makes only for more compound fractures of our decisions—of which already there are too many.

The majority says, without quotation or reference:

"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 crossexamination.'

This just isn't right, either in record or actual fact. Rather than argue with the Court over a matter of such critical nature, I have instead included by separate appendix (post p. 17) all of Dr. Attenson's cross-examination that might possibly be said as having formed a basis for review of stated question 2. Careful reading of that appendix, by the profession, is respectfully invited. I need but quote here the parts with respect to which the trial judge took part, leaving the rest for contemplative reading of the more lengthy appendix:

"The Court: ***Now, let me ask you this. Is this book an authority? "The witness: It is one of many.

"The Court: Okay. And do you base your opinion upon this book, the opinions that you have experienced as to how anesthetics should be administered?

"The witness: Well, honestly, I don't.

"The Court: You don't? All right. And then I guess that answers the question

then, counsel.

"Here is the law in Michigan, very precisely and concisely:

"The only circumstances under which medical books can be read in evidence are where the witness has based his opinions upon them and has referred to them as authority.'

"And evidently, he said he doesn't base his opinions upon that book."

*

*

*

*

"Q. (by Mr. Peisner [plaintiff's counsel] continuing): Doctor, I will ask you once again: To the extent that you base your opinion on any book, do you base it on this Monheim book?

"A. Not that book specifically. I'm sorry, I can't honestly say that.

*

*

*

*

*

"Q. [by Mr. Peisner continuing] Do you have any book that you base your opinion on?

"A. I don't think you can specifically say one book; it is the sum total of your entire exposure.

The Court: I guess he has answered the question, counsel" ***

"There was no offer, or declaration of intent to offer, any of these "books" as evidence, No request for inclusion thereof in the record was made. None were marked for identification and maintained in the record that way, so that the trial judge (and an appellate court in turn) might review them for evidentiary utility or admission for a specific purpose. No one of such "books" was shown to the witness, for examination by him, nor was any specific portion thereof called to his attention for the purpose of desired interrogation. Nothing can be found in the original record that appears to be a book, or a text, or perhaps a learned treatise. No effort was made to obtain a separate record of the cross-examination desired. As to that see GCR 1963, 604 and Bujalski v. Metzler Motor Sales Co, 353 Mich 493, 497-499 (1958), and cases cited therein. For aught this Court knows or the trial judge knew from the record, Messrs. Collins, Vandam, Monheim, Dripps, Eckendouf and Nuy were not writers of published "learned treatises" within Wignore's contemplation or, say, within the more extreme purview of (thus far unacceptable) Rule 529 of the Model Code of Evidence, p 294:

"Rule 529. Learned Treatises.

"A published treatise, periodical or pamphlet on a subject of history, science or art is admissible as tending to prove the truth of a matter stated therein if the judge takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as an expert in the subject."

To summarize: Of the specific point brought to review it is enough to say that Judge Kaufman was not exactly interested in any kind of notice, judicial or otherwise, of these unsworn publications. Nor has any member of the Court declared himself ready to thus notice any of them. And, so far as concerns our yet undemolished rule, that a medical witness must first refer "to a textbook as his author

ity" before it may be used to contradict him (DeHaan v Winter, 258 Mich. 293, 299 [1932]), the profession is referred to the continuant appendix hereof to see whether Dr. Attenson at any point did so refer.

Here then is the appeal which the Court has chosen for arrant demolition of a really learned treatise, People v Hall, supra, the levelheaded sense of which, both in this Court and in our trial courts, has since the 1880's protected both plaintiffs and defendants in medical malpractice from the treachery of the worst kind of hearsay; the kind that is apt to impress the unwary by the mere fact of its having been printed and published somewhere and sometime in the past. Strangely, it seems too often that when someone writes a book, or an article, or a treatise of any kind for publication, he thereby becomes an "expert"; as if print could make him a specialist or masterhand. The conclusion is not apt to be quite so common in the author's home town, where he is known personally (as he ought to be in the courtroom when anyone seeks to read his published ideas to a sworn jury).

