First Department Finds IME Observer’s Notes are Privileged

On March 19, 2019, the Appellate Division First Department issued a decision in which they held the notes of an IME observer were privileged.  The Court’s decision settled the variance between the trial Courts of whether the notes of an IME observer are protected by the attorney-client privilege. In the case of Markel v. Pure Power Boot Camp, Inc., the Plaintiff sought damages for a knee injury she sustained while participating in an exercise drill at defendants’ gym.  As part of the discovery process, the Plaintiff was asked to appear for an independent medical exam (IME) by an orthopedist to ascertain the extent of her injuries, if any.
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