Medical Text Properly Used During Cross-Examination; Court Rejects Purported “Semantic Trick” as to the “Authoritative” Status of Work

In Kearney v Papish, 2016 NY Slip Op 00697 (App. Div. 2nd Dept. Feb. 3, 2016), a medical malpractice action, the court affirmed the denial of a motion to set aside a defense verdict.

This decision is instructive as to when an expert has deemed material “authoritative” such that they may be confronted with it on cross-examination. Essentially, it teaches that an expert’s refusal to use the word “authoritative” when referencing material that they have relied upon and testified that they find it reliable and trustworthy is not, in and of itself, sufficient to render the material off-limits for cross-examination.

The court explained:

Contrary to the plaintiff’s contention, the trial court did not err in permitting the use of a publication from the American College of Emergency Physicians to be used during cross-examination of the plaintiff’s expert physician. On cross-examination, an expert witness may be confronted with scientific works or publications for impeachment purposes where the material has been deemed authoritative by such expert. Here, the plaintiff’s expert testified that he had relied on the subject publication in rendering his opinion in this case. He described it as “excellent, well put together, useful clinical guidelines,” and he found it “[u]seful[,] clinically relevant, [and] well thought out, well researched.” Despite his reliance on the publication and general praise for it, the expert witness refused to acknowledge that the publication was “authoritative” because he had “some issues with the word authoritative'” and did not “think that anything that a human being does is authoritative.” A physician may not foreclose full cross-examination by the semantic trick of announcing that he did not find the work authoritative where he has already relied upon the text and testified in substance that he finds it reliable and trustworthy.

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