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Is a PIP IME hearsay?August 6, 2021

I specifically remember that Mr. Barhshay and myself battled this issue in a different time in all of our lives. Primary Psychiatric Health, P.C. v. State Farm Mut. Auto Ins. Co., 15 Misc. 3d 1111(A)(Civ. Ct. Kings Co. 2007). In Primary, the carrier conducted IMES wherein the experts found that the injuries were not related to the accidents. The Court found that the records and the interviews were not “hearsay”, and relied upon then Appellate Term, First Department precedent that held the provider cannot challenge the medical records that reference the Assgignors’ condition.

We would later learn from the Appellate Term, Second Department, the the medical records and the IME iterview are admissible, not for the truth of the matter asserted, but under the assumption that the exist and the opinion based upon these records is whatever it is.

As I have discussed before, Florida abolished for all practical purposes their Appellate Divisions (their versions of our Appellate Term). Florida’s Appellate Divisions wrote opinions similar to pre 2003 NY App Term deicsions – found in the Florida Law Weekly when they were located. The net result is that Fla has been the wild west of No-fault since the early 2000s when their NF revolution began, similar to New York’s.

As of thus year, all cases go the DCA, which for better or worse, means the law is being settled very quickly. And similar to post 2013 NY, the law has been decidedly more pro-insurance carrier.

This is one from Miami-Dade on IME hearsay.

United Automobile Insurance Company NB Sports Massage and Rehab Corp., a/a/o Daisy DePaula, No. 3D21-0107 (Fla 3d DCA 2021)


(1) ” NB Sports initially objected to the introduction of Dr. Weinreb’s deposition testimony because his recollection was not refreshed after seeing the IME report. See Ehrhardt, supra, at § 613.1 (“[I]f the witness does not have a present memory of the fact after seeing the document, the witness may not testify to the fact.”). It is undisputed that Dr. Weinreb’s memory was not refreshed. However, testimony regarding the IME report may be admissible on another independent ground, specifically, the past recollection recorded hearsay exception. See Garrett v. Morris Kirschman & Co., Inc., 336 So. 2d 566, 569 (Fla. 1976) (“A writing may serve to jog a witness’ memory and also be admissible on some independent ground.”).

(2) “Section 90.803(5) sets forth the requirements for the past recollection recorded hearsay exception:…”

(3) “These requirements are usually established through the testimony of the witness who made the prior record. See Polite v. State, 116 So. 3d 270, 275 (Fla. 2013); see also Ehrhardt, supra, at § 803.5. Here, however, the lower court never permitted Dr. Weinreb to testify. We hold that this was error. United should have been allowed to lay a proper foundation pursuant to section 90.803(5).5 As such, we reverse and remand for further proceedings.”

(4) ” To the extent the IME report contains double hearsay, United should have been allowed to lay a proper foundation under other exceptions to the hearsay rule”

The issue here was that the County Court did not want to allow the IME doctor to testify off a document that did not refresh his recollection. That leaves us with past recollection recorded. Florida tends to follow the federal rules on professional reliability, whereas NY follows Hambsch and Wagman. Thus, the hearsay objection will be overruled.


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