Weitz & Luxenberg associate attorney EricaRae Garcia has written “Get Prepped for DMEs,” appearing in the May 2022 issue of Trial. The magazine is published by the American Association for Justice (AAJ).
In her article, Ms. Garcia offers guidance on the complexity of addressing defense medical examinations (DMEs). These exams are sometimes given the misnomer of “independent medical exams” (IME). They are not independent or neutral but, instead, typically favor the defense since they are conducted by defendant’s chosen expert. (1)
Under Federal Rule of Civil Procedure 35, medical exams are commonplace and are an integral part of the litigation process. The defense has a right to request that personal injury plaintiffs be examined medically.
Defense Bias in Independent Medical Exams
Generally, an expert selected by the defense is asked to verify a plaintiff’s reported injuries, both physical and if appropriate, mental. However, these exams may not always be neutral because the plaintiff is being evaluated through a biased lens, according to Ms. Garcia.
Lawsuits regarding potentially defective products are often being litigated in multidistrict litigations (MDLs). Defendants hope the reported injuries can be attributed to factors unrelated to their products. In effect, the defense is trying to disprove or minimize the claimed medical illnesses.
Preparing for the Complexities of DMEs
As a plaintiff’s law firm, most of W&L’s clients have severe medical issues of one kind or another. They have numerous complications with undergoing a defense medical exam.
As Ms. Garcia states in Trial magazine, “Courts may order one or several DMEs.” However, under certain circumstances, courts themselves “may find that DMEs are unduly burdensome, unnecessary, or even unwarranted.” (2)
“When our clients are minors, as attorneys, we may need to push for safeguards,” Ms. Garcia states. Minors are “members of a vulnerable group.” Generally, “they lack the autonomy and decision-making capacity to legally protect their own interests.” (3)
Plaintiff’s attorneys also need to keep in mind these issues: (4)
- Whose responsibility is it to pay for a DME, especially if there are multiple exams? Clients may simply not have the financial means.
- Would our client benefit from having a support person present, especially if our client is a minor and has experienced severe trauma?
- Where is our client expected to go to “submit” to a DME? This is particularly concerning if our client must travel across the country, has a medical condition or disability making it difficult to travel, or is a member of a vulnerable population. Certain people must avoid exposure to large groups of people. For example, clients with lung issues face a greater risk from COVID-19.
- Particularly in MDL cases involving hundreds or thousands of plaintiffs, does everyone need to undergo a DME? If not, who should undergo the DME and when? During the core discovery phase, the supplemental fact discovery phase, or both?
In Our Clients Best Interests
“Our number one priority is to make sure we consider our clients’ best interests. We always need to think of our clients and their well-being,” insists Ms. Garcia.
“They are the ones who have been harmed. We need to be their advocates. The defendants are coming from a much more secure place,” says Ms. Garcia.
Ideally, attorneys for both sides are able to reach an agreement on the complex issues involving DMEs. However, when conflicts cannot be resolved, it’s time to turn to the courts.
Garcia’s Legal Background
Since joining W&L in 2021, Ms. Garcia has represented clients harmed by multiple defective devices and products in MDL litigations. Ms. Garcia’s skill in handling MDLs is an ideal match for W&L’s litigation practice.
As a member of the W&L Drug and Medical Device Litigation team, she works on a variety of cases. This includes JUUL e-cigarettes and 3M Combat Arms earplugs. W&L is also representing clients involved in the Cook inferior vena cava (IVC) filters litigation.
Ms. Garcia earned her B.A. in political science from Allegheny College in 2016. Just three years later, she was awarded her J.D. from the University of Dayton School of Law, where she excelled. She participated in the Leadership Honors Program, received the CALI Academic Excellence Award in Legal Writing, and served as editor-in-chief for the University of Dayton Law Review. She is a proud member of the American Association for Justice.
