Defendants Waived Right to IME

            In Curtin-Danner v. Powers (704252/2013, NYLJ 1202737081968, decided September 8, 2015), a Queens County Supreme Court personal injury case, Justice Orin Kitzes denied a defendants' request to conduct a physical medical examination of a plaintiff, holding that the defendants' request for the examination was untimely.  Particularly, pursuant to a Preliminary Conference Order, the defendants had to designate a physical examination within 20 days after the deposition of the plaintiff was completed, but rather, the defendants requested the examination over four months later.

            Ordinarily in a personal injury case, a defendant during the discovery process has the right to timely move to hire a doctor to examine a plaintiff (the examination typically happens within 45 days after a deposition of a plaintiff is completed).  Such an examination is commonly referred to as an "IME," or "Independent Medical Examination" (but rather, it is more accurate to refer to it as a "DME," or "Defendant's Medical Examination," as such a doctor is hired by a defendant for purposes of the litigation).  One benefit of an IME is to allow a defendant at trial, by way of their hired doctor, to attempt to counter the injury claims made by the plaintiff. 

            In the Curtin case, as the defendants failed to designate an IME within 20 days after the deposition of the plaintiff was completed, then the Court held that it waived its' right to conduct an IME, stating the following: "As pointed out by our Court of Appeals, '[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated'...[p]ursuant to the foregoing, and with the understanding that '[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'...it is accordingly, the branch of the motion to compel plaintiff to appear for a physical examination is denied as defendants' entitlement to the physical examination(s) of the plaintiff have been waived in light of the compliance conference order above-cite...."

Salvatore R. Marino, Esq.