Unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust, it may order the plaintiff and/or the plaintiff’s attorney to pay the defendant’s reasonable expenses incurred in obtaining the Order, including attorney’s fees. Pursuant to ORCP 46 A(4), the defendant may also move the court for an Order requiring the plaintiff to pay the defendant’s reasonable attorney fees and costs in filing such a motion to compel, given the express language of ORCP 36, ORCP 44 and Guitron.
This includes the obligation to request that any examining physicians and psychologists who have been retained as experts by the plaintiff, and who have not yet made a written report, prepare a written report of the examination at the defendant’s reasonable cost and produce it to the defendant.ĭefendant May Obtain Attorney Fees If a Motion To Compel Is Required Guitron, 351 Or 465, 268 P3d 589 (2011), the plaintiff is now required to produce a written report from any and all examining physicians and psychologists who have examined the plaintiff and not yet made a written report. Pursuant to ORCP 36, ORCP 44 and the Oregon Supreme Court’s recent decision in A.G. Plaintiff Must Now Disclose IME’s and Reports, Or Have Plaintiff’s IME Provider Prepare a Report at Reasonable Expense to the Defense Even if the defendant did not request a written report, the defendant’s expert was obligated to provide the report at the plaintiff’s expense. Obviously, it did not work the other way around and any defense IME, which usually required court intervention, would be discoverable to the plaintiff immediately. Until recently, the plaintiff could retain one or more medical experts, who could then examine the plaintiff without the defendant ever knowing of the examination(s), or at best, only learning as the plaintiff’s surprise medical expert took the stand. In large personal injury, product liability, or aviation cases where the defense has needed IME’s in a number of medical disciplines, plaintiffs routinely sought to, and successfully blocked multiple specialty IME’s.
While Independent Medical Examinations (“IME’s”) are available, the Oregon Plaintiff’s Bar has resisted them consistently and for years has sought conditions such as the presence of “supporters” or plaintiff’s counsel, someone from their office, or audio and/or video recording, etc. With few exceptions, Oregon has no expert discovery.
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