Earlier this year, Wade Clark Mulcahy helped set a new legal precedent in New York for a plaintiff’s disclosure of Facebook and other social media materials, in Forman v. Henkin. Partner Michael Bono argued that issue before the Court of Appeals, and you can read our post on the decision here.
But other discovery battles have continued on the Forman case, including a dispute about post Note of Issue medical discovery. Today’s edition of the New York Law Journal published another WCM victory, on a motion prepared by partner Brian Gibbons and associate Nick Schaefer. Plaintiff claims traumatic brain injuries, and other orthopedic injuries, stemming from a fall from a horse back in 2011. Our neuro-psychiatrist, Dr. Jeffrey Brown, examined plaintiff in 2014 at our request. But since that time, the Facebook litigation plaintiff initiated has caused significant delay of the trial; and because plaintiff’s mental condition is constantly evolving, we consulted with Dr. Brown and determined that a second IME was necessary to properly evaluate plaintiff’s current condition, as opposed to her 2014 condition.
Generally, supplemental IME’s are ordered, and more frequently, consented to, when a plaintiff supplements his/her bill of particulars to allege new injuries. Here, there was no supplemental bill of particulars, which prompted plaintiff to oppose our request. But at her most recent deposition in 2017, plaintiff testified that her TBI-related symptoms are ongoing, and in some cases, worse. This testimony placed her current mental health condition in issue, thereby entitling WCM and Dr. Brown to another IME of the plaintiff.
The Court’s decision is well-reasoned, and references the broad legislative intent behind CPLR 3101(a), where requested disclosure is “material and necessary” to defend the action. Here, our fact-specific request for the IME was based upon consultation with our expert, before making the motion. As a result, we will be more equipped to evaluate plaintiff’s current symptoms, as they apply to the 2011 injury, if and when this matter proceeds to trial. This decision by the Court by no means wins the “war” that every litigated case often feels like; but the decision is certainly a battle victory that will help us down the road.