Kevin M. McGoldrick

Key Points:

• New Jersey Appellate Division holds plaintiffs bear the burden of justifying the presence of third parties or recording devices at defense medical exams.
• New Jersey Appellate Division issues guidelines for third-party recording in defense medical exams.
• New Jersey Appellate Division updates guidelines for defense medical exams.
• New Jersey Appellate Division rules that plaintiffs require court permission to record or have a third party observe independent medical exams.

New Jersey Rule 4:19 permits an adverse party to require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by an expert. Defense medical exams (DMEs) and the reports generated following the exam are often at the crux of developing a defensive strategy. Aside from the notice and scheduling requirements, the rule offers little in terms of the manner in which the exam is to be conducted. On May 3, 2022, the New Jersey Appellate Division decided the matter of DiFiore v. Pezic, 275 A.3d 58 (N.J. App. Div. May 3, 2022). The court revisited whether injured plaintiffs are allowed to bring a third party or a recording device to a DME. Prior to DiFiore, the Appellate Division had not addressed this issue since deciding B.D. v. Carley, 704 A.2d 979 (N.J. Super. App. Div. 1998), 24 years ago.

In DiFiore, the Appellate Division reexamined this issue in three unrelated personal injury cases: DiFiore v. Pezic, Remache-Robalino v. Boulos, and DeLeon v. The Achilles Foot and Ankle Group. In all three cases, the plaintiffs had cognitive limitations, psychological impairments or language barriers, and plaintiffs’ counsel, over defense objections, requested that their clients be accompanied by a third party and/or be permitted to record the DME by audio or visual means. In all three cases, the trial courts issued different rulings on how the DME should proceed. In DiFiore, the trial court precluded the plaintiff from bringing a third party or recording the DME by video, but allowed her to make an audio recording of the DME. In Remache-Robalino, the trial court denied the plaintiff’s request to record the DME by audio means. Lastly, in DeLeon, the trial court denied the plaintiff’s request to have a third party at the DME and issued an order requiring the plaintiff’s DME to proceed unmonitored and unrecorded. All three decisions were appealed and consolidated by the Appellate Division.

Upon review, and with participation of the New Jersey Association for Justice, New Jersey Defense Association, and Office of Attorney General, the DiFiore court held:

1. A disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by the trial judge on a case-by-case basis with no absolute prohibitions or entitlements;
2. Despite the contrary language in B.D. v. Carley, it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, are appropriate in a particular case;
3. Given the advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff;
4. To the extend that examiners hired by the defense are concerned that a third-party observer or a recording 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. If the court permits a third-party to attend the DME, it 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.

What we can take from DiFiore is that it now overturns the previous parameters set forth in B.D. v. Carley. Since 1998, Carley has long held that plaintiffs were entitled to have the DMEs recorded by an unobtrusive recording device. DiFiore notes what has often been questioned by Carly, that it offers little guidance as to the exams themselves, the manner in which they are to be conducted and what potentially could lead to conflicting trial court interpretation.

The question becomes, does DiFiore provide more clarity than what has been in place for 24 years or does it leave more questions to be answered? Although it does not completely prohibit third-party observation or the recording of an examination, it does place the burden upon the plaintiff to justify the condition being sought in the event of a dispute between parties, and, thereafter, the court is to decide whether to permit the observation or recording on a case-by-case basis.

By placing the burden on plaintiffs to establish special conditions that warrant the presence of third parties and recording devices, the court’s decision makes clear that the use of such measures is the exception rather than the rule. We expect that the presence of third parties and recording devices at DMEs will be limited to circumstances where the plaintiff is very young or very old, or where he or she has significant cognitive impairments, psychological problems, or language barriers that warrant the use of such measures. DiFiore comes more than two decades after Carley and reflects how litigation has changed since. The New Jersey Supreme Court has granted leave to appeal, and only time will tell if DiFiore becomes the new norm, or if the Supreme Court will fill in the gaps that the case leaves behind.