By Eric Ganci
Below is some food and/or law for thought about using “reliable authorities” to get helpful article/treatise language in as evidence through cross examination–either through trial or setting it up in depos, to then use in trial.
This thought comes from a 2/2022 case of first impression explaining parts of California Evidence Code 721 as explained below.
This can be a heady discussion. But for anyone doing trials, it is super important to understand how this works.
Per California Evidence Code § 721:
“(a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.
(b) 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 publication unless any of the following occurs: (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion. (2) The publication has been admitted in evidence. (3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” Emphasis added.
The emphasis on “any”:
We emphasized “any” as this is important as explained in Paige v. Safeway, Inc: “[s]ince the statutory language prefaces these three situations with the language “unless any of the following occurs,” each situation serves as an independent basis for use of a publication on cross-examination.” Paige v. Safeway, Inc. (2022), 74 Cal.App.5th 1108, 1122. We note Paige is a case “of first impression regarding the interpretation of Section 721(b)(3).” Id., at 1121.
The emphasis on “reliable authority”:
Regarding whether information is “established as a reliable authority”: California has little case law regarding this. However, Evidence Code § 721(b) “provides three means by which a party may establish a publication to be ‘reliable authority:’ (1) by the testimony or admission of the witness; (2) by other expert testimony; or (3) by judicial notice.” Id., at 1125. In Paige, the Court looked to federal case law (Id.) to hold since the expert “testified at deposition that the ASTM is a well-recognized international standards organization whose views are generally accepted in the scientific community [that] [t]his testimony sufficiently established that the ASTM standard was a reliable authority.” Id. at 1126.
The Court in Paige gives a framework to establish foundation for what is a “reliable authority” per Evidence Code § 721(b)(3): is the authority/treatise/article “good science, well-recognized and accepted in the scientific community.” Id.
The direct language in Paige is this: “Paige was not required to ask Dr. Shatnawi directly whether the ASTM standards were reliable or authoritative to elicit testimony establishing them to be reliable authority. Nor did it matter that Dr. Shatnawi testified that the ASTM standard for safe walking surfaces was not mandatory for Safeway. Safeway provides no authority for its view that a publication’s content must impose mandatory rules on a defendant for it to constitute reliable authority. As Section 721(b)(3)’s plain language does not impose this requirement and the legislative history of Section 721(b)(3) does not support this view, we reject the argument.
Accordingly, Dr. Shatnawi’s deposition testimony containing his acknowledgement that ASTM standards are founded on good science, well-recognized and accepted in the scientific community, was sufficient to establish the ASTM standard to be reliable authority under Section 721(b)(3).” Id.
Also, establishing the source “as a reliable authority” per EC 721(b)(3) does not hinge on EC 721(b)(1) or (2): “[t]here is no indication in Section 721(b)(3) or in section 721, subdivision (b) generally that use of a publication established to be reliable authority is subject to any of the requirements in subdivisions (b)(1) or (b)(2).” Id. In Paige, the Court held hinging EC 721(b)(3) on EC 721(b)(1) and (2) was error: “[a]ccordingly, the trial court erred in ruling such consideration or reliance by the expert was necessary.” Id.
Paige, supra, discusses how the California State Bar considered the importance of allowing cross examination regarding treatises and reading into the record treatise information established per EC 721: “Sponsored by the State Bar, this provision substantially adopts Rule 803(18) of the Federal Rules of Evidence to permit the use of published treatises and other similar publications ‘which are established as reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice,’ to be used to cross-examine an expert witness, whether or not the expert has himself or herself referred to it.” Paige, supra, at 1124. “It would also tend to reduce litigation costs by permitting recognized and learned treatises to be used to counter opposing expert opinions through cross-examination, thereby, reducing the time and expense of having to call another expert to battle the opposing expert to establish a position which is consistent with established thought.” Id., quoting the Sen. Com. on Judiciary, Analysis of Sen. Bill No. 73 (1997–1998 Reg. Sess.) May 13, 1997.
If admitted, the authority language can be read into the record:
“If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits.” Evidence Code § 721.
