While the First Department has attempted to bring clarity to the issue by rendering its decision, the Second Department has yet to deliver a decision on the issue.

Andrea M. Alonso and Kevin G. Faley, New York Law Journal

May 10, 2019

In an attempt to clarify the exact parameters when IME Watchdogs are subject to discovery demands, the Appellate Division, First Department reversed its decision in Markel v. Pure Power Boot Camp, stating that "substantial need" is required for an IME observer's notes to be discoverable. The specific question of whether such an IME "Watchdog" or other observer's notes are discoverable under CPLR 3101(a)'s broad iteration of full disclosure is an issue that has resulted in varying decisions among the trial courts. These disparate decisions result in conflicting opinions as to when such materials can be protected from disclosure. While this decision was meant to clarify the law, it's possible that the reversal in Markel will only create more confusion as other departments rule on this issue. New York CPLR §3121 allows for an opposing party to require plaintiff to submit to an Independent Medical Examination (IME) by a designated physician. As the courts have noted, these physical examinations serve an Important function in our legal system by "[narrowing], if possible, areas of medical dispute through the assistance of the medical profession, and [eliminate] most of the medical controversy in a personal injury case." Jakubowski v. Lengen, 86 A.D.2d 398, 400 (N.Y. App. Div. 4th Dept. 1982). While many attorneys may disagree that these IMEs narrow, any dispute, they serve an important purpose and have become standard practice.

Due to the potential impact an IME may have on a case, New York has traditionally allowed attorneys to accompany their clients to these examinations. Plaintiffs are entitled to have a representative present at their IME as long as said representative does not "interfere with the examinations conducted by defendants' designated physician or prevent defendants' physician from conducting a meaningful examination." Santana v. Johnson, 54 A.D.3d 452, 452 (1st Dept. 2017). Plaintiff attorneys have retained outside individuals to sit in on the examinations. These "Watchdog" organizations have 1used the courts to not only re-address the rules that govern the IMEs, but so reconsider the rules of discovery regarding the work product of the Watchdogs."

The Role of a 'Watchdog' at an IME

In cases where counsel hires outside "Watchdog" organizations to attend IME, these individuals are subject to the same rules which govern an attorney's role such an examination. When any advocate or representative of the patient attends an examination, the courts have set basic guidelines regarding their behavior during the examination. Representatives must "identify themselves upon entrance, observe the examination without any interference whatsoever,and refrain from bringing surveillance materials into the examination room. IME Watchdog v. Baker, McEvoy, Morrissey & Moskovits, P.C. , 145 A.D.3d 464 N.Y. App. Div. 1st Dept. 2016). The patient representative is allowed to sit gently and take handwritten notes based upon their observations, which may be used for litigation purposes. The use of these handwritten notes, and other documents produced by the "Watchdog" during the IME, has become a hotly contested issue regarding discovery demands by opposing counsel. Differing approaches have resulted in a department split, with this issue on a collision course to the Court of Appeals for an ultimate determination.

Pre-'Markel' Decisions

Prior to the Markel reversal in the Appellate Division, the First Department addressed this issue head on in the recent decision of Gelvez v. Tower 111. In Gelvez , plaintiff underwent two IMEs during the course of discovery. On both occasions, plaintiff was accompanied by an employee of the "IME WatchDog" group. Defendants moved to compel new IME's outside the presence of the IME WatchDog employee and for the production of any records/reports created by IME WatchDog in connection with these IMEs and the case in general. The court denied the request for new IMEs but granted the request for the reports, as the court found the plaintiff "had not demonstrated IME WatchDog's employees or the documents prepared in connection with this case fell within the scope of the attorney-client privilege."

Thereafter, plaintiff appeared for supplemental IMEs again accompanied by an IME WatchDog employee. Despite timely demands, plaintiff failed to produce any reports prepared by IME WatchDog, causing defendants to move to preclude IME WatchDog's testimony and reports. The court denied this motion to preclude but also granted defendants leave to conduct depositions. Shortly before the noticed deposition was scheduled to take place, IME WatchDog's president allegedly advised defendants that he would require a subpoena before he would allow his employees to be deposed. After defendant served subpoena on IME WatchDog, plaintiff motioned to quash the subpoena altogether. After oral arguments, defendant cross-moved to preclude plaintiff from introducing any IME WatchDog-related evidence at trial. In the alternative, defendants sought an order compelling IME WatchDog to comply with its discovery demands.

