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Auto Club gets reversal of PIP verdict in Court of Appeals; Court holds insurer not responsible for actions of its retained IME expert

In a fairly startling example of insurance bias, the majority of the Court of Appeals panel in Estate of Hubbert v. Auto Club reversed a verdict for the Plaintiff and ruled that the insurance company was not responsible for the misdeeds of its retained independent medical examiner physician expert witness (one Phillip Friedman, M.D.).  In a thoughtful dissent, Judge Mike Kelly--one of the rare judges with substantial trial-level experience--would have upheld the trial judge's rulings and affirmed the verdict.  Judge Kelly's written dissent exposed the flawed and biased reasoning of the opinion which insurance-friendly judge Kirsten F. Kelly signed.

The Hubbert case was basically a battle of physicians' opinions regarding the causation of the decedent's injuries and treatment.  The treaters agreed and testified that the injuries and treatment were accident-related.  The insurer cut off benefits and defended its actions by arguing that the injuries and treatment were not accident-related.  The Auto Club hired a doctor, Phillip Friedman, whose practice apparently consists of performing "independent" examinations for insurers, to cut off benefits.  It disclosed him as it's expert physician witness.  The attorneys for the Estate then subpoenaed Friedman, requiring him to bring to his deposition the records documenting his extensive insurance involvement in "examining" claimants for insurers. 

The doctor ignored the subpoena for over a year, through several trial adjournments, and the insurer's attorneys fought the subpoena on his behalf.  They then scheduled his deposition for the evening of the first day of trial.  Even though the judge rejected the insurer's argument that the subpoena should be voided, the doctor refused to comply and brought no documents to the deposition.  He then proceeded to testify that neither he nor his accountants kept any 1099s, that he had no knowledge of the content of his financial records, that he had never seen the subpoena, and that the failure to produce the subpoenaed records was the fault of his staff.  The trial judge scoffed at Friedman's claims, held him in contempt, and refused to allow him to testify.  The case went to trial and resulted in a verdict for the Estate.  The Auto Club then appealed, arguing that it should not be held responsible for Friedman's failure to comply and that it was denied a fair trial because it could not present Friedman's testimony.

In a shocking development, the Court of Appeals upheld the Auto Club's appeal and reversed the verdict.  The Court majority ignored the fact that the Auto Club retained Friedman, fought the subpoena on his behalf, and then attempted to use his testimony without attempting even minimal compliance with the court-approved subpoena. 

Judge Kelly rejected this outcome, pointing out the obvious responsibility of a party for a retained witnesses' compliance with a subpoena and the long-stranding precedent that the case ignored.  By reciting the facts of the case, Kelly ridiculed the majority's suggestion that the Auto Club lacked any responsibility for Friedman's imperious refusal to comply with a valid order of the trial judge.

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