Perjury Allegation Against Medical Expert Does Not Justify Second Medical Examination of Plaintiff in Trip-and-Fall Personal Injury Suit

In Atchison v. Metropolitan Enterprises, a recent trip-and-fall case, a Brooklyn trial court rejected defendants’ attempt to subject plaintiff to a second Independent Medical Examination (IME). They sought the second examination due to intervening events which, to put it mildly, raised questions as to the first doctor’s credibility. (Note: As a plaintiff’s lawyer, I – as do many practitioners – prefer the more accurate “DME”, or “Defense Medical Examination”.)

During discovery, plaintiff submitted to an orthopedic examination conducted by Dr. Michael J. Katz at the request of MEI’s insurance carrier. MEI served a notice of expert disclosure stating that it intended to rely on Katz’s testimony and his expert medical opinion at trial. Plaintiff then filed a note of issue and certificate of readiness, indicating that all discovery was complete and that the case was ready for trial.

Then, a funny thing happened:

Justice Duane A. Hart of the Supreme Court of the State of New York in Queens County held a hearing, transcribed by a court reporter, concerning Dr. Katz. Justice Hart ordered the hearing because Dr. Katz had previously testified under oath (in an action unrelated to the instant action) that he performed an IME on the subject plaintiff and that the examination took “between ten to twenty minutes” to complete. However, counsel for the plaintiff had directed a paralegal to accompany the plaintiff to the subject IME and, unbeknownst to both Dr. Katz and counsel for defendants, surreptitiously make an audio recording of the examination. The recording demonstrated that, contrary to Dr. Katz’s sworn testimony, the examination only took one minute and fifty-six seconds.

Based on that recording and Dr. Katz’s prior testimony, Justice Hart expressed his disbelief that the difference between an examination that lasted “ten to twenty minutes” and one that lasted less than two minutes was an honest mistake. Justice Hart further stated that he was finding that Dr. Katz had lied under oath during the subject proceeding. …

In light of this, defendants sought an order directing plaintiff to submit to a second orthopedic exam.

The court said no.

The relevant provision of the New York Civil Practice Law and Rules (CPLR) is CPLR 3121, entitled “Physical or mental examination.” It provides, in pertinent part:

(a) Notice of examination. After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control.

CPLR 3121 does not restrict the number of examinations to which a party may be subjected, and an additional examination is permissible “where the party seeking the examination demonstrates the necessity for it. … [A]fter a note of issue has been filed … a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination”. (Emphasis added.)

While recognizing defendants’ understandable concern the the hearing before Judge Hart “may be used to attack Dr. Katz’s integrity and/or credibility at trial”, the court cited binding Second Department precedent for the proposition that concerns that a plaintiff may impeach the examining physician’s credibility is “not a sufficient basis to compel a second examination.”

The facts here “are analogous to the cases of a public attack on the professional credentials of an IME physician [which] hold that instances of compromised professional integrity do not warrant a subsequent IME.” Defendants failed to submit any authority ” suggesting that the present situation concerning Dr. Katz is distinguishable because he has been accused (as recorded in a court transcript) of perjury.”

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