The Arbitrator Charles Sloane 2106 rule: deemed arbitrary.

Auto One Ins. Co. v Hillside Chiropractic, P.C., 2015 NY Slip Op 01750 (1st Dept. 2015)(1st Dept 2015)

“We find that the no-fault arbitrator’s decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106, although such conformity is not required (see 11 NYCRR § 65-4.5[o] [1] [“The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary.”], was arbitrary. Accordingly, the award must be vacated (see In re Petrofsky [Allstate Ins. Co.] , 54 NY2d 207, 211 [1981]). We note that since no substantive determination regarding the weight of the IME report was ever made, the Master Arbitrator and the IAS court erred in deferring to the no-fault arbitrator’s determination.”

How many times has an arbitrator declined to accept your proofs because they do not comply with 2106?  In my opinion, one time too many.  The Appellate Division saw the light,

Hearsay

People v Laracuente, 21 AD3d 1389 (4th Dept. 2005)

“We reject the further contention of defendant that the court abused its discretion in limiting his cross-examination of the Deputy Medical Examiner (see People v Perez, 299 AD2d 427 [2002], lv denied 99 NY2d 618 [2003]; People v Rodriguez, 184 AD2d 599 [1992], lv denied 80 NY2d 933 [1992]). Indeed, the court properly limited the cross-examination in order to prevent questioning with respect to a text that was not established to be authoritative (see People v Feldman, 299 NY 153, [*2]168 [1949]; Prince, Richardson on Evidence § 7-313 [Farrell 11th ed]), and to prevent questioning concerning hearsay information in a report that was not admitted in evidence (see generally People v Jones, 73 NY2d 427, 430 [1989]; People v Kaplan, 167 AD2d 273 [1990], lv denied 77 NY2d 879 [1991]). Furthermore, the court properly limited defendant’s recross-examination of the Deputy Medical Examiner to the scope of the People’s questioning on redirect examination (see e.g. People v Hemphill, 247 AD2d 339 [1998], appeals dismissed 92 NY2d 846 [1998], lv denied 92 NY2d 898 [1998]).”

Use this when the plaintiff attempts to have your expert agree with certain non authorative texts or statements from reports that are not in evidence.

 

Jules said he is not bound by the Appellate Term’s holdings

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.

The absence of an expert is fatal to prove causation

Donoso v Motor Veh. Acc. Indem. Corp., 2014 NY Slip Op 04071 (1st Dept 2014)

Plaintiff claims that she suffered permanent consequential and significant limitations of use of her lumbar spine as a result of an accident involving a motor vehicle (see Insurance Law § 5102[d]). At trial, she testified that she was knocked over by a car and thereafter suffered back pain and injuries for which she received physical therapy and epidural injections, and that she underwent surgery four years later. Ambulance and emergency room records admitted into evidence show that the then 65-year-old plaintiff complained of back pain following the accident, and medical records of the treatment about which plaintiff testified show, inter alia, that the surgical procedure was a laminectomy to address spinal stenosis. Plaintiff did not call any treating physician or medical expert to testify.

Defendant moved for a directed verdict at the close of plaintiff’s evidence, arguing that plaintiff could not prove causation without a doctor’s testimony (see CPLR 4401). Contrary to plaintiff’s contention, since defendant’s argument constituted a challenge to the sufficiency of the evidence, and indeed plaintiff opposed defendant’s motion on the ground that her medical records were sufficient, the issue whether plaintiff established prima facie that she suffered a serious injury causally related to the motor vehicle accident is preserved for review (see Geraci v Probst, 15 NY3d 336, 342 [2010]).

Plaintiff presented no evidence of a causal connection between the motor vehicle accident and her lumbar condition. The medical records do not contain an opinion given by a physician that there was a causal connection between the accident and plaintiff’s disc herniation or the spinal stenosis for which she underwent surgery four years later. Indeed, the impression of one of plaintiff’s treating physicians, according to his medical records, was “[d]egenerative disc disease of the lumbar spine.” However, if the records had contained an opinion, the trial court could not have considered them, because the opining physician was not available for cross-examination (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013] Daniels v Simon, 99 AD3d [*2]658, 660 [2d Dept 2012]). Thus, defendant was correct that plaintiff could not prove causation without a doctor’s testimony, and its motion should have been granted because “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997] see e.g. Ciocca v Park, 21 AD3d 671 [3d Dept 2005], affd 5 NY3d 835 [2005]).”

Reports and treatments notes are insufficient to prove causation and presumably medical necessity.  Alternatively, if the records contain an opinion, they are inadmissible as they are not subject to cross-examination.  A bit of a tongue twister?

Speak your mind in the wrong forum? It will cost you. Fail to supervise your employees? A price will be paid.

