Present: All the Justices 

PATRICIA G. WEINBERG 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 951975 September 13, 1996 

FRED T. GIVEN, JR., M.D. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

 In this appeal, we consider whether Code § 8.01-401.1 

permits a jury to consider, as substantive evidence, statements 

in periodicals which are deemed reliable and authoritative. 

 The plaintiff, Patricia G. Weinberg, consulted Dr. Fred T. 

Given, Jr., her gynecologist, because she had experienced 

dysfunctional menstrual bleeding. The plaintiff was described, 

at that time, as a healthy woman, 44 years old, who was not then 

smoking cigarettes. The defendant treated the plaintiff by 

prescribing a two-month supply of Ortho-Novum 1/50, an oral 

contraceptive, which stopped the bleeding. The plaintiff 

subsequently developed blood clots, described as a deep vein 

thrombosis, and she required medical treatment. 

 The plaintiff's motion for judgment alleged that the 

defendant was negligent in the treatment of her condition. At 

trial, her expert witnesses testified that the defendant breached 

the standard of care by prescribing the oral contraceptives which 

caused the plaintiff's blood clots. 

 Dr. John R. Partridge, who was permitted to testify as an 

expert witness on behalf of the defendant on the subjects of 

obstetrics and gynecology, testified that a woman over 40 years 

old, who is in good health and who does not smoke cigarettes, has 
a risk of stroke or cardiovascular complications associated with 

the use of "Ortho-Novum 1/50" of about .02%. Dr. Partridge 

testified that the defendant's treatment complied with the 

standard of care and that the oral contraceptives did not cause 

the plaintiff's blood clots. 

 Dr. Partridge also identified several articles that he 

believed were reliable and authoritative. For example, Dr. 

Partridge gave the following testimony: 

 "Q: And Doctor, are you familiar with the article 

entitled, 'Oral Contraception: Past, Present and 

Future Perspectives' by Daniel Mishell? And again, 

this would be in the International Journal of 

Fertility, 1991. Are you familiar with that, sir? 

 A: Yes. 

 Q: Is that a reliable authority in the field as of 

1991 on this issue? 

 A: Yes. 

 Q: And Doctor, going right to the last page, to the 

conclusion, 'Today 85 percent of prescriptions of [oral 

contraception] written in the United States specify 

formulations containing 30 to 35 micrograms of ethinyl 

estradiol, the lowest possible dose required to achieve 

optimal contraceptive [efficacy] with minimal risk of 

adverse effects. These new compounds do not appear to 

have any adverse cardiovascular effects and can be 

safely used by healthy, nonsmoking, premenopausal women 

until age 45 or older.' Did I read that correctly, 

sir? 

 A: You did. 

 Q: Do you agree with that? 

 A: Yes." 

 The trial court granted a jury instruction,*

 which permitted 

 

 *We do not approve of the use of the instruction that was 

submitted to the jury because an instruction which comments upon 

the evidence is inappropriate. See Owens-Corning Fiberglas Corp.

v. Watson, 243 Va. 128, 134, 413 S.E.2d 630, 634 (1992). 
the jury to consider the contents of the published treatises, 

periodicals, or pamphlets as substantive evidence, and the jury 

returned a verdict in favor of the defendant. The plaintiff 

argues that Code § 8.01-401.1 does not permit a jury to consider 

the contents of articles as substantive evidence and that a 1994 

amendment to this statute merely created a procedural change in 

the law by, inter alia, permitting a party to test the knowledge 

of an expert witness on direct examination. The defendant 

asserts that the 1994 amendment permits hearsay statements in 

medical articles, when established as reliable authority by 

expert testimony, to be considered by the jury as substantive 

evidence. 

