Plaintiffs in personal injury actions must submit to physical examinations with respect to their injuries by physicians chosen by the defendants pursuant to CPLR 3121. Although these examinations are often referred to as “IMEs” or independent medical examinations, there is nothing “independent” about them. They are clearly part of the adversarial process.

Recognizing that these medical examinations are an intrinsic part of the legal process, the courts have long held that a plaintiff in a civil action is entitled to have an attorney present during the exam, provided that the attorney does not unduly interfere with the examination. Ramsey v. New York Univ. Hosp. Ctr., 14 A.D.3d 349 (1st Dep't 2005). In Jakubowski v. Lengen, 86 A.D.2d 398 (4th Dep't 1982 ), the court noted the importance of plaintiff's counsel presence, stating:

The presence of plaintiff's attorney at such examination may well be as important as his presence at an oral deposition. A physician selected by defendant to examine plaintiff is not necessarily a disinterested, impartial medical expert, indifferent to the conflicting interests of the parties. The possible adversary status of the examining doctor for the defense is, under ordinary circumstances, a compelling reason to permit plaintiff's counsel to be present to guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order to seek damaging admissions.

The courts have also recognized the importance of prohibiting the presence of opposing counsel at the physical examination to avoid intimidation, among other reasons. Nalbandian v. Nalbandian, 117 A.D.2d 657 (2d Dep't 1986).

Although there was a time when some courts held that a plaintiff had to demonstrate “special and unusual circumstances” to warrant the presence of a nonlegal representative, that is no longer the rule and the presence of such observers is far more common. See for example, Kattaria v. Rosado, 146 A.D.3d 457 (1st Dep't 2017) where the court held that plaintiff failed to demonstrate “special and unusual circumstances” warranting the nonlegal representative's presence. However, it is now the generally accepted practice that a plaintiff may be accompanied by his or her attorney or other representative, legal or nonlegal. In Santana v. Johnson, 154 A.D.3d 452 (1st Dep't 2017), the First Department expressly repudiated its holding in Kattaria and held:

To 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 (see Kattaria v. Rosado, 146 A.D.3d 457, 43 N.Y.S.3d 758 [1st Dep't 2017]), 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.

The court in Santana specifically referred to the decision of the Second Department in Henderson v. Ross, 147 A.D.3d 915 (2d Dep't 2017), where the court held that a plaintiff was entitled to be examined in the presence of his or her attorney or other representative “so long as they do not interfere with the conduct of the examination.” As such, the court denied defendant's motion for a protective order to exclude a non-attorney from the plaintiff's examination. See also, Ponce v. Health Ins.Plan of Greater New York, 100 A.D.2d 963 (2d Dep't 1984).

Subsequent to Santana, in Martinez v. Pinard, 160 A.D.3d 440 (1st Dep't 2018), the court reiterated that defendants can no longer argue that plaintiff is required to show “special and unusual circumstances” to be permitted to have a nonlegal representative present at a physical examination conducted on their behalf pursuant to CPLR 3121. See also the Fourth Department decision in Marriott v. Cappello, 151 A.D.3d 1580 (4th Dep't 2017), which similarly confirmed that plaintiff is entitled to have a representative present.

A plaintiff should never attend these examinations alone. Plaintiff's representative, whether an attorney, paralegal or other person assigned to accompany the plaintiff to the examination should take notes. They should include details as to the time the exam started and stopped, as well as any tests which were conducted. Everything that occurs should be recorded. These notes will be useful for the cross-examination of the physician at trial.

Defense counsel recognize that the notes and observations of plaintiff's representative may result not only in effective cross-examination, but also possible witness testimony to rebut the testimony of defendant's physician with respect to what occurred at the examination. Conversely, plaintiffs' attorneys recognize the need to protect these notes and other work product arising from the observations of the examination. This conflict has spawned a number of recent trial court decisions which have scrutinized whether the records created by plaintiff's nonlegal advocate are discoverable.

In the battle over the work product of nonlegal observers, attorneys for defendants have contended that they are entitled to the notes pursuant to the broad discovery permitted under CPLR 3101(a), which allows for “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Plaintiffs' counsel, in turn, have claimed that such materials are protected by privilege.

In the recent spate of litigation on this issue, the most frequently sought notes and records have been those generated by observers provided for a fee by IME Watchdogs. This company of relatively recent vintage offers assistance to plaintiff's counsel by providing a person to attend the defense physical, help in the completion of any forms and observe and record the events at the examination. In our opinion, it is always preferable for the plaintiff's attorney to attend the examination with the client. However, the use of these outside nonlegal representatives may be of significant assistance to law firms in cases where the firm cannot send its own attorney or paralegal with the client. But it is not without its pitfalls.

There has been a recent proliferation of decisions arising out of the use of nonlegal observers at defense physical examinations, analyzing whether their notes and records were discoverable. The culmination was the recent decision of first impression on this issue by the Appellate Decision, First Department, in Markel v. Pure Power Boot Camp, 171 A.D.3d 28 (1st Dep't 2019).

Trial Court Decisions

The controverted issues tackled by the motion courts prior to the First Department resolution in Markel were largely the same, but the results were not uniform. Each decision addressed the same conflict. In response to defense counsels' subpoenas or motions for the production of notes and other records taken by plaintiff's nonlegal representative at a defendants' examination, plaintiffs' counsel contended that the notes were privileged. They moved to quash the subpoena and for a protective order, arguing that the notes were protected from disclosure as attorney-client privilege, attorney work product, or qualified or conditional privilege for materials prepared in anticipation of trial under CPLR 3101(d)(2).

