Evidentiary — continued from Page 58
•Opinions of non-designated experts Experts may testify on direct exami-
nation that they consulted other experts in formulating their own opinion, but they may not reveal the content of those other experts’ opinions. i.e., an expert witness cannot use inadmissible hearsay to “fortify” the expert’s own opinion. (Whitfield v. Roth (1974) 10 Cal.3d 874, 894; People v. Catlin (2001) 26 Cal.4th 81, 137-138.) The reason for this is obvious: i.e.,
there is no opportunity to cross-examine the other experts as to the basis for their opinions. (People v. Campo (1995) 32 Cal.App.4th 304, 308.) While an expert may state on direct
examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible. i.e., “he may not under the guise of reasons bring before the jury incompetent hearsay evidence.” (People v. Coleman (1985) 38 Cal.3d 69, 92.) This is another issue best dealt with in a motion in limine. •Scientific, technical and professional texts, treatises and journals Regardless of the merits of the medical-malpractice case, the other side
will always offer a defense – either on lia- bility or causation. It is not uncommon for the defense expert to take positions that cannot be supported based on avail- able medical literature. Being able to cross-examine a defense expert based on the content of reliable medical literature and textbooks can be a potent way of exposing a disingenuous opinion. Before 1997, in California state
courts an expert could only be cross- examined on medical literature on which he admitted he had relied in formulating his opinions. Therefore, experts routinely testified that they did not rely on any lit- erature in order to avoid such cross- examination. Evidence Code section 721 was amended in 1997 to bring it in line with the “learned treatises” exception to the hearsay rule contained in the Federal Rules of Evidence. Subsection (b) of sec- tion 721 states: If a witness testifying as an expert
testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publi- cation unless any of the following occurs:
(1) The witness referred to, consid- ered, or relied upon such publication in arriving at or forming his or her opinion. (2) The publication has been admit- ted in evidence. (3) The publication has been estab- lished as a reliable authority by the testimony or admission of the wit- ness or by other expert testimony or by judicial notice. If admitted, relevant portions of
the publication may be read into evi- dence but may not be received as an exhibit.
(Evid. Code, § 1271, subd. (b), emphasis added.)
Subsection (b) appears clear enough
on its face – an expert can be cross-exam- ined on medical literature if he referred to, considered or relied on it in forming his opinion; if the publication is admitted into evidence; if the expert to be cross- examined, or any “other expert” testifies that the publication is a “reliable authori- ty.” Therefore, if plaintiff ’s expert testi- fies during trial that the Physician’s Desk Reference [PDR] is a reliable authority commonly referred to by doctors about the risks of particular drugs, plaintiff ’s
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