1 See, e.g., Lewandowski v. Preferred Risk Mutual Ins. Co., 33 Wis. 2d 69, 146 N.W.2d 505 (1966).

2 See, e.g., FED. R. EVID. 803(18), cited infra text accompanying note 46.

3 For purposes of our discussion, “medical treatises” generally include published medical, psychiatric and psychological writings relating to the etiology, diagnosis and treatment of disorders. See infra text accompanying notes 11-15.

4 E.g., Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 832 (D.C. Cir. 1988) (a products liability case with a “tragic result,” evoking “utmost sympathy” and compassion among the jury, where the court noted that “in a case such as this it not only is appropriate but indeed imperative that the court remain vigilant to ensure that neither emotion nor confusion has supplanted reason“).

5 E.g., Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980) (plaintiff recovered $2,064,863.19 in damages after being severely injured in an automobile accident and his wife obtained $60,000 for loss of consortium and loss of services).

6 E.g., Heilman v. Snyder, 520 S.W.2d 321 (Ky. 1975). In this case, plaintiff sued her doctor for negligently failing to sterilize her skin before giving her several injections. The court permitted the doctor to introduce into evidence a medical report, over the plaintiff's objections that the report was inadmissible hearsay. Id. at 323. The treatise, entitled Routine Skin Preparation Before Injection: An Unnecessary Procedure, provided direct refutation of the plaintiff's claim. For a discussion of issues relating to medical treatises as hearsay, see infra text accompanying notes 19-29.

7 ’ E.g., Kaplan v. Mashkin Freight Lines, 146 Conn. 327, 329-31, 150 A.2d 602, 603-04 (1959). In this case, a plaintiff injured in a vehicular accident sought to admit extracts from Cecil and Loeb's Textbook of Medicine, and from Weschler's Textbook of Clinical Neurology, in order to show a relation between the accident and his present medical condition. In product liability cases, which in this context are a subset of personal injury cases, medical treatises have been introduced in litigation involving injury from an allegedly unsafe product, such as a pharmaceutical product. See, e.g., Witherell v. Weimer, 148 111. App. 3d 32, 499 N.E.2d 46 (1986).

8 E.g., Texas Employers’ Ins. Ass'n v. Nixon, 328 S.W.2d 809 (Tex. Civ. App. 1959). The nature and severity of an employee's injuries were in dispute, and the issue on appeal was the admissibility of a book titled Lesions of The Lumbar Intervertebral Disc. Id. at 810-811. The actual holding, though, is of little contemporary relevance since it is a pre-Rule 803(18) case. For the full rule, see infra text accompanying note 46.

9 Treatises are occasionally referred to in criminal cases as well. After breathalyzer results were admitted into evidence, a motorist was convicted of driving while intoxicated. Kansas City v. Dugan, 524 S.W.2d 194 (Mo. App. 1975). At trial, defense counsel was not permitted to read an excerpt from a “scientific article” from the Journal of the American Medical Association dealing with the breathalyzer; nor was defense counsel permitted to cross-examine a police officer about the article. Defense counsel did not identify the title of the journal or the author or the title of the article. The appellate court conducted independent research, which disclosed the following:

Id. at 95-96.

10 See Lipton, & Hershaft, , On the Widespread Acceptance of Dubious Medical Findings, 26 J. HEALTH & Soc. BEHAV. 336, 346 (1985)Google Scholar (recognizing that “a great deal of anecdotal information [exists] concerning unsound medical research” and suggesting that this information be analyzed and brought “under the open scrutiny of social science“).

11 The authors have found it particularly important to focus the analysis on medical treatises as they are the most common type of treatise evidence with which courts are confronted. See generally Note, Substantive Admissibility of Learned Treatises and the Medical Malpractice Plaintiff, 71 Nw. U.L. REV. 678 (1977)Google Scholar (discussing how Rule 803(18) of the Federal Rules of Evidence affects medical malpractice cases).

12 To illustrate, the following are examples of materials that the courts have considered “learned treatises“: articles from the periodical, Fire Arson Investigator, Allen v. Safeco Ins. Co. of America, 782 F.2d 1517 (11th Cir. 1986); reports prepared for the United States Department of Transportation on the subject of automobile crash worthiness, Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980); safety codes and standards, such as the American Standard Safety Code for Power Presses, that are prepared by organizations whose chief purpose is promoting safety, Johnson v. William C. Ellis & Sons Ironworks, Inc., 609 F.2d 820 (5th Cir. 1980); and, a videotape produced by the Federal Aviation Administration entitled Stalling for Safety, Schneider v. Cessna Aircraft Co., 722 P.2d 321 (Ariz. App. 1985).

13 FED. R. EVID. 803(18). For the full rule, see infra text accompanying note 46.

14 O'Brien v. Eli Lilly & Co., 668 F.2d 704 (3d Cir. 1981).

15 Id. at 718 (Higginbotham, J., dissenting). Thus, the dissenting opinion in O'Brien sets some parameters for “medical treatises.” Judge Higginbotham searched unsuccessfully yet “diligently to find any case in the history of American jurisprudence [that] ever recognized a newspaper or general magazine as a treatise.” Id. at 719 n.l (Higginbotham, J., dissenting). Citing to 6 J. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1690 (1976), Judge Higginbotham noted that learned treatises are “usually spoken of as involving the use of ‘scientific books’ or ‘medical books’ or ‘books of science and art,’ “ and queried, “[w]ould anyone call a weekly news magazine a book of science and art?” O'Brien, 668 F.2d at 719 n.l (Higginbotham, J., dissenting).

16 MCCORMICK ON EVIDENCE § 1 (E. Cleary ed. 1984).

17 “FEDERAL RULES OF EVIDENCE FOR UNITED STATES COURTS AND MAGISTRATES (West 1990).

18 From a social scientist's perspective, this elaborate scheme of rules and exceptions provides fertile ground for empirical inquiry. Moreover, “the behavioral assumptions underlying the exceptions more readily are traced to the judges’ views of human nature than to the controlled inquiry of behavioral scientists.” G. LILLY, AN INTRODUCTION TO THE LAW OF EVIDENCE 270 (1978). As such, the rules are replete with untested behavioral assumptions. The “excited utterance” exception, for example, assumes that a statement relating to a startling event made while the person was under the stress of excitement caused by the event will be more trustworthy than an ordinary statement. See FED. R. EVID. 803(2) (the hearsay rule does not exclude from evidence an “excited utterance“).

19 Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” FED. R. EVID. 801(c). For example, assume that Person A is testifying for the plaintiff against an accused physician in a medical malpractice case. Person A testifies as follows: “Person B told me last week that Physician never follows proper medical practices.” The testimony of Person A is offered to prove the truth of the matter asserted by B; in other words Person A's statement is offered as evidence to prove that Physician in fact never follows proper medical practices. Person A's testimony is hearsay because it is an in-court repetition of Person B's out-ofcourt statement, given as testimony to prove the truth of the out-of-court statement. Of course, it would not be hearsay if Person A's testimony were merely offered to prove that Person B made the statement to Person A.

20 FED. R. EVID. 802 provides that “[h]earsay is not admissible except as provided by [the Federal Rules of Evidence] or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.“

21 MCCORMICK ON EVIDENCE, supra note 16, § 245, at 726. See FED. R. EVID. art. 8 advisory committee's notes. To make the conditions for credible testimony optimal, courts have traditionally required the witness to be present in the courtroom, to be under oath, and to be subject to cross-examination. MCCORMICK ON EVIDENCE, supra note 16, § 245, at 726-27. Person B's out-of-court statements are, by definition, not made in person; nor are they made under oath. As such, Person B's perception, memory and narration cannot be directly observed or subjected to cross-examination. 5 J. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 1361 (rev. ed. 1976). Thus, the trier of fact cannot fully assess the evidentiary value of Person B's statements. MCCORMICK ON EVIDENCE supra note 16, § 245, at 727. Indeed, medical treatises have been excluded on the grounds that they constitute “unsworn testimony of another doctor or medical source.” Texas Employers’ Ins. Ass'n v. Nixon, 328 S.W.2d 809, 814 (Tex. Civ. App. 1959).

