Jones v. Bloom ( 1972 )

Swainson, J.

On March 27, 1964, Jennifer Jones, aged ten, was taken by her mother, Hazel O’Banner, to see Dr. George Logwood, the family dentist. Dr. Logwood informed Mrs. O’Banner that Jennifer needed oral surgery and referred her to defendants’ clinic. On Saturday, March 28, 1964, Mrs. O’Banner and Jennifer went to defendants’ clinic between 8:00 and 8:30 a.m. They were asked by the receptionist if they had an appointment and they replied that they did not. The receptionist informed them that the clinic was quite busy and that they would not be able to take Jennifer until after lunch. Mrs. O’Banner was then given a white piece of paper to fill out, which she did. She returned the paper to the receptionist.

Plaintiff and her mother then went to a friend’s house in the neighborhood, where they remained until approximately 11:15 a.m. Jennifer said she was hungry, and they stopped at a restaurant about a block from the clinic where Jennifer had a hamburger, a coke, and custard cream pie. They finished eating about 12:45 p.m., and walked back to the clinic. Jennifer was called by the receptionist at approximately 1:50 p.m. Mrs. O’Banner testified that when Jennifer was taken from the reception room to the room where the extractions were to be performed, she was crying and shaking and very agitated. She testified that Jennifer was not given any examination and that neither her blood pressure nor her temperature was taken. The only question the doctor asked upon first seeing Jennifer was why she was crying.

An injection of methol hexitol was administered by Dr. Attenson, in order to induce general anesthesia. Two teeth were removed by Dr. Attenson, which took one and one-half to two minutes. After the extractions, Jennifer suffered a cardiac arrest and stopped breathing. Resuscitative measures were instituted immediately and plaintiff’s heart was started again. It was not until evening that Jennifer was transferred to Sinai Hospital by ambulance. She remained in a coma for ten weeks. Jennifer suffered permanent brain damage, impaired functioning of her arms and legs, body tremors, and a speech defect. Defendants do not dispute the fact that Jennifer sustained extensive damage.

Plaintiff’s complaint, filed on February 27, 1969, alleged malpractice on the part of defendants in administering to plaintiff a general anesthetic after she had ingested a meal and, alternatively, that no premedication was administered prior to the anesthetic, which caused plaintiff to remain over-excited and induced her to go into shock brought on by the general anesthetic.

At the trial, plaintiff’s attorney attempted to cross-examine Dr. Attenson by reading excerpts from textbooks which Dr. Attenson testified he recognized as authoritative. It is conceded that Dr. Attenson had not relied upon these textbooks as authority for answers to previous questions, and the trial court, relying on previous Michigan Supreme Court decisions, refused to permit such cross-examination. The jury returned a verdict of no cause of action. In view of the importance of the issue involved, we granted leave to appeal prior to decision by the Court of Appeals. 384 Mich 760.

Plaintiff lists 13 issues on appeal. The key issue is whether the trial court committed reversible error in refusing to allow plaintiff’s counsel the right to use standard medical textbooks in cross-examining an expert witness when the expert witness recognized the textbooks as authoritative? The other issues, which will be considered together, concern whether the trial court made prejudicial rulings so as to unfairly prejudice plaintiff and to require a new trial?

I.

THE MICHIGAN RULE

The first Michigan case dealing with this issue of reading textbooks to the jury was People v Hall, 48 Mich 482, 490-491 (1882). Defendant Hall had been tried and convicted of murder. On appeal, the Supreme Court reversed. The Court held that it was improper to read medical books to the jury. Justice Campbell, speaking for the Court, stated:

"We observe that resort was had to reading medical books to the jury, the record not showing, however, what matters were thus laid before them. If this was anything it was evidence, and probably evidence which was used with some effect. The practice is not permissible. Scientific or expert testimony must be given by living witnesses who can be cross-examined concerning their means of knowledge and can explain in language open to general comprehension what is necessary for the jury to know. * * * The cases must be very rare in which any but an educated physician could understand detached passages at all, or know how much credit was due to either the author in general or to particular parts of his book. If jurors could be safely trusted with the interpretation of such books, it is hard to see on what principal living witnesses would be required. Scientific men are supposed to be able from their study and experience to give the general results accepted by the scientific world, and the extent of their knowledge is tested by their personal examination. But the continued changes of view brought about by new discoveries in most matters of science, and the necessary assumption by scientific writers of some technical knowledge in their readers, render the use of such works before juries —especially in detached portions and selected passages —not only misleading but dangerous. The weight of authority as well as of reason is against their reception.”

