Handling the IME and Vocational Rehabilitation Defense Experts



In most personal injury cases where the nature and extent of the plaintiff’s injuries are hotly contested, the defendant will request that the plaintiff undergo an independent medical examination, or AIME. Likewise, when a serious claim for diminished earning capacity is likely, the defense may seek to have the plaintiff evaluated by a vocational rehabilitation specialist. Whenever the plaintiff is allowed to be examined or evaluated by the defense expert certain . . . precautions must be taken lest the retained expert’s testimony, dressed up and sanctified as the opinion of an expert, be permitted to unduly influence the jury. This paper examines some of the methods proven effective for dealing with the defense experts.

Requirements for a Physical or Mental Exam of a Party

Article 1464 of the Louisiana Code of Civil Procedure provides the authority for physical or mental examinations of persons:

When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an examination by a vocational rehabilitation expert who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (Emphasis added)

LSA C.C.P. Art. 1464. Before a court will order a party to undergo a physical or mental examination under Louisiana Code of Civil Procedure Article 1464 it is required that:

1) the physical or mental condition of the party be in controversy;

2) good cause for the examination be shown; and

3) notice be given to the person to be examined and all parties, specifying time, manner, conditions and scope of examination and the identity of the person who will conduct the exam.

See, Id. Williamson v. Haynes Best Western of Alexandria, 595 So.2d 1201 (La. App. 4 Cir. 1992 at 1203 citing Williams v. Smith, 576 So.2d 448 (La.1991).

The first factor was addressed by the United States Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964), when it ruled that a plaintiff who alleges mental or physical injury provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury Id. at 118. While the good cause requirement may be easily met, the requested examination must be specific. The courts have flatly denied ordering an IME where the defendant seeks to check the plaintiff into a hospital to run some unspecified series of tests. Williamson v. Haynes Best Western of Alexandria, 595 So.2d 1201 (La. App. 4 Cir. 1992). Courts have proven quite stringent in enforcing the specificity requirement before ordering an IME. In Williamson, supra, the court held that a hotel owner was not entitled to an independent medical examination where it failed to specify what tests plaintiff was to receive or which tests were necessary to defend their case. The Fourth Circuit further went on to list some of the factors to be considered when granting an IME, surprisingly, one of those factors included the desires of the party to be examined. The desires of the party being examined are a factor to be considered, although that will not always be the controlling factor. Id. at 1204.

An IME is not granted as a matter of right. Plaintiffs counsel should not feel compelled to authorize a blanket, unspecified request by defense counsel. There must be a showing of good cause, and the party to be examined should be able to have the examination done at a time and place that will not cause undue inconvenience. As well, the party to be examined has the right to oppose any examination that is shown to be unnecessary, painful or hazardous. Lindsey v. Escude, 179 So.2d 505 (La. App. 3 Cir. 1965). In fact, the trial court has wide discretion in determining whether an independent medical examination should be ordered. White v. State Farm Mut. Auto. Ins. Co., 680 So.2d 1 (La. App. 3 Cir. 1996); Walker v. Marcev, 427 So.2d 678 (La. App.4 Cir. 1983). Each request for physical examination of a party must be assessed according to its own facts and circumstances. Monroe v. Northwestern National Ins. Co., 210 So.2d 365 (La. App. 3 Cir. 1968).

In some situations, the insurance company for the potential defendant will request a pre-suit medical examination. Louisiana Civil Code of Procedure Article 1464 does not authorize pre-suit medical examinations, and such requests should generally be denied. Recently, In the Matter of Petition of State Farm Mut. Auto Ins. Co., No. 98-C.75 (La. App. 5th Cir. 3/25/98), State Farm filed a petition for a pre-suit medical examination and deposition of a third party claimant. State Farm argued that its actions were necessary to enable it to fully evaluate a claim for damages sustained in an automobile accident involving its insured. The Louisiana Fifth Circuit Court of Appeals held that the trial judge erred in ordering the pre-suit medical exam. The court reasoned that there is no provision in the law for a pre-suit medical examination since the person sought to be examined was not a party as required under La. C.C.P. Art. 1464. Further, La. C.C.P. Art. 1429 allows for pre-suit depositions only to preserve testimony that would otherwise be lost to a prospective litigant.