22 FED. R. EVID. 803 advisory committee's notes.

23 There is also a general catch-all exception for statements “having circumstancial guarantees of trustworthiness.” FED. R. EVID. 803(24). A court, however, must determine that the statement is offered as evidence of a material fact, that it is more probative on the point than is other evidence, and that the interests of justice will be served. Id.

24 Another category of hearsay exceptions exists under Rule 804 of the Federal Rules of Evidence. Hearsay is admitted in a situation where the declarant (Person B) is no longer living or is otherwise unavailable to testify, even though this testimony may be very untrustworthy. Thus, the rules implicitly make a preference for untrustworthy hearsay when the alternative is to lose the evidence completely. FED. R. EVID. 804(b) advisory committee's notes. Specifically, the hearsay rule does not exclude former testimony at the same or different proceeding, statements made under the belief of impending death, statements against interest, statements of personal or family history, and other statements having circumstantial guarantees of trustworthiness. FED. R. EVID. 804(b). This Article addresses only the Rule 803 exceptions.

25 In Oalmann v. Brock & Blevins Co., 428 So. 2d 892 (La. App. 1983), for example, an employee claimed to have been bitten by a flea at work and to have contracted typhus fever. Id. at 893. The appellate court ruled that it was error to admit a medical treatise since it constituted hearsay as “extrajudicial and unsworn statements by persons not available in court for cross-examination.” Id.

26 Two common-law exceptions are noteworthy. Expert witnesses generally could be cross-examined with information contained in medical treatises in order to test their credibility and reliability as experts. See Reilly v. Pinkus, 338 U.S. 269, 275 (1949); Ross v. Foss, 77 S.D. 358, 363, 92 N.W.2d 147, 150 (1958); Dabroe v. Rhodes Co., 392 P.2d 317, 321 (Wash. 1964). For a state-by-state breakdown of the case law addressing the use of learned treatises in the cross-examination of expert witnesses, see generally Annotation, Use of Medical or Other Scientific Treatises in Cross-Examination of Expert Witnesses, 60 A.L.R.2d 77 (1958)Google Scholar. In addition, although treatises from “inexact” sciences such as medicine were inadmissible, treatises from one of the “exact” sciences, such as mathematics or chemistry, could be admitted as substantive evidence. Recent Developments, 66 MICH. L. REV. 183, 184-85 (1967)Google Scholar.

27 City of Dothan v. Hardy, 237 Ala. 603, 606-07, 188 So. 264, 266-67 (1939); Lewandowski v. Preferred Risk Mutual Ins. Co., 33 Wis. 2d 69, 69, 146 N.W.2d 505, 505 (1966). Lewandowski arose as a result of an automobile accident. The trial court refused to admit into evidence the American Medical Association's Guide to the Evaluation of Permanent Impairment of the Extremities and Back. The Supreme Court affirmed this decision, but announced that in future cases, it would adopt the “better rule” of allowing the admission of medical treatises as independent evidence. Lewaridowski, 33 Wis. 2d at 76, 146 N.W.2d at 509.

28 5 J. WIGMORE, supra note 21, at § 1693. See also Note, Learned Treatises, 46 IOWA L. REV. 463 (1961)Google Scholar [hereinafter Note, Learned Treatises]. The Massachusetts “medical treatise” statute, MASS. GEN. LAWS ANN. ch. 233, § 79C (West 1986 & Supp. 1991), is of particular interest. See Kehoe, , Massachusetts Malpractice Evidentiary Statute: Success or Failure?, 44 B.U.L. REV. 10 (1964)Google Scholar (concluding that the statute does little to alleviate the severe evidentiary disadvantage which medical malpractice plaintiffs face).

29 “The problem of medical treatises as evidence presents an anomaly. Although heavily relied upon by the medical profession itself, the treatises are admitted by most courts only under stifling restrictions.” Note, Medical Treatises as Evidence — Helpful But Too Strictly Limited, 29 U. CIN. L. REV. 255, 255 (1960). Moreover, in disallowing the admission of a medical treatise in a medical malpractice case, one federal district court judge stated, “I am not concerned about what the textbooks say. Ask the man a question and get his opinion.” Brown v. Unites States, 419 F.2d 337, 342 (5th Cir. 1969).

30 Alternately a disintegration of the trial process might occur from a “battle of the books.” 4 J. WEINSTEIN & M. BERGER, WEINSTEIN's EVIDENCE § 803(18)[01], at 803-326 (M. Bender ed. 1988).

31 Stottlemire v. Cawood, 215 F. Supp. 266, 269 (D.D.C. 1963).

32 See Holz, Use of Medical and Scientific Treatises as Evidence in Wisconsin, Wis. BAR BULL., Feb. 1968, at 17-27.

33 4 J. WEINSTEIN & M. BERGER, supra note 30, § 803(18)[01], at 803-325, -326. See also 6 J. WIGMORE, supra note 15, at § 1690.

34 Alton v. Kitt, 103 111. App. 3d 387, 391, 431 N.E.2d 417, 419-20 (1982).

35 Id. at 398, 431 N.E.2d at 425.

36 Id.

37 Id. The verdict in favor of the defendants was affirmed. Id. at 400, 431 N.E.2d at 426. In another Illinois case involving the Physicians Desk Reference (PDR), a court held that the PDR could be used to establish the applicable standard of care because an expert testified that in the defendant-physician's locale, the standard of care was that the PDR should be followed. Witherell v. Weimer, 148 111. App. 3d 32, 41, 499 N.E.2d 46, 53 (1986).

38 Of course, the fact that a medical treatise is highly prominent does not necessarily make it trustworthy.

39 Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254, 256 (Ala. 1982).

40 Id. at 259 (emphasis in original) (citations omitted). The verdict was upheld. Id. at 261.

41 For example, research has indicated that although many medical journals may be well-respected, reputable and prestigious, the trustworthiness of their individual articles cannot be guaranteed. Lipton & Hershaft, supra note 10, at 345.

42 Mazzaro v. Paull, 372 Mass. 645, 363 N.E.2d 509 (1977).

43 Id. at 647-48, 363 N.E.2d at 512. The trial court also refused to admit the treatise itself. Id. at 653, 363 N.E.2d at 515. The appellate court affirmed the ruling concerning the directory on the grounds that a proper foundation was not made. Id.

44 See supra text accompanying notes 16-43.

45 Rheingold, , The Basis of Medical Testimony, 15 VAND. L. REV. 473, 485 (1962)Google Scholar.

46 FED. R. EVID. 803(18). It is of interest to note that not all commentators supported the change in the law. Some proposed that the phrase “or relied upon him in direct examination” be eliminated. See Note, Learned Treatises and Rule 8-03(b)(18) of the Proposed Federal Rules of Evidence, 5 VAL. U. L. REV. 126, 147 (1976)Google Scholar [hereinafter Note, Learned Treatises and the Proposed Federal Rules], Indeed, before appearing in the present form, several alternative forms of the Rule were proposed. For example, Rule 529 of the Model Code of Evidence provides the following:

MODEL CODE OF EVIDENCE Rule 529 (1942). Wisconsin has adopted Rule 529. Wis. STAT. ANN. § 908.03 (West 1975 & Supp. 1990). Similarly, Rule 63 of the Uniform Rules of Evidence made admissible

UNIF. R. EVID. 63 (act withdrawn 1921).

