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 [1978]) or was tainted by fraud, collusion, malice or bad faith (see Purvi Enters., LLC v City of New York, 62 AD3d 508, 509-510 [1st Dept 2009]), 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 [1996]), 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 [1975]), and prima facie tort (see Burns Jackson Miller Summit & Spitzer v Linder, 59 NY2d 314, 332 [1983]), 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 [1st Dept 1999]).”
(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.
One Response
Show up with witness for IME. WHen the IME facility orders him/her out, state that the IME is not going forward without him and you have no basis to exclude a witness the assignor authorizes. Let the insurer take aN utterly unsupportable “No-show” and impose a fake FOgel defense. Rip them apart in court.