Learned Treatises & Motions for Summary Judgment

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

As the rule makes clear, a “learned treatise” is only admissible as an exception to the rule against hearsay if it is established as a reliable authority by an expert witness (or by judicial notice). So, how should evidence from an alleged “learned treatise” be treated if submitted in response to a motion for summary judgment? That was the question addressed by the United States District Court for the Southern District of Indiana in is recent opinion in Toran v. Wexford Health Sources, Inc., 2021 WL 396618 (S.D. Ind. 2021).

In Toran, Miles Toran injured his ankle at Wabash Valley Correctional Facility and brought a lawsuit alleging “that the defendants-Wexford Health Sources, Inc., and five medical professionals Wexford employed to care for Mr. Toran have been deliberately indifferent to his injury and violated his Eighth Amendment rights.” After thee defendants moved for summary judgment, Toran

presented evidence of standard treatment for high ankle sprains and avulsion fractures of the ankle. According to this evidence, once Dr. [Samuel] Byrd diagnosed a high ankle sprain, he should have placed Mr. Toran’s ankle in a cast or walking boot for at least four weeks…Meanwhile, standard treatment for a chip fracture is surgery….Indeed, the defendants have presented evidence that Dr. Byrd knew standard care for a high ankle sprain required referral to a specialist. 

The evidence of the standard treatment consisted of medical texts, and the court held that

For purposes of summary judgment, the Court accepts the passages Mr. Toran has presented from medical texts as statements from a learned treatise that may be admitted under Federal Rule of Evidence 803(18). Mr. Toran has not presented this evidence through an expert witness, but he has “point[ed] to evidence that can be put in an admissible form at trial.” Marr v. Bank of America, 662 F.3d 963, 966 (7th Cir. 2011). Moreover, the defendants have not challenged the admissibility of these passages.

In other words, because Toran could likely put the medical texts into admissible form at trial through an expert, the texts could be used at the summary judgment stage.

-CM