Friday, April 1, 2011

Judge Kosik of Federal Middle District Court Addresses IME Issue

Judge Edwin Kosik of the Federal District Court for the Middle District of Pennsylvania recently issued an interesting discovery order in the post-Koken case of Kurland v. Santiago, Civil No. 3:10-Civ-1278 (March 28, 2011).

In that case, there was apparently a dispute on whether or not the Plaintiff could have a registered nurse accompany the Plaintiff to an medical examination arranged by the defense and whether that nurse could audio tape and/or video tape the proceedings.

In his Order, Judge Kosik allowed the Plaintiff to bring a registered nurse to “witness the examination in a professional and unobtrusive manner without any oral or video recordings.”

The prevailing attorneys in this matter were Attorneys Bryon R. Kaster and C. J. Haddick of the Camp Hill, Pennsylvania law firm of Dickie, McCamey & Chilcote.

This ruling emphasizes the difference between Federal Rule of Civil Procedure 35, which pertains to "Physical and Mental Examinations," and Pennsylvania Rule of Civil Procedure 4010, pertaining to "Physical and Mental Examination of Persons."

Fed.R.C.P. 35 is silent on the ability of a party to have a representative or nurse present at an IME.  The Rule is also silent on whether or not the proceedings can be audio taped or video taped.

In contrast, the state rule PA.R.C.P. 4010 specifically expressly allows a party to bring a representative or attorney with them to the IME.  That Rule also allows for the stenographic or audio taping of the IME.   The state rule is silent as to the issue of video taping.

Anyone desiring a copy of Judge Kosik's Order may contact me at dancummins@comcast.net.

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