Evidence & Trial Practice

The evidence that decides most injury cases is documentary: medical records and bills, the police accident report, diagnostic imaging, photographs of the scene and the injuries, and employment records for a lost-earnings claim. CPLR 3101(a) requires full disclosure of all matter material and necessary to the prosecution or defense of an action, so each side can obtain these records before trial. Records of a business are admissible under CPLR 4518(a) when made in the regular course of business at or near the time of the event. Expert opinion on causation and permanence is exchanged under CPLR 3101(d)(1)(i).

Under CPLR 4518(a), a record of any act, transaction, occurrence or event is admissible to prove that event if the judge finds it was made in the regular course of a business, that it was the regular course of that business to make it, and that it was made at the time of the event or within a reasonable time after. The rule adds that the maker's lack of personal knowledge goes to weight, not admissibility. Records produced under a subpoena may be authenticated by the custodian's certification under CPLR 3122-a. In no-fault cases, denial forms, mailing logs and peer review reports are usually offered this way.

Diagnostic imaging supplies objective evidence of an injury, and objective proof is what the serious injury threshold requires. In Toure v Avis Rent A Car Systems, 98 NY2d 345 (2002), the Court of Appeals held that subjective complaints alone are not sufficient, and that a numeric measurement of lost range of motion, or a qualitative assessment with an objective basis, can substantiate a claim. An MRI or CT report is read with the examining physician's findings; on its own it does not show that the accident caused the condition. CPLR 4532-a admits the image itself when the identifying information is on it and the notice rules are met.

Surveillance must be disclosed before trial. CPLR 3101(i) requires full disclosure of any films, photographs, video tapes or audio tapes involving a party, including transcripts or memoranda of them, and of all portions of that material, including out-takes, not only the portions a party intends to use. Insurers do retain investigators to film plaintiffs, and a video that contradicts sworn testimony about physical limits can be used to impeach the witness. Whether undisclosed or edited footage is excluded is decided by the trial judge on the facts. Expect to be filmed, and describe your limitations accurately at every examination and deposition.