Establishing Ground Rules for the IME

Establish ground rules before allowing your client to undergo an insurance medical examination, or vocational rehabilitation evaluation. Confirm with your defense counterpart all the specifics such as the place, time, manner, conditions, scope and nature of the examination. Make sure to obtain the identity and specialty of the person selected to perform the examination or evaluation. As a condition of the examination, require that a written report be issued to you and defense counsel. In those cases where there is more than one defendant, make sure that one examination will be sufficient for all defendants. If these provisions cannot be worked out prior to the examination, you may wish to deny the defense requests for a medical examination and have the court address this issue in its order. It is important that this information be obtained before allowing your client to undergo any examinations or evaluations. In evaluating the defense requests, ensure that all proposed tests are reasonable and not unduly evasive. In situations where there is some clear bias on the part of the physician selected, reserve the right to object. If that bias can be clearly shown, you may consider allowing the plaintiff to be examined by the clearly biased defense physician and save your destructive evidence for trial.

As a general rule, psychological examinations are generally thought to be more invasive of the plaintiff’s privacy than a physical examination. Psychological examinations should rarely be allowed, unless ordered by the court, and only when there has been a specific claim of mental or emotional damage in excess of what is normally associated with physical injury.

Preparing for the IME

Just as you would not allow your client to be deposed without prior preparation, it is just as important that the plaintiff be prepared in advance for his insurance medical examination or vocational rehabilitation evaluation. Let your client know what to expect. Some physicians will go to great lengths to obtain favorable information for their defendant employers. Make sure your clients know why they have to submit to the IME, or vocational rehabilitation evaluation. Make them aware of how an unscrupulous medical examiner or rehabilitation specialist can manipulate any information obtained. To avoid any confusion, have your clients review their own medical records, medical history and degree of the disability and injury, as referenced in the medical records. That way any innocent inconsistencies or misstatements can be avoided so as not to affect negatively on the plaintiff’s credibility.

When opposing the selected IME physician, look for any exploitable weaknesses in the expert’s qualifications. Inquire as to how many cases the medical examiner has accepted from the defendant, the lawyer, and other members of the defense lawyer’s firm. It is critical that you determine whether this particular physician or other defense expert has so strong a bias that you cannot with good conscience allow your client to be examined or evaluated by such an expert.

Establishing a Lack of Independance or Bias

Once the IME or vocational rehabilitation evaluation has been conducted, you must determine the most effective method of dealing with the defense expert’s testimony at trial. The defense will surely present its medical examiner as “independent, but in actuality, the IME physician is nothing more than a defense expert clothed with the appearance of “independence.” It is crucial that the jury understands that the insurance medical examiner and the vocational rehabilitation specialists were selected and paid for by the defendant. They report to the defendant and its attorney, and this alliance creates an obvious bias.

Establishing bias of a defense witness is a forceful weapon in the plaintiff’s arsenal. In Rowe v. State Farm Mutual Automobile Insurance Company, 670 So.2d 718 (La. App. 3 Cir. 1996), the plaintiff sought to obtain certain financial and medical records from Dr. McDaniels in order to show bias. The court was cited 27 cases in which Dr. James McDaniels testified contrary to the plaintiff’s treating physician and against the personal injury claimant. Due to this open contempt for plaintiffs, the court decided that his lack of objectivity and independence was clear. The court then reversed the trial court’s holding that certain financial and medical records of Dr. McDaniels could not be discovered. The court reasoned that in situations where the basis of expert opinion is beyond the comprehension or knowledge of the jury, a jury could be deprived of the ability to objectively and rationally evaluate the merits of an expert’s opinion. Id. at 725. It is precisely in such instances that a retained expert’s apparent objectivity can carry undue weight with the jury. United States v. Brown, 501 F.2d 146, 149-150 (9th Cir. 1974). Thus, precautions must be taken lest a retained expert’s testimony, dressed up and sanctified as the opinion of an expert, be permitted to unduly influence the jury. Rowe, 670 So.2d 718, 725 (La. App.3 Cir. 1996), citing Viterbo v. Dow Chemical Co., 826 F.2d 420, 424 (5th Cir. 1987).

