Medical Publications as Evidence

January 17, 2014

Klein v. Aronchick, — A.3d —, 2014 WL 46648 (Pa. Super. 2014)

This important causation decision, analyzed separately in this Journal, features a defense expert who testified about the truth of the scientific conclusions that appeared in certain medical treatises. The expert also bolstered his testimony by referring to the New England Journal of Medicine as “probably the world’s most prestigious medical journal,” “the final word on most things,” and “proven good science.” He further testified that “If you published there you made the big time. All the important authors, and professors, and doctors want to get published in the New England Journal” and that “You can’t get an article in the New England Journal unless it’s topnotch and your colleagues believe it’s state-of-the-art and it’s proven good science.”

The trial court admitted this testimony over the plaintiff’s objection. However, the appellate court agreed with the plaintiffs, who complained that the testimony was an implicit invitation to the jury to view the publications’ substance as true. The court decided that the expert “was clearly bolstering, attempting to use medical articles published in the New England Journal to increase the credibility of his own opinion in the minds of the jury.” This finding was among the court’s reasons to reverse and remand the case for a new trial.

I can see nothing wrong in what the trial judge did here, assuming that the publications were only “read into evidence but not received as an exhibit.” See Fed. R. Evid. 803(18), and I can’t believe that Pennsylvania has a law that differs from this rule.