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Personal Injury

Troy, NY |

I am pro se. I was examined by a dermatologist regarding an injury that a product caused me. I am about to subpoena the doctor’s official report as soon as I receive my trial date so that I can read it out loud to the jury. The doctor, board certified, is no longer in the United States.

Will New York State Supreme Court allow this document as evidence and allow me to read it to the jury?

Attorney Answers 7

Posted

It is unlikely that a judge will allow a report to be read into evidence. The report itself is hearsay, and is inadmissible unless it falls within one of the numerous exceptions. Is your lawsuit against the M.D. or the manufacturer?

I am licensed in California, therefore, my answers are based on general prinicpals of law or California law, which may not be applicable in your jurisdiction. Answers posted to Avvo are for general information only. Do not conclusively rely on any information posted online when deciding what to do about your case. Every case depends is fact dependent, and responses are limited to and is based on the information you posted. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

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Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

This answer is flat out wrong in NY.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

4 lawyers agree with this answer. Greg, maybe we're wrong.

Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

we're not Jeff. the statue is clear and I don't think any of them practice in NY

Sean Michael Patrick

Sean Michael Patrick

Posted

I practice in California. I would certainly defer to a NY attorney on NY law.

Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

thanks Sean, it wasn't directed at you or your knowledge of the law where you practice. There are huge benefits to an open forum like this, but there are some drawbacks as well. Each state has some if its own nuances that many are outside the jurisdiction may not be familiar with. For example, until the Feds passed the Graves Amendment, NY was the only state in the country that held a leasing company liable for the negligence of the operator of a vehicle.

Posted

Probably not.

-Michael R. Juarez Law Office of Juarez and Schaeffer PO Box 16216 San Diego, CA 92105 (619) 804-4327 www.jslaw.org Mike@jslaw.org This posting is provided for “information purposes” only and should not be relied upon as "legal advice." Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principles discussed here may differ substantially in individual situations or in different jurisdictions.

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Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

In NY, the records can come into evidence.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Greg, you must be wrong 3 lawyers agree.

Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

ha, not wrong. sometimes points are more important

Posted

If the doctor was one that you as plaintiff sought treatment from, or examined you in a capacity as an expert, then not only can you not submit his report into evidence, but you must first serve that report on the defendant to be even allowed to call that doctor as a witness at trial (assuming you can get the doctor to return for your trial). - and you can not wait until the actual trial to do that, as you would likely find yourself at the bad end of a preclusion order for waiting until trial to exchange the doctor's report. If the doctor was truly hired as an expert, then you must also serve a CPLR 3101(d) expert witness information exchange, There are many rules of evidence and procedure which effect what evidence, and how that evidence can be admitted before trial and as a Pro Se litigant, you are behind the proverbial 8 Ball, if defendants is represented by an experienced trial attorney.

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Posted

Wow - i completely disagree with the other posters, so I guess it comes down to who you believe.

If the record is that of a treating physician, and you obtain a certified copy of it by subpoena so that it is sent directly to the Court Subpoenad record room, the trial judge will upon oral motion generally admit all of the medical records as evidence, and you will be permitted to read from it.

That said, the other side could object, and a likely will, if they have doubts about your ability to lay a proper foundation for the record, and pro se litigants are often tested in this regard.

You should be aware, that simply reading from a report of a treating physician is not enough to create liability on the part of a product manufacturer. You need an expert to offer in opinion with respect to whether the produce is defective and why.

As for the record itself, there are ways to get it into evidence over objection, even if the doctor is no longer in the u.s. Support staff, or another doctor in the office, can provide the authentication necessary.

If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email - Jgold@goldbenes.com

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Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

My disagreement is not with Mr. Schwimmer but with the two California attorneys. Mr. Schwimmer and I agree that the records do not come in if you intend to use the report as your expert.

Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

Agreed. 3122-A gets them in if properly noticed.

Anthony A. Ferrante

Anthony A. Ferrante

Posted

I agree with these comments completely. I would only add that the result will depend on the Judge hearing the case. Some would be more lenient with a pro-se litigant than they would with an attorney. Regardless, the rules of evidence apply and this sounds like a very difficult matter matter for the plaintiff.

Posted

Is this your doctor or an examining doctor.

Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and educational purposes only. No attorney client relationship has been formed or should be inferred. Please speak with a local and qualified attorney. I truly wish you and those close to you all the best. Jeff www.nyelderinjurylaw.com

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Posted

I would like to remind the esteemed posters that our time and advice is our stock in trade. Value yourselves! Value your time! Value your advice! Value your profession!

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Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

I assume that you think I said too much. Two weeks ago, I settled a case for $400,000+ that obtained through AVVO. I'm just giving back, while I wait for the check : )

Michael J Palumbo

Michael J Palumbo

Posted

I've gotten good cases through AVVO also, but this person is representing herself pro se and now wants free advice. Nope. Sorry.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

I'd rather give advice to someone who is trying to represent themself the best they can (probably because no attorney wanted the case) then most of the other type of posters.

Posted

The records can come into evidence under CPLR 3122-A as long as they are properly certified and you disclose your intention to use them at trial at least thirty days prior to trial, specifying a place where the defendants can have an opportunity to exam them. While other evidentiary issues may arise, a physicians records can come into evidence without the doctor or someone from his office coming in to testify.

New York Plaintiff's Personal Injury Attorney Serving NYC, Long Island, Westchester and the surrounding areas. The information provided herein is not, and is not intended to be, legal advice. The content herein is for information and educational purposes only, and is based on the limited information provided. Any information provided is not intended to, and does not, create any attorney/client relationship where none exists. For legal advice, please consult with an attorney. While this posting is made for informational purposes only for the AVVO community, to the extent one seeks to contact me based on the content herein, or that this may be viewed by some to be attorney advertising, please be advised of the following: *Attorney Advertising

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