Stinson v. England - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Stinson et al., Appellants, v. England, Appellee.
[Cite as Stinson v. England (1994), Ohio St.3d .]
Evidence -- Admissibility of expert testimony that an event is
the proximate cause -- Event is probable, when -- Expert
opinion regarding causative event must be expressed in
terms of probability -- Treatise may be used for
impeachment purposes to demonstrate that expert witness is
either unaware of the text or unfamiliar with its contents
-- Substance of treatise employed only to impeach
credibility of expert witness who has relied upon treatise.
1. The admissibility of expert testimony that an event is the
proximate cause is contingent upon the
expression of an opinion by the expert with
respect to the causative event in terms of
probability. (Shepherd v. Midland Mut. Life
Ins. Co. [1949], 152 Ohio St. 6, 39 O.O.
352, 87 N.E.2d 156, paragraph two of the
syllabus, followed.) An event is probable
if there is a greater than fifty percent
likelihood that it produced the occurrence
at issue. (Cooper v. Sisters of Charity of
Cincinnati, Inc. [1971], 27 Ohio St.2d 242,
253, 56 O.O. 2d 146, 152, 272 N.E.2d 97,
104, followed.) Inasmuch as the expression
of probability is a condition precedent to
the admissibility of expert opinion
regarding causation, it relates to the
competence of the evidence and not its
weight. (State v. Benner [1988], 40 Ohio
St.3d 301, 313, 533 N.E.2d 701, 714,
followed.) Consequently, expert opinion
regarding a causative event, including
alternative causes, must be expressed in
terms of probability irrespective of whether
the proponent of the evidence bears the
burden of persuasion with respect to the
issue.
2. The learned treatise exception to the hearsay rule set forth

in Fed. Evid R. 803(18) has no counterpart
in Ohio Evid. R. 803. In Ohio, a learned
treatise may be used for impeachment
purposes to demonstrate that an expert
witness is either unaware of the text or
unfamiliar with its contents. Moreover, the
substance of the treatise may be employed
only to impeach the credibility of an expert
witness who has relied upon the treatise
(Hallworth v. Republic Steel Corp. [1950],
153 Ohio St. 349, 355-356, 41 O.O. 341,
343-344, 91 N.E.2d 690, 694) or has
acknowledged its authoritative nature.
(No. 92-2444 -- Submitted October 20, 1993 -- Decided June
15, 1994.)
Appeal from the Court of Appeals for Montgomery County,
No. 13073.
On April 11, 1985, plaintiff-appellant Carol Stinson
consulted defendant-appellee, Dr. Stephen England, regarding
her pregnancy with her fourth child. At that time, her
estimated date of delivery was October 19, 1985. She reminded
appellee that her previous child had been born late and
expressed similar concern regarding this pregnancy. She made
routine visits to the office of appellee thereafter. On
October 15, 1985, she consulted appellee and again expressed
her concern regarding an extended gestation period. There is a
potential for brain damage in a fetus due to the deterioration
of the placenta during a prolonged pregnancy. She was assured
by appellee at that time that she was not ready to deliver.
Pursuant to his instructions, appellant returned to his office
on October 22, 1985, when she again expressed her concerns
regarding a late delivery. Appellee remarked that if she did
not deliver by October 29, 1985, labor would be induced the
next day.
On October 29, 1985, appellant visited the offices of
appellee. Appellee was not available at that time. Instead, a
nurse in his employ instructed appellant to return on October
31, 1985. On that date, appellee told appellant that he would
induce labor on November 2. On November 1, 1985, appellant
contacted the office of appellee, notified a nurse in his
employ that she had not felt the baby move all of that morning,
and then proceeded to the office of appellee. While appellee
was unavailable, his nurse confirmed the existence of a fetal
heartbeat and sent appellant home.
At approximately 11:00 p.m. on November 1, 1985, appellant
began experiencing regular contractions. She notified appellee
and, pursuant to his instructions, travelled to the hospital,
arriving at approximately midnight. At approximately 3:00
a.m., appellee arrived at the hospital. Concluding that
appellant was completely dilated, appellee proceeded with
vaginal delivery. At approximately 3:30 a.m.,
plaintiff-appellant Julie Stinson was born. She has since been
diagnosed as suffering severe mental impairment.
On August 31, 1988, appellants instituted the present
action in the Montgomery County Court of Common Pleas against
appellee for medical malpractice. On July 16, 1991, trial
commenced. Appellants presented the testimony of Dr. Stanley

