Court Addresses Who May Attend Defense Medical Examination: In its June 15, 2023 Opinion, the New Jersey Supreme Court stated: “We are asked here to clarify procedures regarding who may attend a defense medical examination — as well as whether and how such examinations may be recorded — when a plaintiff has alleged cognitive limitations, psychological impairments, or language barriers. In personal injury actions and other 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. Often, the doctor who conducted the defense medical examination (DME) will testify at trial for the defense.”
“We affirm the Appellate Division’s core holding that trial courts determine on a case-by-case basis what conditions, if any, to place on a DME — including who may attend and whether it may be recorded — with no absolute prohibitions or entitlements. We further affirm 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.”
“We depart from the Appellate Division only in that we decline to place the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. Instead, 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. 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. Although defense neuropsychologists cannot dictate the terms under which DMEs are held, they can raise concerns that may weigh against recording or third-party observation in particular instances.”
Source Kathleen DiFiore v. Tomo Pezic, (A-58/59/60-21) (087091).
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