Thus was stated the rule that medical textbooks could not be read to a jury as direct evidence. The rule was at that time accepted by all states except Alabama.¹ However, the reasoning used in Hall, which concerned reading extracts to the jury on direct examination, was applied in later cases to varying fact situations.

The next Michigan case to deal with this issue was Pinney v Cahill, 48 Mich 584 (1882). This has long been cited as one of the leading cases on the subject. Cahill had hired plaintiffs horse and the animal became sick and died. Plaintiff filed suit for damages. The Supreme Court affirmed the jury’s verdict in favor of defendant. Plaintiff’s expert witness, a veterinary surgeon, stated that colic (from which the horse died) was caused by over-driving and feeding when the animal was too warm; that all works of good authority spoke of it, and that Modern Horse Doctor was a work of that kind. Defendant, over plaintiffs objection, introduced a statement from the book tending to discredit plaintiffs expert’s statement. The trial court held that this was not error. The Supreme Court stated (pp 586-587):

"The rule is acknowledged in this State that medical books are not admissible as a substantive medium of proof of the facts they set forth. But the matter in question was not adduced with any such view. The witness assumed to be a person versed in veterinary science; to be familiar with the best books which treat of it and among others with the work of Dodd. He professed himself qualified to give an opinion to the jury from the witness stand on the ailment of the plaintiffs horse and its cause, and the drift of his opinion was to connect the defendant with that ailment. He borrowed credit for the accuracy of his statement by referring his learning to the books before mentioned and by implying that he echoed the standard authorities like Dodd. Under the circumstances it was not improper to resort to the book, not to prove the facts it contained, but to disprove the statement of the witness and enable the jury to see that the book did not contain what he had ascribed to it. The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a false light. The case is a clear exception to the rule which forbids the reading of books of inductive science as affirmative evidence of the facts treated of. Ripon v Bittel, 30 Wis 614 (1872); 2 Whart. Ev. § 666.”

Two factors of this decision are significant: First, the Court stated, "The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a false light.” Thus, the Court recognized that the attempt to discredit the witness was a legitimate purpose in the use of textbooks. Second, the Court said: "The case is a clear exception to the rule which forbids the reading of books of inductive science as affirmative evidence of the facts treated of.” By stating that this was "a clear exception,” the Court recognized that there could be other exceptions to the rule.

In Marshall v Brown, 50 Mich 148 (1883), plaintiff had sued defendant, a druggist, for negligence in giving her sulphate of zinc instead of Epsom salts. She recovered at her first trial and the Supreme Court reversed. On retrial, she again recovered a verdict, and the Supreme Court again reversed. The Court stated (p 150):

"One error occurred, however, which it is impossible to overlook. It was decided in People v Hall, 48 Mich 486 (1882), that it was not competent to read professional books to the jury as evidence. The decision had not been made when this case was tried the second time; if it had been the error now complained of would, probably, not have been committed.

"On the cross-examination of Dr. Wood, a witness for the defendant, he was asked if he was acquainted with a certain book. He replied that he had heard of it but had not read it. He was then asked, whether it was considered good authority, and he said it was. He was then requested to read a certain paragraph during the recess of the court. When the court convened again, he was recalled and counsel reading from the book the paragraph to which his attention had been called, asked him whether there was a case reported of taking sulphate of zinc, followed by vomiting, purging, and death? As this was what the paragraph stated, the evident purpose of the question was to put the passage from the book in this indirect manner before the jury, instead of reading from it directly. The witness demurred to this method of examination, but was required to answer and did so.

"The case differs from Pinney v. Cahill, 48 Mich 584 (1882), where a medical book was produced to contradict a witness who professed to be testifying from it.”

The Court thus extended the doctrine of People v Hall which dealt with substantive evidence on direct examination to cases involving cross-examination without any discussion as to whether the reasoning should apply in such situation.

