By: Chris Zevlikaris, Esq. and Christian E. Schiegel, Esq.
In DiFiore v. Pezic, the Supreme Court of New Jersey held that a plaintiff required to undergo a defense medical examination (DME) may record the examination, by audio or video, or be accompanied at the DME by a third-party observer (“TPO”). In addition, the DiFiore Court held that a plaintiff could record or have a third-party observer at the DME without showing a “special reason” such as a cognitive limitation, psychological impairment, or a language barrier. Instead, the Court held it was defendants’ burden to move for a protective order, seeking to prevent the exam from being recorded or a neutral third-party observer from attending.
In New Jersey, a defendant may require a plaintiff to undergo a physical or mental examination by the defendant’s chosen expert pursuant to Rule 4:19. If plaintiff refuses to appear for the DME, plaintiff must move for a protective order pursuant to Rule 4:10-3, prohibiting the exam. However, the Court Rules do not detail any of the means and methods for the examination.
In DiFiore, a matter involving three separate personal injury actions, defendants argued a plaintiff is required under the Rules to move for a protective order before having a third-party observer at the DME or recording the examination. After various trial court rulings, the Appellate Division consolidated the cases. On appeal, the Appellate Court remanded the matters back to the trial court for reconsideration. In doing so, the Appellate Court held it was the plaintiff’s burden to justify third-party observation and/or a recording was appropriate in the particular case. Accordingly, the trial court should evaluate whether a third-party observation or recording of a DME is appropriate on a case-by-case basis.
In agreeing with the core holding, that trial courts must determine on a case-by-case basis the conditions, if any, of a DME, the Supreme Court however shifted the burden to the defense to establish the plaintiff should not be accompanied by a “neutral” third-party or have the examination recorded. Pursuant to the Court’s holding, (1) the plaintiff must inform the defendant if they seek to bring a neutral observer or unobtrusively record the DME; (2) if the defendant objects, the two sides should “meet and confer” to attempt to reach agreement; (3) if agreement is impossible, the defendant may move for a protective order to prevent the exam from being recorded, or to prevent a neutral third-party observer from attending. In deciding the need for a protective order, the trial court must balance 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 plaintiff’s condition with a recording or a third-party observer. These factors could include, plaintiff’s age, ability to communicate, cognitive limitations, psychological impairments, inexperience with the legal system, and language barriers. However, defense neuropsychology exams can raise concerns that may weigh against recording or third-party observation in particular instances.
Given the ease by which an examination can be recorded, the DiFiore holding will increase the frequency of recordings and “neutral” third-party observers at DMEs. An integral factor in the Court’s decision was a DME is the only instance where a defense expert may conduct “discovery” on a plaintiff without their counsel present. Although not addressed in the Court’s decision, our Firm has recently seen an increase in challenges to DMEs, specifically a doctor’s ability to question the plaintiff as to the circumstances of the accident. The rationale is a doctor should not be permitted to conduct “discovery.” However, since the Court declined to establish an absolute right to a third-party observer or recording of a DME, this could lead to an increase in litigation until the courts or legislature provide further guidance. Notwithstanding, the DiFiore Court specifically limited its holding to defense examinations conducted solely for purposes of litigation and did not address whether the defense should equally be permitted to attend or record plaintiff’s own examinations by their treating physicians or experts. As a plaintiff is not obligated to notify defendants of their own examination during litigation, defendants should be prepared to place plaintiffs on notice, at the inception of litigation, of their own intentions to attend and/or record plaintiff’s examination.
GRSLBG&B will continue to monitor any clarifications to DiFiore or other challenges to the examination process, including the defense’s ability to attend Plaintiff’s affirmative examination.
Hristo “Chris” Zevlikaris is a Shareholder of GRSLBG&B and concentrates his practice in areas of General Liability, Construction, Insurance Coverage, and Professional Liability. He represents insurance companies and self-insured companies in the defense of these claims.
Christian E. Schlegel is an Associate in the Firm’s New Jersey Litigation and Workers’ Compensation Departments. He represents insurance companies and self-insured companies in the defense of these claims.