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Evidence: The MRI reportOctober 16, 2021

Most sane practitioners stipulate to medical records and then try the case on its merits. But NY civil practice is the true game of ambush warfare. And this is partly due to 3101(d) disallowing expert witness discovery and the necessity of HIPPA AZ’ for anything. Expert witness discovery on both sides due to actual testimony does away with much of the outrageous evidently shenanigan that we deal with in NY.

Fun fact – other states require the adverse party to challenge a non-party subpeona for medical records otherwise same is waived. Read: 46 CFR 164.512(e)(1). Also, read Fla. R. Civ. Prop 1.351. I submit to you that the Rules in the State should be amended to allow this type of discovery

In New York, both sides can come out of the word work, raise the most baseless evidentiary objections and gum up a trial. This is a problematic quirk in the NY system. The Chief Administrative Judge is more interested in wasting our time with word counts and statements of material facts. Worthless ventures in most cases the non-commercial bar handles. Free tip. Your statement of facts should be a carbon copy of your attorney affirmation.

And I agree that if you can’t ask the 10-15 questions to meet CPLR 4518(a) you should not be trying cases, but the ambush warfare goes beyond that.

I saw this case that really looked interesting, and I am sure the rationale behind it isn’t a newfound understanding to the law on evidence; rather. it represents the fact that former trial judges that now sit on the Appellate Division see the harm that our non-codified common-law “evidentiary” system has placed upon sane practitioners who want a clean trial.

Madia v Garcia, 2021 NY Slip Op 05632 (1st Dept. 2021)

“The MRI films and reports demonstrating those injuries were properly admitted as part of the file of plaintiff’s treating doctor, notwithstanding that they were created at an outside facility (see Freeman v Shtogaj, 174 AD3d 448, 449 [1st Dept 2019]). Plaintiff’s doctor also properly relied on those records in offering his opinions at trial, which were based not only on the MRIs, which he ordered, but also on his own examination and tests (see id. at 449-450).”

If I sat on the rules committee, I would create an evidence code, rework 3101(d), rework the HIPPA rules, create pre-trial motion in limine rules, mandate evidentiary stipulations absent good cause shown, and give the practitioner a real framework of the evidentiary and issue parameters of a trial will be. I think the current system is broken and in need of repair.

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