May an insurance carrier's expert offer an opinion beyond the confines of his peer or IME report?

In affirming the denial of plaintiff's summary judgment motion, the Appellate Term, First Department in Krishna v Liberty Mut. Ins. Co. 2009 NY Slip Op 51312(U)(App. Term 1st Dept. 2009) reiterated its position (Response Medical Equipment v. General Assur. Co.13 Misc.3d 129[A][App. Term 1st Dept. 2006]; Mollins v. Allstate Ins. Co.20 Misc.3d 141[A][App. Term 1st Dept. 2008]) that an insurance carrier's expert may comment on medical evidence not contained in a peer report or IME report in support of its lack of medical necessity defense.

The pertinent portion of the Krishna opinion states the following: "The initial peer review report relied upon by defendant, as amplified upon defendant's receipt of additional documentation from plaintiff regarding his claim, set forth sufficient facts to raise a triable issue as to the medical necessity of the health services and diagnostic tests performed by plaintiff. "