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13. The passage is
A plaintiff sued a defendant for psychiatric malpractice and called another doctor as an expert witness. During the witness's direct testimony, the witness identified a text as a reliable authority in the field. He seeks to read to the jury passages from this book on which he had relied in forming his opinion on the proper standard of care.
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An expert witness may state an opinion or conclusion, provided that: (i) it is relevant and reliable; (ii) the witness is qualified as an expert; (iii) the expert possesses reasonable probability regarding his opinion; and (iv) the opinion is supported by a proper factual basis. Fed. R. Evid. 702.
As to the factual basis, an expert's opinion may be based upon one or more of three possible sources of information: (i) facts that the expert knows from his own observation; (ii) facts presented in evidence at the trial and submitted to the expert; or (iii) facts not in evidence that were supplied to the expert out of court, and which are the type reasonably relied upon by experts in the particular field in forming opinions on the subject. The expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination. Fed. R. Evid. 705.
Under FRE 803(18), the learned treatise hearsay exception, a learned treatise may be substantively admissible if it is: (i) called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; and (ii) established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. If the court finds a publication to be a reliable authority, then «statements» from it may be read into evidence, but the publication may not be received as an exhibit. Thus, the jury is not allowed to bring learned treatises into the jury room. There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case. The intent of the rule is that juries need to be guided through the pertinent parts of the publication by the testifying experts.
A is correct. An expert witness is permitted to offer an opinion assuming that, among other requirements, his opinion is relevant and reliable. Fed. R. Evid. 702. One of the avenues that an expert witness may use to support his opinion is through a learned treatise, which is admissible as an exception to the hearsay rule. Fed. R. Evid. 803(18). Under this Rule, a learned treatise is substantively admissible as long as it's relied upon during direct examination (or brought up during cross) and established as a reliable authority. Here, the passage in the text is admissible both as the basis of the witness's opinion and as substantive evidence as to the proper standard of care. Applying the learned treatise exception, the witness established the text as a reliable authority in his direct testimony, and therefore, to the extent relied upon by the witness in direct examination, the passage from the text is admissible as substantive evidence of the proper standard of care. In addition, the passage can be used as the basis of his opinion.
B is incorrect. It is true that the passage is admissible as the basis for the expert's opinion. However, because the learned treatise exception applies, the passage is also admissible as substantive evidence to establish the proper standard of care.
C is incorrect. This is a correct statement of law, but it is inapplicable to the facts presented in this case. The passage testified to by the expert witness is not being offered for the purpose of bolstering his credibility. It is being offered to show the basis for his opinion and to establish the proper standard of care.
D is incorrect. This is an incorrect statement of the law governing the learned treatise exception to the hearsay rule. The passage is admissible as substantive evidence because it has been established as reliable, and therefore, it may be read to the jury by the witness. Moreover, the passage may not be received as an exhibit by the jury under the learned treatise exception.