In Kathleen DiFiore v. Tomo Pezic (A-58/59/60-21/087091) (Decided June 15, 2023), the Supreme Court of New Jersey clarified the procedures regarding who may attend a defense medical examination (DME) — as well as whether and how such examinations may be recorded — when a plaintiff has alleged cognitive limitations, psychological impairments, or language barriers. According to the court, trial courts have the discretion to determine on a case-by-case basis what conditions, if any, to place on a DME.
The New Jersey Supreme Court reversed the Appellate Division’s decision to place the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. Rather, the state’s highest court found that the defendant must move for a protective order under Rule 4:10-3 if they seek to prevent an DME from being recorded, or to prevent a neutral third-party observer from attending.
Facts of DiFiore v. Pezic
In cases in which the mental or physical condition of the plaintiff is in controversy, Rule 4:19 allows defendants to require plaintiffs to be physically or mentally examined by the defendants’ chosen expert. After examining the plaintiff, the selected doctor generally prepares a report opining on the plaintiff’s condition, which is used in evaluating the existence and extent of plaintiff’s injury, illness, or capacity. The doctor who conducted the DME will often testify at trial for the defense.
The New Jersey Supreme Court considered three consolidated cases. In each of the three personal injury actions, the defendants required the plaintiffs to submit to a DME. Plaintiffs, who had alleged cognitive limitations, psychological impairments, or language barriers, sought to record the examinations or to be accompanied by a third-party observer (TPO) at the examination. After various trial court rulings, the Appellate Division consolidated the cases.
The Appellate Division remanded all three cases for reconsideration in light of its six-part holding that (1) “a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by- case basis, with no absolute prohibitions or entitlements”; (2) “it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, is appropriate in a particular case” “despite contrary language” in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998); (3) the range of options available “should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff”; (4) when defense examiners are concerned that TPOs or recordings “might reveal alleged proprietary information about the content and sequence of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged”; (5) a court that permits a TPO to attend a DME “shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam”; and (6) “if a foreign or sign language interpreter is needed for the exam . . . the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.”
NJ Supreme Court’s Decision in DiFiore v. Pezic
The New Jersey Supreme Court affirmed with respect to the Appellate Division’s primary holding that trial courts should determine on a case-by-case basis what conditions, if any, to place on a DME, with no absolute prohibitions or entitlements.
The New Jersey Supreme Court also affirmed several other Appellate Division holdings, agreeing that video recording, in addition to audio recording, should be included in the range of options; that the parties shall enter into a protective order when a defense expert is concerned about the disclosure of proprietary information; that when third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption of or interference with the exam; and that, if a foreign or sign language interpreter is needed, a neutral interpreter shall be selected by the parties or, failing agreement, by the court. The New Jersey Supreme Court reversed the Appellate Division in declining to place the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. It held instead that once the defendant issues notice to the plaintiff of a Rule 4:19 exam, the plaintiff should inform the defendant if they seek to bring a neutral observer or unobtrusively record the examination. If the defendant objects, the two sides should meet and confer to attempt to reach agreement. If agreement is impossible, the defendant may move for a protective order under Rule 4:10-3 seeking to prevent the exam from being recorded, or to prevent a neutral third-party observer from attending. According to the court, factors including a plaintiff’s cognitive limitations, psychological impairments, language barriers, age, and inexperience with the legal system may weigh in favor of allowing unobtrusive recording and the presence of a neutral third-party observer.