The learned treatise exception to the hearsay rule

How many times have you tried a case where the expert admits that a particular journal has broad support is a standard of care in the community but is not authoritative.   The Fourth Department wrote something on this:

“Defendant’s further contention that the court erred in permitting the use of a publication from the American College of Obstetricians and Gynecologists to be used during cross-examination because he did not recognize it as “authoritative” is not preserved for our review because he did not object to the publication on that specific ground (see generally Carr v Burnwell Gas of Newark, Inc., 23 AD3d 998, 998). In any event, it is well settled that the use of scientific works and publications may be used for impeachment purposes during cross-examination if it has been demonstrated that the work is the type of material commonly relied upon in the profession and has been deemed authoritative by such expert (see Lenzini v Kessler, 48 AD3d 220, 220; Egan v Dry Dock, E. Broadway & Battery R.R. Co., 12 App Div 556, 571). Here, defendant recognized the publication as a “standard of care” to which he attempted to “adhere” in his own practice. Although he did not use the word “authoritative” in describing the publication, we note that the modern trend, with which we agree, is to eschew a narrow and rigid reliance upon semantic choices when other words, and the testimony viewed as a whole, convey an equivalent meaning as that in the traditional verbal formulation (see Linton v Nawaz, 62 AD3d 434, 443,affd 14 NY3d 821; Cholewinski v Wisnicki, 21 AD3d 791, 792; see also Matott v Ward, 48 NY2d 455, 460-461). Thus, a physician may “not foreclose full cross-examination by the semantic trick of announcing that he did not find the work authoritative” where he has testified that it is reliable (Spiegel v Levy, 201 AD2d 378, 379, lv denied 83 NY2d 758; see Lenzini, 48 AD3d at 220), especially where, as here, he agreed that it constituted a “standard of care” to which he attempted to “adhere.” Defendant’s further contentions concerning plaintiffs’ cross-examination of the remaining experts are without merit for the same reason.”

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