M. Warner that certain tests were available in 1985 which
should have been given by appellee at the end of the
forty-first week of gestation to determine if the baby was in
distress. On cross-examination, Dr. Warner was questioned as
follows:
"Q. What text do you use for obstetrics teaching?
"A. I don't.
"***
"Q. Williams on Obstetrics is an acceptable textbook used
by a majority of the medical schools in the United States;
isn't that correct?
"A. I cannot speak to that, sir. I don't know if it is
used by the majority. ***
"***
"Q. Let's see what Williams says.
"A. That's not authoritative, Williams is not. There are
many mistakes in that book.
"Q. I thought you said it was authoritative.
"A. I did not. I have not even been asked whether I
considered it authoritative or not ***.
"Q. Well, I think you have testified previously that you
considered Williams on Obstetrics part authoritative and part
non authoritative, is that right?
"A. That's right. There are parts of it that are not
authoritative and there are parts that are. I don't consider
it an authoritative text book.
"***
"Q. Now let's see if you disagree or agree with a
statement taken from Williams on Obstetrics published in 1985.
"MR. SHAVER: Same objection, Your Honor. [Lack of
foundation for cross-examination from treatise.]
"THE COURT: The Court is going to overrule the
objection. This witness had testified with regard to the
standards in 1985 and I think it is appropriate to test that
knowledge.
"Q. Quote, Too often time and effort and emotion are
expended on cases in which gestational age is less than 42
weeks period end quote. You disagree with that, I take it,
right?" (Emphasis added.)
Also during cross-examination, Dr. Warner was asked what
percentage of his income derived from providing expert
testimony in medical malpractice actions. Dr. Warner revealed
that approximately twenty-five percent of his income had been
derived in this fashion. When he was asked whether he had set
up a corporation through which he passed his fees received for
testifying, he stated that the fee from his testimony in the
present case would be transmitted to Blackhawk Community Health
Care in Rhode Island. Blackhawk is a nonprofit health care
center providing medical treatment to low income patients. A
motion to strike this answer as nonresponsive was granted by
the trial court. The jury was instructed to disregard the
remark. On redirect examination, Warner was asked what he
would do with the fee from this case, and he made the same
statement. Without stating a reason, the court sustained an
objection and a motion to strike and instructed the jury to
disregard the statement.
On direct examination, appellee elicited the testimony of

Dr. Diana Ross. Dr. Ross stated that the type of injuries
suffered by Julie Stinson could be caused by three events: (1)
maternal hypotension, (2) placental insufficiency (i.e., the
theory of appellants), or (3) compression of the umbilical
cord. Of these three possibilities, Dr. Ross stated that the
"most likely" cause of the injuries was the compression of the
umbilical cord.
On July 23, 1991, following trial, the jury returned a
general verdict in favor of appellee. In response to
interrogatories, the jury concluded that appellee had been
negligent in failing to properly monitor fetal movement, but
that this negligence was not the proximate cause of the
injuries to appellant. On August 30, 1991, judgment was
entered for appellee. On October 5, 1992, the Second District
Court of Appeals affirmed the judgment of the trial court.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Wolske & Blue, Michael S. Miller and Walter J. Wolske,
Jr., for appellants.
Beiser, Greer & Landis and Leo F. Krebs, for appellee.

I
A. William Sweeney, J. Appellants challenge the
judgment entered in favor of appellee on three bases. First,
appellants dispute the admissibility of the testimony of Dr.
Ross regarding the cause of the injuries to Julie Stinson. Dr.
Ross expressed the opinion that, of three possible causes for
injuries of the type sustained by Julie Stinson, including the
cause advanced by appellants (i.e., placental insufficiency
attributable to the negligence of appellee), the "most likely"
cause for the injuries was compression of the umbilical cord.
Appellants contend that this testimony was incompetent because
expert testimony regarding causation must concern the probable
cause of the occurrence, not possible causes. Appellants
correctly maintain that probability means more than a fifty
percent likelihood and that the most likely of three causes may
represent the greatest possibility (e.g., forty percent) but
nevertheless fall short of probability. Appellants therefore
contend that the witness did not testify as to probabilities
and that the testimony was incompetent as a result.
Appellee responds that the three explanations given by Dr.
Ross were hypothetical and that at least one of them, maternal
hypotension, was eliminated in this case. Thus, the phrase
"most likely" was used regarding the only two remaining
options. Appellee further contends that, with respect to
causation, appellants bear the burden of persuasion.
Accordingly, he argues, any dispute regarding the expression of
probability by his expert is irrelevant because it was
incumbent upon appellants to demonstrate that placental
insufficiency due to the negligence of appellee was the cause
of the injuries.
The positions of the parties each contain some merit. In
Ohio, the admissibility of expert testimony that an event is
the proximate cause is contingent upon the expression of an
opinion by the expert with respect to the causative event in
terms of probability. Shepherd v. Midland Mut. Life Ins. Co.

