The U.S. District Court for the Southern District of Texas (“SDTX”) recently addressed the question of whether a plaintiff’s attorney is permitted to attend a Federal Rule of Civil Procedure (F.R.C.P) 35 independent medical examination (IME) with his client in a personal injury matter. See In re Callan Mar., Ltd., No. 4:21-cv-01938, 2021 U.S. Dist. LEXIS 169812 (S.D.T.X Sept. 8, 2021).  The Court held that the injured Plaintiff was not allowed to have his attorney present in the examination room as he had not demonstrated that there were “special circumstances” that warranted allowing the attorney to be present.

The Court noted that a number of other Federal Courts have refused to allow a lawyer to attend his client’s medical examination because allowing a third person to be present at a medical examination “would subvert the purpose of Rule 35, which is to put both the plaintiff and defendant on an equal footing with regard to evaluating the plaintiff’s medical status. In other words – where one party has been examined by his or her doctors outside the presence of others… – the other party should be given the same equal opportunity.” See Ornelas v S. Tire Mart, LLC, 292 FRD 388 (SDTX 2013).  The court reasoned that the presence of an attorney has a high probability of causing adverse effects on the examination, carries the possibility of making the attorney a witness, and may result in disruption of the examination. The court noted that an attorney’s presence for moral support and guarding against improper conduct on the part of the physician are not “special circumstances” justifying the presence of plaintiff’s counsel at the examination.

The U.S. District Court for the Southern District of New York (SDNY) has a similar stance on not allowing attorneys to be present for an IME. See Edwina Rance & Westchester Residential Opportunities v Jefferson Vil. Condominium No. 5, 2019 U.S. Dist. LEXIS 238432, at *12 (SDNY Sep. 23, 2019).  SDNY Judges have held that the presence of an attorney at the examination frustrates its purpose by impairing its effectiveness and rendering it adversarial.  See Hirschheimer v Associated Mins. & Mins. Corp., 1995 US Dist LEXIS 18378 (SDNY Dec. 12, 1995). Moreover, when an attorney who is present at an examination becomes a potential witness in the client’s trial it naturally raises conflict of interest problems.

While Federal Courts in New York and Texas are firmly against allowing an attorney to be present at an IME, state courts sitting in New York have held that Plaintiffs are entitled to have a representative present at their physical examinations as long as the representative does not interfere with the examination conducted by defendants’ designated physician and does not prevent defendants’ physician from conducting a meaningful examination.” See Guerra v McBean, 127 A.D.3d. 462 (1st Dept 2015).

To read a copy of the SDTX decision, click here.

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