The next case dealing with this issue was People v Millard, 53 Mich 63 (1884). The Court, in excluding excerpts from medical books, pointed out that these excerpts were introduced on direct examination as well as on cross-examination. Thus, to the extent that the excerpts were introduced on direct examination, the Court properly followed the rule laid down in People v Hall. However, it could not be precedent for the view that medical excerpts could not be introduced on cross-examination to test the knowledge of witnesses. A close reading of People v Millard primarily indicates the Court’s concern that textbooks which were not really authoritative on the subject would be introduced in evidence.

In People v Vanderhoof, 71 Mich 158, 179-180 (1888), the Court, in following the rule laid down in earlier cases, recognized the unfair burden that it placed upon the party opposed to the experts, by stating:

"We do not find any error in the rulings as to medical books. The court seems to have followed as consistently as possible the rulings of this Court. See Pinney v. Cahill, 48 Mich. 584 (12 N.W. Rep. 862) [1882]; Marshall v. Brown, 50 Id. 148 (15 N.W. Rep. 55) [1883]; People v. Millard, 53 Id. 77 (18 N.W. Rep. 562) [1884],

"The expert has, or may take, perhaps, advantage of his position, under these authorities, and state that his opinion is derived from standard works; and if he fails to remember what particular books he has read, or what particular books he has culled his authority from, there is, under the previous decisions of this Court, no way in which to contradict the assertion he makes. But it is the settled law of this State that the contents of medical books cannot be got before the jury, unless, as in the case of Pinney v. Cahill, supra, the expert is unwise enough to state that a certain book lays down a certain proposition. The fact that an expert witness can, if he be shrewd enough, carry an idea to the jury that he has fortified his opinion upon a given state of facts by an extensive reading of medical authorities, and yet keep himself clear from any contradictions from the books themselves, is another potent reason why this kind of evidence should be closely hedged and confined within its legitimate sphere, and that no unfairness should be permitted in its presentation to a jury. Unless it is so kept within bounds, and closely scanned and weighed by a jury, there is the greatest danger of a perversion of justice.”

Thus, despite the fact the Court recognized the great dangers in allowing expert witnesses to testify and then not be effectively cross-examined, the Court continued to follow the Michigan rule. The rulings of these earlier cases have been followed by the Court with very little discussion in Fox v Peninsular White Lead & Color Works, 84 Mich 676 (1891);² Hall v Murdock, 114 Mich 233 (1897); Foley v Grand Rapids & Indiana R Co, 157 Mich 67 (1909); In re DuBois’ Estate, 164 Mich 8 (1910); Sykes v Portland, 193 Mich 86 (1916); People v McKernan, 236 Mich 226 (1926); DeHaan v Winter, 258 Mich 293 (1932); DeHaan v Winter, 262 Mich 192 (1933); Detroit v Porath, 271 Mich 42 (1935); and Anderson v Jersey Creamery Co, 278 Mich 396 (1936).³

In Anderson, the Court said (p 402):

"In People v. Millard, 53 Mich. 63, the reason for this rule is discussed at length. It is shown that the hearsay testimony of written opinions of other persons should not be submitted to a jury which has no means of examining the author as to his learning, honesty and sources of special knowledge. See, also, City of Detroit v. Porath, 271 Mich. 42; People v. McKernan, 236 Mich. 226; DeHaan v. Winter, 258 Mich. 293, and DeHaan v. Winter, 262 Mich. 192.”

Thus, the Court recognized that the Michigan Supreme Court had not extended a thorough consideration to this issue since 1884. Moreover, there has been no case since 1936 which has even mentioned the problem.

The reasons given by the Court for not permitting such cross-examination were that the value of the particular authority was unknown, it could be unfairly used before the jury, and the contents of the book were hearsay.

We will now look at decisions from other jurisdictions which have dealt with this same issue.

II.

