Peter John Festeryga

The defendants brought a motion for an order requiring the plaintiff to attend a second independent medical examination (IME) with a replacement expert.

The defendants' initial expert, Dr. Steven M. Dilkas, conducted an IME on June 26, 2024, but subsequently ceased communicating with the defendants and failed to deliver any report or draft report.

After numerous unsuccessful attempts to obtain the report from Dr. Dilkas between August 2024 and January 2025, the defendants retained a replacement expert, Dr. Richard Kaminker, and sought a second IME.

The plaintiff refused consent.

The court granted the motion, finding that the defendants had adduced sufficient evidence of Dr. Dilkas's non-responsiveness and that the request for a second IME was legitimate and necessary.

The court rejected the plaintiff's argument that the defendants must first pursue a Rule 33.06 motion to compel Dr. Dilkas's report, finding such a requirement would be inefficient and contrary to principles of proportionality.

The court ordered the plaintiff to attend the second IME with Dr. Kaminker and directed the defendants to reimburse all incidental expenses.

The defendants moved to adjourn a lengthy personal injury trial arising from a 2014 motor vehicle accident, citing late service of expert reports and outstanding productions by the plaintiffs.

The court considered the principles for adjournment, including the objective of a just determination on merits and potential prejudice.

While some late reports for one plaintiff (Khadim) were not sufficient for adjournment, a recently served psycho-vocational report for the other plaintiff (Khan) indicating complete unemployability was deemed significant.

The court found that the defendants would be prejudiced if they could not adequately respond to this new evidence.

Despite the impact of the COVID-19 pandemic on trial scheduling, the motion to adjourn was granted to ensure a fair trial on the merits, vacating the fixed trial date.