A defendant is not simply entitled to "one bite of the apple" when it comes to IMEs.

The Third District Court of Appeal quashed a trial court's order denying a second IME after the plaintiff's second surgery because the surgery could have had substantial physical impact related to permanency. Gomez is an auto accident case in which the plaintiff, a child, had a post-first surgery/pre-second surgery independent medical examination. After the second surgery, the defense moved for a second examination, which the trial court denied. The Third District Court held this denial of the motion was not in line with the essential requirements of the law. In relying on Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462 (Fla. 3d DCA 2008), the court held the defense was entitled to a second IME because the injury in question "was in controversy and such an operation 'caused a substantial change in that physical condition,' leading to a showing of good cause for the request." For defense counsel, this case is significant, because it stands for the proposition that a defendant is not simply entitled to "one bite of the apple" when it comes to IMEs.

Case Law Alert, 3rd Quarter, July 2013