The problem of the cross-examination of expert witnesses by the use of textbooks is an issue that has received a great deal of attention by courts and commentators alike. Several objections have been raised to allowing textbooks to be used on cross-examination. The first objection mentioned by the Michigan Supreme Court was that the use of this testimony was hearsay.⁴

One of the earliest cases to deal with this issue was Laird v Boston & Maine R, 80 NH 377, 117 A 591 (1922), which involved a suit for negligence where plaintiff recovered a verdict and judgment. Plaintiff had cross-examined defendant’s experts by the use of textbooks, and the Supreme Court of New Hampshire held this was proper. The Court stated (pp 377-379):

"The exception to evidence has been argued upon the theory that the plaintiff used the published opinion of an acknowledged authority as the basis for the cross-examination of the defendant’s expert witness. The use of standard authorities to discredit such a witness is a matter upon which there is much diversity of opinion. The general practice in this state has been to permit such use upon cross-examination. State v. Wood, 53 N.H. 484 [1873]; Burnham v. Stillings, 76 N.H. 122 [79 A 987 (1911)].

"The objection to such procedure upon the ground that it violates the hearsay rule and permits the use of opinions which are not subject to cross-examination is unsound, or else it proves too much. If the opinion of one who is an authority cannot be used at all unless the holder of it be sworn and be subject to cross-examination, by what logic can the same inadmissible opinion be used as a basis for the admissible opinion of the expert witness? The opinion of the expert, qualified by study, is admitted as an exception to the hearsay rule. It is known to be founded upon the assertions of others. 1 Wig., Ev. s. 687. Whether it shall be admitted or rejected depends upon the witness’ familiarity with the hearsay. Unless he is thoroughly versed in that hearsay, he is not qualified to testify. The reasoning of courts excluding inquiries about the authorities, upon the cross-examination of the expert, leads directly to the conclusion that the opinion of the expert should have been excluded. If the cross-examination puts before the jury the unsworn opinion of the authority, the direct testimony of the expert does the same thing, with the added infirmity involved in his recollection of what the authorities say.

"The objection to this procedure is unsound for another reason. It appearing that certain printed books are received by the profession as authorities and as truly setting forth the views of certain authors, opinions based thereon are admitted in evidence. When the witness is confronted with the contents of one of these books which denies the views he has expressed, the issue presented is not whether the book states the true opinion of the author, but whether the witness has honestly and intelligently read and applied what is set down in the books. Baldwin v. Gaines, 92 Vt. 61 [102 A 338 (1917)].

"The argument which has prevailed in some jurisdictions is that the result of such cross-examination is to put before the jury, as positive evidence, the unsubstantiated opinions of the authorities referred to. The assertion that the object of counsel is not attained unless this is so (Allen v. Railway, 212 Mass. 191 [98 NE 618 (1912)]), is not warranted by the situation presented. The books abound in instances of evidence admissible and received for one purpose, but not for another. Before the improper use, or the objectionable motive, can be dealt with there must be proof of their existence. Neither is to be inferred from the mere fact that it might exist. The view that the opinions used upon cross-examination thereby become positive evidence leaves wholly out of consideration the fact that such opinions, being the foundation for the witness’ opinion, are used solely to test its value, and assumes that trial courts and juries are either unable or unwilling to deal intelligently and fairly with restricted evidence. Darling v. Westmoreland, 52 N.H. 401, 412 [1872]. The inference that such use of the authorities was treated as substantive evidence is not drawn in this state, in the absence of proof. 'It cannot be inferred from the record of the cross-examination of Dr. Beaton that counsel understood he was putting the dispensatory into the case as substantive evidence, or was doing anything except seeking admissions from the witness to weaken the force of his testimony.’ Burnham v. Stillings, supra, 127.

"Neither the illogical rule that hearsay should be received upon the direct testimony of an expert and excluded from his cross-examination, nor the idea that all expert opinion should be excluded because it violates the hearsay rule, has been adopted in this state. Opinions are here received whenever it appears that they will be helpful. State v. Killeen, 79 N.H. 201, 202 [107 A 601 (1919)], and cases cited. And since the opinions are received, the just and reasonable corollary is that their value is open to investigation. The opponent may be permitted to test this value for various reasons and in various ways. There may be occasion to inquire whether the opinion is an honest one. Does it really express the views of the witness? If it be honest, doés it represent the unanimous hearsay conclusion, or only a fragment of it? Has the witness made himself familiar with all the useful hearsay upon the subject, or only a part? Having testified to the sum of the useful hearsay, he may justly be inquired of touching the units of which the sum is composed.

