Compelling Location of IME

This may shock you, but Las Vegas is a tourist destination.  Nearly 40,000,000 people travel through McCarran airport every year, even more drive here.  In representing certain casino properties in town, it is relatively common for a plaintiff to reside out of town.

This creates complications at times, such as obtaining a Rule 35 independent medical examination.  Plaintiff wants it to occur near her hometown, Defendant wants it in the jurisdiction.  What to do?

It turns out the answer is generally the same as a deposition.  DC Bulla wrote in a February 2010 presentation entitled Discovery Issues – Pet Peeves, that a plaintiff must appear in the forum for deposition.  Federal case law echos this approach but also as to IMEs.  For instance, Costanza v Monty, 50 F.R.D. 75 (E.D. Wis. 1970) required a Las Vegas plaintiff to travel to Milwaukee, Wisconsin for an IME and deposition over plaintiff’s objection that she would be financially burdened by the trip.  There is undoubtedly other, more recent case law on this point.

Locally, DC Beecroft follows this rule, as evidenced by a November 19, 2012 hearing in A-11-649220-C.

Colloquy re: Pltf lives in Florida, has 24 health care providers, Pltf is considering a future surgery, but her doctor says she doesn’t need surgery. Arguments by counsel. COMMISSIONER RECOMMENDED, motion is GRANTED; Pltf is required to come to Las Vegas for IME (no doctor’s note, and Pltf took a cruise March 2012); Mr. Smith’s request for travel costs is DENIED.

I also suspect DC Bulla will rule similarly, both based upon CLE materials and a hearing I attended in summer 2012, but I have not yet received a specific ruling on it. If you have received a ruling from DC Bulla on this point, please forward it to me to post! Similarly, I am informed DC Ayres is likely to rule similarly based upon an April, 1995 article in The Writ, published by the Washoe County Bar Association.

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