For comparison with the best our majority has been able to strain-after a year's work-from minority writings picked and chosen here and there from other states, I submit below that kind of practical knowledge and legal experience out of which sound judicial precedent can only be made (People v Hall, supra, 490–491):

"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 only legal reason for allowing the evidence of opinions is found in the presumption that an ordinary juryman or other person without special knowledge could not understand the bearing of facts that need interpretation. Medical books are not addressed to common readers, but require particular knowledge to understand them. Every one knows the inability of ordinary persons to understand or discriminate between symptoms or groups of symptoms, which cannot always be described to those who have not seen them, and which with slight changes and combinations mean something very different from what they mean in other cases. 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 safetly trusted with the interpretation of such books, it is hard to see on what principle 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.'

I vote of course to affirm.

Supplement (August 26, 1972):

The foregoing opinion of dissent was delivered to the other Justices July 21. In it I made reference to our then upcoming day of judgment (July 26) and to the need for decision of a case submitted last year, June 10, 1971 to be exact.

July 26 Justice ADAMS held up determination of this appeal. Now the Court's next judgment day is August 29. Today I have examined a memo sent out under date of August 24, by Justice SWAINSON, author of the foregoing majority opinion. It advises that Justice ADAMS has proposed and he has agreed to insert a new paragraph in the Court's opinion, reading as follows:

"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)."

I agree there will be a vigilant need for "[g]reat caution" on the part of our trial judges as they attempt to determine and apply what by its opinion the Court's majority seems to want done, and would dwell a bit upon that need in view of employment, not only of the above quoted "[slee O'Dowd", but also of that same "see" on the same page of the Court's opinion; in each instance without specific or other lead to what the Court has in mind.

Obediently, I have read anew Justice ADAMS' opinion of O'Dowd. In it I find nothing that even remotely tends to provide light for this "[g]reat caution"

paragraph. The latter seems purposed toward precise pertinence and relevance of "the authority cited"; but in O'Dowd no "authority" or publication was cited, or produced, or involved in any way. In O'Dowd Justice ADAMS was engaged in another field; that of defending some-but definitely not all of the so-called expert testimony of a professional witness, self-styled "an accident reconstruction expert". No publication or "learned treatise" was relied upon by any party in O'Dowd, either as evidence or for the purpose of cross-examination. Hence it is deferentially suggested that the profession, when interested in identifying if possible the new rule ordained by Jones v Bloom, will gain nothing by "seeing" O'Dowd.

In recent years we have treated the Bar and our lower court benches to prolix writing, pro and con, upon the extent to which "standards" must be set forth in statutes of peril of constitutional veto by this Court. Pinpointed examples will be found in both opinions of City of Pleasant Ridge v Governor, 382 Mich 225 (1969) and currently in both opinions of People v Fields, 388 Mich-(July 26, 1972).5 Why, People v Fields having set the Court's new tenor of desired "standards", should not the trial lawyers and trial judges of Michigan be supplied just a few understandable patterns, if not a norm or two, for application of what in hazy outline we are told to "see"?

Taking that new "[g]reat caution" paragraph in conjunction with the preceding "[w]e, therefore, hold" paragraph of the Court's opinion, let me expose just one of the manifest doubts today's majority has inserted like a wrench into our hitherto worthy evidentiary machinery. Going through the majority opinion with care, the reader will find that our trial judges are provided no gauge and no guide to what should be done when the expert brought to the stand-whether called by the plaintiff or by the defendant-warily refuses on cross-examination to "recognize" as presently authentic any publication or publications which the cross-examiner has submitted to him. When that occurs (as all but the naive will surely expect), and the cross-examiner moves that the trial judge judicially notice the submitted publication, what can or should the trial judge do-without risking this Court's second-sighted animadversion?

The only answer I am able to glean from these inscrutable paragraphs of the Court's opinion is that the Brethren, by telling us only to "see" Darling v Charleston Community Memorial Hospital, 33 İll 2d 326; 211 NE2d 253; 14 ÅLR3d 860 (1965) and Dolcin Corp v Federal Trade Comm, 94 US App DC 247; 219 F2d 742, 746-747 (1954) (cert den 348 US 981; 75 S Ct 571; 99 L Ed 763),7 has provided a pretty tough choice for the trial judge; the two cases not being exactly in harmony with each other and Dolcin, a Federal decision, having made very clear the outside limits of Reilly v Pinkus, 338 US 269; 70 S Ct 110; 94 L Ed 63 (1949), upon which the majority mistakenly depends (ante 119).