"Cases where there is an evident abuse of this right by reading extended extracts from the authorities under the pretence of asking questions, or where the standing of the author (the fact that he is one of the authorities) rests upon the assertion of counsel, are not in point here. It was proved that Dr. Wood is an eminent authority, and the question objected to related directly and simply to the point in issue.

"No fact which tends directly to qualify or discredit the opinion given by the witness can be held to be inadmissible upon his cross-examination, as matter of law. The whole field of hearsay knowledge upon the subject is open to such investigation because of the nature of the opinion which has been received. How far this field can profitably be explored in a given case, is a matter to be determined by the justice who presides at the trial. His conclusion one way or the other is one of fact, and therefore not reviewable here. Nawn v. Bail-road, 77 N.H. 299 [91 A 181 (1914)].”

In Darling v Charleston Community Memorial Hospital, 33 Ill 2d 326; 211 NE2d 253; 14 ALR3d 860 (1965), plaintiff sued for damages for allegedly negligent medical and hospital treatment which necessitated the amputation of his right leg below the knee. He recovered a judgment of $150,000 which was reduced by $40,000, the amount of the settlement with the doctor. The Supreme Court affirmed as to the $110,000. One of the issues raised on appeal was the cross-examination of defendant’s expert by the use of textbooks. The court stated (p 336):

"An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues. (Cf. Model Code of Evidence, Rule 529.) The author’s competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.”

Wigmore in his treatise (6 Wigmore, Evidence [3d ed], § 1691), stated that the primary reason for the allowance of this evidence is that of necessity:

"The ordinary expert witness, in perhaps the larger proportion of the topics upon which he may be questioned, has not a knowledge derived from personal observation. He virtually reproduces, literally or in substance, conclusions of others which he accepts on the authority of the eminent names responsible for them. If, whenever this is discovered, we are to reject the evidence absolutely, then on all such matters the only resource is to search for a qualified expert, who may or may not be available within the jurisdiction. Even where such a person is legally procurable (all the chances being against it except in a few centres of population), the expense is frequently disproportionate. Costly litigation is the parasite of justice; and we pay too high a price when we refuse to accept our information from a competent source ready at hand.”

Moreover, Wigmore stated that the circumstances attending publication of a learned treatise gave a fair probability of trustworthiness. Section 1692 reads:

"(a) There is no need of assuming a higher degree of sincerity for learned writers as a class than for other persons; but we may at least say that in the usual instance their state of mind fulfils the ordinary requirement for the Hearsay exceptions, namely, that the declarant should have 'no motive to misrepresent.’ They may have a bias in favor of a theory, but it is a bias in favor of the truth as they see it; it is not a bias in favor of a lawsuit or of an individual. Their statement is made with no view to a litigation or to the interests of a litigable affair. When an expert employed by an electric company using the alternating or the single current writes an essay to show that the alternating current is or is not more dangerous to human life than a single current, the probability of his bias is plain; but this is the exceptional case, and such an essay could be excluded, just as any Hearsay statement would be if such a powerful counter-motive were shown to exist.

"(b) The writer of a learned treatise publishes primarily for his profession. He knows that every conclusion will be subjected to careful professional criticism, and is open ultimately to certain refutation if not well-founded; that his reputation depends on the correctness of his data and the validity of his conclusions; and that he might better not have written than put forth statements in which may be detected a lack of sincerity of method and of accuracy of results. The motive, in other words, is precisely the same in character and is more certain in its influence than that which is accepted as sufficient in some of the other Hearsay exceptions, namely, the unwelcome probability of a detection and exposure of errors * * * .

"(c) Finally, the probabilities of accuracy, such as they are, at least are greater than those which accompany the testimony of so many expert witnesses on the stand. The abuses of expert testimony, arising from the fact that such witnesses are too often in effect paid to take a partisan view and are practically untrustworthy, are too well-known to repeat * * * . It must be conceded that those who write with no view to litigation are at least as trustworthy, though unsworn and unexamined, as perhaps the greater portion of those who take the stand for a fee from one of the litigants.