Promed Durable Equip., Inc. As Assignee of Shavonne Flinch v Geico Ins., 2014 NY Slip Op 72449(U)(App. Term 2d Dept. 2014)

You can read this.   From the opinion (a quotation from the offending brief): “the recent Park Slope decision is replete with foundationless claims and misunderstandings of both law and argument.  The funny thing is there is nothing to be done about it, except go to the Court of Appeals given the unavailability of the Appellate Division, Second Department. It seems clear from discussion with Plaintiff firms and judges that there is an agreement that this Appellate Term will redefine the laws of evidence in order to suit the insurance company business model, while at the same time the Appellate Division will not accept cases from the Appellate Term.”

While the text of what was said was perhaps overboard, the substance might have merit.  See  Matter of State of New York v Floyd Y., 22 NY3d 95 (2013)

And as an employer, keep your eyes open: “With respect to Ilona Finkelshteyn, Esq., the name of whose law firm appears on each brief submitted by Mr. Vitarelli, the court finds that “in the exercise of reasonable management or supervisory authority, [Ms. Finkelshteyn] knew [as alleged by Mr. Vitarelli] or should have known” of Mr. Vitarelli’s conduct (Matter of Berkman, 55AD3d 114, 117 [2008]) and failed, under the circumstances, to adequately supervise the work submitted by Mr. Vitarelli, which bore Ms. Finkelshteyn’s name (see Matter of Shapiro, 55 AD3d 291 [2008]).”

 

Plaintiff’s medical records are admissible by defendant absent dispute regarding accuracy or veracity

Ward v Lincoln Elec. Co., 2014 NY Slip Op 02668 (1st Dept. 2014)

I think this might be a way around the Appellate Term peer hearsay paradigm without stating that Assignor’s medical records are not considered for a hearsay purpose.   Assignee is stuck with Assignor’s uncertified records unless Assignor disputes their accuracy.  This seems to be a cleaner approach to allow these records into evidence than our current construct.

“Plaintiff’s uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity  (Carlton v St. Barnabas Hosp., 91 AD3d 561 [1st Dept 2012]; CPLR 4518[c]). He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the limitations period running”

Another peer hearsay case

Alev Med. Supply, Inc. v Government Employees Ins. Co., 2014 NY Slip Op 50130(U)

“Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).”

Another peer hearsay case.

Peer hearsay

Kew Garden Imaging v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 50748(U)(App. Term 2d Dept. 2013)

“The Civil Court precluded defendant’s medical witnesses from testifying on the ground that those doctors could not testify as to the contents of the medical records they had reviewed in preparing their peer reviews.

As defendant’s doctors should have been permitted to testify (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip [*2]Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), a new trial is required.”

Peer hearsay.  The party that made the frivolous objection at trial should pay the cost for Defendant’s expert.

Judicial notice applies to e-court website

Alev Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50568(U)(App. Term 2d Dept. 2012)

“A review of the information on the New York State Unified Court System E-Courts public Web site, of which we may take judicial notice (see Matter of L & Q Realty Corp. v Assessor, 71 AD3d 1025 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), reveals that, although no judgment has been entered, the complaint was dismissed subsequent to the entry of the order appealed from. In light of that dismissal, this appeal must be dismissed as academic”

Civil Court overturns Appellate Term precedent

Park Slope Med. & Surgical Supply, Inc. v Metlife Auto & Home, 2012 NY Slip Op 22064 (Civ. Ct. Queens Co. 2012)

“In any event, where the denial of a no-fault claim is based on a peer reviewer’s finding of a lack of medical necessity, upon an ensuing trial on that issue, the expert whose opinion is most critical is the author of peer review report. In fact, even in its decisions ruling that an expert who is not the original peer reviewer should be permitted to testify, the Appellate Term has said that such expert’s opinion should be “limited to the basis for the denial as set forth in the original peer review report.” (See Park Slope Med. & Surg. Supply v Progressive, ___ Misc 3d ____ , 2012 NY Slip Op 50349 [U][2d, 11th & 13th Jud Dists 2012], supra; Radiology Today, P.C., 32 Misc 3d 144[A][2d, 11th & 13th Jud Dists 2011], supra; Dilon, 18 Misc 3d 128[A], [2d, 11th & 13th Jud Dists 2007] supra.) However, if the peer review report is not in evidence, the parameters of such report, including the reasons given for the denial, are not a matter of record, and for purposes of trial, are unknown.”

The peer report is a medical based document that makes conclusions based upon assumptions that are presented in the Assignor’s medical history.  The peer report is itself redundant and should not be admitted into evidence since it constitutes improper bolstering of the underlying expert testimony.

Testimony that runs consistent with the peer report should be admissible.

10-1 odds this gets reversed.  The backlog of cases at the App Term is about 2-3 years, so we will not get an answer until the middle of this decade.  Heaven knows how much more appellate work the defense bar will egage in until this issue is “resolved” (again).