47 The following statutes have adopted Rule 803(18) verbatim: ALASKA R. EVID. 803(18); ARIZ. REV. STAT. ANN. R. EVID. 803(18); DEL. UNIF. R. EVID. 803(18); HAW. R. EVID. 803(b)(18); MINN. STAT. ANN. R. EVID. 803(18); MONT. REV. CODES ANN. § 93-3002, R. EVID. 803(18); N.C.R. EVID. 803(18); N.D.R. EVID. 803(18); OKLA. STAT. ANN. tit. 12, § 2803(18); S.D.R. EVID. 19-16-21; TEX. R. EVID. 803(18); UTAH R. EVID. 803(18); WASH. R. EVID. 803(18); and WYO. R. EVID. 803(18). 4 J. WEINSTEIN & M. BERGER, supra note 30, § 803(18)[03], at 803-333, -334.

48 For example, the Maine legislature omitted the words “or relied upon by him in direct examination” and changed “admitted” in the last sentence to “admissible.” ME. R. EVID. 803(18). The Iowa legislature made these same changes and deleted the phrase “or by other expert testimony or by judicial notice” at the end of the first sentence. IOWA R. EVID. 803(18). Oregon has a Rule comparable to FED. R. EVID. 803(18), but only regarding sexual misconduct. OR. R. EVID. 803(18a).

49 Nebraska and Ohio have no rule comparable to Rule 803(18).

50 Medical treatises are thus treated as oral testimony. 4 J. WEINSTEIN & M. BERGER, supra note 30, at 803-327. In Colorado, however, medical treatises may be received as exhibits at the court's discretion. COLO. R. EVID. 803(18).

51 4 J. WEINSTEIN & M. BERGER, supra note 30, § 803(18)[01], at 803-327.

52 id. at § 803(18)[02], at 803-331, -332.

53 As the Wisconsin Supreme Court noted, allowing the admission of medical treatises amounts to a judicial recognition of the superiority of relying upon the scientific process in the search for truth instead of upon the efficacy of an oath as a guarantee of trustworthiness. Lewandowski v. Preferred Risk Mutual Ins. Co., 33 Wise. 2d 69, 76-77, 146 N.W.2d 505, 509 (1966).

54 Strong, Questions Affecting the Admissibility of Scientific Evidence, 1970 U. ILL. L. F. 1, 6 (1970). But under the Rule, a party still needs to utilize a testifying expert in order to introduce treatise evidence. See, e.g., Generalla v. Weinberger, 388 F. Supp. 1086, 1090 (E.D. Pa. 1974) (information in medical treatise not subject to judicial notice by administrative law judge where no experts were called).

55 Learned Treatises as Direct Evidence: The Alabama Experience, 1967 DUKE L.J. 1167, 1181 n.50 (only Gray's Anatomy and the National Electric Safety Code being so authenticated).

56 In Foster v. McKeesport Hosp., 394 A.2d 1031 (Pa. Super. Ct. 1978), a personal injury case, the appellate court ruled that it was not error to prevent counsel to read passages from the Cyclopedia of Medicine and Surgery Specialties during cross-examination of an expert physician. Id. at 1034. The expert had refused to recognize this medical treatise as authoritative, and its authority was not otherwise established. Id. The fact that the expert admitted that he agreed with some of the statements in the treatise was ruled to be immaterial. Id.

57 Annotation, Treatises, Periodicals, or Pamphlets as Exception to Hearsay Rule Under Rule 803(18) of the Federal Rules of Evidence, 64 A.L.R. FED. 971, 973 (1983)Google Scholar.

58 Fornoff v. Parke Davis & Co., 105 111. App. 3d 681, 690, 434 N.E.2d 793, 801 (1982). For example, a party may be unable to secure an expert witness for live testimony.

59 4 J. WEINSTEIN & M. BERGER, supra note 30, § 803(18)[01], at 803-326 n.8. See also Agnew v. Parks, 172 Cal. App. 2d 756, 765, 343 P.2d 118, 123 (1959) (doctor who has treated or examined a patient may be compelled to testify for the patient as an ordinary witness, even though the doctor's knowledge may have been discovered through expert training).

60 Schneider v. Revici, 817 F.2d 987, 991 (2d Cir. 1987). Another court has ruled that reading at length from a treatise was improper where its authority was not previously established. Farmers Union Federated Coop. Shipping Ass'n v. McChesney, 251 F.2d 441, 445 (8th Cir. 1958).

61 4 J. WEINSTEIN & M. BERGER, supra note 30, § 803(18)[02], at 803-331.

62 J. WEINSTEIN & M. BERGER, WEINSTEIN's EVIDENCE MANUAL: A GUIDE TO THE UNITED STATES RULES BASED ON WEINSTEIN's EVIDENCE § 16.08[01], at 16-62 (1988) (a judge could establish a treatise's authoritativeness by judicial notice where “the proffered text appears on the reading list of a medical school,” or “the book in question was admitted in the course of some other litigation“).

63 McChesney, 251 F.2d at 445-46.

64 E.g., Ravenis v. Detroit Gen. Hosp., 63 Mich. App. 79, 85-86, 234 N.W.2d 411, 415 (1976).

65 In a medical malpractice action, the court ruled that a medical treatise written by registered nurses was properly excluded and that judicial notice would also have been inappropriate. Hemingway v. Ochsner Clinic, 608 F.2d 1040, 1047 (5th Cir. 1979).

66 Rheingold, supra note 45, at 473.

67 Rule 703 states the following:

FED. R. EVID. 703.

68 Rule 705 states the following:

FED. R. EVID. 705.

69 The expert witness may, of course, state certain facts within the expert's personal knowledge without offering an opinion based upon these facts. For example, a family physician may be called merely to relate observations relating to a patient. A specialist may then be called to render an opinion on these observations. No careful distinction has ever been made between these two uses, as the actual use to which the basic observations have been put is often obscured in the decision, and the practice of using medical witnesses for lay fact testimony is quite rare.

A significant difference, however, does lie between medical observations used as bases to support opinion evidence and those used as independent evidence introduced for their direct persuasive weight. Every attempt has been made to keep these two situations separate, primarily because commentators have noted that strict rules relating to evidence per se should not be applied to basic usage. Rheingold, supra note 45, at 473 n.2 (citations omitted).

70 4 J. WEINSTEIN & M. BERGER, supra note 30, § 803(18)[01], at 803-326.

71 Id. at 803-325.

72 Id.

73 Metropolitan Life Ins. Co. v. Nichols, 393 So. 2d 966, 968 (Ala. 1981) (plaintiff's counsel allowed to use statements from a textbook for the purpose of questioning the expert witness as to whether the expert witness agreed with the statements).

74 Reilly v. Pinkus, 338 U.S. 269 (1949).

75 W. at 275 (“It certainly is illogical, if not actually unfair, to permit witnesses to give expert opinions based on book knowledge and then deprive the party challenging such evidence of all opportunity to interrogate them about divergent opinions expressed in other reputable books.“).

76 MCCORMICK ON EVIDENCE supra note 16, at § 321.

77 Harrison v. Wientjes, 466 So. 2d 125 (Ala. 1985).

78 Id. at 126-27.

79 Id. at 127 n.2. For a discussion of authentication of writings in evidence, see MCCORMICK ON EVIDENCE, supra note 16, § 321, at 743-45.

80 Harrison, 466 So. 2d at 127. Alabama has a liberal learned treatise exception to the hearsay rule in that such treatises may actually be admitted into evidence during direct examination. C. GABMLE, MCELROY's ALABAMA EVIDENCE § 248.01 (3d ed. 1977).

81 See FED. R. EVID. 403, which provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence“; FED. R. EVID. 402, which provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the constitution of the United States, by Act of Congress, by [the Federal Rules of Evidence] or by other rules prescribed by the Supreme Court, pursuant to statutory authority. Evidence which is not relevant is not admissible.”

