The attorneys of Mouledoux, Bland, Legrand, & Brackett, LLP were recently successful in thwarting a plaintiff’s efforts to require that the parties stipulate to very specific terms prior to undergoing an independent medical examination (“IME”). Among those terms proposed by the plaintiff were the following:
1. Limiting plaintiff’s time at the IME physician’s office to two hours total, after which plaintiff would be entitled to leave and the remainder of the examination would be scheduled at another date and time;
2. Limiting the areas of the body to be examined to the lumbar and cervical spine;
3. Having a friend or family member present during the examination; and
4. Prohibiting plaintiff from disrobing, wholly or partially.
Defendants filed a Motion to Compel Plaintiff to Submit to an IME, urging that the terms proposed solely sought to unnecessarily strike an emotional chord with the court. Despite plaintiff’s assertion, the defendants urged that the IME should be conducted in a manner that was reasonable within the IME physician’s expertise and practice. Therefore, limiting plaintiff’s time in the IME physician’s office to two hours, limiting the examination to the lumbar and cervical spine, and allowing a friend or family member attend the examination was overly restrictive.
Considering no such prohibitions had been placed on plaintiff’s treating physicians and plaintiff’s complaints were not limited to her cervical and lumbar spine, these proposed terms unnecessarily limited the IME physician’s ability to perform a most comprehensive and thorough examination, which plaintiff would inevitably highlight to the jury at trial to suggest the defendants’ IME physician failed to perform a satisfactory and credible examination.Defendants did not anticipate that plaintiff would have to fully disrobe; however, they objected to the vague and ambiguous terms that would unduly restrict a physician in performing his examination. It was unclear whether the physician and/or defendants would expose themselves to adverse action if the physician needed to examine plaintiff’s bare back, lift a sleeve, ask plaintiff to expose her shoulder, etc.
In asserting their argument, defendants highlighted that plaintiff should not be able to prematurely object to the IME; rather, plaintiff would be able to challenge the admissibility of the IME physician’s opinions pursuant to the Louisiana Code of Evidence and Louisiana jurisprudence if the IME physician provided opinions outside of his expertise or improperly conducted his examination. Limiting the IME at the outset by the terms proposed was not proper and the terms proposed were not “conditions” as considered by Louisiana Code of Civil Procedure Article 1464.
The court ultimately agreed and granted defendants’ request for an IME, without restrictions.
Verna Marsh, et al. v. Federal Express Corporation, et al
Philip D. Lorio, IV