by Mike Trentalange

Page 44

Trials are about the resolution of disputed facts. For that reason, witnesses generally are precluded from testifying at trial unless they have personal knowledge of the facts about which they are testifying.¹ A lay witness may testify in the form of opinion or inference only when the opinion or inference being offered is rationally based on his or her own perception and the witness cannot readily, and with equal accuracy, communicate his or her testimony to the trier of fact.² Additionally, a lay witness’ opinion must not require specialized knowledge.

Expert Testimony
In Florida, the general prohibition against opinion testimony has one major exception: testimony by expert witnesses. Expert witnesses are permitted to testify on scientific, technical, or other specialized matters if their testimony will assist the jury in determining a fact in issue, provided the witness is qualified to do so by virtue of special knowledge, skill, experience, training, or education.³

Cross Examining Experts With a Learned Treatise
As is the case with every witness, an expert places his or her character for truthfulness in issue by testifying. The witness is subject to cross examination, what Dean Wigmore called “the greatest legal engine ever devised for the discovery of truth.”⁴

Traditional cross examination methods include revealing the witness’ bias,⁵ showing that the witness has given inconsistent testimony or made inconsistent statements,⁶ attacking the premise or the factual underpinnings of the witness’ opinions,⁷ showing that the witness is reputed to be untruthful,⁸ or showing that the witness has been convicted of certain crimes.⁹

In addition to the usual modes of impeachment, an expert witness is subject to cross examination with authoritative literature. When a respected author or publication contradicts the testimony of an expert witness on a key point, it may seriously undermine the credibility of the expert.¹⁰ Indeed, presenting an authoritative work to the jury and pointing out the conflict between the author’s opinion and the testifying expert’s opinion is often the closest a trial lawyer gets to the popular TV image of cross examination.

This fact has not been lost on expert witnesses, who generally are, after all, highly trained, educated, or experienced and have the ability to figure out what goes on in the courtroom. Not surprisingly, expert witnesses have become increasingly unwilling to recognize writings or authors as “authoritative.” The reason is clear when one considers the language of F.S. §90.706:

90.706 Authoritativeness of literature for use in cross-examination.—Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

The rule clearly sets out several methods for establishing literature as authoritative, thereby paving the way for use in cross examination.¹¹ The first method of establishing a particular publication as authoritative¹² relies upon the witness to concede that a particular work is authoritative. This rarely happens. The questioning usually goes something like this:

Q: Dr. Jones, are you familiar with Campbell’s Operative Orthopaedics?
A: Yes, it’s one of many texts.
Q: Do you consider it to be authoritative with respect to the subject of orthopaedic surgery?
A: No. No one text is authoritative.

Because experts seldom concede the authoritativeness of any work, as this example reflects, the rule provides for two other avenues of attack.

Alternative Ways to Establish Text as Authoritative
First, the examining lawyer may appeal to the judge, who may be familiar with the writing or publication and find it to be authoritative. Given the abundance of literature on any given subject and the ever increasing areas of specialization in which expert testimony may be admitted, however, it would seem that this would be a very unlikely manner in which to establish the authoritative nature of a text or author.

The second alternative to recognition by the witness lies in allowing the cross-examiner to establish the authoritativeness of the literature or author through other witnesses.¹³ While “other witnesses” clearly includes those testifying live or through deposition at the subject trial, it also includes allowing the cross-examiner to establish authoritativeness through affidavits.¹⁴

In Kirkpatrick v. Wolford, 704 So. 2d 708 (Fla. 5th DCA 1998), the trial court allowed the defendant to use technical bulletins and committee opinions published by the American College of Obstetricians and Gynecologists to cross-examine plaintiffs’ expert witnesses. The defendant had previously filed a motion for determination of authoritativeness of the publications, and had attached affidavits from two physicians attesting to their authoritative nature. Plaintiff filed competing affidavits from two physicians, and the trial judge determined that the materials were authoritative based upon the “preponderance of the evidence.”