"It may be concluded, then, that there is in these cases a sufficient circumstantial probability of trustworthiness. The Court in each instance should in its discretion exclude writings which for one reason or another do not seem to be sufficiently worthy of trust.”

Our Court, while not accepting in earlier cases Wigmore’s conclusion of admissibility, has recognized the serious problems of the reliability of the expert’s opinion. Justice Morse, speaking for the Court, further stated in People v Vanderhoof, supra, 168:

"This case illustrates most forcibly the dangerous character of expert testimony, which has so often been called to the attention of the courts, and challenged by them. Here were professors from the University, and eminent physicians from the section of the State where the alleged crime was committed, summoned by the power of the people, and paid high prices per diem, for the purpose of establishing the fact that Vanderhoof must have died from the effects of arsenic administered before death. From the position they were employed to hold they could not be dislodged by the most rigid cross-examination, which laid before and fully presented to them the facts which, for a period of something over two years, by the people’s own witnesses, from the lips of those who knew Vanderhoof while living, tended to show that the deceased was troubled with the same symptoms which culminated in his death, and which, as they admitted, might be attributable to heart disease. Nearly every one of them, at last, was obliged to rest his assumption of death by arsenical poisoning upon the fact that arsenic was found in the body after death.”

The Court continued (p 172):

"It has been declared by the courts that expert testimony is not of the best or highest order, and that it is extremely dangerous, unless well guarded, and closely confined within its legitimate province. It is often necessary, as in this case, in order that justice may be done; and without it the truth cannot always be determined. But it is a fact well known to every practitioner at the bar, and within the judicial knowledge of courts, I think, that latterly the experts, on both sides of a cause, become too often eager attorneys before the trial is ended and before their testimony is given. It therefore becomes desirable, and necessary to the due administration of justice, that the scope and power of their utterances shall not be extended; that they shall be held strictly to the rules laid down for their guidance and control. Especially should this be so in criminal cases, where the liberty for life of the accused is at stake.”

Thus, our Court has consistently recognized that the expert testimony of witnesses is in all probability far less reliable than the testimony that is derived from textbooks. The fact that the textbooks used on cross-examination would contain hearsay material is not a sufficient justification to prevent this type of cross-examination in view of the countervailing arguments in favor of admissibility.⁵

A second argument used to exclude cross-examination of experts by the use of textbooks is that science is shifting; that new discoveries quickly outdate medical textbooks and thus such books are not trustworthy.⁶ This, however, is not a satisfactory objection. If a book is outdated, the expert will refuse to recognize it as authority. If a new discovery has occurred since the publication of the textbooks, the expert has the opportunity to explain this to the jury. (Indeed, in such a situation, the expert’s credibility would be enhanced since he would appear to be more knowledgeable than the textbooks.)

6 Wigmore, Evidence (3d ed), § 1690, states:

"There is ignorant exaggeration in these charges. They attribute to the entire body of scientific knowledge the instability due to casual rapid progress in certain departments of the sciences; and they ignore even in those departments the small proportion which the field of possible change bears to the large area of established truth. But, leaving this aside, we find that the objection is in itself inconsistent with accepted legal practices, and would if consistently applied exclude all testimony even on the stand from scientific witnesses. For if these works are rejected because they may not embody the latest results of science, what shall be said of specialist witnesses in general? Out of the hundreds of scientific experts who are this month testifying in courts of justice, how many are speaking from a thorough acquaintance with the latest researches in their subjects? For how many of them is it possible to maintain steady pace with the daily progress of science? How many are not testifying on information obtained at a medical or other technical school a decade or more ago, in the standard books of that day? It is true, where conflicting views are advanced and an expert cannot state his views to be founded on the most recent investigations, that his views are naturally entitled to inferior weight; but could it seriously occur to any one to exclude all experts from the stand, not because this or that one has in fact no acquaintance with the recent literature of his profession, but because many among the whole body may not possess such acquaintance?”⁷

Two other reasons not cited by the Michigan Supreme Court, have been offered by other courts in preventing the use of textbooks on cross-examination. They are: 1) that there is danger in confusing a jury by technical passages without oral comment and simplification; and 2) that the treatises may be used unfairly by taking passages which are explained away or contradicted in other parts of the book.⁸

