In Rue v. WEL Companies, Inc., No. CV 23-20734 (KMW/SAK), 2024 WL 4370822 (D.N.J. Oct. 1, 2024), the United States District Court of New Jersey addressed the issue of whether a defendant can compel a plaintiff to submit to two independent medical examinations (“IME”), one before surgery and one after surgery.
The plaintiff was a Georgia resident who sustained injuries in a motor vehicle accident with the defendant. During the course of discovery, and as requested by the defendants, the plaintiff notified the defendants that she would be undergoing surgery in Georgia.
Thereafter, the defendants noticed a presurgical IME in New Jersey for the plaintiff four days before the surgery was scheduled. The plaintiff objected, claiming that there was insufficient time to book flights and arrange travel. The plaintiff also objected to submitting to two IMEs, one before and one after the surgery.
The defendants moved to compel the presurgical IME, arguing that since the plaintiff put her physical condition in controversy, there was good cause to determine whether the surgery was reasonable and causally related to the accident. The motion was supported by a certification from the defendant’s expert doctor. The certification stated that the presurgical IME was necessary for the doctor to formulate an objective opinion as to whether the surgery was causally related to the accident.
The plaintiff’s doctors had the opportunity to examine the plaintiff before recommending surgery. Without a similar examination, the expert would be unfairly disadvantaged if he were to opine that the surgery was not reasonable, necessary, or causally related to the accident.
The defendants also argued that denying their expert the opportunity to examine the plaintiff prior to the surgery will lead to spoliation of evidence, and disadvantage their expert. The plaintiff did not object to appearing for an IME pursuant to Federal Rule of Civil Procedure 35, but the plaintiff did object to two IMEs.
The plaintiff argued that traveling from Georgia to New Jersey before and after the surgery causes unnecessary expense, undue hardship, and unnecessary expense. The plaintiff also argued that the presurgery IME is unnecessary because both parties would call testifying experts from New Jersey who will base opinions on the plaintiff’s medical records.
FRCP 35 requires a party whose mental or physical condition is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. A court may enter an order compelling attendance only upon a showing by the party requesting the examination that:
- The mental or physical condition is “in controversy”; and
- “Good cause” exists for the examination. Pleadings alone could be sufficient in that regard when it involves a negligence action wherein a plaintiff asserts a mental or physical injury.
While the parties agreed that FRCP 35 applied and that there was good cause for an IME, the plaintiff argued that there was not good cause for two IMEs, one before and one after the surgery.
Although the defendants argued they would be entitled to a second IME for the same reason as they would be the first IME, they had not yet requested that second IME, so it was not before the Court and the Court did not decide that issue. The Court found that there was good cause for the presurgical IME.
The Court was persuaded by the defendants’ doctor’s certification. The doctor should not have to rely only on his review of medical records and that he is entitled to independently evaluate the plaintiff. If the defendants were to seek a postsurgical IME, they would have to demonstrate “good cause” in light of the presurgical IME. The court would evaluate such a request based on the circumstances at the time of the request.
This course of action, seeking an IME both before and after surgery, will enhance an expert’s credibility at the time of trial. A plaintiff’s surgeon would obviously have had that opportunity, and there is no reason a defendant’s expert should be deprived of that same opportunity.
Pre and postsurgical IMEs are also recommended so that an expert can evaluate the plaintiff’s condition both before and after the surgery, opine whether the surgery is causally related and necessary, and opine on the overall outcome of the surgery.
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