(1949), 152 Ohio St. 6, 39 O.O. 352, 87 N.E.2d 156, paragraph
two of the syllabus. Appellants correctly observe that an
event is probable if there is a greater than fifty percent
likelihood that it produced the occurrence at issue. Cooper v.
Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d
242, 253, 56 O.O. 2d 146, 152, 272 N.E.2d 97, 104; Albain v.
Flower Hosp. (1990), 50 Ohio St.3d 251, 265, 553 N.E.2d 1038,
1051.
Appellee responds, however, that the requirement of
demonstrating probability is limited to expert testimony
adduced on behalf of the party bearing the burden of
persuasion. Therefore, appellee contends, an expert who
testifies on behalf of a defendant need not express an opinion
regarding causation in terms of probability, because it is the
plaintiff who bears the burden to prove that the proximate
cause of the injuries was the negligence of the defendant. We
disagree. While the probability standard arises most
frequently in the context of testimony by an expert witness on
behalf of the plaintiff, it is not limited to those
circumstances.
Appellee has accurately noted that appellants bear the
burden of persuasion with respect to every aspect of their
claim, including causation. Nevertheless, the probability
requirement applicable to expert opinion testimony is not
limited to that adduced by appellants. Inasmuch as the
expression of probability is a condition precedent to the
admissibility of expert opinion regarding causation, it relates
to the competence of such evidence and not its weight. See
State v. Benner (1988), 40 Ohio St.3d 301, 313, 533 N.E.2d 701,
714. Accordingly, it is essential to focus on the quality of
the evidence adduced regardless of the identity of its
proponent.
In this regard, appellee has confused the burden of
persuasion, which is generally borne by the plaintiff in a
negligence action, and the duty imposed upon the proponent of a
fact to adduce competent evidence sufficient to establish its
existence. The former burden was and continued to be the
responsibility of the appellants. In order to present a jury
question and avoid a directed verdict, appellants were required
to satisfy the burden of production by establishing a prima
facie case. See 2 McCormick, Evidence (4 Ed. Strong Ed. 1992)
425, Section 336. This burden is satisfied by adducing
competent evidence supporting the existence of a duty, breach
of the duty, causation based on probability and damages. Once
a prima facie case has been demonstrated, the adverse party may
attempt to negate its effect in various ways. He may
cross-examine the expert of the other party. He may adduce
testimony from another expert which contradicts the testimony
of the expert for his adversary. Further, he may adduce expert
testimony which sets forth an alternative explanation for the
circumstances at issue. If this last approach is pursued, the
evidence directed to the alternate explanation is governed by
the same standard of admissibility applicable to the evidence
adduced by his adversary. Thus, in Pryor v. Webber (1970), 23
Ohio St.2d 104, 110, 52 O.O.2d 395, 398, 263 N.E.2d 235, 239,
we noted:
"'It is a general rule that the burden of proving facts