The simple answer to both of these assertions is that opposing counsel may either ask questions of his client to explain the meaning of technical passages, or point out that the text is inaccurate, or, he may call other experts to take the stand to explain the technical passages.⁹

We, therefore, believe that none of these objections is sufficient to prevent the use of recognized texts as a means of cross-examining expert witnesses. Moreover, another consideration militates in favor of the use of textbooks in the cross-examination of expert witnesses. That consideration is the practical difficulty in obtaining experts to testify in malpractice cases. As our Court recognized in People v Vanderhoof, supra, 172-173:

"In this case the experts were all on one side. It is claimed, and the evidence would seem to warrant the claim, that the respondent was not able to hire experts to testify in her behalf. It is probable that in cases of this kind the truth will ever be clouded with the sophistry of scientists until some way or method is devised by which expert witnesses can be procured who will be, and remain through the trial, entirely uninterested and unbiased, not only in the result of the trial, but also in the maintenance of their own peculiar notions or theories in regard to matters presented to them upon the trial. Until the time comes when experts shall be entirely fair and unbiased, with no desire upon the witness-stand except .to arrive at the truth, it must be the duty of the courts to see that no injustice be done, if that be possible.”

We, therefore, hold that medical textbooks or other publications may be used to cross-examine expert witnesses if the expert recognizes the publication as authoritative, or if the trial court takes judicial notice of the publication as authoritative. See Darling v Charleston Community Memorial Hospital, supra, 336.¹⁰ Dolcin v Federal Trade Comm, 94 US App DC 247, 252 (fn 4); 219 F2d 742, 746 (fn 4) (1954).

Great caution must be exercised by the trial court to ascertain that the authority cited is pertinent to the subject matter under consideration and passages which are irrelevant are not admitted into evidence. See O'Dowd v Linehan, 385 Mich 491 (1971).

III.

Of great persuasion to our rule that the use of textbooks in the cross-examination of the testimony of expert witnesses, even though the expert witness does not state that he relies on the specific authority but does recognize the text as authoritative, are the rulings of the highest tribunals of our sister states in this regard. When our Court last considered this problem in Anderson v Jersey Creamery Co, supra, the states of California, Colorado, Illinois, Iowa, Massachusetts, New Jersey, North Carolina, North Dakota, South Carolina, Vermont and Wisconsin, all supported the Michigan rule. See Annotation — Cross-Examination of Expert, 82 ALR 448. However, since that time, the states of California (Gluckstein v Lipsett, 93 Cal App 2d 391; 209 P2d 98 [1949]; Salgo v Leland Stanford Jr. University Board of Trustees, 154 Cal App 2d 560; 317 P2d 170 [1957]); Illinois (Darling v Charleston Community Memorial Hospital, supra); North Dakota (Iverson v Lancaster, 158 NW2d 507 [ND 1968]); New Jersey (Ruth v Fenchel, 37 NJ Super 295; 117 A2d 284 [1955], aff'd 21 NJ 171; 121 A2d 373 [1956]), have all modified the rule to some extent. Annotation: Expert Witness — Cross Examination, 60 ALR2d 87-95.

The United States Supreme Court, which had recognized the narrow Michigan rule in Davis v United States, 165 US 373; 17 S Ct 360; 41 L Ed 750 (1897), recognized a more liberal approach in Reilly v Pinkus, 338 US 269; 70 S Ct 110; 94 L Ed 63 (1949).¹¹ Our sister state of Illinois in Darling v Charleston Community Memorial Hospital, supra, recently recognized the rule that we accept today. The Supreme Court of New Jersey in Ruth v Fenchel, supra, also recognized the liberal rule.

Moreover, the drafters of the Model Code of Evidence and the Uniform Rules of Evidence would go beyond this rule and permit the admissibility of textbooks as substantive evidence. Thus, the clear trend of the courts and the commentators is to permit a liberalization of the restrictions against cross-examination and allow the cross-examination of medical experts by the use of authoritative medical textbooks. We, therefore, hold that the trial court committed error in excluding plaintiffs cross-examination of defendants’ expert witness by the use of such textbooks. To the extent that earlier Michigan cases prevented such cross-examination, they are overruled.

