The answer is No. As a practitioner for the past 27 years, I have seen most personal injury lawyers erroneously allow the Michigan no-fault independent medical exam reports to be admitted into evidence on motions for summary disposition and at trial. This is extremely dangerous because the IME report also known as insurance medical exam, is done in anticipation of litigation. Most lawyers do not know the law regarding defense medical exam reports. Our law firm vigorously fights by filing many motions in limine to exclude defense medical exam reports from evidence, so the jury is not misled and the injured car accident victim is not unfairly prejudiced.
The defense medical exam reports and other expert reports are usually inadmissible because they are inadmissible as hearsay and/or double hearsay for the following reasons. We bring the motion to exclude IME reports pursuant to MRE 103(c) which states:
“(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”
Defense medical exam reports (DME) are subject to hearsay and double hearsay. These reports are also referred to as Defendant’s insurance medical exam (IME) reports or independent medical exam reports (IME), but the expert(s) are hired by the defense specifically in anticipation of litigation and the defense expert is not seeing the injured person for purposes of “care or treatment”, which would generally qualify as an exception to the hearsay rule. MRE 803(4). In fact, the defense medical exam reports clearly state a physician-patient relationship was not established with the injured auto accident claimant. Thus, no legitimate exception to hearsay applies. The defense medical exam reports are also inadmissible because they are based on hearsay and double hearsay, e.g., refer to other records. The IME reports are based upon Hearsay and double hearsay, which is inadmissible and unreliable for the reason stated here. The defense medical exam reports should also be excluded from evidence under MRE 403 because the reports would be unduly prejudicial, waste of time, confusing and presenting cumulative evidence since defense experts are expected to give oral “opinion testimony” based upon the exam itself.
In fact, the very same issue was considered by the Michigan Court of Appeals in People v. Huyser, 221 Mich App 293 (1997), and Michigan Court of Appeals concluded that the trial court erred by allowing the State to utilize, in its prosecution, an expert witness report of the doctor it [hired] to examine the victim of a sex crime. Because the report was prepared for the purpose of litigation, the Court believed it lacked trustworthiness of a record generated exclusively for business purposes. Id. Other courts faced with the same issue, such as the Supreme Court of Main in State v. Tomails, 736 A.2d 1047 (Me. 1999), reached the same conclusion, holding forensic expert reports are the antitheses of the business records addressed by the Maine version of Rule 803(6) and the fact that they are prepared in anticipation of litigation is a common reason for finding that they lack trustworthiness. Similarly, in McElroy v. Perry, 753 So.2d 121 (2000), the Florida Court of Appeal’s reached the same conclusion. Thus, Defendants’ insurance medical exams report(s) (IME) and other expert reports are not admissible under the business record exception either. Id. In my cases, after I file a motion in limine to exclude these harmful reports, Michigan trial courts and defendants have routinely stipulated to orders excluding these reports.
Defense Independent Medical Exam (IME) expert reports are inadmissible as hearsay and double hearsay. Generally, hearsay is defined as a statement (oral or written), other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. MRE 801. Generally, hearsay is not admissible unless it falls within an exception. MRE 802; Merrow v. Bofferding, 458 Mich 617, 626 (1998). Defendant as a proponent of the hearsay statements in the form of defense medical exam reports “bears the burden of establishing [its] admissibility.” Gilbert v. DaimlerChrysler Corp, 470 Mich 749, 781 (2004), quoting People v. Crawford, 458 Mich 376, 388 n 6 (1998). Defendants cannot establish the admissibility of the alleged medical exam reports.
Defense medical exam reports are hearsay and in some cases are based on double hearsay. The legal definition of Double Hearsay is:
“Recitals of statements of others within a statement that is itself hearsay; an out-of-court declaration containing another out-of-court declaration.”
Virtually every court that has encountered double hearsay even in ‘medical records’ has excluded the double hearsay statements from being introduced into evidence. The defense medical exam reports are not even “medical records” as they were not being prepared for the injured car accident victims care and treatment. In fact, the defense IME reports clearly state a “physician-patient” relationship was not established.
The first hearsay hurdle cannot be crossed because the defense medical exam report(s) itself is hearsay. The second hurdle is that the alleged statement(s) like reference to treatment records or insured statements in records, usually contained in the defense medical exam report is also hearsay. Thus, the alleged medical exam reports are hearsay and double hearsay and should be properly excluded from evidence.
In addition, in Com. v. Laich, 777 A. 2d 1057 (2001), Justice Nigro of the Supreme Court of Pennsylvania perceptively wrote:
"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. An out-of-court declaration containing another out-of-court declaration is double hearsay."
Specifically, in relation to double hearsay contained even in medical records, which Defendant’s expert reports here are not, since they were not created for care or treatment. U.S. Courts have routinely excluded such statements from being introduced at trial. In re Estate of Poulos, 229 NW 2d 721 (1975), Justice McCormick of the Supreme Court of Iowa noted that:
"We have long held that medical and hospital records are admissible, upon proper foundation, as an exception to the hearsay rule. We have recognized, however, that this does not necessarily make everything in the records admissible.... [H]earsay statements in medical and hospital records which are not germane to physical condition or medical treatment are inadmissible unless nonprejudicial.
"This is referred to by commentators as the double hearsay rule. The hospital record is hearsay. It is admissible under an exception to the hearsay rule. But it may include recitals of statements of others, including the patient. This included hearsay is the subject of the double hearsay rule. Included hearsay is inadmissible, upon proper objection, unless it independently comes within a recognized exception to the hearsay rule."
In People v Pugh, 487 NYS 2d 415 (1985) Justice Denman of the Appellate Division of the Supreme Court of the State of New York used these words to exclude evidence:
"Murfitt's testimony as to what Stevens told him that decedent had told Stevens would be double hearsay, incapable of verification or cross-examination, and we can think of no basis on which it should have been admitted."
Lastly, Plaintiff personal injury attorneys should argue, the defense medical exam reports should be excluded from evidence under MRE 403. MRE 403 states that evidence may be inadmissible upon showing one of the following grounds:
“Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Furthermore, Plaintiff’s should argue that the defense medical exam reports would be unfairly prejudicial, wasting time, and needlessly presenting cumulative evidence. Don’t let the defense attorney get away with admitting the independent medical exam report(s), because it will likely destroy your client’s case. These reports are specifically designed and written to destroy the car crash injury victim’s case!
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