Occasionally in transportation cases the plaintiff will ask questions or for documentation relating to the defendant driver’s pre and post-accident medical condition. This type of discovery can be appropriate if there is some independent evidence indicating the defendant driver suffered a medical condition that caused the accident or if he will assert a medical condition as an affirmative defense. Thankfully, I have only need to invoke this type of defense once. Regardless, I sometimes see plaintiffs file motions to compel despite a lack of this evidence.
This issue was litigated in a May 16, 2014 hearing in A-11-650486-C. Plaintiff wanted the defendant driver’s medical records. Defense counsel “onfirmed Defts have not put their damages in controversy, and there is no evidence that Defts’ medical condition caused the accident. Arguments by counsel. COMMISISONER RECOMMENDED, motion is DENIED.” Without that prerequisite evidence, these motions should routinely fail.