The court began its discussion with the Santana v. Johnson decision as precedent. Santana held that plaintiffs are entitled to have a representative present at their IMEs as long as the representative and these representatives may be deposed by opposing counsel. Santana, 154 A.D.3d at 452. Building upon Santana, two trial court decisions in New York County, including the original trial court decision in Markel, held that IME WatchDog is neither covered by the attorney-client privilege nor immune from discovery under CPLR 3101(d)(2). Markel v. Pure Power Boot Camp, 2017 Misc. LEXIS 4444 (Sup. Ct. NY. Co. 2017) (court declined to quash a subpoena served on non­ party IME WatchDog, finding claim of work product privilege to be conclusory); see also Marks v. 79th St. Tenants, 2018 NY Misc. LEXIS 2774 (Sup. Ct. NY Co. June 26, 2018) (holding that IME WatchDog was not covered by either the attorney work-product privilege or CPLR 3101(d(2)'s qualified immunity for materials prepared in anticipation of litigation.). Of these decisions, the Gelvez court decided that Marks, having cited Santana in its decision, was most consistent with New York law and would base the analysis on it.

The plaintiff in Gelvez argued that IME WatchDog's role was no different than if his attorney or one of his associates/paralegals accompanied him to the IMEs. The plaintiff argued that any documents, notes or reports IME WatchDog prepared should be deemed attorney work product, and thus protected from discovery. While it is indisputable that these documents and notes were prepared "in anticipation of litigation," IME Watchdog's work is not necessarily immune from CPLR §3101's discovery tools. New York law allows for defendants to obtain IME Watchdog's records upon showing that they have a "substantial need of the materials in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the materials by other means" CPLR §3101(d)(2). The Gelvez court found the reasoning in Marks to be instructive: "IME WatchDog does not offer expert or investigatory services based on a plaintiff's underlying claim rather, it offers eyewitness testimony of independent medical examinations conducted as part of discovery in the instant action." Marks, 2018 NY Misc. LEXIS 2T74 at 3. For defendants to adequately prepare for the possibility that the IME WatchDog employee in question could be called to testify, they need to obtain their records and be able to depose them on said records. In addition, plaintiff's argument in Gelvez that IME Watchdog is covered under attorney-work product privilege is in direct conflict with the precedent Santana. If an IME WatchDog employee can be deposed, it cannot follow that IME Watchdog is covered by the attorney-work product privilege.

Plaintiff's final argument in favor of squashing the subpoena was that the defendant's failed to satisfy their burden of proving present "special circumstances" for seeking discovery from IME WatchDog as a non-party witness. This argument was in direct conflict with the binding precedent set in Matter of Kapon v. Koch , where the Court of Appeals made clear that the disclosure standard for parties and non-parties is the same, essentially dismantling any requirement of "special circumstances." The "material and necessary" framework under CPLR 3101(a) applies to party and non-party disclosure, setting no higher standard for non-parties. Thus, under Kapon, a non-party subpoena should only be quashed if the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious."

The Gelvez court ultimately ordered that IME WatchDog produce any notes taken during plaintiff's IMEs and any reports prepared in connection therewith within 15 days. The IME WatchDog employees who were present at the IMEs were ordered to appear for depositions within 30 days. If IME WatchDog refused to comply with these orders, the plaintiff was to be precluded from calling them at trial and from offering their reports, notes, or observations as evidence.

Back to the Future

Despite Gelvez's reliance on Santana and Marks as the basis for its decision, the court's discussion of the original Markel trial court decision within its opinion could result in a potential reversal. This would result in a judicial roadblock of a defendant's ability to hold these IME Watchdogs or observers responsive to discovery demands. If and when the Gelvez decision is appealed to the Appellate Division, the new Markel decision will undoubtedly be used as precedent for a potential reversal. With both of these decisions, the reversal in Markel has only left the law with more obscurity.

While the First Department has attempted to bring clarity to the issue by rendering its decision, the Second Department has yet to deliver a decision on the issue. As attorneys testing this uncharted territory in the Second Department, the law could inevitably result in a Court of Appeals review because of a department split. This area of the law remains unsettled. In the First Department, discovery demands of this type are likely to be denied unless "substantial need" is demonstrated. As for the Second Department's position, only time will tell.

Andrea M. Alonso and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley. Patrick D. Reilly, a paralegal at the firm, assisted in the preparation of the article.

Reprinted with permission from the May 10, 2019 edition of the New York Law Journal © 2019
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