In a pre-Rule slip-and-fall case, for example, the Supreme Court of Washington affirmed the trial court's refusal to allow defense counsel to read from a medical treatise during crossexamination on the grounds that the treatise was irrelevant. The treatise dealt with traumatic neurosis and implied that litigants generally recover from their injuries after they receive a settlement. “Even if it were pertinent, it is but hearsay testimony, and on a subject entirely disconnected with the matters at issue, and does not pertain in any way to the medical profession or science of medicine, but is simply a reflection upon the honesty of individuals who meet with accidents … .” Stone v. City of Seattle, 74 P. 808, 810 (Wash. 1903).

82 Ellis v. International Playtex, Inc., 745 F.2d 292, 305-06 (4th Cir. 1984).

83 Id. at 306. (Even if the text qualified as a learned treatise under Rule 803(18), its admission would remain subject to the balancing of its probative value against the danger of prejudice under Rule 403.). See also Schneider v. Revici, 817 F.2d 987, 991 (1987) (citations omitted) (acknowledging danger inherent in a medical malpractice case, in recognizing a book authored by the defendant as a learned treatise).

83 Wall v. Weaver, 358 P.2d 1009 (Colo. 1961).

85 O'Brien v. Angley, 63 Ohio St. 2d. 159, 407 N.E.2d 490 (1980).

86 Id. at 161, 407 N.E.2d at 492.

87 Id. at 164, 407 N.E.2d at 494. Indeed, not all material published in a reputable treatise or journal is trustworthy.

Kansas City v. Dugan, 524 S.W.2d 194, 196 (Mo. App. 1975).

88 Gotten, , Survey of One Hundred Cases of Whiplash Injury After Settlement of Litigation, 162 J. A.M.A. 865, 867 (1956)Google Scholar.

89 Ross v. Foss, 77 S.D. 358, 365, 92 N.W.2d 147, 151 (1958).

90 Id. at 355-56, 92 N.W.2d at 151.

91 Price v. Cleveland Clinic Found., 33 Ohio App. 3d 301, 515 N.E.2d 931 (1986).

92 Id. at 307, 515 N.E.2d at 937.

93 Nail v. Oklahoma Children's Memorial Hosp., 710 P.2d 755 (Okla. 1985).

94 Id. at 761-62.

95 The treatise should have been admitted for the purpose of showing a prior inconsistent statement. The court ruled, however, that this was a harmless error. Id. at 762.

96 4 J. WEINSTEIN & M. BERGER, supra note 30, § 803(18)[01], at 803-325.

97 See Schneider v. Revici, 817 F.2d 987 (1987).

98 O'Brien v. Angley, 63 Ohio St. 2d 159, 407 N.E.2d 490 (1980). The Supreme Court of Ohio ruled that the admission of an editorial published in the Journal of the American Medical Association was prejudicial error. Id. at 164, 407 N.E.2d at 494. The court reviewed the treatise and determined on its own that it was “written with a view toward litigation and that it lacked the requisite indicia of objectivity and trustworthiness essential to the admissibility of such material in evidence.” Id. For a discussion of the question of admitting medical treatises written by the testifying expert, see supra text accompanying notes 91-97.

99 Note, Learned Treatises and the Proposed Federal Rules, supra note 46, at 145.

100 FED. R. EVID. 803(18) advisory committee's notes. In this regard, it is worth repeating that legal commentators have long argued that treatise evidence may actually be more reliable than live expert testimony. 6 J. WIGMORE, supra note 15, at § 1692(c). See also Note, Learned Treatises, supra note 28, at 465.

101 Indeed, since the Rules were enacted, virtually no psychology-and-law research has been conducted to verify the assumptions underlying any of the rules of evidence.

102 Revici, 817 F.2d at 991.

103 See, e.g., Petersdorf, , The Pathogenesis of Fraud in Medical Science, 104 ANNALS INTERNAL MED. 252 (1986)Google Scholar (discussing fraudulent medical treatises).

104 Woolf, , Deception in Scientific Research, 29 JURIMETRICS J. 67, 70–71 (1988)Google Scholar [hereinafter Woolf, Deception]. In fact, a substantial body of literature can provide important information about the trustworthiness of medical treatises. Indeed, writings on the sociology of science are particularly relevant. See e.g., B. BARNES, SCIENTIFIC KNOWLEDGE AND SOCIOLOGICAL THEORY (1974); L. FLECK, GENESIS AND DEVELOPMENT OF A SCIENTIFIC FACT (1979); R. MERTON, THE SOCIOLOGY OF SCIENCE: THEORETICAL AND EMPIRICAL INVESTIGATIONS (N. Storer ed. 1973); SOCIOLOGY OF SCIENCE (J. Gaston ed. 1978). Moreover, social science research illustrating problems of scientific research dates back at least 150 years. See, e.g., C. BABBAGE, REFLECTIONS ON THE DECLINE OF SCIENCE IN ENGLAND AND ON SOME OF ITS CAUSES (1830). Recently, the special problems relating to the trustworthiness of epidemiological studies (the branch of medicine studying rapidly contagious diseases or those affecting many individuals at the same time in one area) have been discussed. Feinstein, , Scientific Standards in Epidemiologic Studies of the Menace of Daily Life, 242 SCIENCE 1257 (1988)Google Scholar.

105 Sechrest, , Approaches to Ensuring Quality of Data and Performance: Lessons for Science?, in SCIENTIFIC EXCELLENCE 260 (Jackson, D. & Rushton, J. eds. 1987)Google Scholar. For other examples of dubious “medical treatises,” see Hunt, Fraud that Shook the World of Science, N.Y. Times, Nov. 1, 1981, § 6 (Magazine), at 42-43; Sechrest, supra.

106 E.g., Bierman, , BCG Immunoprohylxis of Recurrent Herpes Progenitalis, 112 ARCHIVES DERMATOLOGY 1410 (1976)Google Scholar.

107 Lipton & Hershaft, supra note 10, at 339.

108 Grouse, , Editorial: Dealing with Alleged Fraud in Medical Research, 248 J. A.M.A. 1637, 1639 (1982)Google Scholar.

109 Stewart, & Feder, , The Integrity of the Scientific Literature, 325 NATURE 207, 214 (1987)Google Scholar. See also The Maintenance of High Ethical Standards in the Conduct of Research: Report of the Ad Hoc Committee of AAMC, 30 CLINICAL RES. 429 (1982).Google Scholar

110 J. DIRCKX, Dx + Rx: A PHYSICIAN's GUIDE TO MEDICAL WRITING 100 (1977).

111 Bailar, , Science, Statistics, and Deception, 104 ANNALS INTERNAL MED. 259, 260 (1986)Google Scholar. Of course, pressure to publish fails to explain the fraud among pre-modern scientists. Bridgstock, , A Sociological Approach to Fraud in Science, 18 AUSTL. & N.Z.J. Soc. 364, 365-66 (1982)Google Scholar.

112 petersdorf, supra note 103, at 253.

113 Among the members of the Commission were four Nobel Laureates.

114 Special Comm'n Internal Pollution, Towards Assessing the Chemical Age: Summary of Deliberations, 1974, 234 J. A.M.A. 507 (1975)Google Scholar.

115 ilsId. at 509.

116 Barrett, The Premed Machine, WASH. MONTHLY, May 1985, at 41. Even though the results indicate that cheating is of concern to both faculty and students, a questionnaire study reported a low rate of cheating on examinations by medical students. Stimmel, & Yens, , Cheating by Medical Students on Examinations, 73 AM. J. MED. 160, 167 (1982)Google Scholar.