The Rowe court evaluated several factors in permitting discovery of the independent medical examiner, which included his lack of objectivity and the fact that the doctor only saw the plaintiff one time, (more than three years after the accident), for fifteen or twenty minutes just three weeks before the trial. Rowe, at 722. Also a factor in the decision was the fact that Dr. McDaniels was hired only for litigation purposes. Id. The court availed itself of Louisiana Code of Evidence article 607 to permit discovery. It states that extrinsic evidence to show a witness bias, interest, corruption, or defect of capacity is admissible to attack the credibility of a witness. The court further held that the Codes of Civil Procedure and Evidence are designed specifically to facilitate the discovery of credible evidence by adversaries, and that to not permit this discovery would leave plaintiffs with Ano weapon save cross-examination which, uncomplemented by other discovery methods, seldom is of adequate value when thrust against the broadside of the litigation expert who can so gracefully stiff-arm his unprepared cross examiner. Rowe, at 726. Therefore, subject to the balancing test of La. Code Evid. art. 403, plaintiff should have been permitted to obtain the records sought, as these records were admissible to show Dr. McDaniels’s bias. Id.

History of bias has been found to be adequate cause, not only for discovery, but for disallowing the IME altogether. As a general rule, there exists a presumption that a physician in a personal injury action will conduct properly a physical examination of the plaintiff. Nevertheless, that presumption can be overcome by a physicians documented, long-history of partiality. Walker v. Marcev, 427 So.2d 678 (La. App. 4 Cir. 1983). The Louisiana Supreme Court, in Mansion v. Cigna, 572 So.2d 47 (La.1991), allowed the plaintiff to refuse IME from Dr. McDaniels because of his bias. It then allowed the defendant to choose another doctor to do it. Under this decision, the Third Circuit interprets La. Code Civ. P. art. 1464 to not grant the defendant an absolute right to a physician of his choice. Rather, the article only states that the court may order a party to submit to a physical or mental examination by a physician. White v. State Farm Mut. Auto. Ins. Co., 680 So.2d 1, 3 (La. App. 3 Cir. 1996). The court justified this decision with the classic Daubert reasoning that the court is to act as a gatekeeper in deciding which evidence is reliable and relevant, and safeguard the jury from giving undue weight to expert testimony. Id. at 5.

Both Louisiana statutes and jurisprudence allow for the discovery of independent medical examiners, including medical and financial records, on a showing of good cause. Although there is a presumption that an independent medical examiner will do a proper job, the presumption can be overcome with evidence of partiality on part of the examiner. This rule is not limited to discovery only, since it can be used to have another medical examiner appointed as well; article 1464 is not a guarantee for the defense that they can have plaintiff examined by whomever they want, rather, just that they are allowed to have him examined.

Generally, the plaintiff’s treating physician is afforded more weight that an IME examiner. This principle of affording more weight to the treating physician’s testimony is particularly pronounced in cases where the examining physician is seeing the claimant only for the purposes of diagnosis, and the physician has a history of animosity toward claimants in litigation. In the case involving Dr. McDaniels, the Third Circuit permitted the trial court to lend no credence to the testimony of the doctor because he had seen the patient for the purposes of diagnosis only, and had openly announced a bias toward litigants. The court cited decisions in Martin v. Travelers Insurance Co., 546 So.2d 958 (La. App. 3 Cir. 1989), and Sepulvado v. Williamette Industries, 459 So.2d 1342 (La. App. 3 Cir.1984) in support of lending higher credence to the physician actually treating the patient for the condition claimed for. Chevalier v. L.H. Bossier, Inc., 617 So.2d 1278 (La. App. 3 Cir. 1993).

