A Structured
counsel should be able to cross-examine defendant’s expert about the contents of the PDR pursuant to Evidence Code sec- tion 721(b)(3), whether or not that expert states that he consulted that publication. Unfortunately, judges are not inter-
preting section 721(b)(3) consistently. Despite the clear language of subsection (b)(3), the Law Revision Commission Comments that follow section 721 pre- date the 1997 amendment and conclude that “subdivision (b) does not permit cross-examination of an expert witness on scientific, technical, or professional works not referred to, considered, or relied on by him.” A judge who sustains an objec- tion to cross-examination of the defense expert about a medical text another expert has established as authoritative, may be relying on these comments.
Note: There has been some criticism of the amended law, particularly with respect to the fact that there are not clear guidelines for establishing a publication as a reliable authority. Under Section 721(b)(3) only the testimony of another expert is required to establish a text as a reliable authority. This poses some risk that a party could have an expert testify that an obscure article, of which opposing counsel may not even be aware, is a “reliable” source of information, then “ambush” the opposing expert with its con- tents. See “Establishing Reliability Under California Evidence Code section 721(b)(3): Why California’s Evidentiary Law Could Use More Consistency,” 45 Cal. W. L. Review 475 (2009).
It is clear from the legislative analysis
of SB 73, that the amendment to Evidence Code section 721(b)(3) was intended to “substantially” adopt Rule 803(18) of the Federal Rules of Evidence. Therefore, federal court cases interpret- ing Rule 803(18) can be used as persua- sive authority in support of the right to cross-examine a defense expert based on a text established as a reliable source by plaintiff ’s expert. As helpful as the amended rule may
be for plaintiffs, it can also be a powerful weapon for the defense. In Constantino v. David M. Herzog, M.D., P.C. (2d Cir. 2000)
203 F.3d 164, the trial court permitted cross-examination of plaintiff ’s expert on a medical text which contradicted his tes- timony, that when shoulder dystocia is encountered, downward traction on the baby’s head during delivery should never be used because of the risk of injury. The court also allowed the defense to show a video produced for the American College of Obstetrics and Gynecology as a “learned treatise.” The video identified limited traction on the baby’s head as an acceptable technique. It also contained the following language: “unfortunately, babies cannot always be delivered without injury even when the management is optimal” and “
sometimes...injuries can- not be avoided.” Plaintiff appealed the trial court’s decision after a defense ver- dict. The Court of Appeals affirmed, holding that there was effectively no dis- tinction between use of an authoritative book and the videotape. •Videotaped testimony Issues involving the use of video-
taped testimony during trial are not unique to medical-negligence cases. However, they are worth looking at in this article because their use can sub- stantially reduce the cost of trying a medical-negligence case to a jury. Furthermore, effective use of the video- taped testimony of portions of the testi- mony of the defendant doctor and/or
Settlement requires careful planning and experience.
Michael J. Pickett, CSSC Certified
Structured Settlement
Consultant for 25 Years License #0536433
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PickettStructures@hotmail.com
800.326.1078Serving the State Bar since 1985 FEBRUARY 2012 The Advocate Magazine — 61
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