117 Culliton, , Coping With Fraud: The Darsee Case. 220 Sci. 31 (1983)Google Scholar; Knox, , Deeper Problems for Darsee: Emory Probe, 249 J. A.M.A. 2867 (1983)Google Scholar; Knox, , The Harvard Fraud Case: Where Does the Problem Lie﹜, 249 J. A.M.A. 1797 (1983)Google Scholar; Lee, , Letter to the Editor: Fraud in Medical Research, 251 J. A.M.A. 215 (1984)Google Scholar; Butterfield, Ellis Doctor Under Suspicion Anew, Albany Times Union, Apr. 24, 1983, at 3-4; Spencer, Dr. Darsee's Fate to be Decided by Ellis, Schenectady Gazette, Apr. 12, 1983, at 27.

118 Sechrest, supra note 105, at 256.

119 Relman, , Lessons from the Darsee Affair, 308 NEW ENG. J. MED. 1415 (1983)Google Scholar.

120 Culliton, supra note 117, at 31.

121 New guidelines for authorship of medical papers have recently been proposed. Huth, , Guidelines on Authorship of Medical Papers, 104 ANNALS INTERNAL MED. 269 (1986)Google Scholar.

Huth also outlined related problems such as unjustified authorship and repetitive publication. Huth, , Irresponsible Authorship and Wasteful Publication, 104 ANNALS INTERNAL MED. 257 (1986)Google Scholar [hereinafter Huth, Irresponsible Authorship]. For a discussion of problems associated with authorship credit in psychology, see Spiegel, & Keith-Spiegel, , Assignment of Publication Credits: Ethics and Practices of Psychologists, 25 AM. PSYCHOLOGIST 738 (1970)Google Scholar. For a discussion of problems associated with authorship credit in general, see D. KENNEDY, O N ACADEMIC AUTHORSHIP (1985); Burman, K., “Hangingfrom the Masthead:” Reflections on Authorship, 97 ANNALS INTERNAL MED. 602 (1982)Google Scholar.

122 Stewart & Feder, supra note 109, at 210-12.

123 Braunwald, , On Analysing Scientific Fraud, 325 NATURE 215, 215 (1987)Google Scholar. Note, of course, that scientific fraud is not restricted to medicine, but has also been found in psychology. See Hostetler, NIMH Sends Fraud Case to Justice, AM. PSYCHOLOGICAL A. MONITOR, July 1987, at 18 [hereinafter Hostetler, Fraud Case to Justice]; Hostetler, Fraud Inquiry Revives Doubt: Can Science Police Itself﹜, AM. PSYCHOLOGICAL A. MONITOR, May 1987, at 1 [hereinafter Hostetler, Fraud Inquiry],

124 Relman, supra note 119, at 1417. Journal referees are “reviewers that editors will call in for consultation… . They will submit to the editor reports which specific criticisms and generally recommend whether to publish.” L. NASH, THE NATURE OF THE NATURAL SCIENCES 300 (1963).

125 Relman, supra note 119, at 1416.

126 Id. at 1415.

127 Grouse, supra note 108, at 1637.

128 Peters, & Friedman, , Letter to the Editor: Publication Investigation, 81 AM. J. MED. 1126, 1126 (1986)Google Scholar.

129 But see Stewart & Feder, supra note 109, at 214 (“science, vulnerable to abuse by its practitioners, is more vulnerable to harm by regulation“).

130 Moulding, , Letter to the Editor: A Way to Reduce Insidious Scientific Fraud, 2 LANCET 262, 262 (1981)Google Scholar.

131 Braunwald, supra note 123, at 216.

132 Huth, Irresponsible Authorship, supra note 121, at 257-58.

133 J. DIRCKX, supra note 110, at 102.

134 M. O'CONNOR, THE SCIENTIST AS EDITOR 37 (1979).

135 Sechrest, supra note 105, at 257. Sechrest also discusses other sources of research error, including carelessness, unreliability of measures and lapses from protocol. Id. at 259.

136 Leehey, , Yates, & Shisslak, , Letter to the Editor: Alteration of Case Reports in “Running — An Analogue of Anorexia?“, 310 NEW ENG. J. MED. 600, 600 (1984)Google Scholar.

137 See supra text accompanying notes 34-43.

138 Physicians Who Falsify Drug Data, 180 SCIENCE 1038 (1973).

139 id. at 1038.

140 Special Comm'n Internal Pollution, supra note 114, at 509. Similarly, Sechrest cited the 1982 case of a scientist who admitted to having fabricated data on drug testing in order to try to save a financially troubled biochemical company that was supporting his research. Sechrest, supra note 105, at 256. There have also been criminal indictments of drug company officers for data fabrication. See also Garmon, , Since the Giant Fell, 120 SCIENCE NEWS 11 (1981)Google Scholar.

141 Woolf, Deception, supra note 104, at 68 (“the incidence of scientific fraud and deception appears to be increasing“). See also Holden, , NIMH Review of Fraud Charges Moves Slowly, 234 SCIENCE 1488 (1986)Google Scholar; Marshall, , Academy Sued on “Plagiarized” Diet Report, 247 SCIENCE 1022 (1990)Google Scholar; Marshall, , San Diego's Tough Stand on Research Fraud, 234 SCIENCE 534 (1986)Google Scholar; Marshall, , USDA Admits “Mistake” in Doctoring Study 247 SCIENCE 522 (1990)Google Scholar; Shapiro, & Charrow, , The Role of Data Audits in Detecting Scientific Misconduct, 261 J. A.M.A. 2505 (1989)Google Scholar.

142 For a survey of fraudulent science among federally and privately funded projects, see Woolf, Deception, supra note 104, at 73-75. But see Koshland, , Fraud in Science, 235 SCIENCE 141, 141 (1987)Google Scholar (science is 99.9999% pure).

143 See, e.g., 42 U.S.C.A. § 289 (West 1991) (pertaining to institutional review boards) and regulations promulgated thereunder; 21 U.S.C.A. § 355(i) (West 1972 & Supp. 1991) (pertaining to drug testing).

144 Stern, Harvard: Top Doctor Plagiarized, USA Today, Nov. 29, 1988, at 3A.

145 Shapiro, & Charrow, , Scientific Misconduct in Investigational Drug Trials, 312 NEW ENG. J. MED. 731 (1985)Google Scholar.

146 Special Comm'n Internal Pollution, supra note 114, at 509.

147 Woolf, Deception, supra note 104, at 78. Of course, as Woolf points out, there may be a confound in that proportionately more research in general is conducted at the more prestigious medical schools and in these “hot” areas.

148 Certainly, as evidenced by the recent establishment of the Office of Scientific Integrity and the Office of Scientific Integrity Review within the United States Public Health Service, the executive branch is becoming more cognizant of the fraud problem. Moreover, it has been suggested that the False Claims Act, 31 U.S.C. §§ 3729-3731 (1983 & Supp. 1990), could be used to prosecute scientific fraud in federally funded research. Palca, , Old Law Puts a New Wrinkle in Fraud Probe, 247 SCIENCE 802, 802 (1990)Google Scholar. See also Culliton, , Fraudbusters Back at NIH, 248 SCIENCE 1599, 1599 (1990)Google Scholar.

149 G. GOLDSTEIN, A CLINICIAN's GUIDE TO RESEARCH DESIGN X (1980).

150 See, e.g., BOURKE & MCGILVRAY, INTERPRETATION AND USES OF MEDICAL STATISTICS (2d ed. 1975); J . ENGLAND, MEDICAL RESEARCH: A STATISTICAL AND EPIDEMIOLOGICAL APPROACH (1975).

151 J. ENGLAND, supra note 150, at 124 (citing Schor, & Karten, , Statistical Evaluation of Medical Journal Manuscripts, 195 J. A.M.A. 1123, 1123-38 (1966)Google Scholar).

152 Lipton & Hershaft, supra note 10, at 337 (citing G. BOURKE & J. MCGILVRAY, supra note 150); Casscells, , Schoenberger, , & Graboys, , Interpretation by Physicians of Clinical Laboratory Results, 299 NEW ENG. J. MED. 999, 1000 (1978)Google Scholar.