which must be established in order to make evidence admissible
is on the party who wishes to give such evidence.' 1 Jones on
Evidence, 387, Section 210. 'The party offering testimony has
the burden of establishing its admissibility; and where there
is a preliminary question of fact to be decided before evidence
is admitted, the burden of proving the preliminary fact rests
upon the proponent of the subject evidence.' 31A Corpus Juris
Secundum 168, Evidence, Section 103."
We therefore conclude that expert opinion regarding a
causative event, including alternative causes, must be
expressed in terms of probability irrespective of whether the
proponent of the evidence bears the burden of persuasion with
respect to the issue.
Applying the foregoing standard to the case at bar, we
note at the outset that appellants bore the burden of
persuasion to demonstrate that the injuries sustained by Julie
Stinson were proximately caused by the negligence of appellee.
A prima facie demonstration with respect to causation was
accomplished through the testimony of Dr. Warner, who stated
that the probable cause of the injuries was the negligence of
appellee. This evidence along with evidence directed to other
elements of the claim established a prima facie case so as to
present a jury question and avoid a directed verdict. Among
the devices available to appellee to meet this prima facie case
were the cross-examination of Dr. Warner, the presentation of
contrary evidence that the negligence of appellee was not the
probable cause of the injuries or the presentation of evidence
establishing an alternative cause for the injuries. Where this
last approach is pursued, the proponent of the alternative
cause theory must support the theory with competent evidence
establishing its truth. That is, a proponent of an alternative
cause must adduce expert testimony of its probable nature.
With these principles in mind, we now address the argument
of appellants that the expert witness on behalf of appellee
failed to express an opinion with respect to causation
sufficient to satisfy the requisite standard of probability.
Appellants contend that the opinion of Dr. Ross that an
alternative cause was "most likely" responsible for the
injuries to Julie Stinson was incompetent, since a cause which
is the most likely of three alternatives may nevertheless
represent less than a fifty percent possibility of occurrence.
Had the alternative causes considered by Dr. Ross not included
the cause espoused by appellants, this would undoubtedly be
true. Such testimony regarding the "most likely" alternative
cause would be incompetent not only because it lacks the degree
of probability necessary for admissibility but also because it
does nothing to controvert the evidence of appellants that the
negligence of appellee was the probable explanation for the
injuries sustained by Julie Stinson.
In this regard, an expert for the defense is precluded from
engaging in speculation or conjecture with respect to possible
causes as is an expert who testifies for the plaintiff.
The fallacy in the argument of appellants, however, is
that their theory was one of the alternative causes considered
by appellee's expert. Among the potential causes considered by
her, another theory of causation (e.g., compression of the
umbilical cord) was deemed to be the most likely. Even if it

had a likelihood of less than fifty percent, it had a greater
likelihood than the theory espoused by appellants, in the view
of the expert. The significance of the testimony, therefore,
was in its ascription of likelihood not to the alternative
cause but to the cause espoused by appellants. If the most
likely cause among alternatives, including the theory of
appellants, has a probability of less than fifty percent, a
fortiori appellants' theory would be even less likely. If the
most likely alternative had a probability greater than fifty
percent, it follows that the less likely option could not have
a probability of fifty percent. As observed by this court in
Davis v. Guarnieri (1887), 45 Ohio St. 470, 490, 15 N.E. 350,
361:
"It is legally and logically impossible for it to be
probable that a fact exists, and at the same time probable that
it does not exist."
The testimony of Dr. Ross that another event was the most
likely cause of the injuries was therefore tantamount to an
opinion that the cause advanced by appellants was not the
probable cause. It was therefore competent evidence which
controverted a fact propounded by appellants. While the better
practice would certainly have been to have the expert testimony
directed to the probability of an alternative cause or the lack
of probability of the causation theory advanced by appellants,
we are unpersuaded that the evidence adduced by appellee was
inadmissible.
II
Appellants further contend that the trial court committed
reversible error by permitting counsel for appellee to
contradict the testimony of their expert, Dr. Warner, through
resort to a medical treatise. The learned treatise exception
to the hearsay rule set forth in Fed. Evid R. 803(18) has no
counterpart in Ohio Evid. R. 803. Ramage v. Cent. Ohio
Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 110, 592 N.E.2d
828, 838. As stated by this court in Hallworth v. Republic
Steel Corp. (1950), 153 Ohio St. 349, 354, 41 O.O. 341, 343, 91
N.E.2d 690, 693:
"The great weight of authority holds that medical books or
treatises, even though properly identified and authenticated
and shown to be recognized as standard authorities on the
subjects to which they relate, are not admissible in evidence
to prove the truth of the statements therein contained. 20
American Jurisprudence, 816, Section 968; 65 A.L.R., 1102,
annotation."
Moreover, in Piotrowski v. Corey Hosp. (1961), 172 Ohio
St. 61, 69, 15 O.O.2d 126, 130, 173 N.E.2d 355, 360, this court
underscored the basis for the exclusion of such evidence:
"Such rule corresponds with the decided weight of
authority which is to the effect that medical and other
scientific treatises representing inductive reasoning are
inadmissible as independent evidence of the theories and
opinions therein expressed. The bases for exclusion are lack
of certainty as to the validity of the opinions and conclusions
set forth, the technical character of the language employed
which is not understandable to the average person, the absence
of an oath to substantiate the assertions made, the lack of
opportunity to cross-examine the author, and the hearsay aspect

