Opinion
107231.
Decided August 9, 2005.
BRINDISI, MURAD BRINDISI-PEARLMAN, LLP, Anthony J. Brindisi, Esq., Claimant's attorney.
BURKE, SCOLAMIERO, MORTATI HURD, LLP, Defendant's attorney.
By having moved for a protective order, Defendant bears the burden of establishing the need for same as it relates to its request to exclude Claimants' attorney from the examination and as to Claimants' stated intention to videotape the IME and to have Claimants' expert also attend the IME.
Defendant has supported its application, through Dr. McCaffrey's affidavit, with references to published papers (albeit some of which are authored by Dr. McCaffrey) and the Policy Statement on the Presence of Third Party Observers in Neuropsychological Assessments of the American Academy of Clinical Neuropsychology (Exhibit B).
Claimants' opposition, aside from Dr. Baer's personal experiences, sets forth generalized, and largely unsupported, statements about practices relating to the presence of observers ( see Baer Affidavit ¶¶ 9, 12 ["It has been the experience of those of us who have been trained"; "recommendation of most ethical bodies and psychological organizations"]).
In reviewing the policy statement, the Court notes it recognizes the legal rights to representation and an observer on behalf of the examinee in criminal proceedings. Similarly, the policy statement recognizes that an "involved third party" observer as defined therein — may potentially distort or may potentially facilitate collection of assessment data.
Beginning with the issue of excluding Claimants' attorney from the IME, the Fourth Department requires that the moving party make "a positive showing of necessity for exclusion" (Parsons v. Hytech Tool Die, Inc., 241 AD2d 936) as the claimant has the right to have his attorney present at the examination ( id., Jakubowski v. Lengen, 86 AD2d 398). Given the clear limits on the role of the attorney at such examination ( see e.g. Allen v. State of New York, 228 AD2d 1001, 1002) and given the recognition by the policy statement of the rights to legal representation in other contexts at the examination, the Court can not conclude that Defendant has established "special circumstances" to exclude Claimants' attorney.
The recording or videotaping of the examination is outside the bounds of what is permitted during an IME and in order to so preserve the examination likewise requires a showing of "special circumstances" ( Lamendola v. Slocum, 148 AD2d 781) as the examining room is not to be turned into the hearing room ( Mertz v. Bradford, 152 AD2d 962). Whether to grant such an application to permit recording the examination is vested in the Court's discretion ( Blake v. Czysz, 283 AD2d 943). As such, and on this record, Defendant is entitled to the protective order prohibiting any recording by Claimants of the examination to be performed by Dr. McCaffrey.
The cases which have authorized recording of the examination, such as Mosel v. Brookhaven Memorial Hospital, ( 134 Misc 2d 73) Rook v. 60 Key Center ( 237 AD2d 901) and Matter of Campbell ( 177 Misc 2d 59), are factually distinguishable. There is nothing in the record to support the Court making a finding of "special circumstances".
The more problematic issue before the Court is whether to permit Claimants' expert to attend the examination as the Claimant's observer. Trial courts are increasingly finding that the representative who observes may be an appropriate professional ( see Grange v. Sweet 4 Misc 3d 470; Grady v. Phillips 159 Misc 2d 848).
Although the Fourth Department seemed receptive to the idea that there was "good ground[s]" for Claimant's representative at an IME to be either his attorney or his doctor ( Jakubowski v. Lengen, 86 AD2d 398, 399) in that case the Court needed to only reach the issue of whether, and what role, an attorney could play at an IME. In doing so, it cautioned against turning the examining room into a hearing room ( id. at 401). However, in Mertz v. Bradford, 152 AD2d 962, the Court clarified the issue by holding a Claimant must demonstrate "special circumstances warranting the presence of a medical representative" ( id.). As such, and again on this record, Defendant is entitled to the protective order prohibiting the presence of Claimants' expert at the examination to be performed by Dr. McCaffrey.
Accordingly, Defendant's application is denied in part and granted in part consistent with the foregoing.