IME Examination Recording
By Steven Babitsky, Esq.
Does the plaintiff have a right during a psychological IME to have his therapist present and to record the examination?
The U.S. District Court in Colorado, LAMMLE v. BALL AEROSPACE & TECHNOLOGIES CORPORATION, Dist. Court, D. Colorado 2012, said no to both.
The court hold:
That pursuant to Hayes v. District Court, 854 P.2d 1240 (Colo. 1993), the Colorado Supreme Court held that it is within the trial court’s discretion to decide whether a third-party [i.e., an attorney or someone else] should be allowed to be present during an IME. Here, I find there is no need to have a third-party representative, namely, Plaintiff’s counselor and/or therapist Lori Frey, present during Plaintiff’s psychological IME conducted by Dr. Robin Post, a licensed psychologist. I also find that Plaintiff would not be prejudiced by not having Ms. Frey present during his psychological IME. Additionally, Plaintiff has failed to demonstrate “good cause” to allow Plaintiff to record the psychological IME. This court notes that Dr. Post will be preparing her report consistent with Fed. R. Civ. P. 26(a)(2)(B) following the psychological IME of Plaintiff, and Plaintiff will also have the opportunity to depose Dr. Post after she completes her report.