Plaintiffs Can Seek to Be Accompanied to a Defense Medical Examination by a Third Person or to Record the Examination, and (Contrary to the Appellate Division) Plaintiffs Do Not Bear the Burden of Proof on Such a Request

DiFiore v. Pezic, ___ N.J. ___ (2023). [Disclosure: Catherine B. Derenze, my colleague at Lite DePalma Greenberg & Afanador, LLC, argued before the Supreme Court in this case on behalf of certain amici curiae in support of the successful plaintiffs. She and I wrote the brief of those amici.]

As discussed here, the question of whether and when someone other than the plaintiff himself or herself can attend a defense medical examination (“DME”) in a personal injury matter was the subject of a detailed opinion of the Appellate Division, reported at 472 N.J. Super. 100 (App. Div. 2022). The result was a six-part holding that a plaintiff can be accompanied by an observer in certain circumstances and on certain conditions. One component of that ruling was that “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.”

Primarily due to that, plaintiffs in the three consolidated cases covered by today’s Supreme Court opinion sought and were granted leave to appeal to the high Court. In a 5-0 decision by Justice Wainer Apter (Justice Fasciale and Judge Sabatino did not participate), the Court affirmed five of the six prongs of the Appellate Division’s ruling, but parted company with that court on its allocation of the burden on such an application to plaintiffs. “We conclude that 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 4:19 and 4:10-3. It also ensures fairness in our civil justice system.”

Justice Wainer Apter explained the standard of review. “[W]e review the meaning or scope of a court rule de novo, applying ordinary principles of statutory construction to interpret the court rules.” She then noted that Rule 4:19 permits DMEs, and that Rule 4:10-3 permits plaintiffs who object to DMEs to seek protective orders. “No decision of this Court has ever considered the recording or third-party observation of a DME under Rule 4:19 or Rule 4:10-3,” Justice Wainer Apter observed.

She went on to discuss two lower court decisions that had addressed the issue, B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998), and Wellmann ex rel. Wellmann v. Road Runner Sports, Inc., 458 N.J. Super. 373 (Law Div. 2018). Carley, she said “stands for the proposition that a plaintiff need not show special reasons to justify recording a psychological examination or bringing counsel or a representative to a physical examination.” Wellmann observed that it was unclear which party should have the burden of showing special circumstances to justify its position, but held that a child being examined could record the DME via audio or video and have her counsel and/or parents present. Wellmann also “emphasized the many ways in which a DME differs from an examination with a plaintiff’s treating physician,” as the Supreme Court noted.

Justice Wainer Apter implicitly adopted that view of Wellmann when she stated that the defense “contention that a DME is ‘no more ‘adversarial’ than a plaintiff’s medical exam’ by the plaintiff’s own treating physician is incorrect.” She buttressed that conclusion with a Kentucky Supreme Court decision that had rejected that very defense argument.

Inapt was the Appellate Division’s reliance on a 2000 amendment to Rule 4:19, rules in some other states, and provisions of the Federal Rules of Civil Procedure. The amendment to Rule 4:19 changed the parameters of a DME notice from specifying “he time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made,” to the more limited “when, where, and by whom the examination will be conducted and … to the extent practicable, … the nature of the examination and any proposed tests.” Justice Wainer Apter found that “[t]he change to Rule 4:19 thus does not support placing a burden on the plaintiff to justify third-party observation or recording of a DME.” Similarly, “[w]hile Fed. R. Civ. P. 26 requires a ‘party or any person from whom discovery is sought’ to move for a protective order to ‘designat[e] the persons who may be present while the discovery is conducted,’” Fed. R. Civ. P. 26(c)(1)(E) (emphasis added), our Rule 4:10-3 has no similar provision.”

Justice Wainer Apter then cited court rules in other states that either expressly allowed or were interpreted by courts to permit third party observation or recording of DMEs. Those authorities were persuasive. The Court then stressed that when a plaintiff seeks to have a DME observed or recorded, counsel must confer and try to work out the issue. If they cannot, Justice Wainer Apter said, a defendant can move for a protective order. In ruling on such an application, courts are to “balance both the need for an accurate record and the imbalance of power between a medical professional and a patient against any valid concerns regarding the expert’s ability to conduct an accurate assessment of the patient’s condition with a recording or a neutral third-party observer. The plaintiff’s age, ability to communicate, cognitive limitations, psychological impairments, inexperience with the legal system, and language barriers are all relevant to this determination; other factors may be as well.”

Justice Wainer Apter emphasized that the Court’s ruling applies only to third-party observers, not attorneys, and only to those who do not “interfere with or disrupt the exam.” For example, “[a] licensed nurse silently taking notes is different in kind from an attorney interjecting on behalf of their client.”

Finally, Justice Wainer Apter stressed that this case involved only DMEs. There had been much discussion at oral argument about whether defendants could “demand the ability to record or observe examinations by non-treating physicians arranged by plaintiffs’ counsel solely for the purposes of litigation.” But no defendant briefed or argued that here, and that was not a basis for granting certification. So the Court did not address it. Instead, the Court referred that issue, as well as other aspects of its ruling in these cases, to the Civil Practice Committee.