Key Takeaway
4th Department rules on evidentiary issues including unsworn chiropractic reports, expert disclosure limitations, and serious injury standards in personal injury case.
Siemucha v Garrison, 2013 NY Slip Op 07608 (4th Dept. 2013)
Point #1: Unsworn to chiropractic report (affidavit?) was proper because it was unobjected to (nothing new) and was based upon otherwise admissible hearsay (something new?)
“Defendants failed to preserve for our review their contention that the affirmed report of the chiropractor was not in admissible form (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 n 3; cf.Hartley v White, 63 AD3d 1689, 1690;Shinn v Catanzaro, 1 AD3d 195, 197-198). In any event, a plaintiff “may rely on unsworn reports and uncertified medical records if they were submitted by defendants … or were referenced in the reports of physicians who examined plaintiff on their behalf, and submitted the reports of their experts” (Feggins v Fagard, 52 AD3d 1221, 1223; see Brown v Achy, 9 AD3d 30, 32). Here, defendants’ expert reviewed and referenced numerous [*2]medical records of plaintiff in his report, including the chiropractic records.”
Point 2: “objective proof of spasm in his cervical spine” is sufficient to demonstrate a serious injury
Point 3: A narrow 3101(d) can preclude otherwise relevent evidence.
“Defendants further contend that the evidence of plaintiff’s drug use was relevant to the claim of loss of enjoyment of life and plaintiff’s heart problems, but defendants’ expert disclosure did not include those topics, and the court therefore properly precluded defendants from presenting such evidence at trial (see generally Lidge v Niagara Falls Mem. Med. Ctr. , 17 AD3d 1033, 1035). Likewise, the court did not abuse its discretion in precluding defendants’ expert from testifying regarding his experience treating patients with pending litigation and a study concerning that subject matter inasmuch as those matters were not included in defendants’ expert disclosure ”
Point 4: Police Reports
“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule, such as an admission (see Huff v Rodriguez, 45 AD3d 1430, 1432; Stevens v Kirby, 86 AD2d 391, 395). Here, however, inasmuch as “the source of the information was never identified,” the statement was not admissible as an admission (Huff, 45 AD3d at 1432)”
