In the course of personal injury matters filed in the State of New Jersey, it is common practice for defense counsel to retain medical professionals to conduct examinations of plaintiffs to investigate the veracity and extent of the claimed injuries. The scope of claimed injuries is obviously vast and specific to any particular case and may include medical and/or psychological components.
Plaintiffs’ counsel may have concerns over the method with which a professional retained by defense counsel conducts his or her examination. In such instances, plaintiffs have sought to record the examinations, either with audio or video. As expected, defense counsel has at times objected to the examinations being recorded. Defense counsel concerns included the potentially obtrusive nature of such a recording and the proprietary information of the examiner for the manner in which he or she conducts the examinations. Also at issue is the proprietary nature in which an examiner conducts the examination and the desire to protect same.
The issue of permitting a recording of a psychiatric examination was addressed in Stoughton v. B.P.O.E. #2151, 281 N.J. Super. 605 (Law Div. 1995). In Stoughton, defendant sought to dismiss the complaint for plaintiff’s failure to adhere to a case management Order related to a psychiatric examination. In turn, plaintiff refused to attend the examination without her attorney present or a tape recorder. The court held that the examination could be conducted without the presence of plaintiff’s attorney, a tape recorder, or any third party being present.
The Stoughton ruling was short-lived, however. The same issue arose in B.D. v. Carley, 207 N.J. Super. 259 (App. Div. 1998). In Carley, plaintiff sought to audiotape a psychological examination of plaintiff that was to be conducted by a professional retained by defendant. The defense moved to prevent plaintiff from audiotaping the exam. After the trial court ruled in defendant’s favor, plaintiff appealed. In overruling Stoughton, the Carley appellate court determined that plaintiff was permitted to utilize an unobtrusive audio recording devise during the exam.
With the above background, and the technological advances since the Carley decision, plaintiffs’ counsel has sought to expand on the ruling. Examples include seeking permission for videotaping examinations and attendance by third parties who have a vested interest in the matters. Subsequent rulings have resulted in conflicting parameters for defense medical examinations (“DME”).
In DiFiore v. Pezic, plaintiffs in three (3) separate personal injury actions filed interlocutory relief seeking permission for either third-party presence at, or audio/video recording of, a defense medical examination based on plaintiffs’ alleged cognitive limitations, psychological impairments or need for an interpreter. DiFiore v. Pezic, 472 N.J. Super. 100, 104-105 (App. Div. 2022). After consideration of R. 4:19 as well as Fed.R.Civ.P. 35, the DiFiore Appellate Court held:
- 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;
- it is the plaintiff’s burden to justify to the court that third-party presence or recording, or both, is appropriate for a DME;
- the range of options for recording DME should include video recording;
- 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
- if a foreign or sign language interpreter is needed for the DME, the examiner shall utilize a neutral interpreter.
Id. at 130-131.
Following remand to the Superior Court, the DiFiore plaintiffs appealed to the New Jersey Supreme Court. In DiFiore v Pezic, 254 NJ 212, 296 A.3d 425 (June 15, 2023, the New Jersey State Supreme Court issued a modified affirmation of the Appellate Court ruling. The New Jersey State Supreme Court held:
- as a matter of first impression, trial judges must decide whether to permit third-party attendance and/or recording of a DME on a case-by-case basis, without absolute prohibitions or entitlements, and
- as a matter of first impression, placing the burden on defendants to show why a neutral third-party observer or an unobtrusive recording should not be permitted in a particular case best comports with the realities of DMEs and the text of rules governing DMEs.
Id.
Among the five (5) holdings of the Appellate Court, the DiFiore Supreme Court overruled the second prong and held that it is the defendants’ burden to demonstrate why a recording and/or neutral third-party should not be permitted in a DME.
The DiFiore Supreme Court also addressed the issue of plaintiffs’ counsel being permitted to attend the examinations of their clients and emphasized held that this is not permissible. (“We therefore emphasize that our holding applies only to neutral third-party observers, not attorneys.) Id. at 239. Relatedly, a plain reading of the decision illustrates that the actions of any proposed third-party observer be unobtrusive. (“Similarly, our holding is limited to third-party observers, not third parties who seek to interfere with or disrupt the exam. A person who sits silently and unobtrusively takes notes is a far cry from a third party who seeks to control, or participate in, the exam herself.”) Id.
In addition to the above ruling, the second DiFiore ruling reinforced the requirement that parties meet and confer in an attempt to create a Consent Order related to how the examination would proceed. Likewise, DiFiore makes it clear that a defendant can include a provision that the recording, if permitted, is only to be used for the purpose of the litigation, thus protecting the proprietary information that may be contained in same.
From a defense perspective, DiFiore assists counsel in their efforts to prohibit the recording of defense examinations and strictly limits those outside parties who seek to attend them. Moreover, offering defense experts a vehicle to protect their proprietary interest in the method and manner in which they conduct their examinations by way of a Protective Order may assist in facilitating good relationships with those examiners.