Motion to compel an independent examination.

In Burris v KAM Transport, Inc, 301 Mich App 482 (2013) the Court of Appeals held the trial court abused its discretion when it denied defendants’ motion to compel independent medical examinations. MCR 2.311(A) provides a trial court with discretion to order a party to submit to a physical or mental examination. See Muci v State Farm Mut Auto Ins Co, 478 Mich 178 (2007). MCR 2.311(A) states: When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party’s custody or legal control. The order may be entered only on motion for good cause with notice to the person to be examined and to all parties. The order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and may provide that the attorney for the person to be examined may be present at the examination. In Burris, supra, the Court of Appeals concluded that the trial court abused its discretion in denying defendants’ request for an independent medical examination by a doctor with expertise in physical medicine and rehabilitation. While there can be cases where it is not an abuse of discretion for a trial court to decline ordering a second independent medical examination, such as where the second examination would be duplicative, under the facts of this case, it was an abuse. Plaintiff does not argue—and the trial court did not find—that defendants request for independent medical examinations by a doctor with expertise in physical medicine and rehabilitation would be duplicative or unnecessary. Additionally, the exams were taken in the AAA case almost three years ago, and the passage of time has been found to constitute good cause for ordering a second independent medical examination, and the persistence of plaintiff’s impairment is a critical issue in this case. While it is true that AAA’s independent medical examination by a doctor with expertise in physical medicine and rehabilitation provided defendants with some ability to obtain relevant information produced for another case, in the ordinary course defendants should be able to retain their own experts to assist in the defense of their own case, and should not normally be required to rely on experts retained by other parties in another case. Just as importantly, the trial court’s reasoning—that allowing the examinations would be overly burdensome and place plaintiff at an unfair disadvantage at trial—does not support its conclusion. Plaintiff’s concern about restricting the evidence presented to the jury can be addressed through motions in limine, objections, and by limiting the presentation of cumulative evidence at trial, without deterring discovery. There is also a ceiling on the number of expert witnesses that a party can call at trial. See MCL 600.2164(2). Hence, precluding defendants from obtaining IMEs of plaintiff by their own expert medical physicians was not supported by the trial court’s reasoning. For these reasons we hold that the trial court abused its discretion in denying defendants’ motion to compel an independent medical examination.

A defendant, through no fault of his/her own, who has made a good faith effort but is unable to comply with a court order.

Obviously, I do not speak for other judges, but

It is not my intention, goal or desire to ‘sanction’ a defendant if, through no fault of his/her own, (s)he is not able to comply with a bond condition or term of probation or other court order.  What is required is a good faith effort by the defendant to comply with all required terms.  Many times the issue is financial.  When that happens, if a defendant, through no fault of his/her own, has made a good faith effort but is unable to comply with a court order, it is my intention, goal and desire to look at other alternatives.  This, however, requires attorneys/defendants to be pro-active and bring it to the court, sooner rather than later.

Obviously, one is encouraged to try and work with probation or other supervising entity and/or the prosecutor’s office, but if you are not satisfied with their response and you believe you have a defendant who is legitimately unable to comply with a court order, you should  be requesting a hearing before me, and sooner rather than later.  Waiting until after the bench warrant is issued or unexcusable non-compliance minimizes and may negate the possibility of actually doing something about it.  Especially, with the effect this may have on one’s freedom and any sentencing agreement.