Last week, a well-respected defense lawyer told one of our lawyers they possessed the Maryland Trial Lawyers Association’s “Handbook,” which spells out the terms for a defense requested medical examination. This “Handbook” has made its way into a Motion to Compel a Physical Examination, specifically including this “MTLA Handbook” as an exhibit to the motion. By this inclusion, I assume this is an authoritative source of legal guidance for the court on this discovery matter.
Now back to reality. Maryland Trial Lawyers Association does not have a “Handbook” on defense medical exams. Instead, it is just a copy of the link from our website setting forth our suggested conditions for a defense medical exam. Which we don’t even use anymore!
I think it is funny that this is being represented as some guide to fighting medical exams. I am glad people are using the Maryland Personal Injury Lawyer Help Center. My partner told me last week that a defense lawyer she spoke to said they often get motions from other lawyers copying our sample motions. The lawyer said they call them “Miller & Zois” motions.
There is also a motion for sanctions for failure to appear for a scheduled medical exam. As I showed earlier, my law firm likes and respects this lawyer and his firm, but this motion really annoys me. I could throw out 5 reasons, but only one really matters.
In Maryland, and also under the Federal Rules of Procedure, a defense medical exam is not a matter of right and may be obtained only by an order from the court.
So let’s get this straight: Defendant’s lawyer sets a date for a DME, unilaterally just assuming the Plaintiff has no life and lots of time on her hands, for which the lawyer has not got a court order, and then moves to compel when she does not present for the medical examination. Huh? The motion also cannot mention that the discovery deadline – by which time all discovery disputes should be resolved – has long since passed.