 Prior to the 1994 Amendment, Code § 8.01-401.1, which was 

enacted by the General Assembly in 1982, stated: 

 "In any civil action any expert witness may give 

testimony and render an opinion or draw inferences from 

facts, circumstances or data made known to or perceived 

by such witness at or before the hearing or trial 

during which he is called upon to testify. The facts, 

circumstances or data relied upon by such witness in 

forming an opinion or drawing inferences, if of a type 

normally relied upon by others in the particular field 

of expertise in forming opinions and drawing 

inferences, need not be admissible in evidence. 

 The expert may testify in terms of opinion or 

inference and give his reasons therefor without prior 

disclosure of the underlying facts or data, unless the 

court requires otherwise. The expert may in any event 

be required to disclose the underlying facts or data on 

cross-examination." 

 We discussed this statute in McMunn v. Tatum, 237 Va. 558, 

379 S.E.2d 908 (1989). There, we considered whether Code § 8.01-

401.1 permitted a physician, who had qualified as an expert 

witness, to express the opinions of other physicians who were not 
available for cross-examination. We held that Code § 8.01-401.1 

did not 

 "authorize the admission in evidence, upon the direct 

examination of an expert witness, of hearsay matters of 

opinion upon which the expert relied in reaching his 

own opinion, notwithstanding the fact that the opinion 

of the expert witness is itself admitted, and 

notwithstanding the fact that the hearsay is of a type 

normally relied upon by others in the witness' 

particular field of expertise." 

McMunn, 237 Va. at 566, 379 S.E.2d at 912. Explaining our 

holding, we observed that: 

 "The admission of hearsay expert opinion without the 

testing safeguard of cross-examination is fraught with 

overwhelming unfairness to the opposing party. No 

litigant in our judicial system is required to contend 

with the opinions of absent 'experts' whose 

qualifications have not been established to the 

satisfaction of the court, whose demeanor cannot be 

observed by the trier of fact, and whose pronouncements 

are immune from cross-examination." 

Id.

 The 1994 amendment to Code § 8.01-401.1 added the following 

paragraph: 

 "To the extent called to the attention of an 

expert witness upon cross-examination or relied upon by 

the expert witness in direct examination, statements 

contained in published treatises, periodicals or 

pamphlets on a subject of history, medicine or other 

science or art, established as a reliable authority by 

testimony or by stipulation shall not be excluded as 

hearsay. If admitted, the statements may be read into 

evidence but may not be received as exhibits. If the 

statements are to be introduced through an expert 

witness upon direct examination, copies of the 

statements shall be provided to opposing parties thirty 

days prior to trial unless otherwise ordered by the 

court." 

 We have repeatedly stated the principles of statutory 

construction that we apply when a statute, such as the amendment 

to Code § 8.01-401.1, is clear and unambiguous. 
 "While in the construction of statutes the 

constant endeavor of the courts is to ascertain and 

give effect to the intention of the legislature, that 

intention must be gathered from the words used, unless 

a literal construction would involve a manifest 

absurdity. Where the legislature has used words of a 

plain and definite import the courts cannot put upon 

them a construction which amounts to holding the 

legislature did not mean what it has actually 

expressed." 

Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d 

672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 

S.E. 445, 447 (1934)); see also Turner v. Wexler, 244 Va. 124, 

127, 418 S.E.2d 886, 887 (1992); Grillo v. Montebello Condominium 

Owners Assoc., 243 Va. 475, 477, 416 S.E.2d 444, 445 (1992). 

 Applying these principles of statutory construction, we hold 

that the 1994 amendment to Code § 8.01-401.1 made a substantive 

change in the statute. The plain language in the amendment 

provides that, in certain limited instances, "statements 

contained in published treatises, periodicals or pamphlets on a 

subject of history, medicine or other science or art, established 

as a reliable authority by testimony or by stipulation shall not 

be excluded as hearsay." Thus, this statute as amended permits 

the hearsay content of such articles to be read into the record 

as substantive evidence, provided no other evidentiary rule 

prohibits such admission. 

 Accordingly, we will affirm the judgment of the trial court. 

Affirmed.