of such matter."
Accordingly, in Ohio, a learned treatise may be used for
impeachment purposes to demonstrate that an expert witness is
either unaware of the text or unfamiliar with its contents.
Moreover, the substance of the treatise may be employed only to
impeach the credibility of an expert witness who has relied
upon the treatise, Hallworth v. Republic Steel Corp, supra, 153
Ohio St. at 355-356, 41 O.O. at 343-344, 91 N.E.2d at 694 or
has acknowledged its authoritative nature.
In the case at bar, appellee initially sought to establish
a foundation on which to impeach the credibility of Dr. Warner
by questioning his awareness of and familiarity with the
textbook Williams on Obstetrics. Following his response that
he was familiar with it, Dr. Warner was asked whether he
considered it to be authoritative. Dr. Warner stated
categorically that he did not consider it authoritative.
Nevertheless, over objection, appellee was permitted to present
portions of the text to the jury and inquire of Dr. Warner
whether he agreed with the statements contained therein. Thus,
instead of impeaching the credibility of Dr. Warner, appellee
was permitted to contradict his testimony through the use of
the contents of the text despite his earlier testimony that it
was not authoritative. This use constituted an impermissible
presentation of hearsay evidence to the jury. Inasmuch as
causation was strongly disputed at trial and was the basis of
the jury verdict in favor of appellee, we agree with the court
in Piotrowski, supra, 172 Ohio St. at 69, 15 O.O.2d at 130, 173
N.E.2d at 360, that the admission of this evidence had a
substantial likelihood of affecting the jury and, thus,
constituted prejudicial error. Accordingly, on this issue, the
argument of appellants is well taken.
III
Appellants finally contend that it was error for the trial
court to strike the statements of Dr. Warner regarding
disposition of his witness fees and to instruct the jury to
disregard them. The trial court correctly determined that
inquiry regarding the pecuniary interest of the witness in the
litigation was a proper subject of cross-examination. However,
on cross-examination the statement of the witness regarding the
ultimate disposition of the fee was not responsive to the
question. Control over the mode of interrogation of witnesses
is within the sound discretion of the trial court. Evid. R.
611. Inasmuch as the answer on cross-examination was not
responsive, the trial court's instruction to the jury to
disregard it did not constitute an abuse of discretion.
Accordingly, no reversible error was committed by the trial
court with respect to this ruling.
However, we reach an opposite conclusion with respect to
the actions of the trial court which foreclosed further inquiry
regarding the ultimate disposition of the witness fees on
redirect examination. As observed earlier, the pecuniary
interest of a witness in the litigation is a proper subject of
cross-examination. Likewise, the lack of a pecuniary interest
of the witness in the litigation is a proper subject of
redirect examination. Accordingly, it is our determination
that the trial court abused its discretion and committed
reversible error when it foreclosed the opportunity for

appellants to demonstrate that their expert did not have a
pecuniary interest in the litigation.
The judgment of the court of appeals is therefore reversed
and the cause is remanded for a new trial.
Judgment reversed
and cause remanded.
Moyer, C.J., and Resnick, J., concur.
Douglas and F.E. Sweeney, JJ., concur in the syllabus and
judgment.
Wright and Pfeifer, JJ., concur in part and dissent in
part.
Wright, J., concurring in part and dissenting in part.
I agree with the majority's commentary as to the admissibility
of defendant's expert's opinion. However, I must disagree with
the majority's rejection of the jury's verdict on the grounds
that the trial court erred during defendant's cross-examination
of plaintiffs' expert witness.
There is no doubt that the jury rejected out-of-hand
plaintiffs' theory as to the proximate cause of the child's
birth defect and that the rejection led to a defense verdict.
Despite this finding by the jury, the majority holds that it
was error to allow cross-examination of the plaintiffs' expert
on certain contents of a "learned treatise" on obstetrics. The
majority asserts that "Dr. Warner stated categorically that he
did not consider [the treatise] authoritative" (emphasis sic)
and thus concludes that cross-examination dealing with the
treatise was improper and prejudicial. Entirely aside from the
fact that Ohio has never adopted the learned treatise
doctrine,1 the majority simply misstates Dr. Warner's posture
during trial. Warner indicated with clarity that he was well
acquainted with the treatise Williams on Obstetrics. After
some back-and-forth discussion to the effect that Dr. Warner
did not use any textbooks in his teaching and that he rejected
the treatise as a whole, the record reflects the illuminating
discourse that follows:
"Q. Well, I think you have testified previously that you
considered Williams on Obstetrics part authoritative and part
non authoritative, is that right?
"A. That's right. There are parts of it that are not
authoritative and there are parts that are. I don't consider
it an authoritative text book."
Thus, as anyone can see, Dr. Warren considered the
treatise to be authoritative in part. Certainly counsel should
be allowed to quote the treatise in part to determine what part
Dr. Warner agreed with and what part he did not accept. How in
the name of sense can this line of questioning be determined to
be reversible, prejudicial error?
As noted above, Ohio has not yet accepted the "learned
treatise" exception for the introduction of evidence. However,
we have recognized that it is within the discretion of the
trial court to permit cross-examination of, and testimony on,
an expert's familiarity with opinions expressed in various
texts and medical literature, regardless of whether the witness
relied on such sources. See O'Brien v. Angley (1980), 63 Ohio
St.2d 159, 17 O.O.3d 98, 407 N.E.2d 490. In my view it is
preposterous to limit this sort of examination, as that would
make it nigh on to impossible to test the witness's knowledge

