Court holds that trial judge erred in allowing police officer-injury victim's attorneys to subpoena records of IME doctors and their employer
Insurance defendants commonly send injury victims to doctors chosen by the insurer for a defense or so-called "independent" medical exammination. Not surprisingly, there are doctors who make a significant living doing nothing but defense medical exams, and they are selected repeatedly by insurers because the insurers know what to expect: most doctors who make a living in this manner give the insurers what they want a minimization of the Plaintiff's injury.
A pattern of testimony is always admissible, as are any other objective measures tending to show bias. As a result, injury victims' attorneys like to show the jury how often a particular doctor has testified for a defense lawfirm against plaintiffs and how much money the doctor has earned in that role [the attorneys are not allowed to bring up the fact of insurance or identify the insurer in Michigan cases]. Equally obviously, doctors are notoriously vague and un-forthcoming when asked these questions. Typically, the doctors claim that they don't know what they were paid for the IIME, don't know how many they have performed, don't know if they have ever worked for the same people or who is paying their bill. To get around this evasiveness, good lawyers subpoena the actual payment records, so that a truthful evidentiary record can be built.When Emily Kincaid, a police officer, was injured in a car accident, she was forced to sue for compensation for her injuries, and was sent for an IME by the involved insurer. Her attorneys served a subpoena on Exam Works, the company that arranged the IMEs, to secure evidence relating to the involved doctors' compensation for performing the exams. In a companion case, the attorneys sought similar records for Exam Works doctors Joseph Walkiewicz and Gino Sessa. The trial judge ordered Exam Works to produce financial records of all defense medical exams conducted by the two doctors, and ExamWorks appealed the courts' rulings.
The Court of Appeals recognized that "Michigann has a strong historical commitment to a far-reaching, open and effective discovery practice," but then concluded that the "proper method of discovery was not strictly followed" by the Plaintiffs' attorneys, because they subpoenaed the records without noticing a deposition at the same time--even if there was no intent to take testimony.
The higher court judges ruled that since the plaintiff could obtain the substantial equivalent of the subpoenaed financial records from the doctors by deposing them, the lower court had erred by granting the Plaintiffs' requests for a subpoena forcing disclosure of the information. The judges conceded that the information is relevant and that typically courts do not dictate which of the several discovery devices a litigant may use. Nevertheless, it concluded that there were no "exceptional" or "compelling" grounds to justify Plaintiffs' use of a subpoena in the instant case, and therefore Exam Works should not have been ordered to produce the financial records relating to the doctors' prior IME payments. The last thing insurers want is transparency, and the last thing Republican judges want is a result that insurers don't like.
The Court also held that it was error by the trial judge to failurre to admit into evidence the fact that the officer did not have her seat belt buckled when the collision occurred--even though the officer had stipulated to the deduction of five percent of her damages--the statutory "penalty" imposed on accident victims who are not buckled in. The Court did note that given the officer's stipulation to the statutory penalty, the lower court's error was harmless.
Lastly, they Appeals Court panel ruled that the trial judge erred in refusing to allow the Defendants to blame the driver of the police cruiser for failing to make the plaintiff buckle her seatbelt. The Defendants wanted to argue that they should be able to place some of the fault for the officer's injuries on her own driver because he didn't confirm that the plaintiff's seatbelt was buckled. Thus, when the case is sent back to the trial court, the Plaintiffs won't be allowed to cross-examine the "independent" doctors about their financial interest, but the defendants will be able to argue that the injured cop's damages should be reduced more than the stipulated five percent for failing to wear a seatbelt--and that her driver negligently caused her injuries by failing to force her to buckle up. Only the likes of Kirsten F. Kelly, the insurer's best friend in Micigan's judiciary, could come up with such a biased decision or support it with such weak reasoning. This case, like many of Kelly's decisions, is demonstrative of why legal experts describe the Michigan Court system as having the most biased and unprofessional judiciary in the country.