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Second Department Nixes Secret Video Of Plaintiff’s IME

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent case from the Second Department concerning independent medical examinations.

Over the past several years, there has been debate over the propriety of secretly videotaping defendants’ independent medical examination of a plaintiff. In the not too distant past, videotaping was a rather cumbersome process which needed a large video camera, tripod and the like. Now with the advent of smart phones with cameras that take  video, a video can be recorded easily. Given the widespread use of cell phones and the ability for everyone make a video, it was only a matter of time before the questions that are raised by this case came to light. For several years, there has been sentiment among plaintiff attorneys that defense independent medical examinations of plaintiff should be recorded in order to document the brevity of the examination and in order to refute its conclusions at trial, if necessary. Plaintiff attorneys have argued that it is within their prerogative to record the independent medical examination in order to use it at trial if necessary, to impeach the doctor’s veracity and the thoroughness of the doctor’s examination.

In Bermejo v. New York City Health and Hospitals Corporation, the Second Department was called upon to answer whether a secretly taped independent medical examination of the plaintiff can be used as evidence at trial. The Second Department answered this in a negative.

In Bermejo, the plaintiff was injured when he fell from a scaffold at a construction site. Plaintiff was awarded summary judgment on liability based on Labor Law '240.  Prior to the trial on the issue of damages, one of the defendants retained an orthopedic physician to conduct an IME of plaintiff. Plaintiff was accompanied to the IME by the trial attorney as well as the paralegal who served as an interpreter for plaintiff. A few years later in March 2013, after plaintiff had had surgery on his shoulder, the same doctor performed a second IME which focused on plaintiff’s shoulder. Once again the trial attorney and the paralegal were with the plaintiff in the examining room.

In April 2013, the damages trial commenced. When the doctor testified as to the length of the first IME, the paralegal who was sitting in the courtroom and who had attended the IME made a facial gesture, apparently of skepticism. The trial court then invited the plaintiff’s attorney to call the paralegal as a rebuttal witness. When the trial resumed, the doctor was asked how long the second IME had lasted. The witness replied that he did not remember. When the Court refused to accept the doctor’s answer, the doctor when pressed, stated that it was his standard practice that exams would take between 10 and 20 minutes, although he was not sure in this particular instance.

After the doctor’s testimony, plaintiff’s attorney called the paralegal as a witness and testified that the doctor was present for 10 minutes and that when the plaintiff was examined it was about 3 or 4 minutes. The paralegal testified that the actual exam was 3 minutes and the total evaluation was 5 minutes. She testified that she knew that it was 3 minutes because she had timed it with her phone. On redirect examination of the paralegal, plaintiff’s attorney asked if the witness had any other way of knowing how long the examination took. The witness answered that she did because she had taken a video of the examination. Thereafter defendants made an application for a mistrial on the grounds that the video had not been previously disclosed. Plaintiff’s attorney argued that disclosure was not required because there was no determination as to whether or not it was going to be used.

In written papers, in opposition to the motion for the mistrial, plaintiff’s attorney argued that there was no obligation to disclose the video because it was recorded of a non-party, the doctor, and there was no obligation to disclose the recording until there was an intention to use it, and that he had no intention to use it until the doctor lied on the stand about the amount of time that the physical examination took. Thereafter the Court granted the mistrial and the defendants appealed. One of the grounds of the appeal was that the defendants should have been given an opportunity to conduct a second IME with a different doctor since the doctor who had testified at trial indicated that he would refuse to testify in a re-trial of the matter. The trial court had denied this request and found that defendants would be required to use the first doctor.

On appeal, the Second Department first addressed whether plaintiff’s conduct in secretly videotaping the IME by the doctor was proper.  The Second Department first noted that there was no express statutory authority for the videotaping of medical examinations. The Court noted that the requests for permission to videotape IMEs have been on a case-by-case basis and has not been allowed in the absence of special and unusual circumstances. The Court noted that in order to establish special and unusual circumstances it is presupposed that a request for Court’s permission to engage in videotaping would be made. The Court found that “what the law of this state does not contemplate is plaintiff’s attorney taking upon themselves to surreptitiously videotape an IME, without the knowledge of the examining physician, without notice to defendant’s counsel and without seeking permission from the Court”.

Contrary to the assertions made by plaintiff’s attorney in Supreme Court, surreptitious videotaping of IMEs without Court approval or even notice to the Court or opposing counsel cannot be regarded as an “appropriate tool” or an activity that attorneys should feel free to engage in “all the time”. The Second Department found that for those reasons the failure of plaintiff’s counsel to seek and obtain the Court’s permission to videotape the second IME was by itself sufficient reason to prohibit the use of the recording at trial.

The Court found that further compounding the improper conduct of plaintiff’s counsel make the recording without procuring the Court’s approval in advance was the failure to disclose the recording to defense counsel prior to trial which was a clear violation of CPLR Section 3101. That section requires the disclosure of films, photographs, videotapes or audiotapes. The Court found that the failure of plaintiff’s attorneys to disclose to defense counsel the videotaping showing the plaintiff being examined by Dr. Katz violated CPLR '3101 and the spirit of New York’s open disclosure policy in order to avoid gamesmanship at trial. 

Thus the Court granted a second IME by a different doctor finding that circumstances for a second IME were warranted given the unusual and unanticipated events in this case, including the refusal of the doctor to attend another trial.

The Second Department also imposed costs against plaintiff’s counsel. The Second Department found that the necessity for the mistrial was created by the plaintiff’s counsel not attributable and any extent to any conduct by the appellants for their counsel. The Court found that the defendants were entitled to recover from plaintiff’s attorneys the costs they incurred for participating in the first trial on the issue of damages as well as the costs they incurred and litigating the motions at issue on those appeals and pursuing the appeals. The Second Department further found that another Justice of the Supreme Court should conduct a hearing to determine the total amount of costs.

The Second Department was clearly upset with the conduct of plaintiff’s counsel in both videotaping the IME and in trying to use it as “trial by ambush” of the doctor and defense. The potential large cost of the sanction underscores the seriousness of the infractions. Hopefully this will put the issue of secret videotaping of IMEs to rest once and for all.

Should you have any questions, please call.

Thomas M. Bona