To Cross, Or Not to Cross

There is a school of thought among some that it is sometimes best not to cross-examine an unassailable defense IME or vocational rehabilitation specialist, subscribing to the notion that “if you can do no good, at least do no harm. Simply say, “thank you, your honor, but we have no need to cross-examine this witness.” While it is truly more difficult to cross-examine an unassailable witness, there are always some low risk questions that can be asked of the witness. One approach is to conduct what is called a collateral cross-examination, i.e., have the witness agree with certain undisputed facts, then have him/her corroborate the general principles that makeup your own expert’s opinion. Follow-up with a series of closed-in questions that will help support your expert’s theory of the case. That way you create an area of agreement between the two experts using your opponent’s expert to support your own.

It is difficult to envision any situation where, as plaintiff, you avoid cross-examining the defense expert entirely. The defense expert is put on the stand for one purpose, and one purpose only B to undermine or destroy the plaintiff’s theories of liability, damages or both. The failure to cross-examine may amount to a tacit acceptance of that expert’s testimony and theories. It is much too dangerous to simply rely on the testimony of plaintiff’s experts as a counterweight. Defense counsel will surely use the plaintiff’s failure to cross-examine his expert in closing argument with devastating effect, by arguing that the reason plaintiff’s counsel did not cross-examine his expert is because he/she could not challenge his expert’s testimony. One must be mindful that the juror’s impression of cross-examination comes from television and the movies. Jurors come into court with a preconceived notion of what to expect. Their expectation comes from shows like L.A. Law, Perry Mason (for the older crowd), Law and Order and the more recent high profile cases. On television, cross-examination is depicted as electrifying and exciting. You may lose credibility or the ability to persuade if you do not give them what they expect.

Establish a Definite Purpose for the Cross-Examination

Once you have decided to cross-examine the defense expert, the question then becomes how to accomplish the feat most effectively. First you must set a goal or purpose for the cross-examination. Is your purpose to discredit, undermine, or neutralize the witness? Only on rare occasion will you be able to destroy the defense expert; however, it is not always necessary to totally destroy the defense expert in order to conduct an effective cross-examination. At the very least, you must demonstrate that there is disagreement between experts and give the jury a rational and legitimate reason to distrust the defense expert. Cross-examination is adequate if it provides the fact finder with a rational basis for disregarding or at least disbelieving the defense expert’s testimony. Your cross-examination is truly effective when you are able to establish or advance the strengths of your case, while exposing the weaknesses of the opposition.

Effective cross-examination begins during the discovery process. The expert’s background must be researched thoroughly, including any jobs previously held and for whom he or she has previously worked. This becomes particularly important in showing bias or a lack of independence. If you can show that the witness has worked solely for the defense bar or insurance companies, his/her credibility may be undermined. A long history of employment by one side of the bar may be extremely valuable in establishing bias of the witness. Whenever the witness’ prior writings in a particular field are available they should be reviewed, including any similar reports prepared in cases where that witness has testified. Don’t wait until the pressure of trial to obtain these prior reports and writings. The pressures of trial will seldom afford the luxury of a detailed analysis of this newly acquired information.

In reviewing prior written reports of the defense expert, look for consistency and inconsistency. If the witness has consistently testified on behalf of the defense and against plaintiffs, that consistency may be used to suggest bias. On the other hand, if the witness is now testifying inconsistently with his prior opinions or writings, that inconsistency may be used to discredit the witness. The more writings of a witness you review, the greater the chance you have of finding information that will assist you during your cross-examination.

The plaintiff’s treating physician is an invaluable source of helpful information in preparing to cross the defense expert. Discuss with the plaintiff’s treating physician possible weaknesses or flaws in the defense expert’s report and testimony.

There is really no secret to conducting an effective cross-examination of the defense expert, whether it is the insurance medical examiner or a vocational rehabilitation specialist.

Always keep in mind that the purpose of the cross-examination is to obtain favorable admissions, then discredit and impeach. Cross-examination will be most effective when it is the product of meticulous preparation so that you can make informed and intelligent decisions during the trial process.