Where materials are either privileged or deemed to be attorney work product, protection from disclosure is absolute under CPLR §3101(b) and (c). Under CPLR §3101(d)(2), materials prepared in anticipation of litigation have qualified immunity and are subject to disclosure only upon a showing of substantial need for the disclosure and an inability to obtain it by other means without undue hardship. Forman v. Henkin, 30 N.Y.3d 656 (2018). To qualify as attorney work product, a document must reflect the unique legal skills and judgment of an attorney, acting as such. It may include the attorney's impressions or observations conveyed to experts retained as consultants to assist in preparing plaintiff's case. Beach v. Touradji Capital Mgt., LP, 99 A.D.3d 167 (1st Dep't 2012).

The application of these categories of privilege to the nonlegal observer's notes was analyzed in each of the pre-Markel motion court decisions. For example, in Sheehan v. 30 Park Place Residential LLC, 2019 NY Slip Op 51136(U) (Sup. Ct. Jan. 4, 2019), defendants subpoenaed the records of the representative from the nonparty observer provided by IME Watchdog, who accompanied plaintiff to his defense physical examination. Plaintiff sought to quash the subpoena and obtain a protective order, contending that the records were attorney work product and materials prepared for litigation under CPLR §3101(c) and (d)(2). The court held that the materials should be disclosed. It rejected the argument that the notes were attorney work product, as this privilege would only prevent disclosure of information and observations “clothed with the attorney's mental impressions and personal beliefs.” It also rejected the argument that they were protected as materials made in anticipation of trial. It determined that defendants established that they needed the materials in case the observer appeared as a witness at trial and that they could not otherwise be obtained. That there might be differences between the observer and physician which could not be ascertained from the defense physician's record was sufficient to justify the disclosure. So too, in Gelvez v. Tower 111, LLC, 2017 N.Y. Slip Op. 30071[U] (Sup. Ct., N.Y. County 2017), the court rejected plaintiff's claim that the notes were protected by privilege.

However, in Katz v. 260 Park Ave. S. Condominium Assoc., 2016 N.Y. Slip Op. 32821(U) (Sup. Ct., N.Y. County 2016), the observer's materials were held to be materials prepared in anticipation of trial under CPLR3101(d)(2). The court stated that the information in the observer's notes was easily obtainable by defendants from the report of defendants' own examining physician. Likewise, in Barahona v. Cont. Hosts, Ltd., 59 Misc.3d 1001 (Sup. Ct. 2018), the court recognized that the issue of the discoverability of notes taken by a nonparty observer during a defense physical was fairly novel. Nonetheless, it held that the notes were prepared in anticipation of trial and thus protected.

First Department Addresses Conflicting Results

These conflicting results among the trial courts were finally addressed by the First Department in Markel, where plaintiff appeared for a physical examination by defendant's designated orthopedist accompanied by a nonparty observer retained to assist her. Subsequently, defendants subpoenaed the notes, memoranda photographs and other documents in the representative's file. In Markel, the court reiterated that the plaintiff could have a broad array of persons present at the exam. They could include the plaintiff's attorney, a law clerk from counsel's office, a paralegal or even a “watchdog” observer retained for that purpose, without a showing of special and unusual circumstances. The court referred throughout the decision to this nonparty representative as an “IME observer.”

The Appellate Division held that the materials generated by the IME observer were protected by the qualified privilege applicable to materials prepared for litigation. As such, it held that the subpoena should have been quashed and the protective order granted. In so doing, the court addressed the issues that had been raised in the conflicting trial court decisions as to whether the data generated by these nonparty observers were privileged so as not to be discoverable. The court determined that such observers were entitled to be present and reiterated plaintiff's argument as to their important role, stating:

IME observers or “watchdogs” are typically hired by plaintiffs' lawyers to assist their clients in filling out forms at the examining doctor's office. More importantly, according to plaintiff, the presence of an IME observer deters examining doctors hired by defendants from inquiring about matters beyond the scope of the particular action and keeps the IME process honest.

Id. at 30.

The court stated that determining the issue of disclosure of the observer's notes was one of first impression. Given the broad scope of discovery under CPLR3101(a), the court recognized that the notes might generally be considered material and necessary under CPLR 3101(a). The dispute was whether disclosure was otherwise protected by any privilege for which the burden of proof was on plaintiff.

The First Department held that the notes were not protected by either attorney-client privilege or work product privilege. However, the IME observer was an agent of the plaintiff's attorney and thus the materials constituted materials prepared for trial. As such, they were “within the conditional or qualified privilege protections of CPLR 3101(d)(2).” The question then became whether defendants could defeat the qualified privilege by showing both a substantial need and undue hardship if they were not disclosed. In response, defendants failed to show a substantial need for the notes. They did not claim that they could not communicate with their own physician about what transpired. The court pointedly noted: “In general, under these circumstances, defendants' access to their own doctor will seriously undermine any argument that there is a substantial need for the IME observer's materials because the information contained therein is not otherwise available without undue hardship.” Id. at 32.

There is one important caveat in this decision. Plaintiff had represented that the IME observer would not be testifying at trial. The court noted that its decision did not address that issue. However, it specifically held under the circumstances before it:

In order to obtain discovery where an IME observer is not expected to testify at trial, there must be a showing that the substantial equivalent of the information is not otherwise available without undue hardship.

Id. at 32

While Markel does afford protection to firms that outsource attendance at an IME to a watchdog, the greatest “ammunition” for cross-examination will result when plaintiff's attorney personally observes the defendant's physical examination.

Robert S. Kelner is senior partner at Kelner and Kelner. Gail S. Kelner is an attorney with the firm.