Who do I see about a mulligan on my choice of experts?

In golf, a mulligan is a do-over. You whack the ball deep into the woods, you yelp “Mulligan!” and tee up a new one. When you’re out with your buddies no one really cares. Unless there’s money on the line. Then it matters.

And so we have the defendants now screaming for mulligans when it comes to so-called “independent” medical exams performed by Dr. Robert Israel. If the name doesn’t ring a bell, I wrote about him on June 3rd after he’d been placed on probation for three years for professional misconduct due to medical-legal exams he conducted for defendants. Yeah, that Dr. Israel.

He agreed, in accordance with his sanction, that his:

…license to practice medicine in New York State shall be limited to preclude me from engaging in any practice as an Independent Medical Examiner as of March 2013. I shall not contract or agree to perform, nor perform Independent Medical Examinations.

Given that he was doing 1,500 orthopedic exams per year for medical-legal purposes, that was a pretty big deal for thousands of cases.

Defendants were, as you might guess, a wee bit concerned that he’d be drawn and quartered by plaintiffs’ attorneys if he took the stand and that whatever credibility he had before the sanction would vanish into the vapors.

So they’ve been making motions, claiming that if Dr. Israel testified on any of his old cases, it would violate the consent order that he’d agreed to.

This was expected when I made my original post — and I said the tactic would fail — writing:

Now here is a big legal issue for all those defense firms and insurance companies that thought they were being so smart in hiring Dr. Israel: The consent order does not preclude him from testifying. He can’t be an examiner for the next three years for sure, but the examination part is done. His records and reports (for what they are worth) are already made. There is no reason he can’t testify, other than the fact he will be (justifiably) torn to bits. But being torn to bits is not the same as being unavailable to testify.

That means there’s a good chance they will all be stuck with him. The insurance companies got the benefit of his exams previously and now they will get the downside. Karma. Sleeping with the devil. Laying down with dogs and picking up fleas. Choose your metaphor or proverb.

The comments on the post lit up with discussion on the consent order and whether it would preclude Dr. Israel from testifying. No way, said I.

And now the first verdicts are in, in three decisions from Justice Kenneth P. Sherman sitting in Brooklyn: Moran v. EMR Mechanical, Diaz-Rivera v. Akindele and Haynes v. Hossain.

The law does sometimes allow for mulligans, of course, in certain situations. Litigants on both sides, for example, often ask for retrials when they are on the losing side claiming some unfairly prejudicial conduct (and usually lose).

But in the first of these three decisions, Moran (decided August 5th), there were problems with the defendants’ application for a second defense medical exam. Justice Sherman wrote that that there was no claim that the plaintiff’s condition had changed (which would obviously warrant a second exam), nor any claim Dr. Israel wasn’t a qualified orthopedist, nor any claim that Dr. Israel was unavailable to testify due to death or disability.

The defendants instead tried to claim that the consent order rendered him unavailable because he would be engaging in “any practice as an Independent Medical Examiner.” Is that good enough for a do-over?

No way, said Justice Sherman. The consent order affects future exams, not the past ones. He wrote: “As those pre-consent order IMEs and reports were not rendered retroactively void by the consent order, there is no reason why Dr. Israel could not testify concerning those reports.”

And, mimicking my comments about Dr. Israel getting shredded on cross-exam, Justice Sherman wrote:

The Court understands that Dr. Israel might be subject to a somewhat intense and difficult cross-examination. However, such an attack on this expert’s credibility, like any other attack on any witness’s credibility, only goes to the weight of that testimony, not it’s admissibility.

Justice Sherman thereafter reviewed appellate cases where other examining doctors had faced license issues, and was unable to find any support for the defense proposition that mere fear of vigorous cross-exam was enough to warrant a mulligan on the medical-legal exam.

The second decision, Diaz-Rivera (dated August 14th), cites to Moran and once again rejects the defendant’s request for a do-over.

The third decision, in Haynes, adds in the additional wrinkle of a letter from the Department of Health that specifically rejects the defense contentions that Dr. Israel would be violating the consent order if he testified about his past cases. (That letter is a July 2nd update to my original post.) The pertinent part reads:

“If [Dr.Israel], in the future, testifies about acts performed, observations or findings made or opinions and/or diagnoses rendered, respectively, at a time that predates the effective date of the Order [June 7, 2013], we would not consider that a reportable violation.”

Now let’s see what happens to Dr. Michael Katz, recently busted on the witness stand for lying about the defense medical exam he did, and perhaps, a few of the other doctors who have for years been doing quickie medical exams and escaped Department of Health oversight.

Do you hear that cheering sound? It comes from gazillions of plaintiff’s attorneys and their clients who have been burned  by insurance companies hiring Dr. Israel and his ilk in the past.

There won’t be any mulligans here. Karma’s a bitch.