Attendance of counsel or other third parties at IMEs in Oregon

Close up of judge raising gavel in courtroom

Today, in Lindell v. Kalugin, an en banc opinion, the Oregon Supreme Court, issued an an important ruling for the defense concerning IMEs in Oregon.  The court ruled that a plaintiff is not automatically entitled to be accompanied to an independent medical examination (IME).

An ongoing dispute for many years in Oregon has been whether a plaintiff’s counsel or a family member or friend can attend an IME requested by the defense.  After performing a balancing test, the court ruled that the defense was entitled to have the plaintiff examined without having a family member, friend, or counsel in attendance.  The court noted that this was in part so that the IME examiner, and by extension the defense, could evaluate the true responses of the plaintiff unaltered by the presence of the third party and get a true unencumbered and uninfluenced sense of the plaintiff’s condition.

The court did not, however, rule that under no circumstances would a third party be permitted.  Rather, the court ruled that the proper showing of need had not been made.

This opinion likely does not alter the customary practice in Oregon of trial court judges allowing a third party to be present at an IME in cases involving children or vulnerable adults.

However, this opinion will likely have particular importance in sex abuse cases where psychological, psychiatric or other evaluations are done that involve testing.