Court overturns trial judge and orders injury victim to undergo multiple IMEs

Karen Burris sued the owners and driver of the motor vehicle that injured her.  Her accident occurred on September 28, 2009, when Burris was a passenger, rear-ended by a semitractor-trailer at a traffic light.  Burris had also sued her own insurer for medical coverage and wage loss, and had submitted to "independent [defense] medical examinations" in 2010 by a neurosurgeon, a dentist, an orthopaedic surgeon, a neuropsychologist, and a rehabilitation specialist selected by her insurer.  The at-fault insurer wanted to send her for repeat examinations by a neuropsychologist, a psychiatrist, and a rehabiliation specialist, and Burris' attorneys asked the Court to limit or preclude these repeated examinations--or at least to limit the Defendants so that they could not use both their own IME evidence and the other insurer's.

The trial court agreed that the examinations were burdensome and redundant given the five prior examinations within one year, and entered an order precluding further examination.  The Defendants sought leave to appeal and it was denied.  The conservative insurer-oriented Supreme Court then summarily overturned the Court of Appeals decision and ordered the Court of Appeals to hear the at-fault insurer's appeal.

In the interim, one of the PIP insurer's doctors died, and the Plaintiff conceded the right to an IME by one specialty, so the Court of Appeals considered only the issue of a redundant examination by a rehab specialist.  The Court--in a 2-1 majority-- ordered that the additional exam take place, in part because three years have now elapsed (while the Defendants were appealing) since the rehab specialist first performed an "IME."  The Court noted that Defendants are not entitled to a "duplicative" IME, but ruled that the trial court had not held that this exam was, in fact, duplicative. The judges signing the majority decision virtually always vote in favor of insurers.

Judge Michael Kelly, the presiding judge, dissented.  He pointed out that this type of decision is historically left to the trial judge's discretion and that a trial judge's decision on a matter of evidence is rarely overturned, absent an "abuse of discretion."  He further pointed out that the defendants failed to establish "good cause" for the additional IMEs and failed to allege any flaw in the medical records established by the treaters and the five previous defense experts.