153 O'Fallon, , Dubey, , Salsburg, , Edmonson, , Soffer, & Colton, , Should There Be Statistical Guidelines for Medical Research Papers?, 34 BIOMETRICS 687, 688 (1978)Google Scholar [hereinafter O'Fallon & Dubey].

154 Wollins, , Responsibility for Raw Data, 17 AM. PSYCHOLOGIST 632, 657 (1982)Google Scholar.

155 These are known as Type I errors.

156 These are known as Type II errors.

157 Atkinson, , Furlong & Wampold, , Statistical Significance, Reviewer Evaluations, and the Scientific Process: Is There A (Statistically) Significant Relationship?, 29 J. COUNSELING PSYCHOLOGY 189, 192 (1982)Google Scholar.

158 Sechrest also concluded that errors in design and analysis are very common, further underscoring the need to question the trustworthiness of learned medical treatises. Sechrest, supra note 105, at 259-60. See also Levenstein & Bishop, Analysis and Reporting as Causes of Controversies, in CONTROVERSIES IN CLINICAL CARE (V. Rosenoer & M. Rothschild eds. 1981) (discussing commonly-made statistical errors and how to correct them).

159 Lipton & Hershaft, supra note 10, at 337.

160 Id.

161 E.g., A. BARABAS & J. CALNAN, WRITING MEDICAL PAPERS: A PRACTICAL GUIDE (1973); J. DIRCKX, supra note 110; H. DUDLEY, THE PRESENTATION OF ORIGINAL WORK IN MEDICINE AND BIOLOGY (1977). Again, it is of interest to take note of the rather elementary nature of such handbooks, further suggesting the lack of research expertise of many physicians.

162 Warren, , Selective Aspects of the Biomedical Literature, in COPING WITH THE BIOMEDICAL LITERATURE 17, 20 (Warren, K. ed. 1981)Google Scholar. See also Ney, , Letter to the Editor: Thefoumal Glut, 222 SCIENCE 456, 456 (1983)Google Scholar.

163 Reiffenstein, , Schiltroth, & Todd, , Current Standards in Reported Drug Trials, 99 CAN. MED. AJ. 1134, 1134 (1968)Google Scholar.

164 Sackett, , How to Read Clinical Journals: Why to Read Them and How to Start Reading Them Critically, 124 CAN. MED. A.J. 555, 556 (1981)Google Scholar.

165 Id. at 556-57.

166 Ratnoff, How to Read a Paper, in COPING WITH THE BIOMEDICAL LITERATURE, supra note 162, at 96 (emphasis added) (implying that actually reading an article is not of primary importance).

167 Lipton & Hershaft, supra note 10, at 344.

168 Id.

169 Woolf, , Pressure to Publish and Fraud in Science, 104 ANNALS INTERNAL MED. 254, 254 (1986)Google Scholar [hereinafter Woolf, Pressure to Publish]. Further, Lipton and Hershaft outlined some of the personal and psychological reasons why physicians publish research. Lipton & Hershaft, supra note 10, at 338.

170 Cole, & Cole, , Scientific Output and Recognition: A Study in the Operation of the Reward System in Science, 32 AM. SOC. REV. 377 (1967)Google Scholar. See also Merton, , Priorities in Scientific Discovery, 22 AM. Soc. REV. 635 (1957)Google Scholar.

171 Angell, , Publish or Perish: A Proposal, 104 ANNALS INTERNAL MED. 261, 261 (1986)Google Scholar; Stossel, , Volume: Papers and Academic Promotion, 106 ANNALS INTERNAL MED. 146, 147-48 (1987)Google Scholar.

172 But see Chernin, First, Do No Harm, in COPING WITH THE BIOMEDICAL LITERATURE, supra note 162, at 50 (considering the purposes of publishing medical research, while “money is not one of them, staying employed is“).

173 Strasburger, , Commentary: Righting Medical Writing, 254 J. A.M.A. 1789, 1790 (1985)Google Scholar. See also Woolf, Pressure to Publish, supra note 169. In an empirical study of medical school faculty publications, publication quality as well as quantity was assessed. The measurement of the quality of a learned treatise — frequency of citations — could have some applicability in the assessment of the trustworthiness of a learned treatise in court. Krumland, , Will, & Gorry, , Scientific Publications of Medical School Faculty, 54 J. MED. EDUC. 876, 877 (1979)Google Scholar. But note that conceptual problems are involved in using citation counts as a measure of quality. Dieks, & Chang, , Differences in Impact of Scientific Publications: Some Indices Derived From Citation Analysis, 6 Soc. STUD. SCI. 247 (1976)Google Scholar; Moravcsik, , & Murugesan, , Some Results on the Function and Quality of Citations, 5 Soc. STUD. SCI. 86 (1975)Google Scholar.

174 O. HARLEM, COMMUNICATION IN MEDICINE: A CHALLENGE TO THE PROFESSION 74 (1977).

l75 Hagstrom, , Competition in Science, 39 AM. SOC. REV. 1, 16 (1974)Google Scholar.

176 Stossel, , Speed: An Essay on Biomedical Communication, 313 NEW ENG. J. MED. 123, 123 (1985)Google Scholar.

177 Lipton & Hershaft, supra note 10, at 338. For further discussion of the implications of the publish-or-perish syndrome among medical researchers, see Levenstein & Bishop, supra note 158, at 22.

178 See Booth, , Conflict of Interest Eyed at Harvard, 242 SCIENCE 1497 (1988)Google Scholar. Of course, potential conflicts of interest can and do arise in areas other than pharmaceutical research. In a study on biomechanical heel pain, for example, researchers relied on the experience of two subjects to conclude that “[s]ymptoms from heel spur syndrome have been alleviated by the use of Birkenstock sandal” and to suggest that further investigation is warranted. Weiner, , Ross, & Bogdan, , Biomechanical Heel Pain: A Case Study: Treatment by Use of Birkenstock Sandals, 69 J. AM. PODIATRY A. 723, 726 (1979)Google Scholar. The heel pain project was supported by a grant from the Birkenstock Footprint Sandal Company. Id. at 723.

179 See, e.g., Barber, , Resistance by Scientists to Scientific Discovery in THE SOCIOLOGY OF SCIENCE 539 (Barber, B. & Hirsch, W. eds. 1962)Google Scholar. On the other hand, perhaps the cautiousness among physicians in accepting new research information is actually indicative of the efficacy of self-regulation of treatise quality. Coleman and his colleagues conducted a large-scale empirical study of the diffusion of medical innovations, classifying physicians as either “innovators” or “conservatives” according to their willingness to accept a new finding. The results of the Coleman studies revealed that an impressive 90% of physicians awaited confirmation from at least two sources before prescribing a new drug. Lipton & Hershaft, supra note 10, at 337 (citingj. COLEMAN, E. KATZ & H. MENZEL, MEDICAL INNOVATION: A DIFFUSION STUDY (1966)). See also Coleman, , Menzel, & Katz, , Social Processes in Physicians’ Adoption of a New Drug, 9 J. CHRONIC DISEASE 1 (1959)Google Scholar. But see Lipton & Hershaft, supra note 10, at 337 (documenting the widespread acceptance among physicians of a “negative discovery,” that is, a finding that a drug or therapy is not effective).

180 D. CRANE, INVISIBLE COLLEGES: DIFFUSION OF KNOWLEDGE IN SCIENTIFIC COMMUNITIES 35 (1972). Seeako Woolf, , The Second Messenger: Informal Communication in Biomedical Science, 13 MINERVA 349 (1975)Google Scholar. Although these “invisible colleges” serve important functions, their existence makes the control and the empirical evaluation of the dissemination of medical information rather illusive.

181 Yokote, & Utterback, , Time Lapses in Information Dissemination: Research Laboratory to Physician's Office, 62 BULL. MED. LIBR. A. 251 (1974)Google Scholar.

