BILL NUMBER: S531

SPONSOR: THOMAS
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to the
admissibility of statements in learned treatises, periodicals, or
pamphlets

 
PURPOSE OR GENERAL IDEA OF THE BILL:

To adopt the Federal Rule of Evidence 803(18) regarding the hearsay
exception for learned treatises.

 
SUMMARY OF PROVISIONS:

Section one of the bill amends the Civil Practice Law and Rules to add a
new section 4549. Under the new standard, an expert witness during
cross-examination or direct examination can establish the foundation for
the authoritativeness of the publication. Statements contained in the
treatises, periodicals or pamphlets may then be admitted as substantive
evidence as an exception to hearsay if the materials are established as
              

a reliable authority by the expert witness' admission or testimony or by
another expert's testimony or by judicial notice.

Section two of the bill is the effective date.

 
JUSTIFICATION:

"Learned treatises" are an essential piece of evidence in litigation,
particularly in the areas of products liability, intellectual property,
environmental law, and medical malpractice. In federal courts and the
majority of other jurisdictions, parties are allowed to use statements
from learned treatises as substantive evidence on both direct and cross
examination.

In New York, both plaintiffs and defendants who seek to introduce
published scientific literature are forced to jump through a series of
highly legalistic and inefficient hoops to present this evidence to
juries, even when the substance of that science is directly relevant to
the questions of fact that the jury is asked to resolve.

New York law only permits a learned treatise to be used during the
cross-examination of an expert and only if the expert concedes that it
is authoritative. Egan v. Dry Dock, E.B. & B.R. CO. The consequence of
the New York rule is that it gives experts unrestrained "veto power"
over treatises that called their conclusions into question. The rule
invites gamesmanship by experts who prefer avoid discussion of contra-
dictory opinions and data. As a result, the truth seeking function of a
trial suffers.

The rationale for limiting the use of learned treatises during the
cross-examination of experts was to prevent the expert from being
ambushed by opposing counsel with references to treatises of question-
able credibility. This concern is easily addressed by looking to the
experience of federal courts and the majority of states that have
adopted the federal rule without encountering such a problem.


Federal Rules of Evidence 803(18) addresses reasons for this exception
in the advisory committee notes. One such reason is that treatises carry
"a high standard of accuracy" since they are "written primarily and
impartially for professionals" and "subject to scrutiny and exposure for
inaccuracy, with the reputation of the writer at stake."

Until 1992, New Jersey had a nearly identical law related to learned
treatises but the NJ Supreme Court determined the rule to have "perva-
sive problems" and adopted the more permissive scope allowed under FRE
803(18). Jacober v. St. Peter's Medical Center.

 
PRIOR LEGISLATIVE HISTORY:

2021-22: S.330 (Thomas) - Referred to Judiciary.

2019-20: S.8914 (Thomas) - Referred to Rules.

 
FISCAL IMPLICATIONS:

None noted to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately.