Eliminating ambiguity created in the First and Fourth Departments, the Second Department places the burden squarely on defendants for the exclusion of ‘IME Watchdogs.’

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

February 26, 2021

New York CPLR §3121 permits an opposing party to require a plaintiff to submit to an independent examination by a designated physician. This Independent Medical Examination (IME) serves an important function. “[P]hysical examinations [narrow], 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 (4th Dept. 1982).

It is an established principle that a plaintiff undergoing an IME is entitled to the presence of a legal representative hired by their attorney. Ponce v. Health Ins. Plan, 100 A.D.2d 963, 964 (2d Dept. 1984). This concept was reinforced in Cioffi v. S.M. Foods where the court stated “[f]or a court to deny plaintiff accompaniment of his choice, an attorney or representative sent by the attorney, is an infringement upon plaintiff’s right to be assisted by counsel.” Cioffi v. S.M. Foods, 2013 NY Slip Op 32579(U) (N.Y. Sup. Aug. 6, 2013). In addition to, or in lieu of, their attorneys, plaintiffs are also permitted to hire an outside third party, referred to as either a “watchdog” or a “patient advocate,” to sit in on and observe the examination of the plaintiff. The presence of third-party observers has caused the courts to re- evaluate the rules governing independent medical examinations, including the possibility of excluding a third-party observer from attending the examination.

Role of a Third-Party Observer

When third-party observers attend an examination, the courts have set basic rules regarding their behavior: Third-party observers “must identify themselves upon entrance, observe the examination without any interference whatsoever and refrain from bringing surveillance materials into the exam room.” IME Watchdog v. Baker, McEvoy, Morrissey & Moskovits, 145 A.D.3d 464 (1st Dept. 2016). Third party observers must remain silent but can record handwritten notes based upon their observations which may ultimately be used in the litigation process.

Interference with the examination by a third-party observer would result in the third-party observer’s presence reaching the level of “unusual circumstances” that would necessitate a second examination. In Katz v. 260 Park Ave. South Condominium Associates, a third-party observer improperly interrupted the examination in order to prevent the doctor from taking additional X-rays of the patient. Katz v. 260 Park Ave. South Condominium Associates, 2016 WL 1597770 (N.Y. Sup.). Defense counsel filed a motion to have the plaintiff re-submit to a second examination. The court agreed with the defendant and ordered the plaintiff to return to the doctor to undergo the X-ray examinations.

Presence of a Third-Party Observer

Since the 1984 Ponce decision, there has been a marked increase in the use of third-party observers. Many defendants have attempted to exclude the presence of these observers from the independent examinations. Initially, there was a split among the Appellate Departments in New York as to which party had the burden of proof to exclude the presence of a third-party observer from the independent medical examination.

In Kattaria v. Rosado, the First Department directed plaintiff to resubmit to an independent medical examination coinciding with an order excluding non-attorneys from the exam. The First Department applied a two-factor test to determine whether the third-party observer should be permitted to attend the examination. Third party observers may be barred from an examination if (1) plaintiff does not timely object to defendant’s notice of physical examination pursuant to CPLR 3121 and 3122 barring any third-party observers; and (2) plaintiff fails to demonstrate any special and unusual circumstances. This initial decision by the First Department placed the burden directly upon the plaintiffs to demonstrate any special or unusual circumstances that require a third-party observer attend.

However, only nine months later, the First Department had to address this issue once again coming to an incongruous conclusion in the October 2017 Santana v. Johnson decision. Santana v. Johnson, 154 A.D.3d 452 (1st Dept. 2017). In Santana, the trial court granted defendants’ motion to preclude plaintiffs from offering the testimony of the non-party, IME Watchdog, Inc., at trial. Id.

This motion was in response to IME Watchdog, Inc.’s representative interfering with the examination of the plaintiff by defendant’s physician. Id. However, in coming to its decision, the appellate court stated “[t]o the extent that this court has implicitly suggested that a representative can be barred from an examination if the plaintiff fails to demonstrate special and unusual circumstances … that is not the current state of the law in either the First, Second or Fourth Departments and is inconsistent with the general principle that plaintiffs are entitled to have a representative present at their medical examinations.” Id. This decision by the First Department not to explicitly overrule Kattaria, but rather refer to it as not being the current state of the law in the First Department, created significant ambiguity as to what standard would apply to litigants.

As referred to in the Santana decision, the Second Department, in Henderson v. Ross, disagreed with the First Department’s decision in Kattaria and held that the burden should be on the defendant. Henderson v. Ross, 147 A.D.3d 915 (2d Dept. 2017). The trial court held that the defendant had in fact satisfied this burden and granted the defendant’s motion for a protective order precluding any non-attorney from accompanying the plaintiff at his physical examination. This protective order was ultimately reversed by the Second Department Appellate Division, but the appellate court agreed with the lower court’s placing of the burden upon the defendant as opposed to the plaintiff.

Similarly, in the Fourth Department decision Marriot v. Cappello, the court once again placed the burden upon the defendant. Marriot v. Cappello, 151 A.D.3d 1580 (4th Dept. 2017). While the decision is focused upon what constitutes a waiver of one’s right to a third-party observer, the court stated that a plaintiff “is entitled to be examined in the presence of [his or] her attorney or other … representative … so long as [that person does] not interfere with the conduct of the examination … unless [the] defendant makes a positive showing of necessity for the exclusion of such an individual.” To the extent that the First Department created ambiguity is what is at odds with the decisions in the Second and Fourth Departments leaving plaintiffs and defendants somewhat confused as to which party carried the burden of either admitting, or excluding, a third-party observer from an independent medical examination.

Recent Developments

In Gonzalez v. Red Hook Container Terminal, 128 N.Y.S.3d 897 (2d Dept.) a decision in September 2020, plaintiff commenced suit against defendant seeking to recover damages for injuries he alleges resulted from a fall of 10-15 feet from machinery owned and operated by the defendant. Plaintiff alleged that he sustained permanent brain injuries as a result of the accident. The defendant sought an independent neuropsychological medical examination of the plaintiff to assess the plaintiff’s mental status to evaluate the existence of the alleged cognitive impairments.

Plaintiff complied with defendant’s request for an IME but, when he appeared, requested an individual from IME Watchdog, a third-party observer, be permitted to observe the examination. The defendant’s doctor did now allow the third-party observer to be present during the examination and thus the plaintiff refused to proceed. The defendant then moved, inter alia, for an order compelling the plaintiff to undergo the examination without the presence of a third-party observer.

The Supreme Court denied that branch of the defendant’s motion seeking to exclude the presence of any third parties from observing the examination of the plaintiff, and plaintiff underwent the examination with the third-party observer present. The defendant appealed the denial of that branch of its motion to the Second Department seeking to conduct the examination without the presence of the third-party observer.

The Second Department restated the principle laid out in Ponce and Henderson, that a plaintiff is entitled to have his or her attorney, or other legal representatives, present during an examination as long as the legal representative does not “interfere with the conduct of the examination.” Id.; see also Ponce v. Health Ins. Plan of Greater N.Y., 100 A.D.2d 963, 964; Matter of Alexander L., 60 N.Y.2d 329, 337. In 2017, Henderson extended upon this Ponce principle determining that a plaintiff’s nonlegal representative may also be present during the examination, as long as the representative does not interfere with the conduct of the examination. Id.; see Henderson, 147 A.D.3d 915, 915.

In Gonzalez, The Second Department noted that the First Department and Fourth Department have placed the burden of persuasion on defendants to establish a justification for excluding said third-party observer or other nonlegal representative. Id.; see also Markel v. Pure Power Boot Camp, 171 A.D.3d 28, 30; Martinez v. Pinard, 160 A.D.3d 440, 440; Santana v. Johnson, 154 A.D.3d 452, 452; Marriott v. Cappello, 151 A.D.3d 1580, 1583. This burden, which implicitly shifted in the First Department from plaintiff to defendant after the Santana decision, requires a defendant to establish that the third-party observer would “interfere with the conduct of the plaintiff’s examination.” Id.; see Henderson, 147 A.D.3d at 916; Guerra v. McBean, 127 A.D.3d 462, 462.

In Gonzalez, the Second Department attempted to eliminate any ambiguity created by the conflicting decisions of the First Department by writing that there was, in fact, no ambiguity in the First Department on this issue and that the Three Departments were united on whose burden it was. Ultimately, the court ruled in Gonzalez the defendant failed to meet its burden and thus affirmed the denial of defendant’s motion to preclude the third-party observe from attending the plaintiff’s examination.

The Second Department, in citing the decisions of the First Department and Fourth Department, has virtually eliminated any ambiguity as to which party carries the burden for excluding the presence of a third-party observer from an independent medical examination. The Court of Appeals may ultimately decide the issue of burden of proof and the uniformity of the First, Second, and Fourth Departments will certainly influence the Court of Appeals.

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

Reprinted with permission from the February 26, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved.Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.