When, if at All, Can a Rule 4:19 Examination be Recorded, and When, if Ever, Can a Third Party be Present During an Examination?

DiFiore v. Pezic, 472 N.J. Super. 100 (App. Div. 2022). This opinion by Judge Sabatino exhaustively explored, in three consolidated cases, the issue of “when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments, or language barriers can be accompanied by a third party to a defense medical examination (“DME”), or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination.” The court was asked to revisit its opinion in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998), which had permitted “unobtrusive” audio recording of an examination but had not opined about video recording or attendance by third persons.

Judge Sabatino summarized the panel’s ruling as follows:

“[I]n the absence of more specific guidance within the present text of Rule 4:19, we adopt the following holdings.

First, 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.

Second, despite contrary language in Carley, 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.

Third, given 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.

Fourth, to the extent 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.

Fifth, 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.

Sixth, if a foreign or sign language interpreter is needed for the exam (as is the case in two of the appeals before us) 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.

The three cases are accordingly remanded for the trial court to reconsider the conditions of the DME, consistent with the guidance expressed in this opinion.”

These rulings, amplified by Judge Sabatino’s detailed discussion that addressed, among other things, decisions under the comparable federal rule and rules of other states, represent one (but perhaps not the only) rational way of resolving the issues presented. But given the decision’s deviation from Carley, and the Supreme Court’s plenary power over Court Rules, the Appellate Division’s decision here seems a likely candidate for Supreme Court review if any party is dissatisfied with the Appellate Division’s ruling.