182 Price, & Beaver, , Collaboration in an Invisible College, 21 AM. PSYCHOLOGIST, 1011, 1011 (1966)Google Scholar.

183 D. CRANE, supra note 180, at 43-48.

184 O. HARLEM, supra note 174, at 74.

185 The importance of the socialization process among scientific practitioners is also of importance. R. MERTON, supra note 104, at 500. More recently, Sechrest explained the “absorption” process concerning the training of scientists. Sechrest, supra note 105, at 268.

186 One implication of this phenomenon might be for the law to appreciate or consider the opinions of medical experts even when their testimony cannot be directly linked to a specific medical treatise. See FED. R. EVID. 703. The rule provides, in relevant part, that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify there to. in the form of an opinion or otherwise.“

187 See Zuckerman, & Merton, , Patterns of Evaluation in Science: Institutionalization, Structure, and Functions of the Referee System, 9 MINERVA 66, 66–67 (1971)Google Scholar.

188 O'Fallon & Dubey, supra note 153, at 687-88.

189 Rennie, , Editorial: Guarding the Guardians: A Conference on Editorial Peer Review, 256 J. A.M.A. 2391, 2391 (1986)Google Scholar.

190 Id. at 2391.

191 C. BISHOP, HOW TO EDIT A SCIENTIFIC JOURNAL 43 (1984).

192 Rennie, supra note 189, at 2391.

193 Landers, Should Editors Be Detectives, Too?, AM. PSYCHOLOGICAL A. MONITOR, Dec. 1988, at 15.

194 E.g., Bailar, supra note 111; Lipton & Hershaft, supra note 10, at 338; Gore, , Jones, & Rytter, , Misuse of Statistical Methods in BMJ from January to March, 1976, 1 BRIT. MED. J. 85 (1977)Google Scholar; Schor, , & Karten, , Statistical Evaluation of Medical Journal Manuscripts, 195 J. A.M.A. 1123, 1149 (1966)Google Scholar.

195 O'Fallon & Dubey, supra note 153, at 689-90.

196 See S. LOCK, A DIFFICULT BALANCE: EDITORIAL PEER REVIEW IN MEDICINE 27 (1985); Crane, , The Gatekeepers of Science: Some Factors Affecting the Selection of Articles for Scientific Journals, 2 AM. SOC. 195, 195 (1967)Google Scholar.

197 J. ZIMAN, PUBLIC KNOWLEDGE: AN ESSAY CONCERNING THE SOCIAL DIMENSION OF SCIENCE 111 (1968).

198 S. LOCK, supra note 196, at 46.

199 L. NASH, supra note 124, at 305.

200 S. LOCK, supra note 196, at 27, 72-74. See also Relman, , Editorial: How Reliable are Letters?, 308 NEW ENG. J. MED. 1219, 1219 (1983)Google Scholar.

201 Merton, , The Matthew Effect in Science, 159 SCIENCE 56, 59 (1968)Google Scholar.

202 Emerson, & Colditz, , Use of Statistical Analysis in the New England Journal of Medicine, 309 NEW ENG.J. MED. 709, 711 (1983)Google Scholar.

203 Sheps, & Schechter, , The Assessment of Diagnostic Tests: A Survey of Current Medical Research, 252 J. A.M.A. 2418, 2420-21 (1984)Google Scholar. In a particularly innovative social science study, previously published papers in the field of psychology were resubmitted to the same journals in which they were published, with only the names of the authors and their institutions fictionalized. Only eight percent of the reviewers detected the resubmissions. This may indicate faulty plagiarism detection mechanisms. Manwell, & Baker, , Reform Peer Review: The Peters and Ceci Study in the Context of Other Current Studies of Scientific Evaluation, 5 BEHAV. & BRAIN SCI. 221, 222 (1982)Google Scholar.

Perhaps more striking is that 80% of the reviewers recommended against publishing the papers. Peters, & Ceci, , Peer-Review Practices of Psychological Journals: The Fate of Published Articles Submitted Again, 5 BEHAV. & BRAIN SCI. 187, 188 (1982)Google Scholar. In response, however, a physicist argued that the results of the Peters and Ceci study are unique to psychology and do not generalize to the hard sciences, citing to the “relative simplicity and objectivity of physics” and the “complexity and subjectivity of many areas of psychology.” Adair, , A Physics Editor Comments on Peters and Ceci's Peer-Review Study, 5 BEHAV. & BRAIN SCI. 196, 196 (1982)Google Scholar. The Peters and Ceci study was the subject of other serious criticism. Armstrong, , Barriers to Scientific Contributions: The Author's Formula, 5 BEHAV. & BRAIN SCI. 197, 197 (1982)Google Scholar (Peters’ and Ceci's paper was previously rejected for publication by American Psychologist); Crandall, , Editorial Responsibility in Manuscript Review, 5 BEHAV. & BRAIN SCI. 207, 207 (1982)Google Scholar (claiming Peters’ and Ceci's study is methodologically flawed).

204 Rennie, supra note 189, at 2391.

205 For a discussion of the recent controversy over Masters, Johnson & Kolodny, Crisis: Heterosexual Behavior in the Age of AIDS, see Monmaney, , The AIDS Threat: Who's At Risk?, NEWSWEEK, Mar. 14, 1988, at 42–44Google Scholar.

206 One commentator, however, reports on the instance of an editor of the Canadian Journal of Chemistry detecting fraud in a submitted paper and preventing its publication. Woolf, Deception, supra note 104, at 93.

207 Upton & Hershaft, supra note 10, at 345. But see Rennie, , Editors and Auditors, 261 J. A.M.A. 2543, 2544 (1989)Google Scholar (advocating that medical journal editors be “police” for scientific fraud). In fact, problems associated with scientific “whistleblowing” have been at the root of the misconduct problem for over a decade. See WHISTLEBLOWING IN BIOMEDICAL RESEARCH (J. Swazsey & S. Scher eds. 1981).

208 See supra text accompanying notes 149-163.

209 See supra text accompanying notes 168-177.

210 See supra text accompanying notes 186-207. s.

211 Sechrest, supra note 105, at 269. Of course, considering how much is riding on the trustworthiness of medical treatises from the perspective of the treatise author and the author's institution, one would expect that the error-detection mechanisms to be quite highly developed.

212 See supra text accompanying notes 117-130.

213 See Davis, , Government and Quality in Science, 246 SCIENCE 736 (1989)Google Scholar (discussion of Office of Scientific Integrity within the National Institute of Health and the Office of Scientific Integrity Review within the Department of Health and Human Services).

214 Contra Perry v. United States, 755 F.2d 888, 892 (11th Cir. 1985) (“the examination of a scientific study by a cadre of lawyers is not the same as its examination by others trained in the field of science or medicine“).

215 For a discussion of the Breuning affair, see infra note 257 and accompanying text.

216 One commentator believes that

Comroe, , Publish and/or Perish, 113 AM. REV. RESPIRATORY DISEASE 561, 564 (1976)Google Scholar.

217 E.g., Richardson v. Richardson-Merrell, 857 F.2d 823, 831 (D.C. Cir. 1988) (noting that studies rejected by an expert witness had been published in peer-reviewed scientific journals, while the expert's recalculations had neither been published nor offered for peer review).

218 Lipton & Hershaft, supra note 10.

219 Bierman, supra note 106.

220 Lipton & Hershaft, supra note 10, at 338-39. For many years, BCG vaccine has been applied as a prophylaxis against mycobacterrium tuberculosis infections. P. BEESON, W. MCDERMOTT & J. WUNGAARDEN, CECIL TEXTBOOK OF MEDICINE (15th ed. 1979). There have also been reports on successful BCG treatment of animals with herpes. Morahan, , Kern, & Glasgow, , Immunomodulator-Induced Resistance Ag'aint Herpes Simplex Virus, 154 PROC. SOC'Y EXPERIMENTAL BIOLOGY & MED. 615, 615-20 (1977)Google Scholar; Starr, , Visintine, , Tomeh, & Nahmias, , Effects of Immunostimulants on Resistance of Newborn Mice to Herpes Simplex Type 2 Infection, 152 PROC, SOC'Y FOR EXPERIMENTAL BIOLOGY & MED. 57, 57–60 (1976)Google Scholar.

