Unfortunately, some cases do not get resolved quickly, especially when there are multiple defendants involved. The Federal Rules of Civil Procedure allow parties to depose each other. They also allow the court to order a party whose medical condition is in controversy to submit to an independent medical examination (“IME”) on a motion for good cause. In long and complex cases, however, the defendants may wish to depose a plaintiff a second time, or to obtain a second IME.
This issue was recently addressed in Steinman v. Morton International, Inc. The case was originally filed in state court in 2007. The case has a complex history, with the plaintiff’s employer having been brought in as a third-party defendant. The defendants are now requesting a second deposition of the plaintiff. In a federal court, the court must consider the factors in FRCP 26(b)(2) in determining whether to grant leave for a second deposition. The court should consider whether the second deposition would be unreasonably cumulative or duplicative and whether the information could be obtained from a more convenient, less burdensome, or less expensive source. The court should also consider whether the requesting party has had ample opportunity to obtain the information through discovery, and whether the proposed discovery is outside the scope allowed by Rule 26(b)(1).
The third-party defendant argued that the information was not cumulative or duplicative because it sought information as to how the alleged injuries continued to affect the plaintiff’s daily life and whether the injuries had progressed. In his 2008 deposition, the plaintiff stated his mobility and pain had gotten worse. The third-party defendant argued that the medical records were insufficient. The plaintiff argued that a second deposition would be burdensome and that the burden would outweigh the benefit. The magistrate judge noted that he did not offer specific reasons. In claiming a request is overly burdensome, a party must specifically show how the request is burdensome.
The magistrate judge found that the defendant and the third-party defendant could conduct the second deposition. The deposition is to be limited to the scope and effect of the injuries since the previous deposition. The defendants cannot revisit topics that were covered in his earlier testimony.
The defendants also sought a second Independent Medical Examination (“IME”). FRCP 35(a)(2)(A) provides that the court may order a party whose mental or physical condition is in controversy to submit to an IME on a motion for good cause. Good cause must be shown each time, but there is no limit on the number of IMEs in the rule. The plaintiff’s IME had occurred more than six years ago.
The magistrate judge noted that the length of time since the previous IME weighed in favor of granting another. The plaintiff argued that the third-party defendant had received ongoing medical records, which included three IME reports from workers’ compensation doctors. The magistrate judge noted that the defendants would be at a disadvantage if the plaintiff’s doctors testified regarding their ongoing examinations of the plaintiffs. The magistrate judge found good cause to grant the second IME.
The federal rules do not place a limit on the number of depositions or IMEs, but the court will not automatically grant multiple depositions and IMEs in every case. In a case like this one, however, in which several years have passed since the original deposition and IME, it is likely that a court will allow an additional deposition or IME of the plaintiff.
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Steinman v. Morton International, Inc., December 30, 2015, U.S. District Court, Southern District of New York
More Blog Entries:
NY Appellate Division Rules Against Video Recording of IME without Court Permission, December 28, 2015, New York Injury Lawyer Blog