asking him whether he agrees with them. The extracts with which the witness is confronted on cross-examination do not, however, become affirmative evidence in the case.
An entirely different principle is involved when a party seeks to propound questions of this type to his own expert witness on direct examination. Such interrogation on direct examination may possibly be pursued for either one of two reasons, neither of which is permissible. It may be done in order to corroborate and fortify the witness' opinion if the extract read to him agrees with his views. To do so, however, would, in effect, be to make the publication evidence in support of the party's case without subjecting the author to cross-examination. The other possible purpose for which this course might be followed, is to contradict the expert witness if the opinion expressed by him on the witness stand is not as favorable as was expected by the party who called him. Obviously this was attempted in the case at bar. Assuming that a party is not bound by the testimony of a witness whom he, himself, calls, and that he may contradict him by other witnesses, he may not do so by confronting the witness with publications, the authors of which are not subject to cross-examination. The publications themselves are not admissible in evidence independently, and to bring them to the notice of the jury in this indirect manner would be to defeat the rule against their admission, United States v. One Device, etc., (C.A. 10th) 160 F.2d 194, 198; Atlanta Corporation v. Olesen, (SD-Calif.) 124 F.Supp. 482, 488.
The case last cited involved an action to enjoin the enforcement of a fraud order issued by the Postmaster General against the sale of a device to beautify women. Testimony was taken before a Hearing Examiner of the Post Office Department. One of the errors assigned by the plaintiff was that the Hearing Examiner precluded him from interrogating his expert witnesses on direct examination concerning medical books and treatises. The Court overruled this contention in the following language (p. 488):
'Finally, Atlanta contends that it was prevented from using medical books and treatises during the course of its direct examination of its expert witnesses. We think the examiner's ruling was correct. There is a major distinction between the use of medical text and treatises on direct examination and on cross.'
Maryland has applied the same rule in Allison v. State, 203 Md. 1, 98 A.2d 273, 275. An expert witness was called and asked on direct examination whether he agreed with certain statements in a textbook, which were read by counsel to the jury. The Court sustained an objection to the question. The Court of Appeals stated:
'We find no error. Medical textbooks are not admissible as such or in the direct examination of experts.'
To the same effect are Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170; and Eckleberry v. Kaiser Foundation Northern Hospitals, 226 Or. 616, 359 P.2d 1090, 1092, 84 A.L.R.2d 1327. In the last cited case the Court pointed out that the only conceivable purpose that could have been served by interrogating an expert witness on direct examination concerning a treatise in his field and asking him whether he agreed with the statement contained in it, was either to offer the book as independent evidence, or to impeach the experts of the opposing party. The Court pointed out that neither purpose was permissible.
If treatises and other publications on technical matters were admissible in evidence, it is conceivable that a Court or jury might find itself confronted with a large number of extracts from textbooks, treatises, and articles espousing varying views or different schools of though on some technical question. The trier of the facts would not be aided by any cross-examination or any other method of testing the weight to be accorded to the various statements. For a layman to endeavor to reach a conclusion by a comparison of published technical statements that have not been tested in the crucible, would not be conducive to a just and intelligent solution of a disputed matter of this kind. Consequently, practical considerations as well as legal principles lead to the exclusion of such evidence. Exactly the same considerations apply to an effort to introduce such statements as part of the direct examination of a party's own expert and thereby either corroborate or contradict his oral testimony.
For the foregoing reasons, this Court upon further consideration of its ruling excluding the evidence in question, has determined to adhere to it.
Accordingly, the motion for a new trial is denied.
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