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NJ Discovery Sanctions – IME Fees for No Show

March 20, 2017

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Defense litigators in New Jersey now have a published trial court decision to support motions compelling plaintiffs to pay an independent medical examination “no show” or “late cancellation” fee.
In <a href="">McInroy v. Village Supermarket, Inc</a><em>., </em>defendants scheduled plaintiff an IME with an orthopedic surgeon.  Not having attended her IME, defense counsel re-scheduled it.  Plaintiff again failed to attend, and defendants were charged a $375 “no show” fee from the examiner. Defendants re-scheduled the IME, this time expressly advising that plaintiff’s failure to comply with the examiners late cancellation/no show fee policy would result in those fees being passed onto her personally.  She once again failed to attend.  Defendants filed a motion to compel the IME, and reimbursement of the no show fees.
The court ordered plaintiff to reimburse defendants for the missed appointments.  Under New Jersey Court Rule 4:19, defendant was entitled to an order compelling the IME and/or dismissing plaintiff’s complaint.  Additionally, and because New Jersey trial court judges have broad discretionary powers to impose discovery sanctions which are “just and reasonable,” defendant was entitled to an order compelling plaintiff to reimburse it for the examiner’s now show fees.  The Court rejected the notion that plaintiff should be excused from paying the no show fees because her sole source of income was Social Security Disability since it was plaintiff who failed to proffer a reasonable explanation for the failure to keep the appointments.
Defense litigators in New Jersey are now armed with the rationale of Judge Savio when moving to compel plaintiff’s to undergo medical examinations, in addition to moving to compel reimbursement of late cancellation/no show fees under appropriate circumstances.
Thanks to Michael Noblett for his contribution to this post.


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