Thursday, August 16, 2012

Judge Mazzoni of Lackawanna County Allows for Second IME in Extenuating Circumstances




In his recent August 9, 2012 detailed Order issued in the case of Mehall v. Benedetto, No. 2009-CIV-5849 (C.P. Lacka. Co. August 9, 2012, Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas addressed a Defendant’s request for a second independent medical examination (IME) and allowed the same.

In this case, the Defendant originally had the Plaintiff sent to a neurosurgeon for an IME relative to the Plaintiff’s alleged back injury. 

During his deposition, the Plaintiff had also referenced a foot injury but the records showed that the Plaintiff had not treated for 3 ½ years after his discharge from treatment under the doctor that was treating that injury.

After the completion of the neurosurgeon IME, Plaintiff produced a letter report from the Plaintiff’s foot doctor in which that doctor concluded that the Plaintiff also was suffering from post-traumatic arthritis with respect to the foot as a result of the subject accident.  As such, the defense proceeded to court on a motion for an IME with respect to the foot injury claim after the Plaintiff refused to agree to the same.

In allowing for the second IME for the foot injury, the Court reiterated while the Plaintiff identified foot pain during his deposition, neither the Plaintiff’s Complaint nor is Amended Complaint identified any foot injuries.

The Court also noted that, as of the Plaintiff’s deposition, where foot pain was mentioned, the Defendants were under the impression that the Plaintiff had had no further treatment for several years with regard to the foot. It was only after the Defendant received the report from the foot doctor as produced by Plaintiff’s counsel that the Defendant had become aware, for the first time, that the Plaintiff had not only returned to treatment with that doctor, but was also advancing a claim for post-traumatic arthritis.

In his decision, Judge Mazzoni distinguished the prior Lackawanna County Decision on a similar issue by Judge Carmen D. Minora in the case of Judge v. Solid Waste Services, Inc., 41 Pa. D. & C. 4th 225 (C.P. Lacka. Co. 1999).

In this Mehall case, Judge Mazzoni found that the Plaintiff’s failure to seasonable supplement his discovery responses had the net effect of keeping information from the defense with respect to the necessity of an IME with regards to the foot injury. Judge Mazzoni also found that, due to the exceptional circumstances of this case, the second IME addressing the Plaintiff’s foot injury would not be an unreasonable invasion of privacy.

As such, Judge Mazzoni affirmed the Discovery Master’s decision to allow the Defendants to secure an additional IME regarding the alleged foot injury. Judge Mazzoni stated that this decision was “simply an attempt to ‘level the playing field’ and remove any potential prejudice.”


Anyone desiring a copy of this Mehall v. Benedetto decision may contact me at dancummins@comcast.net.


I note that the prevailing defense attorneys in this matter were Attorney Robert L. Goodman, Esquire of Forry Ullman in Bethlehem, Pennsylvania and Attorney Kevin M. Higgins of Byrne, Neyhart & Higgins in Scranton.  I send thanks for Attorney Goodman for bringing this decision to my attention.

Source of imagewww.eschmanpt.com

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