exclude a book written by the defendant doctor in a malpractice action, because "even if the text qualified as a learned treatise under Rule 803(18), its admission would remain subject to a balancing of probative value against danger of prejudice under [Rule] 403." Id. at 991. The very basis for the learned treatise exception, then -- that the author has no bias in a particular case -- is susceptible to challenge.

Indeed, there is little doubt that, as might any witness who testifies live in court, the author of a learned treatise whose statements are admissible in court under Rule 803(18) may also suffer prejudices or biases. The most obvious of these possible biases is receipt of money from one of the parties. Just as an expert who testifies live may reasonably be asked, for the purpose of revealing possible bias, whether and to what extent he has received remuneration from a party, 5 it is reasonable for a litigant to want to reveal to the jury any financial incentives supplied by another party to the author of a learned treatise introduced at trial. And, as this MDL reveals, the magnitude of the financial incentives in question can be substantial. For example, one of defendants' experts, Dr. Warren Olanow -- who is a highly respected neurologist and researcher -- received from defendants over $ 1.6 million between October of 1999 and March of 2006. During this same time period, Dr. Olanow published at least a dozen articles upon which various experts testifying in Jowers have relied to form their opinions. It is fair to say that the assumption underlying the admissibility of all these articles -- that is, that Dr. Olanow's views regarding the medical issues central to this MDL are not subject to outside influence or bias -- is susceptible to attack. And, as the O'Brien court concluded, since Dr. Olanow necessarily published his articles "with a view toward litigation," this Court could conceivably exclude them altogether.

The Welding Fumes Court did not, however, exclude interested learned treatises — it permitted the issue to be addressed by discovery into financial incentives and cross-examination:

The Court has chosen not to take this dramatic step [of exclusion], however, for two reasons. First, the plaintiffs and defendants in this MDL have consulted with -- and paid -- a "who's who" list of neurologists and epidemiologists. To exclude from evidence the articles and studies written by these experts would be to keep from the jury the great bulk of relevant medical information related to causation. Second, absent a showing of bias so extreme that exclusion is appropriate under Daubert, the Court believes that disclosure of possible financial bias coupled with cross-examination by the parties is a more appropriate and fine-tuned mechanism for arriving at the truth.

Identity of Non-Testifying Experts as Work Product. In allowing discovery of the identity of non-testifying experts, the Court lists decisions coming down both ways on the question whether identity, alone, is subject to work product protection.

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