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An Albany, N.Y., judge presiding over a personal injury case has refused to suppress an audio tape in which the defendant’s medical expert was recorded while performing a physical examination on the plaintiff. The peculiar motion in Grange v. Sweet occurred after the plaintiff’s mother recorded the exam with the permission of the defense expert but with no notice to any attorney on either side. An attorney for the defendant said he would have objected to the taping if he had been forewarned, and urged its suppression. But Justice Thomas J. Spargo, sitting in Ulster County, N.Y., found no grounds to suppress. He said suppression is not warranted under the theory of improper action by the plaintiff’s attorney because the plaintiff’s attorney had nothing to do with the taping. Additionally, he said, the tape cannot be suppressed on the grounds that it was made improperly or secretly since the defense doctor agreed to the taping. But the court did order the plaintiff to turn the tape over to the defense. The case arises out of an automobile accident in which Catherine M. Grange claims to have suffered injuries to her jaw, back, shoulder and knee in a collision with Anna Sweet. After suit was filed, the defendant served Grange with notice to submit to examinations by neurologist Denise McHale and oral surgeon Josef Bieber. Grange’s mother accompanied her daughter to the examination with McHale and asked permission to tape record the exam. McHale agreed. Defense attorney Deborah J. Solot of McCabe & Mack in Poughkeepsie moved to suppress, noting that she would not have permitted the taping to take place if she had had a chance to object. Grange’s attorney, John J. Greco of Kingston, cross-moved for an order requiring the defendant to choose an examining oral surgeon other than Bieber or, in the alternative, to allow her own doctor to attend the examination. On the suppression issue, Justice Spargo noted that the incident is unusual in that the court is not being asked to permit a taping but to suppress a tape already made with consent. “Whatever evidence exists on the tape has already been obtained and, if relevant, is admissible unless some constitutional, statutory or case law prohibition is shown,” Justice Spargo wrote in Grange v. Sweet, 03-0170 (Ulster County). “Dr. McHale agreed to the taping of [the] examination of Grange and there is therefore no basis to suppress the tape on the basis of surprise or improper conduct by either Grange or her mother.” But the court said that McHale’s “willingness to permit the taping of her examination implied an understanding that she would be provided a copy of her own statements, if requested.” He ordered the plaintiff to make the tape available to the defense. “[C]onsiderations of fairness and of the integrity of both the examining room and the litigation process require that a party not gain an undue advantage by the indiscriminate taping of an adversary’s retained expert,” the judge wrote. Spargo rejected the plaintiff’s request for a protective order precluding an exam by Bieber, finding “no rational basis” for her concern that the oral surgeon will exacerbate her injuries. “The court is … aware that a physician retained by a party to examine and testify with respect to an adverse party is not simply an impartial medical expert, oblivious to the conflicting interests of the parties,” Spargo said. “With these principles in mind … the presence at a physical examination of a party’s chosen representative, including a physician, should be allowed.”

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