Progressively, Mr. Waterman uses medical “learned treatises” in motor vehicle accident (“MVA”) cases, not only in medical malpractice cases. He also authored a prevailing legal brief in the leading “learned treatise” case before the Virginia Supreme Court.
Medical “learned treatises” – typically referred to as the “medical literature” by medical malpractice practitioners – is a statutory hearsay exception in Virginia. Under Va. Code §8.01-401.1, experts can rely upon and read into evidence “statement contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority”.
Such “learned treatises” are very powerful evidence at trial because they buttress independently the individual expert’s opinions – and do so without the opposition being able to cross-examine the author about the learned treatise’s content. Obviously an individual expert’s opinion before a jury is enhanced greatly if consistent with a leading medical textbook.
Therefore, in virtually every medical malpractice case tried in Virginia at least one if not both sides introduce “learned treatises” through their medical experts. Substantively, that typically is on medical standard of care, but also may be on medical causation.
Medical standard of care is not at issue in MVA cases, but medical causation of personal injuries sometimes is disputed in MVA cases. Hence, given his background with medical malpractice cases, Mr. Waterman also uses medical “learned treatises” in his MVA cases, which is uncommon and unexpected.
Recently he obtained the offending driver’s $500,000.00 auto liability policy limits without having to try the suit by persuading defense counsel with medical “learned treatises” on the MVA causation of his client’s protracted expensive personal injury treatments. Opposing counsel could see the expert handwriting on the wall if he took the case to trial trying to defend by disputing medical causation.
Virginia’s leading case on the “learned treatise” hearsay exception is Harman v. Honeywell Int’l, Inc., 288 Va. 84 (2014). That appeal involved a claimed scientific aviation publication, yet its operative “learned treatise” principles at issue were the same as medical “learned treatises”.
In Harman, Mr. Waterman was honored to be selected as sole author of the two Amicus Curiae briefs of the Virginia Trial Lawyers Association (“VTLA”) in support of the Appellants on appeal, who were the wrongful death Plaintiffs at trial. Ultimately, in its unanimous published opinion, the Virginia Supreme Court adopted his legal analysis, reasoning and citations, including most notably adopting his authority from U.S. Sixth Circuit Court of Appeals as the law of Virginia for “learned treatises”.