Split Court of Appeals Disagrees Over “Good Cause” Requirement to Compel Independent Medical Examinations and Articulates Scope of Trial Court’s “Discretion” to Deny IME Requests

In this published 2-1 opinion (Murray, Boonstra, JJ, majority; M.J. Kelly, dissenting), the Court of Appeals reversed a trial court’s denial of the defendant’s request to compel plaintiff to submit to several new “independent medical examinations” (a/k/a “IME’s”)  in her no-fault automobile suit against them.  The opinion contains much commentary on the accepted practice of the bar in noticing up “IME’s”  without seeking leave of court or, even requesting permission from the plaintiff’s counsel.

However, the Court’s legal opinion provides crucial analysis and guidance to trial courts for assessing the necessity of IME’s and whether and to what extent “good cause” will be shown to allow such examinations.  The Court provides a definition of “good cause” to mean “simply…satisfactory, sound or valid reason.”

At first glance, it may appear, and the dissent suggests as much, that the “discretion” given to trial courts to allow or deny a request for IME’s is not truly discretion at all given the facts of this case and the manner in which the majority interprets MCR 2.311(A).  Thus, the “abuse of discretion” standard, which is ordinarily a high standard of review to overcome, is lowered by the majority’s restricting the trial court’s discretion and turning it into more of a structured analytical requirement to determine, in each case, whether there is “good cause” shown under this majority panel’s seemingly lowered definition of this latter phrase.

The plaintiff argued that defendants had her medical records and had previously conducted several IME’s upon her in the past in relation to other auto accident cases.  The plaintiff asserted that the requests for any new IME’s would result only in duplicative discovery efforts and were an attempt to unnecessarily burden and/or harass her.  The trial court agreed and denied the defendants’ request to conduct the IME’s.

However, the majority points out that the plaintiff’s mental and physical condition was placed squarely at issue in the case based on her allegations of injury.  To the extent defendants had prior IME’s on the same plaintiff related to other automobile accident lawsuits she filed, these were only marginally helpful in assessing whether she suffered the requisite “serious impairment” injuries in this particular accident, which would then entitle her to bring a tort claim under the No-Fault Act.

The majority also articulates the definition of “good cause” within the meaning of the court rule and uses federal court case analogues to go through a principled analysis of the issue.

This is a published opinion with a dissenting judge, so it is likely to garner some additional attention and may be subject to further appeal.  Moreover, it provides very useful guidance to the bench and bar on this ongoing issue of the use and propriety of IME’s.

Read the opinion here:  Burris v. K.A.M. Transport, et al.COA.Opinion.06.25.2013

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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