Defendant’s Motion to Compel IME

Last week, a well respected defense lawyer told one of our lawyers that they had obtained the Maryland Trial Lawyers Association’s “Handbook,” which spells out the terms for a defense requested medical examination. This “Handbook” has made its way into a Motion to Compel a Physical Examination, specifically including this “MTLA Handbook” as an exhibit to the motion. By way of this inclusion, I assume this is an authoritative source of legal guidance for the court on this discovery matter.

Now back to reality. Maryland Trial Lawyers Association does not have a “Handbook” on defense medical exams. Instead, it is just a copy from the of the link from our website setting forth our suggested conditions for a defense medical exam. Which we don’t even use anymore!

I think it is funny that this is being represented as some sort of guide to fighting medical exams. I am glad people are using the Maryland Personal Injury Lawyer Help Center. My partner told me last week that a defense lawyer she spoke to said they often get motions from other lawyers copying our sample motions. The lawyer said they call them “Miller & Zois” motions.

There is also a motion for sanctions for failure to appear for a scheduled medical exam. As I indicated earlier, my law firm likes and respects this lawyer and his firm, but this motion really annoys me. I could throw out 5 reasons why, but only one really matters.
In Maryland, and also under the Federal Rules of Procedure, a defense medical exam is not a matter of right and may be obtained only by an order from the court.

So let’s get this straight: Defendant’s lawyer sets a date for a DME, unilaterally by the way, just assuming the Plaintiff has no life and lots of time on her hands, for which the lawyer has not obtained a court order, and then files a motion to compel when she does not present for the medical examination. Huh? The motion also fails to mention that the discovery deadline – by which time all discovery disputes should be resolved – has long since passed.

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  • Tony

    Well, I can’t imagine that your opponent, the well-respected defense counsel, will be happy to see you raise this one:

    “The motion also fails to mention that the discovery deadline – by which time all discovery disputes should be resolved – has long since passed.”

    Just as good fences make good neighbors, getting appropriate extensions from the court makes for good lawyering. IMEs (or DMEs in your parlance) are so common, defense lawyers tend to take them for granted. In fact, I think they’re overused, and often in cases where they serve no good purpose, i.e. treatment has ended and there’s no claim of permanency. But I’ve never had plaintiff’s counsel say no to a request for an IME.

    I know that many lawyers treat discovery deadlines liberally because that’s the informal practice. Except when it isn’t. Your opponent may wonder if he was sandbagged.

  • Ron Miller

    I’m not opposing an IME; just setting restrictions. If you want me to do something for which you need a court order, I should be able to get the documents from the expert that I otherwise have to subpoena. You should also know that we said we were not producing the Plaintiff long long before the discovery deadline.

    Also, there has been a motion for monetary sanctions filed against us. Tony, I have not filed a motion for monetary sanctions in my life. When you do this, you certainly take the game to a higher level.

  • Tony

    Ron,
    Thanks for the additional information. I agree with you that filing a motion for sanctions takes the litigation to a different place. Like you, I’ve never filed such a motion either, although I’ve successfully defended against a few. Good luck with it.

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