When Wiki Won't Cut It: Mass. High Court Explores the Learned Treatise Doctrine in the Digital Age

September 24, 2015

Electronic Discovery and Evidence Alert

Author(s): Jonathan Sablone, Ronaldo Rauseo-Ricupero

When cross-examining expert witnesses at trial, one highly effective means of undercutting their conclusions is to confront them with widely recognized authoritative sources that contradict their opinions. Massachusetts courts have long recognized the “learned treatise” exception to the hearsay doctrine, which allows reliable publications to be introduced for purposes of eliciting such testimony—wisely dispensing with the need to call Mr. Webster himself in order consult the dictionary.

However, in the digital age, when considering internet sources, what counts as a “learned treatise” is a matter that requires some judgment, and this month the Massachusetts Supreme Judicial Court rejected an effort to qualify non-authored webpages as “learned treatises,” making clear that the focus of the legal analysis will remain on the identity and professional reputation of the individual author of the text, not on the publishing entity or the format.

At issue in Kace v. Liang, a multi-million-dollar wrongful death action, was the introduction of two pages printed from the websites of the Mayo Clinic and Johns Hopkins Medical School: the general informational pages that purported to describe the common symptoms of a particular disease and instructed the readers to contact a physician for further information, and were not attributed to particular authors. In rejecting the argument that such documents could be introduced as “learned treatises,” Justice Margot Botsford, writing for the court, explained that Mass. G. Evid. 803(18)(B), “allows a party on cross-examination of an expert witness to bring the expert’s attention to, question the expert about, and read in evidence ‘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.’” The decision further explained that the burden remains on the party seeking to introduce the text to establish by the testimony or admission of the testifying witness, by other expert testimony, or by judicial notice, that the specific article, Web page, or other material was authored or prepared by a “reliable authority.”

Although this ruling would on its face appear to discourage the use of internet sources—citing the 2010 California federal case that specifically held that Wikipedia is not a “learned treatise”—by emphasizing that the Massachusetts inquiry focuses on the identity and reputation of the author rather than the institution or entity publishing the document, under Kace it may be that even self-published online works of “reliable authorities,” which might otherwise not conventionally be thought of as “treatises,” may satisfy the requirements for use in cross-examination. For example, while the Federal Rules of Evidence describe a treatise as “written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake,” the Kace court did not list peer review, professional editing, or fact-checking as requirements for a document to be deemed a “learned treatise.”

With many more sources of information available online, this distinction will be an issue faced by practitioners more frequently, and the Kace ruling may shape the future application of internet research to expert witness examination.

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