The First Department of the New York Supreme Court Appellate Division recently ruled that notes and reports by IME “watchdogs” hired by plaintiffs’ attorneys generally are not discoverable by defendants. In the recent case of Markel v. Pure Power Boot Camp, 96 N.Y.S.3d 187 (1st Dept. 2019), the plaintiff alleged that she injured her knee while participating in a drill at a “boot camp” style gym. During the course of the litigation, the defense designated an orthopedic surgery expert to perform a physical examination of the plaintiff. Plaintiff’s counsel hired an “observer” from IME Watchdog, a company that claims to assist in preventing IME physicians from asking inappropriate questions and administering inappropriate tests and in reporting any errors or lapses made by the examining physician. The observer accompanied plaintiff to the defense’s physical examination. Following the examination, defendants served a subpoena upon IME Watchdog seeking the notes and reports made by the observer, and plaintiff’s counsel filed a motion to quash the subpoena in response. The trial court ruled in favor of the defense, leading to an appeal by plaintiff.
In reversing the trial court’s decision and holding that the observer’s notes were not discoverable, the Court reiterated well-accepted legal authority in New York that plaintiffs are entitled to have a representative of their choice present at defense physical examinations. The Court further noted that independent observers hired by plaintiff’s attorneys are essentially agents of those attorneys. Therefore, their notes and reports are considered trial preparation materials, which are protected by a conditional privilege. Given this, defendants may only obtain such notes or reports upon a showing that they have a substantial need for those documents and that a substantial equivalent cannot be obtained by other means. The Court further held that since defense counsel has access to the physician who performed the examination, the information contained in the observer’s notes/reports should be obtainable from the physicians themselves.
This decision emphasizes the need for defense counsel to forge a productive working relationship with physicians retained to perform physical examinations for the defense. Given this decision, defendants in the First Department can no longer seek to obtain plaintiff’s potential cross-examination material by directly obtaining a copy of a third-party IME observer’s notes or reports. Therefore, it is important that defense counsel speak with their retained physicians about the manner in which the examination was conducted as well as any individuals other than plaintiff who attended. By doing so, defense counsel can have greater confidence that plaintiff’s potential areas of cross-examination for the defense’s physical examination physician at trial are limited or eliminated.