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The Use of Learned Treatises in Med Mal Litigation

By James R. Moncus III
November 28, 2011

Learned treatises and medical textbooks have been an important part of many malpractice cases, on both the plaintiff and defendant sides. But although everyone knows that medical journal articles, textbooks and practice guidelines often offer powerful ammunition for the medical malpractice trial lawyer, the law surrounding the so-called “learned treatise doctrine” remains neither well settled nor universally applied.

What is the history, text, and common interpretation of the learned treatise rule found in the hearsay exceptions to the Federal Rules of Evidence (which many states share)? And how may we address a perplexing question impacting the effective use of a learned treatise ' namely, whether the doctrine permits cross-examination with a learned text absent prior authentication as to that source's reliability?

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