Few decisions in recent years have sparked as much heated controversy between plaintiffs and defense counsel as the question of secret recordings of independent medical examinations (IMEs). The issue arises out of the Supreme Court, Queens County, decision in Bermejo v. New York City Health and Hospitals Corporation. Briefly stated, in Bermejo, during the cross-examination of defendant’s doctor who conducted an IME, plaintiff’s counsel introduced at trial a previously undisclosed recording of that IME, in an effort to impeach the testimony of the doctor who was defendant’s expert witness.
That tactic, and the resulting publicity, sparked a firestorm between the plaintiff and the defense bar. Two attorneys defended the practice in a Law Journal column, stating that ex parte recording of IMEs was necessary to expose the testimony of those IME doctors who are believed to exaggerate both the length and detail of examinations.1 The defense bar argued that the law did not sanction clandestine video recordings of IMEs2 and that encouraging attorneys to spy and carry hidden recorders marked a new low in professional relationships and were practices that, if allowed, would promote further mistrust between lawyers.3
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