Key Takeaway
Analysis of peer doctor hearsay testimony in no-fault insurance cases, examining Civil Court's distinction from Appellate Term precedent in Beal-Medea v GEICO.
Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co., 2010 NY Slip Op 50800(U)(Civ. Ct. Kings Co. 2010)
This is the topic that just will not go away. Except for one case that I will discuss later, the Appellate Term has consistently held that a peer doctor may predicate his testimony from an Assignor’s out-of-court medical records. Although never explicitly stated, the courts have held that there is an inference that medical records containing some biographical information about the assignor are reliable. This is why the Appellate Term has rebuked every hearsay challenge that has been presented on a properly developed record.
Yet, each time the Appellate Term holds that the purported hearsay challenges lack merit, another civil court purports to find a “distinction” in order to sustain a hearsay challenge. Most of these distinctions are without a difference, and where the distinction occurs in this case is beyond me; but the Civil court here found that the peer doctor’s testimony should be stricken because it violated Wagman. The Court, without going into detail, continuously cited Progressive Med., Inc. v Allstate Ins. Co., 26 Misc 3d 138(A)(App. Term 2d Dept. 2010), for its justification in striking the testimony of the peer doctor.
In case you forgot, Progressive Med stated the following:
“On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.”
Even one of the most respected practitioners from the no-fault plaintiff’s bar, along with the respected no-fault blogger from the same law firm, observed the following about Progressive Med., Inc. v Allstate Ins. Co., in an April 8, 2010 New York Law Journal article entitled APPELLATE COURTS ADDRESS ISSUES OF PROCEDURE AND FOUNDATION 4/8/2010 NYLJ 3, (col. 1): “Practitioners should note, however, that the court took pains to point out the sparse record.”
As I have said numerous times, medical records containing some biographical information about the assignor will raise an inference that the said medical records are reliable. This is never to say -and I have said this before – that a Plaintiff can offer evidence to rebut this inference. Think of res ipsa loquitor. It is is a similar concept here.
But, to jump up and down, yell hearsay and actually obtain a decision like this should and probably will lead to an appeal, whose result is preordained.
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- New York No-Fault Insurance Law
