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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED; HER TESTIMONY ABOUT HER ALLEGED CONDUCT AT THE INDEPENDENT MEDICAL EXAMINATION (IME) WOULD HAVE BEEN CUMULATIVE AND DEFENDANTS COULD NOT SHOW THE IME WAS COMPROMISED IN ANY WAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s counsel should not have been disqualification based upon her alleged interference with the independent medical examination (IME). Defendants did not demonstrate counsel’s testimony concerning the IME was necessary, given the plaintiff’s and physician’s ability to testify:

… [D]isqualification is required “only where the testimony by the attorney is considered necessary and prejudicial to plaintiffs’ interests” … .

… Although defendants maintain that they have a right to call plaintiff’s counsel as a witness based on the knowledge she obtained at the IME, and therefore her disqualification under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 is required, defendants have not established that counsel’s testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the examining physician and plaintiff herself … .

The examining physician completed a “meaningful examination” of plaintiff at the IME, reflected by the IME report in which he was able to opine with a reasonable degree of medical certainty as to the genesis of plaintiff’s symptoms, and defendants have not established that they were prejudiced by the contents of the report based on counsel’s alleged intrusions … . To the extent that further information is required to prepare a defense, the remedy is not disqualification of opposing counsel but rather to permit defendants to seek further discovery to obtain that information … . Domingo v 541 Operating Corp., 2023 NY Slip Op 02175, First Dept 4-27-23

Practice Point: Defendants alleged plaintiff’s counsel’s behavior during the independent medical examination (IME) required her disqualification because defendants needed to call her as a witness to IME proceedings. The First Department held that counsel’s testimony about the IME was not necessary (cumulative to plaintiff’s and the physician’s testimony) and defendants did not show any prejudice stemming from counsel’s alleged conduct. Therefore plaintiff’s counsel and her firm should not have been disqualified.

 

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