IME watchdog

The Battle Over IME Observers: When Business Interests Clash with Professional Duties

Independent Medical Examinations are critical checkpoints in New York’s no-fault insurance system, designed to verify injury claims and prevent fraud. A growing industry has emerged around these examinations: companies that provide non-attorney observers to accompany claimants during IMEs, ostensibly to protect patient rights and ensure fair examinations. One such company, IME Watchdog, Inc., found itself in litigation against a prominent defense firm that routinely excluded these non-attorney observers from IMEs.

The resulting lawsuit raised fundamental questions about professional conduct, business interference, and the proper scope of IME proceedings. IME Watchdog alleged that the defense firm’s policy of excluding non-attorneys from examinations constituted tortious interference with business relationships, abuse of process, and prima facie tort. The First Department’s analysis provides important guidance on the limits of tort liability when attorneys pursue legitimate professional objectives.

This case sits at the intersection of professional ethics, business competition, and procedural rights. It demonstrates how courts balance competing interests when businesses build models around litigation procedures that attorneys may legitimately challenge.

Case Background

IME Watchdog, Inc. operated a business model centered on providing non-attorney representatives to accompany claimants during independent medical examinations. The company contracted with law firms representing plaintiffs in personal injury and no-fault cases, offering services designed to monitor IME proceedings and protect claimant interests. However, Baker, McEvoy, Morrissey & Moskovits, P.C., a defense firm representing insurance companies, implemented a policy of excluding these non-attorney observers from IMEs except under specific circumstances.

IME Watchdog filed suit claiming multiple causes of action, including tortious interference with contractual relations, abuse of process, and prima facie tort. The company sought both monetary damages and injunctive relief preventing the defense firm from continuing its exclusionary practices. The trial court granted summary judgment dismissing the complaint, and IME Watchdog appealed to the First Department.

Jason Tenenbaum’s Analysis:

IME Watchdog, Inc. v Baker, McEvoy, Morrissey & Moskovits, P.C., 2016 NY Slip Op 08174 (1st Dept. 2016)

(1) “There has been no showing that the alleged tortious conduct which plaintiff seeks to enjoin, Baker McEvoy’s exclusion of non-attorneys from IMEs (except under certain [*2]circumstances), exceeds its professional duty to defend its clients (see Fried v Bower & Gardner, 46 NY2d 765, 767 ) or was tainted by fraud, collusion, malice or bad faith (see Purvi Enters., LLC v City of New York, 62 AD3d 508, 509-510 ), especially since several Supreme Court decisions are in Baker McEvoy’s favor on the issue of a non-attorney’s presence at IMEs.”

(2) “Additionally, plaintiff has not established that Baker McEvoy’s conduct was without excuse and/or justification, an element of the claims for tortious interference with a contract (Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 ), abuse of process (see Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 403 ), and prima facie tort (see Burns Jackson Miller Summit & Spitzer v Linder, 59 NY2d 314, 332 ), or was accompanied by the use of wrongful means or motivated solely by malice, a necessary element of its cause of action for tortious interference with contract (see Snyder v Sony Music Entertainment, 252 AD2d 294, 299-300 ).”

(3) “Plaintiff’s claims of irreparable injury are belied by the fact that business has grown every year, and the testimony of plaintiff’s three witnesses reflects that their firms’ change in position, on the use of watchdogs, was made in response to adverse court rulings in their cases. The proper remedy, in those instances, would be to appeal the adverse decisions, and not commence a separate action against the attorneys who secured those rulings”

This was another interesting case. The crux of what I am gathering is that non attorneys can be barred from witnessing IMEs. It is an interesting proposition, and this case does not resolve the issue. I am curious what the answer, however, really is to that question.

Legal Significance

The IME Watchdog decision establishes important boundaries protecting attorneys who pursue legitimate professional objectives, even when their actions economically harm third-party businesses. The court’s analysis focused on three critical elements that distinguish protected professional conduct from actionable tortious behavior: professional duty to clients, absence of fraud or malice, and existence of justification for the challenged conduct.

The First Department’s first holding addressed whether the defense firm’s exclusionary policy exceeded its professional duties. Under New York law, attorneys owe fiduciary duties to their clients that often require vigorous advocacy, even when such advocacy disrupts business relationships between other parties. The court found that Baker McEvoy’s position—that non-attorneys should be excluded from IMEs absent special circumstances—fell within the scope of zealous client representation, particularly given favorable Supreme Court rulings supporting this stance.

The court’s analysis of tortious interference required IME Watchdog to demonstrate that the defense firm acted without justification. This proved fatal to plaintiff’s claims. Courts recognize that attorneys have substantial latitude in litigation strategy, and pursuing positions supported by favorable precedent constitutes legally justifiable conduct. The decision implicitly acknowledges that if IME Watchdog’s business model depends on practices that defense counsel can legitimately challenge, the risk of business disruption falls on the company rather than the attorneys.

The irreparable harm analysis revealed another weakness in IME Watchdog’s case. Despite allegations of injury from the defense firm’s conduct, the company’s business actually grew during the relevant period. Furthermore, the court found that law firms discontinued using watchdog services in response to adverse court rulings, not because of the defense firm’s conduct. This demonstrates that the proper remedy for unfavorable legal decisions is appeal, not collateral litigation against opposing counsel.

Practical Implications

For defense counsel in no-fault and personal injury cases, this decision provides significant protection when pursuing legitimate litigation strategies that may affect third-party business interests. Attorneys can confidently object to non-attorney IME observers without fear of tort liability, provided their positions are grounded in professional duties and supported by legal precedent. This protection extends beyond IME contexts to other scenarios where zealous advocacy might disrupt ancillary business relationships.

However, the decision’s protections are not absolute. The court emphasized that conduct “tainted by fraud, collusion, malice or bad faith” remains actionable. Defense attorneys should ensure their objections to non-attorney IME observers are based on legitimate grounds—protecting examination integrity, preventing coaching or intimidation, or maintaining appropriate professional boundaries—rather than personal animosity or improper motives.

For businesses providing litigation support services, this case demonstrates the vulnerability of business models dependent on practices that attorneys can challenge through legitimate advocacy. Companies in this position should diversify their services, maintain relationships with multiple attorney referral sources, and be prepared to adapt if courts rule against their core practices. The decision also reinforces that judicial remedies through appeals and motions are the proper forums for resolving procedural disputes, not separate tort actions.

Plaintiff’s counsel should recognize that while they may request non-attorney observers at IMEs, courts appear increasingly skeptical of such requests, and defense objections will likely succeed absent compelling circumstances justifying observer presence.

Key Takeaway

Attorneys acting within their professional duties to clients receive substantial protection from tort liability, even when their litigation strategies economically harm third-party businesses. This decision reinforces that the proper remedy for adverse court rulings is appeal, not collateral litigation against opposing counsel who obtained those rulings.

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