Key Takeaway
Court finds expert's failure to produce subpoenaed notes fundamentally unfair, raising questions about record retention obligations for IME doctors.
When expert witnesses fail to comply with court subpoenas, it can significantly impact a case’s outcome. This issue becomes particularly complex in personal injury litigation where Independent Medical Examination (IME) doctors are called to testify. These medical professionals occupy a unique position—they’re not treating physicians, yet their examinations and reports can be pivotal in determining case outcomes.
The question of record retention becomes especially thorny for IME doctors. While treating physicians have clear obligations to maintain patient records, IME doctors exist in a gray area where their duties regarding documentation preservation aren’t as clearly defined. This ambiguity can lead to disputes over whether missing or destroyed notes warrant sanctions or adverse inferences.
Understanding how courts handle these situations is crucial for both plaintiffs and defendants in personal injury cases, as the availability of expert documentation can make or break cross-examination strategies.
Jason Tenenbaum’s Analysis:
Herman v Moore, 2015 NY Slip Op 09352 (1st Dept. 2015)
“Finally, while Dr. Elkin did not, as plaintiff suggests, testify that she “destroyed” her notes, she did concede that she did not comply with the subpoena, which required her to bring with her to court the notes that she used in generating her report on behalf of defendants. The failure to produce those notes affected plaintiff’s ability to cross-examine defendants’ expert and was fundamentally unfair to plaintiff. At the least, it would have been appropriate for the court to issue an adverse inference charge”
So assuming the doctor testified that the notes were destroyed prior to receipt of the subpoena or receiving a spoliation notice, would this form the basis of an adverse witness charge? A medical professional has an obligation to save records for 7 years. Does that apply to an IME doctor? They are not a treating physician; yet, a medical malpractice action can form due to inappropriate behavior and professional negligence at the IME.
Key Takeaway
The Herman v Moore case highlights the fundamental fairness issues that arise when expert witnesses fail to produce subpoenaed materials. Courts recognize that missing documentation hampers effective cross-examination, potentially warranting adverse inference charges. The unique position of IME doctors raises important questions about their record retention obligations and whether unintentional spoliation leads to adverse inference charge standards apply to their documentation practices.