Darling, as I shall demonstrate by full quotation of its 15th paragraph, goes sled length for the not yet acceptable doctrine of Rule 529 of the Model Code of Evidence (which I have previously quoted, ante).8 Dolcin, on the other hand, drawing from Reilly v Pinkus, supra, declares that the judge or presiding administrative officer "has broad discretion to determine the extent of the cross-examination on written authorities"; also that application of the rule of Reilly v Pinkus, supra, depends upon a fact; that the expert on the stand has based "an opinion to a significant degree upon his reading.'

Arrayed below, for comparison, are the textual presentations of Darling, and then of Dolcin. Darling, having criticized the rule our majority now overrules, proceeds by its 14th paragraph largely upon the alleged strength of Wigmore's doctrine (15th paragraph of Darling):

5 In the Pleasant Ridge case Justice ADAMS dissented. In the Fields case his opinion on "standards" prevailed.

6 There may be just another, discernible only by divination from our parade of recent opinions of reviewed damage actions. If the plaintiff's counsel demands judicial notice of his pet publication or publications, then grant the demanded notice. If the defendant's counsel insists upon notice of his favorite or favorites, that will be time for the exercise by the trial judge of the mandated "[g]reat caution."

7 Here is footnote 4 on pp 746-747, the reference being to Reilly v Pinkus:

"4. The Court does not say how the authority of those works is to be determined. It seems clear from the facts given in the opinion that it is unnecessary for the witness himself to recognize the authority of the work [but see Lawrence v Nutter, 4 Cir, 1953, 203 F2d 540] or even to have read it [but see Shzw v Duncan, 10 Cir, 1952, 194 F2d 779]. We think the authority of the work is for the presiding officer to decide. And we think he should have a broad discretion in determining what-and how much-evidence may be presented on that question."

*

8 Darling also, by its 14th paragraph, seems to adopt Rule 63 of the Uniform Rules of Evidence. That rule bans hearsay evidence "except: *(31) Learned Treatises. A published treatise, periodical or pamphlet on a subject of history, science or art to prove the truth of a matter stated therein if the judge takes judicial notice, or a witness expert in the subject testifies, that the treatise, periodical or pamphlet is a reliable authority in the subject."

"The unsatisfactory quality of expert testimony has been the subject of frequent comment, and it has induced judicial action. (See Opp v. Pryor, 294 Ill 538, 545; 128 NE 580 [1920]; Kemeny v Skorch, 22 Ill App 2d 160, 170; 159 NE 2d 489 [1959]; see also Supreme Court Rule 17-2, Ill Rev Stat 1963, chap 110, par 101.17-2; Cleary, Handbook of Illinois Evidence, secs 3.3, p 41, 11.10, pp 190-191.) 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." Dolcin, on the other hand, tells us about Reilly v Pinkus, supra, and proceeds (pp 746-747):

66

'Reilly v Pinkus, we think, stands for the general proposition that an expert witness who bases an opinion to a significant degree upon his reading may be cross-examined as to that opinion by reference to other reputable works in his field. It is not necessary for the witness to have relied in his testimony upon the particular authority the cross-examiner seeks to use. And we do not think that the Court limited its ruling to cases involving fraud. The Reilly case also hold that the trial examiner has broad discretion to determine the extent of the cross-examination on written authorities. He probably has, in some cases, discretion to determine whether there should be any such cross-examination at all. But it is error to exclude such questions by blanket rule, without more.

Is this question of judicial notice to be one of judicial discretion, depending upon the judge's own perusal of that which is tendered for notice? May the trial judge, in effort to determine this novelty of judicial notice, employ the usual and customary rules by which judges take or refuse notice, or--not being a medic or expert skilled other than at law-must he resort to study of each submitted text or publication to make his decision? What if counsel on both sides, each armed with a trunkload of publications the quality and currency of which is warily avoided by all called experts, insist regardless upon judicial notice of all of their respective wares? Are we not-now-committed to a new and uncertain field of judicial notice where, the trial judge having read parts or portions of proffered Hirsute On Headaches countered by Fuzzy on Diseases of the Head, is required to choose between the two (or tell the jury to choose), even though Hirsute and Fuzzy have not been sworn and the only verity of their "learned" treatises is the fact of printing and publication thereof, say at Walla Walla, or Oshkosh, or Bad Axe? I think it high time for retort that this Court of 1971-1972 has already made of itself a tear-down tribunal of precedential demolition; one with insufficient capability of construction anew of that which might at least equal in excellence and eminence what is so airily destroyed.

