05 Mar Virginia: Wrongful Death – a Lawyer’s Appeal
On March 4, 2014, Mr. Waterman authored and lodged Reply Brief Amicus Curiae to the Virginia Supreme Court of Virginia Trial Lawyers Association in Support of Appellants in the consolidated wrongful death appeals in Harman and Bemberis v. Honeywell International, Inc., Record No. 130627. One of the 5 issues raised in this special case of manufacturer product liability is the hearsay exception for “reliable authority” (“learned treatises”) in Va. Code §8.01-401.1, an evidentiary cornerstone of his medical malpractice cases.
Since at least 1795, the Virginia Supreme Court has barred hearsay evidence absent an exception. Claiborne v. Parrish, 2 Va. (2 Wash.) 146 (1795). The continuing wisdom and vitality of its bar is evinced by recent Virginia Rules of Evidence 2:801 and 2:802.
Surveying Virginia law, Friend articulates the most common reasons for this Court’s rule against hearsay evidence:
- “The out-of-court declarations were not made under oath.
- The use of such declarations denies to the opponent the right to confront the witness against him
- The out-of-court declarant cannot be cross-examined.
- The trier of fact has no opportunity to observe the demeanor of the declarant on the stand.
- Such evidence is inherently weak.
- The jury will tend to give it too much weight.
- The more often a story is repeated, the more likely it is to become distorted.
- There is too much danger of fraud or perjury.”
Charles E. Friend & Sinclair, The Law of Evidence in Virginia, §15.1[c] at 902-903 (7th ed. 2013 supp.). Perhaps the strongest justification for the hearsay rule is “lack of opportunity for cross-examination of the absent declarant”. Id. at 904.
“Our system of justice places great faith in the value of cross-examination in testing the perception, memory, narrative ability, and veracity of witnesses [and] it is undeniable that cross-examination can be an effective tool in exposing false testimony, putting misleading testimony into perspective, and bringing out omitted material details.” Id. This Court has underscored the importance of testing trustworthiness in general and of cross-examination in particular: “The reason hearsay evidence is excluded is that it is not subject to the tests which help the trier of fact ascertain the truth of testimony,” i.e., it “lacks any guarantee of trustworthiness and must be excluded.” Chesapeake & Potomac Tel. v. Sisson & Ryan, 234 Va. 492, 499 (1987)(hearsay forecloses its declarant being “cross-examined”).
Va. Code §8.01-401.1 is a hearsay exception that the General Assembly recently codified as expert witness law. Virginia Rule of Evidence 2:706(a). It is commonly referred as the “reliable authority” or “learned treatise” exception, since it was created “to permit the introduction of authoritative literature as substantive evidence,” Friend, §15-27 at 1063-1064; in lieu of traditional practice of testing an expert “on cross-examination by reading to him from scientific articles or treatises”. Id., §13-11 at 809-810.
The “reliable authority” hearsay exception of §8.01-401.1 mandates:
To the extent…relied upon by the expert witness in direct examination, 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 testimony…, shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits.
“Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms.” Bostic v. About Women OB/GYN, P.C., 275 Va. 567, 576 (2008)(emphasis added).
As such, this “1994 amendment to Code §8.01-401.1 [is] a relaxation of the common-law rules against hearsay only to the limited extent provided by the express statutory terms.” Id. at 577. Specifically, the General Assembly included in the 1994 amendment “two preconditions to the admission of hearsay expert opinions as substantive evidence on direct examination: First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises; second, the statements must be established as ‘a reliable authority’ by testimony….” Id. at 576 (emphasis added).
“The [first precondition] means the witness must testify that he relied on the article in forming his opinion, which is consistent with the views expressed by the absent author.” Id. at 577. “The statutory standard is not met by an expert’s testimony that he relied upon it only to use it ‘to talk to this jury’.” Id.
The second precondition means the expert witness himself must attest that publication is accepted as reliable authority by other similarly situated experts. It must be a type normally relied upon by others in the particular field of expertise.
More fundamentally, §8.01-401.1 expressly is limited to only “published treatises, periodicals or pamphlets”. The Virginia Supreme Court’s examples of such published literature are “periodicals which are deemed to be reliable and authoritative,” Weinberg v. Given, 252 Va. 221, 222 (1996); “published and authoritative literature,” May v. Caruso, 264 Va. 358, 362 (2002); and “learned treatises”. Bostic, 275 Va. at 575.
The forerunner Federal “learned treatise” exception presumes that a “high standard of accuracy is engendered by various factors: the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for accuracy, with the reputation of the writer at stake.” Advisory Committee Notes to Federal Rules of Evidence, Fed. R. Evid. 803, Exception 18, 56 F.R.D. 183, 316 (1972). For notable example, “authors of treatises have no bias in any particular case.” 2 McCormick on Evidence §321 (6th ed. 2006).
Hence, United States v. Martinez, 588 F.3d 301, 312 (6th Cir. 2009) cert. denied 131 S.Ct. 538 (2010), ruled material inadmissible as learned treatise because it “was prepared for…litigation purposes, it was not subjected to peer review or public scrutiny, and it was not ‘written primarily for professionals…with the reputation of the writer at stake’.” Likewise, O’Brien v. Angley, 63 Ohio St.2d. 159, 407 N.E.2d. 490, 494 (Ohio Sup. Ct. 1980)(citing 5 Wigmore on Evidence §1692 at 6 (Chadbourn Rev.)), held admission of JAMA editorial as learned treatise “prejudicially erroneous” because “it was written with a view toward litigation [and] was primarily an expression of opinion by a physician concerning a controversial subject which posed a risk of litigation for his colleagues in the medical profession.”
By law, §8.01-401.1 is “strictly construed and not to be enlarged in [its] operation by construction beyond [its] express terms”. Bostic, 275 Va. at 576. By public policy, its “second precondition” (“reliable authority”) is construed narrowly for “learned treatises,” not enlarged for biased case-specific investigation (whose creators must testify).
Strictly construed, “published treatises, periodicals or pamphlets” connotes independent authoritative if not scholarly literature. It inherently does not connote private disputed contemporaneous biased case-related investigative material.
Otherwise, construed liberally contrary to the Virginia Supreme Court’s statutory construction jurisprudence, mere “pamphlet” embraces essentially any unbound printing, including biased case-related materials elevated to authoritative literature. Such a liberal construction predictably and inequitably would allow retained experts to anoint disputed self-interested case materials as “reliable authority;” to read “them into the record as holy writ,” id. at 576; and to shield their (dubious) authors, opinions, and facts from the crucible of cross-examination.
§8.01-401.1 explicitly is a testimonial, not a documentary, exception. The statute states expressly that “the statements may be read into evidence but may not be received as exhibits” (emphasis added).
This Court has reiterated the “overwhelming unfairness” of admitting absent expert opinion without cross-examination:
The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party. No litigant in our judicial system is required to contend with the opinions of absent ‘experts’ whose qualifications have not been established to the satisfaction of the court, whose demeanor cannot be observed by the trier of fact, and whose pronouncements are immune from cross-examination.
Bostic, 275 Va. at 575 (quoting Weinberg, 252 Va. at 225 quoting McMunn v. Tatum, 237 Va. 558, 566 (1989)). Moreover, the Court observed that the General Assembly “insured” the “test of cross-examination” by inserting the 1994 preconditions in §8.01-401.1, and that by a proponent’s non-compliance “the opposing party is subjected to the ‘overwhelming unfairness’ we discussed in McMunn”. Bostic, 275 Va. at 576.