N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance
2011 Mass. App. Div. LEXIS 24
Mass. Dist. Ct., App. Div.2011Background
- NEPT treated injured party; submitted a $4,465 PIP bill to Liberty Mutual.
- Liberty paid $3,730.68 and NEPT sued for the remaining $734.32.
- Trial court waived jury; NEPT won on §34M PIP claim and awarded the balance plus fees.
- Liberty prevailed on the §11 (G.L.c. 93A) claim; NEPT did not appeal that portion.
- Liberty sought to admit Ingenix data to prove charges were not reasonable; motion in limine denied.
- Court held Ingenix data inadmissible under Davekos and §79B; affirmed judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Ingenix data under §79B | Liberty: data qualifies under §79B as a commercial list; NEPT challenges reliability. | Liberty contends §79B applies and data is admissible as a compilation of facts. | Inadmissible under §79B (and Davekos) due to unreliability. |
| Effect of Davekos on admissibility | Davekos supports admission by showing compilation of facts. | Davekos shows Ingenix data are not reliable; not ready for admission. | Davekos controls; data excluded. |
| Trial judge's denial of the motion in limine | Judge erred by not considering §79B applicability and Davekos implications. | Judge correctly applied Davekos and §79B. | No error; ruling affirmed. |
Key Cases Cited
- Mazzaro v. Paull, 372 Mass. 645 (1977) (compilation of facts; statements of opinion are inadmissible under §79B)
- Fall River Sav. Bank v. Callahan, 18 Mass. App. Ct. 76 (1984) (opinions not admissible under §79B)
- Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660 (1980) (limits on admissibility of professional opinions; distinguishes compilations)