Plaintiff is entitled to have attorney present at independent medical examination

Law Reporter, Sep 1999

Gensbauer v May Dep't Stores Co., 184 F.RD. 552 (E.D. Pa. 1999).

A U.S. district court held that plaintiffs are entitled to have their attorneys present at an independent medical examination (IME).

Ruling on a motion to allow plaintiff's counsel to attend an IME, the court noted that FED. R CIV. P. 35(a)-which governs physical and mental examinations of a party-is silent on the issue of whether a plaintiff has a right to have counsel present at an IME. Because the federal rules are silent and the case here is based on diversity jurisdiction, the court looked to state rules for guidance. The court noted that Pennsylvania state courts had recently amended state civil procedure rules to recognize a plaintiff's right to have counsel present at an IME.

The court recognized contrary decisions within its district, but distinguished those cases as involving psychological, rather than physical examinations. Psychological examinations may require more one-on-one communication between a doctor and patient, the court said.

The court noted that IMEs are often adversarial because the party being examined may have to respond to lengthy, unchecked questioning by a trained representative of the opposing party. Thus, the court concluded that legal representation is appropriate in such circumstances. Accordingly, the court granted plaintiff's motion.

Plaintiff's Counsel:

*Meredith L. Seigle, Southampton, Pa. Robert L. Seigle, Southampton, Pa.

[ Comment: For a case holding that an injured party is allowed to tape record court-ordered medical examinations, see Jacob v. Chaplin, 639 N.E.2d 1010 (Ind.1994), 38 ATLA L. Rep. 24 (Feb. 1995). Plaintiff was represented by *Robert F. Gonderman Jr., South Bend, Ind.]

[Documents in these cases are available through the Court Documents section in the back section of this issue, courtesy of plaintiffs' counsel.]