Addressing an issue of first impression, a state appeals court has ruled that notes and other materials created by an observer of an independent medical exam performed on an injured plaintiff are not discoverable because they are protected by the prepared-for-litigation privilege.

Writing that the IME observer-notes issue has been addressed by “the trial courts with varying results, requiring us to now clarify whether, and under what circumstances, such materials are protected from disclosure,” a First Department, Appellate Division panel examined the issue in the context of a case in which a personal-injury plaintiff had moved to quash the defendants’ subpoena duces tecum seeking IME observer notes.

An IME observer is a person chosen by an injured plaintiff to watch their independent medical exam, or IME. When a plaintiff puts his or her physical condition at issue in a lawsuit, most commonly in a personal-injury action, the defendants may require the plaintiff to submit to an IME done by a defendant-hired doctor, the panel explained.

The panel noted that a plaintiff can select an observer of his or her choice and that no special or unusual circumstances need be shown to use an IME observer. It also said that, according to the plaintiff in the case before it, “the presence of an IME observer deters examining doctors hired by defendants from inquiring about matters beyond the scope of the particular action and keeps the IME process honest.”

The unanimous panel, in an opinion written by Justice Judith Gische, took up the issue in a lawsuit brought by Stephanie Markel, who alleges that in 2012, at a Manhattan gym owned by Pure Power Boot Camp Inc., she was forced by a trainer to perform “unsafe” exercises and was seriously injured when forced to jump off a wall, court documents say.

According to Markel’s lawsuit, her injuries included “serious, lasting and permanent injuries to her knee, among other injuries,” and, in turn, she “received significant medical treatment, including surgery.” Moreover, she “suffered—and continues to suffer—pain, suffering, physical injuries, and permanent scarring,” the 2015-filed suit says.

Markel sued for unspecified damages and named as defendants not only Pure Power Boot Camp Inc., but also an individual from the company, Lauren Brenner.

The First Department panel, in its March 19 decision focused on the IME observer issue, and reversed the 2017 decision of Manhattan Supreme Court Justice Robert Reed. Reed had denied Markel’s motion for a protective order and to quash a subpoena duces tecum served on the IME observer who had accompanied her to the exam performed by the defendants’ orthopedist.

Gische, on behalf of the panel, wrote that Markel’s lawyer, Andrew Buzin of Buzin Law in Manhattan, had retained an IME observer for the exam who, as is allowed, had “no formal training in any medical discipline.”

“No claim is made that she [the IME observer] qualifies as an expert,” Gische said. She further wrote that “defendants do not identify in this record any information related to the plaintiff’s IME that they cannot obtain from their own examining doctor.”

Moving to the legal analysis, Gische, who was joined by Justices John Sweeny, Dianne Renwick, Marcy Kahn and Cynthia Kern, wrote that “the information contained in the IME observer’s notes would generally be considered material and necessary for the prosecution or defense of the underlying action,” citing CPLR 3101(a). She had also noted in the opinion that CPLR 3101(a) gives a “broad umbrella of full disclosure.”

As a result, she wrote, the dispute over discovery of the IME observer notes and materials “turns on whether it is otherwise protected by any privilege.”

Gische then ruled out both the attorney-client and work-product privileges. “The [observer’s] materials were not generated by plaintiff’s attorney, nor were they used to communicate with the client or convey legal advice to her,” she explained.

But in considering the qualified privilege of materials prepared in anticipation of litigation, Gische wrote that the IME observer did fall under the privilege.

“The IME observer … is an agent of the [Markel’s] attorney,” she wrote. “Consequently, the requested notes and materials constitute materials prepared for trial, bringing them within the conditional or qualified privilege protections of CPLR 3101(d)(2).

“Materials prepared in anticipation of litigation and preparation for trial may be obtained only upon a showing that the requesting party has a ‘substantial need’ for them in the preparation of the case and that without ‘undue hardship’ the requesting party is unable to obtain the substantial equivalent by other means,” Gische added. (CPLR 3101(d)(2); see also Forman at 661-662).

Continuing, she wrote, “The IME observer was hired to assist [Markel’s] attorney in advancing the litigation and preparing for trial.”

Gische added that “defendants [Pure Power Boot Camp and Brenner] have not shown … any ‘substantial need’ for the IME observer’s notes, etc., or why they are unable, without undue hardship, to obtain the ‘substantial equivalent’ of the materials by other means. Key to this analysis is that the defendants’ doctor conducted plaintiff’s examination and can provide defendants with any information concerning what generally occurred and what he did at the IME.”

Moreover, wrote Gische, “In general, under these circumstances, defendants’ access to their own doctor will seriously undermine any argument that there is a substantial need for the IME observer’s materials because the information contained therein is not otherwise available without undue hardship,” citing Cornex v. Carisbrook Indus.

Near the opinion’s close, Gische also underscored that “we are not deciding whether a different result would obtain were the IME observer expected to be, or actually is, called as a witness at any time during the case.”

Gail Ritzert of Havkins Rosenfeld Ritzert & Varriale represented Pure Power Boot Camp and Brenner. She declined to comment when reached on Friday.

Brian Isaac of Pollack, Pollack, Isaac & DeCicco was listed on the decision as helping to represent Markel on the appeal. He could not be reached.