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Jules said he is not bound by the Appellate Term’s holdingsAugust 20, 2014

Quality Health Prods., Inc. v Travelers Indem. Co., 2014 NY Slip Op 51231(U)(App. Term 2d Dept. 2014)

“At the trial, the judicial hearing officer refused to allow defendant’s expert witnesses to testify as to their opinions of the medical necessity of the supplies at issue on the ground that the underlying medical records of plaintiff’s assignors that the witnesses had reviewed were hearsay, explicitly stating that he did not “follow” Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”

“As this court has previously held, defendant’s witnesses should have been permitted to testify as to their opinions regarding the medical necessity of the supplies at issue, and it was error to preclude their testimony on hearsay grounds”

“We note that, contrary to the belief of the judicial hearing officer in this case, the Civil [*2]Court is bound by the decisions of this court (see 28 NY Jur 2d, Courts and Judges § 220).”

*I recall a “trial” with Judge Ingrid Joseph where this occurred because the carrier presented a substitute peer review.  Plaintiff made a frivolous peer hearsay objection, which was sustained.  If I were a judge and I really believed that peer hearsay and substitute peer testimony was not admissible, I would allow it, make factual findings adverse to the proponent of the evidence and render a judgment that would be less likely to be reversed on appeal.  See e.g. PSW Chiropractic v. Maryland Insruance Co.   In all seriousness, it is embarrassing when you as a judge “westlaw yourself” and you get reversed on this basis.

Now, will this prevent a judge from being elevated to 360 Adams Street (this is a Brooklyn phenomenon by the way)?  Probably not.  But from an integrity standpoint, it is problematic.

One Response

  1. nycoolbreez says:

    Integrity? really?

    I dont really care that a judge is stupid enough to preclude
    an expert on hearsay grounds rather than being smart enough to let the “expert” testify then dismissing on credibility?

    What is far worse are plaintiffs who continue to move for preclusion on hearsay!!!

    I don’t know why plaintiff’s don’t move for preclusion of the expert on the basis that the methodology for reaching the conclusion is not accepted in the medical community.

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