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Volume XXV, No. 11, July 22, 2013          

 

From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

James L. Borin and Simeon R. Orlowski

 

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COURT OF APPEALS HOLDS THAT DEFENDANTS ARE NOT REQUIRED TO RELY ON IME EXPERTS RETAINED BY ANOTHER INSURER IN A SEPARATE LEGAL ACTION

 

CO-CONTRIBUTORS – MARK SHREVE and CARYN A. GORDON

 

In Burris v K.A.M. Transport, Inc, et al (No 303104, published 6/25/13), the Michigan Court of Appeals concluded in a 2-1 decision that the defendants should be able to retain their own experts to assist in the defense of their case and should not be required to rely on experts retained by other parties in a separate legal action.

Burris involved a negligence claim arising from a motor vehicle accident wherein the plaintiff claimed to have suffered a serious impairment of a body function and sought damages for her injuries from the Defendants.  The plaintiff had also filed a separate first party no-fault action against Auto Club Insurance Company for PIP benefits.  The Defendants in the negligence action filed a motion to compel plaintiff to appear for IMEs by a neuropsychologist, a psychiatrist, and a physical medicine and rehabilitation specialist.  Plaintiff opposed Defendants’ motion arguing that good cause did not exist to require additional IMEs since Plaintiff had already undergone IMEs in the AAA case and the Defendants had access to those reports.  The trial court agreed with Plaintiff and denied Defendants’ motion on the basis that (1) the IMEs already performed for a different defendant in a related case were sufficient for these defendants to use in this case and; (2) the general unfairness to a plaintiff in having to oppose more than one defense expert at trial.

Defendants filed an interlocutory appeal to the Michigan Court of Appeals which was denied.  The Michigan Supreme Court, however, remanded the case to the Court for consideration as on leave granted.  The Court of Appeals ultimately concluded that the defendants were entitled to retain their own IME experts to assist in the defense of their case.

In reaching this decision, the Court noted that MCR 2.311(A) provides a trial court with discretion to order a party to submit to a physical or mental examination.  Under this court rule, when the plaintiff’s mental and physical conditions are in controversy, the court may order plaintiff to submit to physical and mental examinations by medical professionals if the court finds good cause to do so.  The Court of Appeals examined federal case law interpreting a similar federal law to determine whether good cause existed with respect to a request for additional medical examinations.  Relying on Schlagenhauf v Holder, 379 US 104 (1964), the Burris Court found that “a plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.”

The Court of Appeals concluded that the trial court abused its discretion in denying Defendants’ request for the IMEs.  The Court noted that the exams were taken in the AAA case almost three years earlier, and the passage of time constituted good cause for ordering a second IME.  The Court also rejected the Plaintiff’s argument that allowing the examinations would be overly burdensome and place plaintiff at an unfair disadvantage at trial.  The Court found that Plaintiff’s concern about restricting the evidence presented to the jury could be addressed through motions in limine and that MCL 600.2164(2) places a ceiling on the number of expert witnesses that a party can call at trial.  Based on these conclusions, the Court of Appeals held that precluding Defendants from obtaining IMEs of Plaintiff by their own expert medical physicians was not supported by the trial court’s reasoning.

The holding in this case provides support for Defendants when seeking IMEs in a legal matter where IMEs were performed in a separate matter.  The mere passage of time can constitute good cause for a second exam.  This case sets a precedent that Defendants will not be hampered by experts chosen by other entities in a separate legal matter.  It provides Defendants the ability to select the appropriate and most skilled individuals to assist in their defense as to the medical issues involved in their case.

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MEDICARE WEBLOG

Garan Lucow Miller announces GLM Medicare News, a new weblog dedicated to Medicare issues, including information on the Medicare Secondary Payer program, new decided cases, new proposed and adopted regulations, MMSEA reporting, and related topics. Find it at http://medicarenews.us

 

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Garan Lucow Miller, P.C., is offering a traveling Trial Boot Camp

This complimentary Trial Boot Camp would be presented to a group of 10 or more in your office, half day session.  Please contact Eileen Carty at ecarty@garanlucow.com  or (248)641-7600.

 

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SAVE THE DATE

TROY BREAKFAST SEMINAR WILL TAKE PLACE ON THURSDAY SEPTEMBER 5, 2013 AT THE TROY MARRIOTT. WATCH LAW FAX FOR FURTHER DETAILS REGARDING REGISTRATION AND AGENDA.

 

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SAVE THE DATE

BUCKEYE SEMINAR WILL TAKE PLACE ON THURSDAY OCTOBER 17, 2013 AT THE GREATER COLUMBUS CONVENTION CENTER. WATCH LAW FAX FOR FURTHER DETAILS REGARDING REGISTRATION AND AGENDA.