Fourth Department – Independent medical examination: Nikel v. 5287 Transit Road LLC

New York State Supreme Court, Appellate Division, Fourth Judicial Department

Independent medical examination

Preclusion of expert testimony – Second surgery

Nikel v. 5287 Transit Road LLC

CA 22-00484

Appealed from Supreme Court, Erie County

Background: The plaintiff commenced a Labor Law action seeking damages for injuries he sustained while working on a construction project on property owned by the defendant. The defendant appealed from an order that granted the plaintiff’s motion seeking a protective order limiting the scope of the defendant’s independent medical examination of plaintiff’s lumbar spine to a second spinal surgery and whether that surgery was caused by the accident.

Ruling: The Appellate Division dismissed. The court held that the supreme court did not abuse its discretion in limiting the scope of the IME to the second spinal surgery and its causal relationship to the accident. At the time of the first lumbar spine surgery, the defendant expressly waived its right to conduct an IME of that body part. At the time of the waiver, the defendant knew that the plaintiff might undergo another surgery at the direction of his doctor.

Thomas J. Speyer, of Chelus, Herdzik, Speyer & Monte, for the defendant-appellant; Jonathan M. Gorski, of Dolce Panepinto, for the plaintiff-respondent.

Oral argument video