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JUDICIAL NOTICE 

Getting a Judge to take judicial notice of a journal, treatise or article advantageous to your position is an opportunity that can present itself in many different kinds of cases. Many lawyers think that the inquiry ends with efforts to get witnesses to admit to whether a particular source is "authoritative". As can be seen from the trial memorandum included below, there is more than one way to skin a cat. 

A TRIAL COURT MAY TAKE  JUDICIAL NOTICE OF MATTERS OF SCIENCE FROM ANY SOURCE THAT THE COURT REGARDS AS SAFE AND PROPER.

A Judge in general is specifically authorized by statute to "consider any testimony document, information, or agreement on the subject whether offered by a party or discovered through its own research." Fisch on New York Evidence, 2nd Edition, Section 1068, pg. 606. In 1875 the United States Supreme Court in Brown et. al. v. Piper 91 U.S. 37 restated the broad and unchanged rule that “Courts will take notice of whatever is generally known within the limits of their jurisdiction; and, if the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper. This extends to such matters of science as are involved in the cases brought before him.”

In accordance with these principles, articles appearing in medical journals and texts, and not in the record, have been cited by the Court of Appeals (Perlmutter v. Beth David Hospital, 308 N.Y. 100, 106-107, 123 N.E.2d 792, 795, 796; People v. Richmond County News, 9 N.Y.2d 578, 581-584, 216 N.Y.S.2d 369, 371-373) and by the U. S. Circuit Court of Appeals of the District of Columbia (Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430).

 

As noted, one of the earliest statements of this broad power was penned by the United States Supreme Court in Brown et al. v. Piper.,  91 U.S. 37, (1875) where the Court wrote;  

Of private and special facts, in trials in equity and at law, the court or jury, as the case may be, is bound carefully to exclude the influence of all previous knowledge. But there are many things of which judicial cognizance may be taken…. Courts will take notice of whatever is generally known within the limits of their jurisdiction; and, if the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper. This extends to such matters of science as are involved in the cases brought before him. See 1 Greenleaf's Ev. 11; Gresley's Ev., supra; and Taylor 's Ev., § 4, and post.

The New York Court of Appeals first applied this principal directly to articles appearing in medical journals and texts in Perlmutter v Beth David Hospital 308 N.Y. 100, 123 N.E.2d 792 (1954), observing;

Informed opinion is at hand that there is today neither a means of detecting the presence of the jaundice-producing agent in the donor's blood nor a practical method of treating the blood to be used for transfusion so that the danger may be eliminated (see, e. g., Wiener Medicolegal Aspects of  Blood Transfusion, A Report of the Committee on Medicolegal Problems of the American Medical Assn. (1953); Portis, Diseases of the Digestive System (3d ed., 1953), p. 667; Report on Jaundice Following Administration of Human Serum (1943), Public Health Reports, vol. 58, No. 33, pp. 1233, 1241), but whether that is so or not, the fact is that, if the transaction were to be deemed a sale, liability would attach irrespective of negligence or other fault.

And the Court of Appeals directly approved the practice of judicial notice again in People vs. Finkelstein 11 N.Y.2d 300, 183 N.E.2d 661, 229 N.Y.S.2d 367 (1962) commenting as follows;

The practice is not uncommon of taking evidence concerning matters within the realm of judicial notice so as to furnish the judicial mind with more exact details of general knowledge which Judges are presumed to  know already, the contents of an almanac, for example (Case v. Perew, 46 Hun 57, affd. 122 N.Y. 665, 26 N.E. 752). In my view it is open to a court to examine other books and publications than those subject to the criminal charge to inform itself, concerning what are contemporary community standards.

Another  Appellate Court considered the question in Kilburn v. Bush 223 A.D.2d 110, 646 N.Y.S.2d 429 (App. Div. 4th Dept. 1996); a case which cited medical journal authority itself and noted another case with approval that took judicial notice of various medical journals;

In contradistinction to that proposition, some courts have stated that "it is not true that ordinarily sleep comes unheralded" (Bushnell v. Bushnell, 103 Conn. 583, 591, 131 A. 432, 434). That view is set forth expressly in at least two New York cases (citations omitted) and in decisions in other states (see, e.g., Bernosky v. Greff, 350 Pa. 59, 38 A.2d 35; see generally, Annotation, Physical Defect, Illness, Drowsiness, or Falling Asleep of Motor Vehicle Operator as Affecting Liability for Injury, 28 ALR 2d 12, 44-50, §§ 22-23). Notably, the court in Bushnell referred to various medical journals and treatises in support of that proposition (see, Bushnell v. Bushnell, supra, 103 Conn., at 592, 131 A., at 435; see also, Kaufman and Kantrowitz, The Case of the Sleeping Motorist, 25 NYU L Rev 362, 364-366).

Worth noting is the approach of the Supreme Court trial judge in Johnita M.D. v David D.D. 191 Misc.2d 301, 740 N.Y.S.2d 811, 2002 N.Y. Slip Op. 22529, combining these authorities to aid his grappling with  questions of second hand smoke and the best interest of a child;

To transform the fiction of the supposed knowledge of the Judge into reality, he is permitted to inform himself in any way he deems best and from any source which he regards as safe and proper. He may refer to calendars, dictionaries, encyclopedias, geographies, and other books or even contact the State Department for required information and is specifically authorized by statute to "consider any testimony document, information, or agreement on the subject whether offered by a party or discovered through its own research." Fisch on New York Evidence, 2nd Edition, Section 1068, pg. 606. Certain of the sources set forth below are Government publications. Others are published scientific texts which the Court facially regards as propounding a "principle (which) is accepted as a valid one in the appropriate scientific community". McCormick on Evidence, 5th Edition, Vol. II., pg. 378. People, etc., Ex Rel. Butler v. McNeill, 30 Misc.2d 722, 219 N.Y.S.2d 722 (Sup. Court, Dutchess Co., 1961). The Court regards said scientific reports and data as facially "safe and proper" opinions and authorities, subject to any objection and/or impeachment by the parties. Brown v. Piper, 91 U.S. 37, 42, 23 L.Ed. 200 (1875), People v. Cooper, 219 A.D.2d 426, 643 N.Y.S.2d 532 (1st Dept., 1996).

 

Such an application of the judicial notice process to aid in assessing generally accepted medical practices, and hence medical necessity, was specifically called for in a No-fault setting in CityWide Social Work & Psy. Serv., P.L.L.C. v. Travelers Indem. Co. .
3 Misc.3d 608, 777 N.Y.S.2d 241, (Civ. Crt. , New York Cty., Battaglian, J., 2004).

Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling. For a "published test", like those at issue in this case, evidence of such practice might readily be found in the material that accompanies the test and the writings in books and professional journals of the persons who designed the test and those who have used it.

Accordingly, it is well within the Court’s power to take judicial notice of those safe and proper sources as proposed by Defendant in the instant matter. (back to top)