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Practice Tip: How to Send Learned Treatises to the Jury Room

By Kirby T. Griffis

In product liability, toxic tort, and even medical malpractice litigation, the science in the relevant field is often a crucial battleground, and expert witnesses will do battle over treatises, journal articles, and the like. As every law student knows, scientific publications are inadmissible hearsay. Under the learned treatise rule, an expert witness may testify about scientific publications that have been qualified as learned treatises, but they do not come into evidence and so may not be published to the jury.

Many practitioners and judges are so used to the learned treatise rule that they treat it as an automatic rule for the evidentiary treatment of learned treatises, not thinking about the fact that it is an exception to the hearsay rule. As such, the rule, and the underlying exclusion of learned treatises from evidence, applies only when they are being offered to prove the truth of the matters asserted therein ' as, of course, they ordinarily are in a clash between experts.

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