The Indirect and Direct Cross-Examination

Deciding what type of cross to employ will depend on the circumstances of your particular case. The direct attack takes a number of forms and is designed to demonstrate that the witness is not an expert at all. Most jurors will tend to view the lawyer and the expert on somewhat equal footing, and for that reason, may enjoy a tough and destructive cross-examination. A destructive cross can be most effective after your opponent has built his expert up. A direct attack on the defense expert is rarely the battle plan of choice; primarily because it is too obvious and most experts have been well prepared for a full frontal assault. In situations where there is overwhelming evidence that conflicts or contradicts the theories of the defense expert, then a direct cross examination is justified. However, no matter how overwhelming your evidence, it is highly unlikely that the expert will retract his original opinion.

An indirect attack is often more effective than a frontal assault because the defense expert may not see it coming until he or she has already committed to a certain position. Hopefully, by using an indirect attack, the witness will be unable to anticipate the direction you’re taking him and will not be able to modify his answer accordingly.

Keep in mind that testimony elicited from the defense witnesses on cross-examination will be more memorable and carry more weight with a jury than testimony offered on direct. Whenever possible, establish the critical facts of your case through the defense witnesses. That way in closing argument you can remind the jury that the defendant’s own witnesses attested to those facts. This is particularly true when dealing with the insurance medical examiner and the vocational rehabilitation specialist. Meticulously review their written reports for facts favorable to your case. At the beginning of the cross-examination, elicit those facts from the defense expert. When possible, show the juror that the defense witness respects the opinion, training and/or qualifications of any of your witnesses. Be careful not to overdo the cross-examination. Stay focused on what you need to establish with that particular defense witness. If your purpose is to discredit the witness, do it quickly while you have the jury’s attention. When possible, show that the witness’ testimony is unreliable, improbable or contradicts the established facts. Be careful not to attack the witness before the jury has given you its permission to do so. A jury can react negatively to a lawyer who destroys a lay witness, but that same jury may have a positive reaction when the lawyer, a non-expert in a particular field, is able to destroy a so-called expert. Never ever forget that the jury is watching and their perception, right or wrong, means everything.

The Collateral Cross Examination

A collateral cross-examination, by definition, does not focus on the actual issues pertinent to the case, but instead focuses on issues relating to the expert himself. There’s no such thing as an unbiased expert. If your preliminary research into the defense expert=s background shows that the expert has testified mainly for the defense or that he has consistently testified for the same attorney or insurance company, eliciting such testimony can be particularly effective in establishing that the witnesses is nothing more than a hired gun not worthy of belief. If this is the approach taken, make sure that your expert can withstand similar scrutiny. The defense expert is involved in the case because he is getting paid. While there is nothing wrong with the fact that the witness is getting paid, some insurance medical examiners are embarrassed and evasive when questioned about their compensation. The more evasive and uncomfortable the witness is with this area of questioning, the longer the cross on this point should be.

Part of your collateral cross-examination consists of attempting to establish agreement between your expert and the defense expert. Once done you have two choices; continue the line of questioning up to the point that the witnesses agree, or carry it beyond and into areas where the experts disagreed. Going into areas of disagreement is much riskier, but may produce greater rewards. Once you have taken the defense expert beyond the point of disagreement, consider questioning the witness on whether it is possible in their particular field for legitimate differences of opinion between two qualified experts. If the answer is yes, make that point in your closing argument. With a medical examiner it may be worthwhile asking the defendant’s doctor whether he has ever suggested that one of his patients seek a second opinion, and has that second opinion ever differed from his opinion. If nothing else, the cross-examination demonstrates that the expert’s opinion is nothing more than an opinion. Resist the temptation to ask the more dangerous question of whether or not the expert agrees that this case is one of those times where there is simply a legitimate difference of opinion between two qualified experts.


Impeachment is perhaps the most effective means of cross- examining the defense expert. This can be done by learned treatises, prior testimony, prior depositions or articles written by the expert. This information must be obtained long before trial. Armed with impeachment evidence you should seek to maneuver the expert into testimony where the impeachment evidence will have the greatest effect. Focus on creating with the jury an impression that the witness is not totally credible, is evasive and lacks knowledge on critical issues. The overall impression you are attempting to relate to the jury is that this expert is not a totally dependable source of information and his testimony should be granted limited weight, if any.

