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1159The Rogak Report: 31 May 2007 ** No-Fault - Peer Reviews - Expert Testimony **

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  • Lawrence Rogak
    Jun 3, 2007
    • 0 Attachment

      EXPERT WHO TESTIFIES AT TRIAL NEED NOT BE THE SAME EXPERT WHO DID THE PEER REVIEW

      Spruce Med. & Diagnostic, P.C. a/a/o Mireya Lobo v. Lumbermen's Mut. Cas. Co.
      2007 NYSlipOp 51104(U)
      Decided on May 30, 2007
      Appellate Term, First Department
      Edited by Lawrence N. Rogak
      Index no. 570787/2006

      Lumbermens' appealed from an order of the Civil Court, Bronx County (Larry S. Schachner, J.), which granted plaintiff's motion to preclude defendant's expert testimony and awarded a judgment to plaintiff.  The Appellate Term reversed.

      "Plaintiff moved to preclude the testimony of defendant's medical expert on the ground that the expert was not the doctor who prepared the peer review report upon which defendant's denial of no-fault benefits was based. The motion should have been denied since defendant's expert witness 'would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report' (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U][2007])."

      Comment: As I have written before, and explained in my book, Rogak's New York No-Fault Law & Practice, it is not required that the expert who writes the peer review be the same expert who testifies at trial.

      Larry Rogak