or his or her familiarity with the subject matter at hand.
Further, there is a second problem stated by the court of
appeals as follows: "There is a broader and [more] troubling
question raised by appellants. Must the trial court deny the
right of cross-examination of an expert medical witness because
such expert does not consider a medical textbook as totally
right ***?" Can an expert simply say that all books and
medical journals are not authoritative? As stated by the court
of appeals, "[i]f this be the law, a medical expert has it in
his power to deny the right of cross-examination." I suggest
that the affirmative answer to this question, which the
majority appears to adopt today, is an unfortunate and
unwarranted aberration. For the reasons stated, I would affirm
the court of appeals and reject any claim of error by the trial
court.
Pfeifer, J., concurs in the foregoing opinion.
FOOTNOTE:
1 Appellee gives an excellent review of the exception,
noting in his brief to this court:
"It has long been recognized, of course, that statements
contained in medical textbooks are hearsay:
"'Learned writings, such as treatises, books, and articles
regarding specialized areas of knowledge or skill are, when
offered to prove the truth of the matters asserted in them,
clearly hearsay.' McCormick On Evidence (1984, 3d Edition)
{321.
"Nonetheless, at least one legal commentator has long
argued for their admissibility:
"'Wigmore has argued strongly for an exception for such
material. In practice, he asserts, much of the testimony of
experts *** consists of information they have obtained from
such sources. *** Moreover, he suggests there are sufficient
assurances of trustworthiness to justify equating a learned
treatise with a personally-testifying expert. Not only does
the author have no bias in any particular case, but it is
likely that he was motivated in writing the treatise by a
strong desire to state accurately the full truth.' Id., citing
6 Wigmore, Evidence {{1690-1709 (Chadbourne Rev. 1976).
"Federal Rule of Evidence 803(18), therefore, provides for
a general exception to the hearsay rule for learned treatises,
although it does not allow them to be made exhibits for the
jury's consideration:
"'The following are not excluded by the hearsay rule ***:
"'To the extent called to the attention of an expert
witness upon cross-examination or relied upon during direct
examination, statements contained in published treatises. ***
If admitted, the statements may be read into evidence but may
not be received as exhibits.'
"Twenty (20) states have adopted identical versions of
Federal Rule of Evidence 803(13). Another three states,
Nevada, South Dakota and Wisconsin, have adopted rules
identical in substance to Federal Rule of Evidence 803(18),
although they employ slightly different phraseology. Two more
states, Colorado and Idaho, have rules using identical language
regarding the general exception of learned treatises from the
hearsay rule, but also allow the articles to be admitted as
exhibits, or taken into the jury room. Kansas also allows

learned treatises to be used as direct evidence, but makes no
provision regarding whether the articles may be introduced as
exhibits or taken to the jury room. Louisiana allows the use
of learned treatises as direct evidence, but only in civil
cases, and provides that although the treatise may be made an
exhibit, it may not be taken to the jury room. Massachusetts,
on the other hand, allows the use of learned treatises as
direct evidence, but only in medical negligence cases.
Finally, Alabama, Connecticut and New Jersey have case-law
allowing the use of learned treatises to be used [sic] as
direct evidence. Thus, thirty-one (31) states, by rule,
statute, or case-law allow the use of learned treatises as
direct evidence." (Emphasis sic and footnotes omitted.)