N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance Company (Lawyers Weekly No. 10-166-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11284 N.E. PHYSICAL THERAPY PLUS, INC. vs. LIBERTY MUTUAL INSURANCE COMPANY. Essex. May 7, 2013. ‑ September 10, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Evidence, Hearsay, Judicial discretion, Medical bill. Practice, Civil, Judicial discretion, Motion in limine, Appellate Division: decision. Civil action commenced in the Lawrence Division of the District Court Department on June 4, 2008. The case was heard by Mark A. Sullivan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Daniel P. Tighe (Douglas R. Tillberg with him) for the defendant. Francis A. Gaimari (Stephen B. Byers with him) for the plaintiff. The following submitted briefs for amici curiae: E. Michael Sloman for Automobile Insurers Bureau. Peter A. Biagetti & Andrew Nathanson for Fair Health, Inc. Paul R.Q. Wolfson, Shirley Cassin Woodward, & Dina B. Mishra, of the District of Columbia, & John J. Regan & Mark C. Fleming for American Insurance Association & others. David L. Arrington & Jodi L. Howick, of Utah, & Todd S. Holbrook & Jeffrey D. Adams for Mitchell International, Inc. LENK, J. After being billed by the plaintiff, N.E. Physical Therapy Plus, Inc. (NEPT), for certain medically necessary chiropractic services provided to the passenger of its insured, the defendant, Liberty Mutual Insurance Company (Liberty Mutual), maintained that the cost of those services was unreasonably high and thus refused to pay the full amount invoiced. At the ensuing trial on the dispute, Liberty Mutual sought to introduce statistical evidence from a commercial database to show that NEPT’s charges exceeded the eightieth percentile of reported charges for the same procedures and were thus unreasonable. Liberty Mutual claimed that the statistical evidence was admissible pursuant to G. L. c. 233, § 79B (§ 79B), which creates a limited exception to the hearsay rule for factual statements contained in commercial publications. Citing a decision of the Appellate Division of the District Court that concluded the same database was unreliable, a District Court judge denied Liberty Mutual’s motion to admit the database evidence. We are asked to determine whether a trial judge has discretion to consider the reliability of evidence offered under § 79B where the evidence otherwise satisfies the requirements of § 79B, and, if so, whether the judge here abused such discretion […]