On appeal, the Fifth District recognized that a publication may be deemed to be authoritative, even if the witness does not acknowledge it as such, so long as the proponent convinces the court that the text is authoritative and relevant to the subject matter. It found the affidavits provided a sufficient evidentiary basis for the court to conclude that the subject materials were authoritative.¹⁵ While affirming the trial court’s determination of authoritativeness, the appellate court nevertheless rejected the trial court’s application of a preponderance of evidence standard for establishing a text as authoritative. Instead, the court held that there need be only some credible evidence to support the assertion that a text or publication is authoritative.¹⁶

In light of Wolford’s implicit approval of the use of affidavits to establish authoritativeness, the use of affidavits may be the path of least resistance when attempting to use a learned treatise, since even a party’s own retained experts will likely be reluctant to call a publication authoritative if they are expected to testify.

Pretrial Disclosure of Learned Treatises
A word of caution is in order. The Florida Supreme Court’s recent opinion in Northrup v. Acken, 865 So. 2d 1267 (Fla. 2004), would seem to require the disclosure of learned treatises or publications intended to be used at trial, at least in response to a discovery request seeking such materials.

In Northrup, the plaintiff sought to obtain from defendant all prior deposition transcripts of plaintiff’s expert witness in defendant’s attorney’s possession. The depositions were gathered by defense counsel, and represented testimony given in unrelated actions. The defendant objected to producing these items, claiming that these materials were protected from disclosure by the work product privilege. The trial court ordered disclosure of the materials, and the Second District Court of Appeal granted certiorari and quashed the trial court’s order.¹⁷ On review, the Supreme Court held that if attorney work product materials are expected or intended to be used at trial, they must be produced in response to an applicable discovery request or pretrial order:

In essence, Florida litigants must make a simple and discrete decision prior to entry of a pretrial case management order by the trial court. An attorney must evaluate whether he or she intends to use evidence in his or her possession for strategy and trial preparation purposes only, which would qualify the selection of the particular items as a protected product of the thought processes and mental impressions of an attorney. On the other hand, if the evidence or material is reasonably expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in accordance with the trial court’s order and the discovery requests of the opposing party.¹⁸

While Northrup mandates disclosure of impeachment materials to be used in Florida state courts, the rule in federal court is different. Since prior disclosure significantly diminishes impeachment value at trial, Fed. R. Civ. P. 26(a)(3) exempts parties from the obligation to disclose information to be used at trial solely for impeachment.¹⁹ This principle was recently upheld in Bearint ex rel Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339 (11th Cir. 2004). In that diversity case, the 11th Circuit declined to apply Northrup’s disclosure rule to evidence used by the defense solely to impeach a witness.
As a practical matter, however, a party should be required to disclose before trial learned treatises expected to be used to impeach an opposing party’s expert, even in federal court. Fed. R. Evid. 803(18) provides that portions of learned treatises are admissible as substantive evidence “to the extent called to the attention of an expert witness on cross-examination or relied upon by the expert witness in direct examination . . . .” As substantive evidence, such publications clearly need to be disclosed to be used at trial.

Unlike the Federal Rules of Evidence, Florida’s Evidence Code does not contain a hearsay exception for learned treatises. When used to impeach, they are not admitted as substantive evidence.²⁰ The witness should simply be confronted with the reference from the authoritative text or author, usually in the form of a leading question, and the disagreement between witness and authority is emphasized to the jury.

Rehabilitation of the Witness
While there is no Florida case on point, the weight of authority elsewhere seems to suggest that a learned treatise may be used on redirect examination to rehabilitate an expert witness.²¹ The party calling the witness may suggest reasons why the text is not applicable, or why the witness disagrees, and may point to other areas of the article which support the witness’ opinions in order to put the entire testimony in context.²² The inquiry must not exceed the scope of cross-examination. For that reason, as well as the general rule against using authoritative works to bolster a witness’ testimony, the text used on redirect must be the same as that used in cross-examination.

Conclusion
Used correctly, authoritative literature can be a powerful means to discredit an opposing party’s expert witness. To be employed, the proponent must satisfy the court that the literature is indeed authoritative and relevant. A party seeking to use a learned treatise must also provide notice to opposing counsel of intent to use such material if requested in discovery or required by a trial order. Finally, the proponent must weigh the value of the evidence and be prepared to have the publication used to rehabilitate the expert witness on redirect examination. Satisfying these prerequisites in any given case may prove difficult but worthwhile.



