It is fascinating to see the resurgence of “footnote #5” in Pommels v. Perez. What is more fascinating is that while an unsworn MRI report on its own may not be considered, the report of an examining physician who relies on this unsworn document is admissible. Is it fair to opine that rank hearsay is made admissible through an expert’s reliance on the hearsay?
Does this make sense? If so, then why?
See below:
Caulkins v Vicinanzo, 2010 NY Slip Op 01727 (3d Dept. 2010)
“In opposition to the motion, plaintiff submitted the affidavit of her expert, a licensed chiropractor, whose name was redacted. Initially, we agree with plaintiff’s assertion that Supreme Court erred in deeming the affidavit incompetent to the extent that the expert relied on unsworn MRI reports. While it is true that “[u]ncertified medical records and unsworn letters or reports are of no probative value” in opposing a summary judgment motion (Parmisani v Grasso, 218 AD2d 870, 872 [1995]; accord Lentini v Page, 5 AD3d 914, 916 [2004]), the Court of Appeals has instructed that a sworn medical opinion that relies on unsworn MRI reports constitutes competent evidence (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]). Additionally, inasmuch as Vicinanzo’s expert quoted verbatim from, discussed and relied on the unsworn MRI reports in his affidavit, plaintiff’s expert was also entitled to rely upon them (see Pietrocola v Battibulli, 238 AD2d 864, 866 n 1 [1997]; see also Williams v Clark, 54 AD3d 942, 943 [2008]; Ayzen v Melendez, 299 AD2d 381, 381 [2002]).
