Experts' Use of Published Materials Subject to Cross-Examination

In a recent Los Angeles Superior Court jury trial which arose from a multiple rear-end automobile accident, the jury found in favor of plaintiff for $69,000 after a 16-day trial. Plaintiff had asked the jury for $7.2 million in damages.

Plaintiff was diagnosed with fibromyalgia six months after the accident. Plaintiff contended her injuries were caused by the accident and that she had no prior history of "classic" symptoms of a sleep disorder. Defendants claimed that plaintiff did, in fact, have preexisting symptoms, including a sleep disorder, and argued that the diagnosis of fibromyalgia could reasonably have been made prior to the accident. Defendants also contended that scientific literature indicated that fibromyalgia is not caused by trauma.

What is interesting about this trial is that the defense successfully applied Evidence Code section 721(b)(3), which was revised in 1997 to allow the cross-examination of an expert witness regarding "the content or tenor of any scientific, technical or professional text, treatise, journal or similar publication...(where) the publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice." The prior law essentially required that the expert must have "referred to, considered, or relied upon such publication in arriving at or forming his or her opinion" before the expert could be cross-examined regarding the content or tenor of the treatise or publication.

The defense was able, because of this change in the law, to present evidence of a consensus of opinions in the relevant medical community that there is no evidence that fibromyalgia is caused by trauma, and the experts' acquiescence to the proposition that, in most cases, fibromyalgia is not disabling. This is important because experienced expert witnesses previously would not admit that they referred to, considered or relied upon learned treatises to prevent this type of cross-examination, which can be very effective in persuading a jury that the expert is contradicting the literature when forming the basis of his opinions. This then ties into the jury instruction which explains ". . . [I]n determining what weight to give any such opinion, you should consider...the facts or materials upon which each opinion is based, and the reasons for each opinion."

Mr. Pasarow is a Director in the firm's Litigation Department specializing in casualty defense litigation.E-mail:
Mr. Kassabian is an Associate in the firm's Insurance Coverage and Law and Motion Departments. E-mail: