Independent Bank v. Hammel Associates, LLC
836 N.W.2d 737
Mich. Ct. App.2013Background
- Plaintiff Karen Burris alleged serious physical and mental injuries from a 2009 auto collision while a passenger; she sued defendants K.A.M. Transport, M & Y Express, and driver Aly Maarouf (third-party action) and separately sued AAA in a no-fault action.
- In the AAA no-fault case, Burris submitted to multiple IMEs (orthopedics, PM&R, neuropsychology, neurosurgery, dentistry); defendants in the third‑party action sought additional IMEs (neuropsychologist, psychiatrist, and a physical medicine & rehabilitation specialist).
- Defendants moved under MCR 2.311(A) to compel those IMEs after Burris refused without a court order; the trial court denied the motion, citing the number of prior exams and potential unfair burden on plaintiff.
- Defendants sought interlocutory review; the Michigan Supreme Court remanded to the Court of Appeals for consideration.
- While appeal was pending, the AAA neuropsychologist died; the trial court later compelled a neuropsychological IME and plaintiff conceded a psychiatric IME; the appeal concerns only the denial of a PM&R IME.
- The Court of Appeals majority reversed, holding the trial court abused its discretion in denying the PM&R IME; a dissent would have affirmed, emphasizing the court’s discretion to deny cumulative or burdensome exams.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion in denying defendants’ motion under MCR 2.311(A) to compel additional IMEs (PM&R) | Burris: additional IMEs would duplicate prior no‑fault exams, unfairly benefit defense, and be cumulative | Defendants: plaintiffs’ conditions are in controversy; prior IMEs were for another carrier years earlier so defendants need their own current experts and exams | Reversed — court abused discretion; good cause existed for a PM&R IME given time lapse, contested persistence of impairment, and right to retain defense experts |
| Whether prior IMEs in a related case preclude additional examinations in the current case | Burris: prior IMEs suffice; defendants may use those but should not get both sets of defense experts | Defendants: prior IMEs do not bar defendants from obtaining their own experts; rule does not limit number of exams and passage of time and present controversy justify another exam | Held for defendants — prior exams did not foreclose a new IME where good cause exists |
| Whether concerns about plaintiff being burdened or unfair trial advantage justify denying IMEs | Burris: multiple defense experts would overburden plaintiff and unfairly skew trial testimony | Defendants: trial safeguards (motions in limine, objections, statutory limits on expert witnesses) address cumulative evidence and prejudice | Court: trial‑level concerns about unfairness do not justify outright denial; procedural safeguards and expert limits can manage prejudice |
| Standard and proof of "good cause" under MCR 2.311(A) when additional IMEs are sought | Burris: defendants failed to show particularized good cause for these specific experts and exams | Defendants: pleadings + contested injuries + passage of time + need to evaluate current condition satisfy good cause; Schlagenhauf framework supports discretionary grant | Court: applied Schlagenhauf — movant must show conditions are genuinely in controversy and good cause per exam; here defendants met the standard for PM&R IME |
Key Cases Cited
- Schlagenhauf v. Holder, 379 U.S. 104 (federal rule 35 requires movant to show each condition is genuinely in controversy and show good cause for each specific examination)
- Muci v. State Farm Mut. Auto. Ins. Co., 478 Mich. 178 (good cause in no‑fault context requires particularized factual showing)
- Henry v. Dow Chem. Co., 484 Mich. 483 (court rules interpretation reviewed de novo)
- Smith v. Khouri, 481 Mich. 519 (abuse of discretion standard; reasonableness of trial court outcomes)
- LeGendre v. Monroe Co., 234 Mich. App. 708 (Michigan courts rely on Schlagenhauf for MCR 2.311 analysis)