May an IME Observer be Deposed?

Rule 35 permits a plaintiff to have an observer present at an examination.  Is that observer then subject to a deposition?

In New York, there are litigation support vendors who can be hired observers.  “IME observers or ‘watchdogs’ are typically hired by plaintiff’s lawyers to assist their clients in filling out forms at the examining doctor’s office.”[1]  In one case, the defense then subpoenaed the observer for her “her notes, reports, memoranda, photographs, and ‘any other relevant material’ in her possession.”[2]  Plaintiff moved to quash the subpoena.

The IME observer retained by plaintiff’s attorney in this case is a college graduate. She has no formal training in any medical discipline, including orthopedics. No claim is made that she qualifies as an expert. Nor do defendants make any claim that the IME observer’s presence either interfered with or impeded the defendants’ doctor’s examination of plaintiff or that the plaintiff’s examination was in any way curtailed due to the IME observer’s presence.  Defendants do not identify in this record any information related to the plaintiff’s IME that they cannot obtain from their own examining doctor.[3]

“The information contained in the IME observer’s notes would generally be considered material and necessary for the prosecution or defense of the underlying action.”[4]  “The IME observer, however, is an agent of the plaintiff’s attorney. Consequently, the requested notes and materials constitute materials prepared for trial,” meaning they were privileged as work-product.[5]  The defendant did not make a showing sufficient to overcome that privilege.

There was a caveat though.  A key part of the decision was “plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case. We are not deciding whether a different result would obtain were the IME observer expected to be, or actually is, called as a witness at any time during the case.”[6]

[1] Markel v. Pure Power Boot Camp, 96 N.Y.S.3d 187, 189 (App. Div. 2019).

[2] Id. at 188.

[3] Id. at 189.

[4] Id.

[5] Id. at 190.

[6] Id. at 190.