Lead Opinion
The central issue in this case concerns the extent to which statements from learned treatises and other publications may be used to impeach the testimony of expert witnesses. Prior to the promulgation of Evid.R. 706,
Later, in Stinson v. England (1994),
In Stinson, we determined that the trial court committed reversible error by permitting the cross-exаmination of an expert with the use of a medical treatise after the expert had stated categorically that he did not consider the text authoritativе. Thus, “instead of impeaching the credibility of Dr. Warner [the expert], appellee was permitted to contradict his testimony through the use of the contents of the text despite his earlier testimony that it was not authoritative. This use constituted an impermissible presentation of hearsay evidence to the jury.” Id.,
In the case at bar, both the trial court and court of appeals ruled that Stinson prevented appellants’ counsel from cross-examining Scheidt and Zucker about the medical literature in question. On cross-examination, both Scheidt and Zucker would not explicitly concede the “authoritative” nature of the literature. Nevertheless, although Scheidt and Zucker refused to explicitly acknowledge the authoritative nature of the medical literature, they implicitly conceded as much. See Jacober v. St. Peter’s Med. Ctr. (1992),
In Stinson, we determined that it was error to allow the medical treаtise to be used for impeachment purposes because a proper foundation had not been laid establishing the text as a reliable authority. Howеver, Stinson was not intended to allow testifying experts to adroitly evade cross-examination simply by avoiding such words as “rely” or “authority” or any forms of those words. Indeed, if аn expert witness relies upon published medical literature in forming his or her opinion, or the expert provides testimony sufficient to establish that the literature is reliаble authority, or the literature is part of the expert’s own publication, statements contained in the literature can be used for purposes of impeаchment. The requisite reliance upon published medical literature or its authoritative nature can be established without an express acknowledgement by the testifying expert that he or she had relied upon the literature or that it is authoritative.
The testimony of Scheidt and Zucker established that the medical literature аt issue was reliable authority. Moreover, testimony and other evidence in the record indicate that Scheidt and Zucker also relied upon the literature in fоrming their opinions. The literature was not offered by appellants’ counsel as substantive eyidence. Instead, the literature was intended to call into question thе weight to be attached by the fact finder to the testimony of Scheidt and Zucker. In this regard, the restricted cross-examination of Scheidt and Zucker by the trial court harmed the fact-finding process and prevented the jury from adequately assessing the credibility of the witnesses.
Accordingly, we believe that, in this case, the trial court’s dеcision to prohibit cross-examination with respect to the medical literature in question constituted prejudicial error. See Civ.R. 61 and R.C. 2309.59. Therefore, the judgment of the court of appeals is reversed, and the cause is remanded for a new trial.
Judgment reversed and cause remanded.
Notes
. Evid.R. 706, entitled “Learned treatises for impeachment,” provides:
“Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art are admissible for impeachment if the publication is either of the following:
“(A) Relied upon by an expert witness in reaching an opinion;
“(B) Established as reliable authority (1) by the testimony or admission of the witness, (2) by other expert testimony, or (3) by judicial notice.
“If admitted for impeachment, the statements may be read into evidence but shall not be received as exhibits.”
As indicated in the Staff Notes to Evid.R. 706, the rule “codifies the common law rule, making it more readily accessible for trial use.” The Staff Notes further provide that “[a] possible expansion of the common law rule concerns the use of judicial notice to establish the treatise as a reliable authority. A court taking judicial notice of Gmy’s Anatomy illustrates this aspect of the rule.
“The trial court decides under Evid.R. 104(A) if the treatise is a ‘reliable authority’ and Evid.R. 105 requires a limiting instruсtion upon request. If an opposing expert witness refuses to recognize a treatise as reliable, the judge may permit the impeachment subject to сounsel’s subsequent laying of the foundation through its own expert. There is no need to inform the jury of the trial court’s determination.”
. In Stinson v. England (1994),
Dissenting Opinion
dissenting. While I agree with the rule announced by the majority, I do not agree that the record in this case supports the application of the rule and therefore would affirm the judgment of the court of appeals that the exclusion of the evidence was not an abuse of discretion.