In an attempt to clarify the exact parameters when IME Watchdogs are subject to discovery demands, the Appellate Division, First Department reversed its decision in Markel v. Pure Power Boot Camp, stating that “substantial need” is required for an IME observer’s notes to be discoverable. The specific question of whether such an IME “Watchdog” or other observer’s notes are discoverable under CPLR 3101(a)’s broad iteration of full disclosure is an issue that has resulted in varying decisions among the trial courts. These disparate decisions result in conflicting opinions as to when such materials can be protected from disclosure. While this decision was meant to clarify the law, it’s possible that the reversal in Markel will only create more confusion as other departments rule on this issue.

New York CPLR §3121 allows for an opposing party to require plaintiff to submit to an Independent Medical Examination (IME) by a designated physician. As the courts have noted, these physical examinations serve an important function in our legal system by “[narrowing], if possible, areas of medical dispute through the assistance of the medical profession, and [eliminate] most of the medical controversy in a personal injury case.” Jakubowski v. Lengen, 86 A.D.2d 398, 400 (N.Y. App. Div. 4th Dep’t 1982). While many attorneys may disagree that these IMEs narrow any dispute, they serve an important purpose and have become standard practice.