The US District Court, D. New Mexico dealt with the plaintiff, Maes, who was injured in an auto accident. When the insurer attempted to set-up an IME the plaintiff objected to the IME arguing it was not necessary and if ordered, the court should place restrictions on the IME.
The court dealt with the 8 restrictions on the IME requested by the plaintiff:
Plaintiff next asks the Court to impose a number of conditions on the IME, specifically, that: (1) “the IME examiner be provided a copy of the Court’s Order”; (2) “Plaintiff choose the starting time on the date already selected”; (3) “the examination be limited to two hours”; (4) “Defendant be ordered to reimburse Plaintiff for the cost of her travel”; (5) “any IME evaluator . . . be prohibited from conducting any tests, evaluations, or imaging of Plaintiff without the express written consent of Plaintiff’s counsel”; (6) “any IME evaluator . . . be prohibit[ed] from . . . questioning [Plaintiff] concerning her emotional or psychological response or issues in any way connected to the accident or its aftermath”; (7) “Defendant must provide Plaintiff’s counsel a copy of the evaluator’s CV and his publications and testimony . . . upon entry of this Court’s Order”; and, (8) “Plaintiff be reimbursed for her attorney’s fees in defending this Motion.”
The court demonstrated unusual patience with these requested rules:
- Plaintiff is to undergo an IME by Paul Legant, M.D., on Thursday, March 7, 2019 (or another date to which the parties mutually agree). At the IME, Dr. Legant may physically examine Plaintiff and may take Plaintiff’s medical history, to include questions that, in Dr. Legant’s professional judgment, are reasonably related to Plaintiff’s physical injuries for which she seeks damages in this lawsuit, the cause(s) of these injuries, medical treatment she has received or that has been recommended for these injuries, recovery from these injuries, her physical health and medical conditions before and after the accident at issue, any prior or subsequent accidents that may have physically injured her, her medical prognosis, and her future medical needs.
- Defendant is to provide Dr. Legant with a copy of this Order at least three (3) business days before the IME.
- Plaintiff’s counsel is to confer with her client, and defense counsel with Dr. Legant, about when these individuals would prefer for the IME to start. No later than three (3) business days after entry of this Order, counsel must confer with one another to select a mutually agreeable start time. The IME will begin at 9:00 a.m. if counsel do not agree to a different time.
- The IME is to last no more than four (4) hours from its designated start time or the time Plaintiff signs in for the appointment, whichever is later, unless Plaintiff agrees to a longer time or the Court orders an extension for good cause shown.
- Plaintiff is to bear her travel costs associated with the IME.
- Defendant’s counsel is to confer with Dr. Legant and advise Plaintiff’s counsel in writing by the close of business on Friday, March 1, 2019 of any and all diagnostic tests, other than a medical history and physical examination, that Dr. Legant believes will be necessary at the IME based on his records review. If Plaintiff objects to the proposed tests, she is to file written objections with the Court no later than Monday, March 4, 2019, and the Court will schedule a telephonic status conference to address the objections before the IME. If Dr. Legant determines that additional tests are necessary based on information he receives for the first time at the IME, he may ask for Plaintiff’s informed consent to the proposed tests and, if he obtains it, may proceed with the tests in question. If Plaintiff does not consent, Dr. Legant’s office is to immediately notify Plaintiff’s counsel, who must be available by telephone throughout the entire duration of the IME. If Plaintiff’s counsel has a reasoned, good faith objection to the additional tests, she must immediately contact the Court and defense counsel by telephone so that the Court may rule on the objection without delaying or interrupting the IME.
- Dr. Legant may not examine Plaintiff psychologically or opine as to her mental health or psychological issues. However, he may take Plaintiff’s medical history and ask her about her medical complaints, and may note what Plaintiff reports to him, including any psychological or emotional injuries.
- The Court will not order Defendant to provide Plaintiff with a copy of Dr. Legant’s resume, publications, or prior testimony at this time.
- The Court will not award attorneys’ fees and costs associated with this Motion to either party at this time.
For additional information, see: SARA MAES, Plaintiff, v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant. United States District Court, D. New Mexico. February 27, 2019.