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First Department clarifies disclosure of notes from IME.

July 1, 2019
Markel v. Pure Power Boot Camp, Inc., 2019 NY Slip Op 02049 (1st Dep’t 2019)

The plaintiff was examined by the defense medical expert at an IME and was accompanied by a representative from an IME watchdog group. The defendant demanded any notes, reports, photos, etc. from the IME watchdog. The court summarized the history of allowing plaintiffs’ representatives, including IME watchdogs, to accompany plaintiffs at IMEs. In a case of first impression, the court held that the defendants were not entitled to the notes of the IME watchdog because the watchdog was an agent of the plaintiff’s attorney and her notes qualified as materials prepared for trial, which can only be obtained by showing a “substantial need” for the materials, which the defendant could not show since it had access to its doctor who also conducted the exam. The court did, however, indicate that the result might be different if the IME watchdog was going to testify at trial.

 

Case Law Alerts, 3rd Quarter, July 2019

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