We have thoroughly reviewed plaintiffs 12 other allegations of error and find no merit to any of them.

The judgment is reversed and the cause is remanded for a new trial. Costs to plaintiff.

T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Williams, JJ., concurred with Swainson, J.

1 Stoudenmeier v Williamson, 29 Ala 558 (1857).

2 This case is distinguishable on its facts from other cases involving cross-examination of medical experts. Plaintiffs counsel stated in their brief to the Supreme Court that their purpose in using medical texts was to prove that their views were sustained by standard medical authorities. This is not a permissible purpose even in states following the most liberal rule.

3 This is the last case in Michigan which has been cited on the subject of cross-examination of medical experts. In Anderson, the trial court in granting a motion non obstante veredicto relied almost solely on textbooks and on other evidence not introduced at trial. The Supreme Court reversed holding that a decision must be on the record as made at the trial. Thus, this case did not even involve the issue of the cross-examination of medical experts.

4 People p Hall, supra 490; People v Millard, supra 76; DeHaan v Winter, 262 Mich 192, 197 (1933); Ware v Ware, 8 Me 42, 56 (1831); Ashworth v Kittridge, 12 Cush 193, 194 (Sup Jud Ct; Mass 1853); Gallagher v Market Street R Co of San Francisco, 67 Cal 13; 6 P 869 (1885); Weyh v Chicago City R Co, 148 Ill App 165, 168 (1909); Percoco’s Case, 273 Mass 429, 430-431; 173 NE 515 (1930); Tilghman v Seaboard Air Line R Co, 171 NC 652, 657; 89 SE 71 (1916).

5 For other authorities dealing with this objection to the use of textbooks to cross-examine expert witnesses, see Holz, Learned Treatises as Evidence in Wisconsin, 51 Marquette L Rev 271 (1967-1968); Dana, Admission of Learned Treatises in Evidence, 1945 Wis L Rev 455, 459-460; Ruth v Fenchel, 37 NJ Super 295; 117 A2d 284 (1955), aff'd 21 NJ 171; 121 A2d 373 (1956).

6 Wilcox v International Harvester Co of America, 198 Ill App 33, 40 (1916), aff'd 278 Ill 465; 116 NE 151 (1917).

7 See, also, Kern v Pullen, 138 Or 222, 227; 6 P2d 224 (1931).

8 This appeared to be a concern of our Court in People v Millard, 53 Mich 63, 76 (1884): "If the opinion of an author could be received at all, it should be from his own words — not in single passages, but in combination.” See, also, Connecticut Mutual Life Insurance Co v Ellis, 89 Ill 516, 519-520 (1878), where the Court stated: "Great care should always be taken by the court to confine such cross-examination within reasonable limits, and to see that the quotations read to the witness are so fairly selected as to present the author’s views on the subject of the examination.”

9 For an example where counsel for plaintiff was permitted to read a full statement from a textbook on redirect examination after counsel for defendant had read a partial statement on cross-examination, see State v Bess, 60 Mont 558, 569-570; 199 P 426 (1921).

10 Many cases that do not follow the liberal rule actually are based on the fact that the textbooks in question were not recognized authorities. These decisions are correct on their facts but are often incorrectly used as precedent for a restrictive rule of cross-examination of experts. See Dolan v O’Rourke, 56 ND 416; 217 NW 666 (1928); Drucker v Philadelphia Dairy Products Co, 35 Del 437; 166 A 796, 798 (1933); Farmers Union Federated Cooperative Shipping Assn v McChesney, 251 F2d 441, 445 (CA 8, 1958); Briggs v Chicago Great Western R Co, 238 Minn 472; 57 NW2d 572 (1953); Eckleberry v Kaiser Foundation Northern Hospitals, 226 Or 616; 359 P2d 1090 (1961); Wall v Weaver, 145 Colo 337, 339, 341; 358 P2d 1009 (1961); Ross v Colorado National Bank of Denver, 170 Colo 436, 445; 463 P2d 882 (1969).

11 The Court stated (p 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.”