221 Bierman listed two separate “control groups” in his Table 1, but provided little elaboration. Bierman, supra note 106, at 1412.

222 Id. at 1414.

223 Id. at 1411.

224 Id.

225 Of course, because Bierman's study included only 38 subjects, a competent multiple regression analysis could not be performed. Bierman could have either increased his sample size or conducted correlational techniques that are suitable to small samples. See F. KERLINGER & E. PEDHAZUR, MULTIPLE REGRESSION IN BEHAVIORAL RESEARCH 446-47 (1973) (any multiple regression analysis, and especially those with many independent variables, should have at least 100 subjects, preferably 200 or more).

226 Bierman, supra note 106, at 1411 (emphasis added).

227 See supra note 6 and accompanying text.

228 Bierman, supra note 106, at 1411.

229 Id. at 1412.

230 Bierman, , Double-Blind Cross-Over Study of Levamisole as Immunoprophylaxis for Recurrent Herpes Progenitalis, 21 CUTIS 352, 353 (1978)Google Scholar.

231 Jarratt, , Smith, & Knox, , Therapy of Herpes Simplex Infection, 18 INT'LJ. DERMATOLOGY 357, 359 (1981)Google Scholar.

232 A. KING, C. NICOL & P. RODIN, VENEREAL DISEASES 329, 332 (4th ed. 1980).

233 Hirsch, & Swartz, , Drug Therapy: Anitviral Agents, 302 NEW ENG. J. MED. 949, 952 (1980)Google Scholar (emphasis added).

234 Brown, , Kern, , Spruance, & Overall, , Clinical and Virologic Course of Herpes Simplex Genitalis: Medical Progress, 130 W.J. MED. 414, 415 (1979)Google Scholar (emphasis added).

235 Sklar, & Buimovici-Klein, , Adenosine in the Treatment of Recurrent Herpes Labialis, 48 ORAL SURGERY 416, 416, 417 (1979)Google Scholar.

236 Shore, & Nahmias, , Immunology of Herpes Simplex Viruses, 9 COMPREHENSIVE IMMUNOLOGY 21, 60, 61 (1982)Google Scholar.

237 Raab, & Lorinz, , Genital Herpes Simplex: Concepts and Treatment, 5 J. AM. ACADEMY DERMATOLOGY 249, 258 (1981)Google Scholar.

238 Hirsch, Herpes Simplex Virus, in PRINCIPLES AND PRACTICE OF INFECTIOUS DISEASES 1291 (G. Mandell, R. Douglas & J. Bennett eds. 1979) (emphasis added).

239 FITZPATRICK, EISEN, WOLFF, FREEDBERC & AUSTIN, DERMATOLOGY IN GENERAL MEDICINE 1598 (2d ed. 1979).

240 See Lipton & Hershaft, supra note 10, at 344. This analysis also has implications for the unreliability of expert testimony based on medical treatises. See supra text accompanying notes 108-217.

241 Except, of course, the paper by Lipton & Hershaft. See supra note 10.

242 Monahan, , & Walker, , Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. PA. L. REV. 477, 499 (1986)Google Scholar.

243 In the field of psychology, a noted debate has concerned the admissibility of expert testimony about eyewitness testimony. See Loftus, , Silence is Not Golden, 38 AM. PSYCHOLOGIST 564 (1983)Google Scholar; McCloskey, & Egeth, , Eyewitness Identification: What Can a Psychologist Tell a Jury?, 38 AM. PSYCHOLOGIST 550 (1983)Google Scholar.

244 Davis, , An Approach to Problems of Evidence in the Administrative Process, 55 HARV. L. REV. 364, 418 (1942)Google Scholar.

245 Lipton & Hershaft, supra note 10, at 344.

246 Id. at 339, 346.

247 Of course, cost is an obvious practical concern.

248 For example, the cross-examination could cover in detail the qualifications and background of the treatise author; the publication source, including its editorial procedures; and the research methodology of the study, including issues of sample size and sampling, control, procedure, statistics, and internal and external validity.

249 See supra text accompanying notes 108-U17.

250 See generally Miller, , Cross-Examination of Expert Witnesses: Dispelling the Aura of Reliability, 42 U. MIAMI L. REV. 1073 (1988)Google Scholar (an analytical framework of Rules 702-705 of the Federal Rules of Evidence as they apply to expert testimony, offering approaches to cross-examination which would combat the liberality of the rules and the deference often accorded trained professionals).

251 Jury instructions should be drafted individually for each case, based on the evidence at issue. The following is provided as an example of possible jury instructions relating medical treatises:

252 The appointment of special masters is provided for in FED. R. CIV. P. 53: The court in which any action is pending may appoint a special master. “Master” includes a referee, an auditor, an examiner, and an assessor. Id. The evaluation of medical treatise evidence could also be done by members of a specially constituted science court. The special master or science court members, of course, would need to be experts in scientific methodology as well as in the substantive area of inquiry. Rather than having a special master or science court merely serving in an advisory role, a more radical approach would be to have a “sciencejury” actually serve as the finder of fact in appropriate cases.

253 See Sechrest, , Social Science and Social Policy: Will Our Numbers Ever Be Good Enough?, in SOCIAL SCIENCE AND SOCIAL POLICY 63 (Shotland, R. & Mark, M. eds. 1985)Google Scholar.

254 Sechrest, supra note 105, at 254. In fact, just as Lipton and Hershaft analyzed the widespread acceptance of a specific dubious medical finding, Lipton & Hershaft, supra note 10, at 339, Treadway and McCloskey recently conducted a similar analysis of a published social science study. Treadway, & McCloskey, , Cite Unseen: Distortions of the Allport and Postman Rumor Study in the Eyewitness Testimony Literature, 11 LAW & HUM. BEHAV. 19 (1987)Google Scholar

255 See, e.g., S. GOULD, THE MISMEASURE OF MAN (1981); L. HEARNSCHAW, CYRIL BURT, PSYCHOLOGIST (1979); Dorfman, , The Cyril Burt Question: New Findings, 201 SCIENCE 1177 (1978)Google Scholar; Jones, Obsession Plus Pseudo-Science Equals Fraud: Sir Cyril Burt, Intelligence and Social Mobility, AUSTRL. & N.Z.J. Soc., March 1980, at 48; Samelson, J.B. Watson's Little Albert, Cyril Burt's Twins, and the Need for a Critical Science, 35 AM. PSYCHOLOGIST 619 (1980)Google Scholar.

256 Fisher, Debate Rages on 1973 Sobell Study, AM. PSYCHOLOGICAL A. MONITOR, NOV. 1982, at 8-9; Fisher, The Spreading Stain of Fraud, AM. PSYCHOLOGICAL A. MONITOR, NOV. 1982, at 1, 7-8. See also Sechrest, supra note 253, at 63 (discussing controversies involving the reported as compared to the actual number of latchkey and missing children).

257 Bales, Breuning Pleads Guilty in Scientific Fraud Case, AM. PSYCHOLOGICAL A. MONITOR, Nov. 1988, at 12. Breuning was sentenced to 60 days in a halfway house and to five years probation. In addition, he had to pay back $11,352, serve 250 hours of community service and abstain from psychological research for at least the period of his probation. Scientist Given A 60-Day Term for False Data, N.Y. Times, Nov. 12, 1988, at 7, col. 6.