Blogging from a Birth Trauma Trial in Murfreesboro — 4/16/08
posted on April 16th, 2008 in Treatises, Trial by clintThe use of medical treatises or literature is a many splendored thing. You want the treatise to testify as the witness that does not lie, take money, or have a bias for one side or the other. However, the treatise cannot be intorduced as evidence at trial because it may not be used substantively. The practical application of Tenn.R.Evid 618 to a complex medical malpractice case can be challenging. The indispensible predicate for the use of medical treatises is the “reliability” of that treatise established by some expert. It does not have to be the expert on the witness stand. Nevertheless, an expert must establish that the treatise is reliable or else it may not be used to impeach anyone. Nothing is as uncomfortable as having highlighted literature ready to read the expert, and being foreclosed from using it because no expert has established the reliability of the treatise. It is not enough to establish reliability generally. The cross examiner must establish the reliability of the specific article or chapter in the text or publication. Otherwise, the expert may say that the treatise is reliable generally but cannot be relied on chapter by chapter. We will revisit Rule 618 frequently throughout this case.