I conclude with due remark that if there is to be, in Michigan, judicial discretion to deny such a projected cross-examination as well as discretion to grant same, Judge Kaufman below had far better reason to say "nay" when he did than "yea". Consider the appendix hereof, and note my thus far unchallenged detail of the way the question discussed in our respective opinions is supposed to have been raised and saved for review.

APPENDIX

(That part of the cross-examination of Dr. Attenson dealing with identity of and claimed reliance upon medical publications.)

Q. [by plaintiff's counsel, Mr. Peisner]: Doctor, I will ask you, is Principles of Anesthesiology by Vincent Collins one of your authorities for the administration and use of anesthetics, anesthesia?

A. No, I wouldn't say that it really is. I did not use that book to any great extent while I was in training. There are so many, it is difficult to isolate one solitary book.

Q. All right, what is your authority?

A. Basically your authority comes more from clinical experience, from journals, from meetings. Because most of these books are dealing with anesthesia on an inpatient basis; whereas, anesthesia on an outpatient basis is an entirely different piece altogether.

Q. Do you rely on any medical text book as your authority for anesthesia? Mr. Gruber [defendants' counsel]: Well, your Honor, wait a minute now; I think that if he was to ask him did he rely in this case, it may be proper, but if he is asking him if he ever read a text book

The Court: That's not the question.

Mr. Peisnse: That's not the question.

Mr. Gruber: Well, then, I will state the objection on these grounds; that excepting this case, nothing else is material. We are talking about one patient and one case. And if he relied on anything for that, I suppose he is entitled to ask him. But whether he-I don't see the materiality or relevancy

The Court: Well, it could be material and relevant, unless he treats each patient differently. We will take the answer.

A. Would you repeat your question?

Q. (By Mr. Peisner, continuing): What is the authority you rely on then for the administration of anesthetic, generally speaking?

A. In your office?

Q. You, yourself.

A. Clinical experience, Dripps, Eckendouf and Vandam.

Q. How do you spell that?

A. D-r-i-p-p-s, V-a-n-d-a-m.

Q. Yes. Any others?

A. To a good extent there are parts from many journals which discuss and go over various forms of administering an outpatient general anesthetic.

Q. Any text books other than that one by Vandam?

A. We read through, have looked at our texts. Do you want me to list all the texts I've looked at?

Q. Well, the ones that you rely on.

A. Well, I don't understand what you mean, rely on.

Q. Rely on as the authority that you studied from, and whose information and instructions are-form the basis for your administration of a general anesthetic. A. Well, like I said, the basis of these books are on inpatient, and you are dealing with outpatient and you must modify it, therefore.

Q. All right. With such modifications, what would you rely on other than Vandam?

A. I've read Monheim's book.

Q. Do you rely on it?

A. As much as I rely on a journal.

Q. Any others?

A. Offhand, I can't think of the names of the different books.

Q. How about Adrian Nuy's book?

A. Once again, Adrian Nuy's book was not stressed, because we stress, basically, if you are going to deal with pharmacology which is what he deals with by and large, we would go to other texts such as Goodman and--Bess and Taylor. There are other books in the same area, or similar areas.

Q. But you do rely on Vandam and Monheim?

A. I rely on them, yes, for basic principles which must be then expounded on as far as how they suit the patient or the situation.

Q. To the same extent, you also rely on the Principle of Anesthesia by Vincent Collings?

A. No. I have to-honestly must admit that I'd never really spent that much time with that book.

Q. The book you refer to by Vandam is Introduction to Anesthesia, by three authors, Dripps, Eckendouf and Vandam?

A. Yes.

Q. In order that there won't be any question about it, I'll show you the flyleaf of it. It's Introduction to Anesthesia, The Principles of Safe Practice. And the authors are Robert D. Dripps, James E. Eckendouf, and Leroy D. Vandam; is that correct?

A. Yes.

Q. I will read you, from page 179—

Mr. Gruber: Just a minute.

Your Honor, once again we are right back to where we started from. I don't think a proper foundation has been laid. The question has not been asked or answered as to whether or not this book, or any other book for that matter, was relied on in the treatment of the plaintiff in this case. And unless it was I don't think there is a foundation for it.

Mr. Peisner: Shall I answer that, your Honor?

The Court: Go ahead.

Mr. Peisner: Well, to begin with, I believe Mr. Gruber is contradicting himself. When he was examining the doctor this morning he asked him about his general procedures in the office with every patient he had. And when I asked him to restrict