My guess is we’ve yet to hear the end of this story.
As reported by Overlawyered, the Sixth Circuit recently affirmed a district court’s decision to dismiss a case due to “flagrant and repeated misconduct by the Plaintiff and his attorney.” The opinion, which is here, serves as a cautionary tale not only for lawyers whose clients undergo court-ordered independent medical examinations, but for lawyers who conflate competent representation with battling over every little thing.
Plaintiff sought damages for injuries alleged to have resulted from a fall at the railway yard where he worked. After some jousting, the lawyers agreed that Plaintiff would attend an IME.
In anticipation of the IME, Plaintiff was asked to respond to a questionnaire related to his medical history. Plaintiff’s Lawyer objected, arguing that the questionnaire was unnecessary given that Plaintiff had already been deposed. More jousting ensued, with the court again having to get involved. The court concluded that the background information was required and, pursuant to F.R.C.P. 35, ordered Plaintiff to appear at the IME “for an interview by a physician assistant and for [the doctor] to conduct an IME.”
Plaintiff appeared for the IME. Without notifying defense counsel, Lawyer tagged along.
Long story short, Plaintiff refused to answer any of the questions asked by the physician’s assistant or the doctor. (He also refused to identify himself.) Here’s a transcript of a portion of the examination:
- Doctor: Now I was a little confused. You’re talking in the summons of
oil and slipping in the back of a truck but on your, when you filled out the injury
report that day, you were saying you were walking to the front door of the truck
and your legs gave way.
- Plaintiff: Everything is in the deposition there.
- Doc: Got it.
- Plaintiff: We went over all the, all the stuff.
- Doc: Got it.
- Plaintiff: I’m not trying to give you a hard time.
- Doc: I understand.
- Plaintiff: All the information should be there.
- Doc: I think you are smart to listen to your attorney. If your attorney, if my
attorney told me to dye my hair red, I’d dye my hair red. You know, so if your
attorney has told you not to …
- Lawyer: You’re assuming I told him that.
- Doc: to answer specific questions.
- Lawyer: That might be his own, his own line of thinking.
- Doc: He had told me, we had been told, eh, that . . . Well is it, let me ask you, is it
your idea not to fill out the form?
- Lawyer: That’s not relevant doc.
- Plaintiff: I’m complying with the Order. They told me I had to come down here and
be examined by you.
- Doc: Very good. Ok I will go with the history in the chart and what you said
when you filled out the initial report.
Ok great. Do you want to tell me what problems you are having or would you
rather I just look at your deposition?
- Plaintiff: It’s all in the deposition.
Now, you might be wondering how we have a “transcript” of the IME. If so, good wondering. Here’s how: Lawyer surreptitiously recorded it on his phone.
In the end, and referring to the obligation to comply with the court-ordered IME, the 6th Circuit wrote:
- “[Plaintiff] cannot credibly claim either that he was unaware of the obligation or that he complied with it by sitting for the interview but declining to answer questions regarding his condition, his current medications, or how his injury occurred. [Lawyer] represented that he and [Plaintiff] had discussed their concerns about the interview, and [Lawyer] denied that he told [Plaintiff] what to do. The fact is, [Plaintiff] arrived for the IME with a copy of his deposition transcript and his attorney in tow, and then proceeded to repeatedly deflect questions by stating that the answers could be found in his deposition or prior medical records. Now that he is no longer represented by [Lawyer], plaintiff asserts that it ‘was unreasonable for the court to conclude that he did anything other than follow the instructions of his attorney when he attended the IME.’ But [Plaintiff] cannot escape the consequences of his own actions by laying blame on the advice of counsel. The actions that [Plaintiff] took with the support of [Lawyer] were deliberate and calculated to circumvent the order requiring him to submit to an interview as part of the IME.”
As such, the court upheld the district court’s conclusion that Plaintiff and Lawyer willfully violated a discovery order and, further, that dismissal was the appropriate remedy. In the process, the court made an observation that lawyers – even those in so-called “one-party” states – should heed:
- “There is no reason to doubt that [Plaintiff] knew [Lawyer] was secretly recording the visit on a hidden cell phone, which was deceitful even if not actually illegal in Wisconsin.” (emphasis added).
In Vermont, Rule 8.4(c) prohibits conduct that involves dishonesty, fraud, deceit or misrepresentation. Here, to make matters worse, the deceit backfired in that it provided a record of the misconduct.
Finally, if the result seems unfairly to penalize Plaintiff for Lawyer’s conduct, look at the concurring opinion. Omitting internal citations, here’s the penultimate paragraph:
- “The law already marks a deeply grooved path for addressing the grievances of clients bilked out of good claims by bad lawyers. It’s called a malpractice lawsuit. A dismissal with prejudice predicated on lawyer misconduct would provide powerful ammunition for a client in a malpractice proceeding. By departing from our traditional rules of agency to protect plaintiffs, we may do just the opposite. If we make party misconduct a near precondition in every dismissal, we unduly complicate the inevitable malpractice action by giving the lawyer a ready defense: My client behaved just as badly as I did.”
Most lawyers know other lawyers who fight over every little thing in discovery. Some battles aren’t worth fighting. Here, simply following the process probably would’ve resulted in settlement. Now, if Plaintiff is to recover anything, I assume it will be in a malpractice action.
That doesn’t strike me as worth the fight.