stands for-by Topic IX-"has obtained complete recognition in only one or two jurisdictions" (p 2).

Having reviewed the Court's opinion in conjunction with entire Topic IX, I perceive no need for defense of People v Hall, supra, and the Michigan cases that have followed it all these years. All such cases, devoid as they are of the speculations of pendants and the collegiate whimsies of law reviewers, have since the 1880's breathed common sense into our trial courtrooms and are guarded adequately by the great weight of reasoned authority. I propose instead to inquire whether the professor and our temporal majority are not themselves guilty of such "ignorant exaggeration". As a sort of prelude, it is suggested respectfully that just about all of the doctrines written in Topic IX had to be bred, and then inbred, on the campuses of our more effete law schools where theories are taught apart from that down to earth wisdom one may gain only by years of preparing and trying and winning and losing both in trial and appellate courts, a plethora of contested actions. Let me try this out.

I have declared above an intent to pluck, from Topic IX, a few selections for comment. This may be unnecessary, for if the reader by this time has perused that topic contemplatively, along with the judicial authorities which the professor disparages, he will have identified enough "ignorant exaggeration" to satisfy himself. Yet I cannot resist comment upon a few of the impractical notions one finds in Topic IX.

Wigmore starts out, under (1) on page 2 of Topic IX, by alleging that "[t]he only forceful" objection to what he advocates is that the author of such a learned treatise, not having been called to the stand, is "a person not subjected to crossexamination". (Yes, it is a bit forceful.) Then, moving to (2) on page 3, he identifise the next objection he would overrule. It is that a "medical book which was a standard last year year long becomes obsolete this year". Then comes that long paragraphic tirade headed. "There is ignorant exaggeration in these charges". In the body thereof the professor presents a series of altiloquent questions. After quoting each I shall endeavor to respond by "Comment".

Wigmore: "For if these works [learned treatises] are rejected because they may not embody the latest results of science, what shall be said of specialist witnesses in general?"

Comment. Only this: By the question that specialist witness is on the stand. The author of the learned treatise is not. The counsel has not sought to take that author's deposition, if perforce the latter is beyond reach of the Court's process. Nor has the counsel bothered to explain why he has neither deposed nor subpoenaed the author. Even if the author is available for deposition or summon by subpoena, the counsel (after interview) may have concluded that the "learned treatise" itself would make more mileage in the juryroom than would the testimony of its writer, or that the testimony of the writer might slaughter an auspicious case for damages or, if such be the case, weaken seriously an equally promising defense.

So here comes the reasty hearsay of Topic IX. Counsel, encouraged from here on by this Court, purposely and subtly will cull for cross-examination-out of the multiplying pro and con myriads thereof-publications the verity and reliability of which need be supported only by general questions and uncertain answers the negative sum of which becomes just what this trial judge found. Under Jones v Bloom this will be done without pretense of showing that the writers thus winnowed are not available for deposed or witness chair attestation of what they have published, locally or distantly. It will be done with no showing that not one witness is available to prove the qualification or qualifications of any such writer-to make "statements upon the subject in hand" (per Wigmore's suggestion, § 1694, quoted post), and it is bound to make of medical malpractice trials veritable wars of even more lengthy attrition; with each side employing such a published congeries of conflicting medical views as would thoroughly confusticate any jury the members of which, like all of us outside the medical profession, are not equipped to interpret and apply medical books. Once real hearsay is let loose in our trial courtrooms, farce and foolishness take over and the added public as well as private expense thereof cannot help but lead to more "no fault" compensation. Wigmore: "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?"

This is a fact our majority tacitly concedes by its painful assembly of a minority of states which, as the Brethren dare no more than say, "have all modified the rule to some extent" (ante p 119). Aye, the minority has modified to some extent; not destroyed as the gentlemen of this Court are about to record. The "extent" is not of course described or proposed.

Comment.-Again, by this question, that scientific expert is on the witness stand. No phantom of hearsay is he. Naturally he is asked to state not only the extent of his knowledge but also his opinion of such "latest researches". Is there something wrong, or highly improper, about that? Some expert or experts thus interrogated might surprise the examining counsel and every one in the courtroom by the utter currency of their knowledge; just as others might fail miserably, and just as any learned treatise might prevail or fail should its author be deposed or called before the jury to prove, if he can, the present dependability of what he has written.

Professor Wigmore has touched here, quite unwittingly, the tender nerve of what he advocates; for much more now than in 1940 is it true (Topic IX p 3) that "Science is shifting; that experiment and discovery are continually altering scientific theories and rendering them valueless."

Wigmore: "For how many of them is it possible to maintain steady pace with the daily progress of science?"

Comment. Same answer, Just cross-examine each of them as ever before. Isn't that the best way, compared with easygoing employment of hearsay, as proposed by Topic IX? One cannot, as observed below by trial judge Kaufman, "crossexamine the book".

Wigmore: "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?" Comment. A definite minority I would say, always ascertainable by crossexamination. Really, this question emphasizes the need for drawing out the decade-indicative fact by vigorous interrogation of any expert who attempts to vouch in a "learned treatise" written years ago.

I must terminate this testimonial portrayal now, for Professor Wigmore has in Topic IX presented no more such questions. Nonetheless he has supplied an even more forceful reason for my present disagreement with the Brethren in majority. Incredibly, they have ignored totally the need of laying a definite foundation for employment in court of these learned treatises when the authors thereof are not-on account of death, disease, disinclination, or disappearancewithin reach of depositional or other judicial process. Said § 1694 provides: "§ 1694. Testimonial Qualifications; Production of Original. (1) The treatisewriter must, like every other witness, be shown before hand to be properly qualified to make statements upon the subject in hand. This will require, as in other Hearsay exceptions (ante, § 1424), another witness who will testify to these qualifications, -which means here the summoning of any one in the profession, art, or trade of the writer and ascertaining from him the writer's standing as an authority. This removes the danger of an ignorant use of statements by writers of no standing; but it is merely the application of the general principle as to testimonial qualifications. It is done even in those jurisdictions (post, § 1637) where the Exception is recognized only in a fragmentary form. Practically, also, it guards against the supposed danger, already adverted to, of allowing the jury to be confused by book-passages offered without explanation; for the expert who indorses the book can also be used to make explanations where desirable. It also forbids, of necessity, the loose and unsafe practice (post, § 1700), followed in some jurisdictions, of permitting counsel to read indiscriminately to the jury, as a part of his argument, extracts from scientific treatises, and furnishes the real reason why this is to be condemned.

"(2) The rule of production of the book itself (ante, § 1179) also applies, where it is desired to employ a specific book; but this does not forbid asking the witness a general question as to the opinion of the profession." (Italics by Wigmore.)

In the light of § 1694, I present here the specific question this plaintiff-appellant has presented for answer (stated question II):

"Did the trial court commit prejudicial error by requiring an admission from a medical witness that he relied on a certain textbook in the formulation of the opinions expressed in court as being the only basis upon which such a medical witness could be cross-examined?

Here counsel goes on to outline his argument this way:

"Plaintiffs were prevented from using these books as a basis for cross-examination, because of the so-called Michigan rule which only permits the use of such books if a witness testifies that he relied on such a book in giving his testimony." When an important question of law like this comes up for review, it is wise to ascertain with utmost precision just how that question arose, and then came to submission and ruling, in the trial court. Should the Court fail in that regard, it

Was any effort made here to show, "beforehand" that any author involved was "properly qualified to make statements upon the subject in hand."? There is no smidgen thereof. See the appendix, post p 137.

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. 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 "[s]ee 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). 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 ALR3d 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):

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

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 Hera 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 Show 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.'

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."