Always remember that no matter how much preliminary study and research you perform, the expert still knows more about the subject than you do. Therefore, avoid using open-ended questions or unnecessary or obvious questions. Do not allow the witness to cross- examine you by answering your question with a question. Avoid the “why questions”. Keep focused on your goal and hit all the points that you intend to make; keep your questions close ended and short; make sure your questions are asked in laymen’s terms; make sure that the deponent’s answers are understandable to the jury; control pace of the examination and make sure the witness distinguishes between what is fact and what is fiction, or his opinion. There are no rules that will cover all situations. Strategic decisions are left to the lawyer who knows the case best. As a general rule, proceed carefully and quit while you are ahead.

Consequences for the Insurance Medical Examiner and Insurer

An IME can have other consequences both for the doctor performing the examination and the insurance company for whom it is being performed. Some of these include medical malpractice for the doctor, and breach of duties of good faith and fair dealing (in contract) for the insurers. This situation can arise in the uninsured/undermined motorist claim where the insured sues his own insurer. It is possible, as the court found in White v. State Farm, that an insurer may be in breach of its duty of good faith and fair dealing with its insured when it Auses a provision of its insurance contract to compel the insured to submit to an independent medical examination for the sole objective of securing expert testimony for litigation purposes, rather than as a means of obtaining information needed to fairly and equitably adjust the insured’s claim. White v. State Farm Mut. Auto. Ins. Co., 680 So.2d 1 (La. App. 3 Cir. 1996). LSA-RS. 22:1220(A) states pertinently that an insurer owes to his insured a duty of good faith and fair dealing, and has an affirmative duty to adjust claims fairly with the insured or the claimant, or both. Also, La. Civ. Code art. 1759 provides for good faith governing the conduct of obligor and obligee in whatever pertains to the obligation. Finally, La. Civ. Code art. 1983 provides for good faith performance of contracts. In light of this, the White court found that by forcing the plaintiff to be examined by a doctor with such a long history of biased examination would be a breach of the spirit, if not letter, of the insurer’s affirmative duty to deal fairly and in good faith with an insured or a claimant. White at 6.

A second possible consequence is that a misdiagnosis during an IME could lead to a medical malpractice action. In Pena v. Fann, 677 So.2d 1091 (La. App. 4 Cir. 1996), the court reviewed a case in which a motorist in an accident went to an IME at the request of the second driver and brought an action against the doctor for malpractice when he misdiagnosed the plaintiff’s condition. The court in Pena found that a direct doctor-patient relationship had been formed. Id. at 1093. The court cited American Mfrs. Mut. Ins. Co. v. United Gas Corp., 159 So.2d 592,595 (La. App.1964) saying: In placing oneself in the hands of a person held out to the world as skilled in a medical profession, albeit at the request of one’s employer, one justifiably has the reasonable expectation that the expert will warn of Aany incidental dangers of which he is cognizant due to his peculiar knowledge of his specialization. Further, that the examination creates a relationship between the examining physician and examinee at least to the extent of the tests conducted. That relationship imposes upon the examining physician a duty to conduct the requested tests and diagnose the results thereof, exercising the level of care consistent with the doctor’s professional training and expertise, or to take reasonable steps to make information timely available to the examinee of any findings that posed an imminent danger to the examinee’s physical or mental well being. Pena, at 1093 citing Green v. Walker, 910 F.2d 291 (5th Cir. 1990). Therefore, IME physicians and insurers must be extremely careful in the manner in which examinations are conducted and the intentions or motives behind such requests.


How you deal with the defense insurance medical examiner or vocational rehabilitation specialist can greatly influence the ultimate outcome of the case. Set the ground rules up front before agreeing to the IME or vocational evaluation, and make sure your client knows what to expect during the process. Strategic decisions on how to best cross-examine the defense expert are better left to the well prepared trial lawyer. Before employing any particular strategy, the upside potential must be balanced against the downside risks. Maintain control of the defense witness throughout the cross-examination and always remember that while the defense expert may be more knowledgeable about the subject matter, you are the expert in the courtroom. You have the home field advantage, use it!


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