¹ Fla. Stat. §90.604 provides in pertinent part: “Except as otherwise provided in §90.702, a witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.”
² Fla. Stat. §90.701 provides: “If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:
“(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
“(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.”
³ Fla. Stat. §90.702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.”
⁴ 5 J. Wigmore, Evidence §1367 (3D. Ed. 1940).
⁵ Fla. Stat. §90.608(2) provides: “Any party, including the party calling the witness, may attack the credibility of a witness by: Showing that the witness is biased.”
⁶ Fla. Stat. §90.608(1) provides: “Any party, including the party calling the witness, may attack the credibility of a witness by: Introducing statements of the witness which are inconsistent with the witness’s present testimony.”
⁷ An expert witness may base his opinions on certain assumptions, often contained in the form of a hypothetical question. Invalidating the underlying assumptions made by an expert witness can often destroy the validity of the expert’s opinions.
⁸ See, e.g., Fla. Stat. §90.609, which provides: “A party may attack or support the credibility of a witness, including an accused, by evidence in the form of reputation, except that:
“(1) The evidence may refer only to character relating to truthfulness.
“(2) Evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence.”
⁹ Fla. Stat. §90.610.
¹⁰ C. Ehrhardt, Florida Evidence §706.1 (2004 Ed.).
¹¹ It is well settled that authoritative literature may not be used to bolster the credibility of a witness. Phillip Morris, Inc. v. Janoff, 29 Fla. L. Weekly D2402 (Fla. 3d D.C.A. Oct. 27, 2004); Erwin v. Todd, 699 So. 2d 275 (Fla. 5th D.C.A. 1997); Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So. 2d 601 (Fla. 1st D.C.A. 1981).
¹² The term “authoritative” is not defined in the evidence code. Most witnesses who refuse to recognize anything as authoritative incorrectly believe the term to be synonymous with infallible. Of course, such a restrictive definition would render §90.702 meaningless. A much more reasonable definition of the term would be that the referenced publication represents a generally accepted source of definitive information.
¹³ Fravel v. Haughey, 727 So. 2d 1033 (Fla. 5th D.C.A. 1999).
¹⁴ Kirkpatrick v. Wolford, 704 So. 2d 708 (Fla. 5th D.C.A. 1998).
¹⁵ Id.
¹⁶ The Wolford court also cited Chesterton v. Fisher, 655 So. 2d 170 (Fla. 3d D.C.A. 1995), for the proposition that the burden of establishing a work as authoritative is “easily satisfied.”
¹⁷ Acken v. Northrup, 827 So. 2d 1070 (Fla. 2d D.C.A. 2002).
¹⁸ Northrup v. Acken, 865 So. 2d 1267, 1270 (Fla. 2004).
¹⁹ Bearint ex rel Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339 (11th Cir. 2004).
²⁰ Green v. Goldberg, 630 So. 2d 606, 609 (Fla. 4th D.C.A. 1993).
²¹ See, e.g., Hilgendorf v. St. John Hospital and Medical Center Corp., 245 Mich. App. 670; 630 N.W. 2d 356 (Mich. App. 2001) (learned treatise may be used to rehabilitate expert during redirect examination on subjects or issues used to impeach expert during cross-examination.) The court analyzes the issue as one involving basic fairness.
²² Ruth v. Fenchel, 37 N.J. Super. 295, 117 A. 2d 284 (N.J. Super. A.D. 1955).

Mike Trentalange is the managing shareholder of Trentalange & Kelley, P.A., Tampa. He graduated with honors from Stetson University College of Law in 1989, and obtained his B.A. from the University of Florida in 1983. Mr. Trentalange is board certified as a civil trial lawyer by The Florida Bar and as a trial advocate by the National Board of Trial Advocacy.
This article is submitted on behalf of the Trial Lawyers Section, Thomas D. Masterson, chair, and D. Matthew Allen, editor.