In a New Jersey personal injury action, when a plaintiff alleges physical and/or mental injury as a result of the defendant’s negligence or other tortious conduct, the defendant is entitled to have the plaintiff examined by one or more medical experts pursuant to New Jersey Court Rule 4:19. The purpose of such examinations is for defense-retained medical experts to assess and offer opinions concerning the injuries the plaintiff is claiming in the lawsuit. Oftentimes, the plaintiff’s counsel will request that a third-party be present for the DME or that it be audio or video recorded. Such requests typically lead to disagreements between counsel and ultimately motion practice.
In the June 15, 2023 decision of Difiore v. Pezic, the New Jersey Supreme Court provided answers to the central questions of (a) who may attend a DME noticed pursuant to Rule 4:19; and (b) whether and how DMEs may be recorded, when a plaintiff has alleged cognitive limitations, psychological impairments, or language barriers. The unanimous decision was written by Justice Rachel Wainer Apter and applied to three consolidated cases for purposes of appeal. Difore v. Pezic, (A-58/59/60 September Term 2021, 087091), 2023 N.J. LEXIS 647 (N.J. June 15, 2023).
The Difiore decision has particular relevance to passenger negligence claims asserted against commercial airlines. Reed Smith’s aviation team has seen it all – from cases involving alleged physical injuries caused by beverage carts, hot beverages, baggage, assaults, and trip and falls, to emotional injuries caused by alleged discrimination, false imprisonment, and intentional infliction of emotional distress. In these cases, it is imperative that aviation defense counsel retain qualified and experienced defense medical experts and understand the jurisdiction’s rules and procedures concerning defense medical examinations. Such importance cannot be understated, as the DME can significantly impact the evidence presented at trial and potentially make or break your case.
In its decision, the Court clarified that once a defendant issues notice to the plaintiff of a Rule 4:19 defense examination, it is the plaintiff’s burden to advise the defendant if they wish to have a neutral observer attend the examination or unobtrusively record the examination. Difore, (A-58/59/60 September Term 2021, 087091), 2023 N.J. LEXIS 647at *42. If the defense objects, the Court obligates the parties to meet and confer on the dispute. Id. If the meet and confer is unsuccessful, the burden is then on the defendant to move for a protective order pursuant to Rule 4:10-3, seeking to prevent a neutral third-party observer from attending, to prevent the examination from being recorded, or both. Id. This clarification is significant because, in placing the burden to file a protective order on the defendant, the New Jersey Supreme Court departed from prior appellate precedent in New Jersey which put the burden on the plaintiff in such a scenario. As a result of Difiore, there is now no doubt that the burden is placed squarely on the defendant to prohibit observation or recording of a DME if requested.
The Trial Court’s Important Role
The Court declined to set absolute prohibitions or entitlements on the conditions to place on a DME, instead holding that it is up to the trial court to weigh factors including, but not limited to, the plaintiff’s cognitive limitations, psychological impairments, language barriers, age, and inexperience with the legal system. Id. at *42-43. As the Court noted, having a third-party observer present or recording the examination may be vital to preserving evidence in the case. Id. at *32-33. On the other hand, the Court noted that there may be particular concerns that may weigh against the recording or third-party observation of the examination in certain instances. The Court expressed confidence in New Jersey trial courts to assess and weigh these factors to determine whether neutral third-party attendance or recording of the examination is warranted. Id. at *15. Recall that such conditions, according to the Difiore decision, would potentially apply in cases where the plaintiff has cognitive or psychological limitations, does not speak English, or are minors or of senior age.
The New Jersey Supreme Court’s Opinion on the Nature of DMEs
The Court expressed particular concern for those vulnerable or susceptible to being taken advantage of during a DME. While the defendants and certain amicus curiae argued that a DME is no more adversarial than an examination of a plaintiff by his or her own treating physician, the DiFiore Court took a strong stance in the opposite direction. Reasoning that a DME is “very different” from a plaintiff’s medical examination by a treating physician, the Court noted that a DME is the “only instance” in which a defendant’s expert may conduct discovery on a plaintiff without plaintiff’s counsel present, and that a DME can involve a plaintiff being “physically touched without her consent, or asked extraordinary personal questions about her mental health without her consent.” Id. at *35-36. The Court found that a DME is “inherently adversarial” as it is designed to further the examining party’s litigation position. Id. at *37. This reasoning supported the Court’s decision in placing the burden on the defendant to prohibit neutral third-party attendance or recording of DMEs.
Modern Technology Allows for Videorecording
The Court also provided guidance to trial courts, instructing that should circumstances arise where video or audio recording is justified in a particular case, such recording should be conducted “unobtrusively.” Id. at *33-34. In its decision, the Court noted that in the age of smart phones, such recording can be accomplished without disruption and with minimal effort. Id.
Importance of Lack of Interference by Third Party
The Court recognized that, if a trial court orders observation of a DME by a neutral third party, reasonable conditions should be imposed on such “third-party observers to ensure that they do not interfere with exams and that, where needed, a neutral foreign- or sign-language interpreter shall be agreed on by the parties or, failing agreement, selected by the court”. Id. at *34.
The New Jersey Supreme Court Rejects the Ethical Concerns of Psychological Practitioners
The Court also addressed concerns raised regarding the 2016 Policy Statement of the American Board of Professional Neuropsychology which requires neuropsychological testing to be conducted in an environment that is free from interaction or distraction, meaning a private one-on-one examination, and prohibits a psychologist from providing opinions or evaluative statements when a third-party observer is present. Id. at *44-47. According to defendants and the Attorney General of New Jersey, deviating from these standards could subject neuropsychologists to discipline. Id. The Court rejected these concerns, instead giving a liberal reading to the 2016 Policy Statement that permits third party observation under certain circumstances, such as examinations of children, the elderly, or those with disabilities. Id. The Court, in dismissing such concerns, stressed that “with all due respect to professional associations, they do not set the rules of this state.” Id. at *46.
To the extent that a psychologist is concerned about the proprietary nature of the questioning during examination or any portion of the examination being disseminated in the public domain, the Court encouraged parties to enter into a confidentiality protective order that limits disclosure and avoids divulgence. Id. at *34. Although the Court did not allow the 2016 Policy Statement to dictate the terms of a DME, the Court did not completely reject these concerns as it left it to the trial courts to decide how to address the 2016 Policy Statement “if a particular neuropsychologist raises it in a particular case.” Id. at *46-47.
The Court confined its decision by noting that its ruling was limited only to defense examinations conducted solely for purposes of litigation, not treatment. Id. at *47-48. As noted by the Court, the defendants in the case may have missed an opportunity to argue that recording or third-party observation should likewise be available at examinations conducted by a plaintiff’s treating physicians. Id.
This may have been a missed opportunity for the defendants because plaintiff’s attorneys can (and oftentimes do) recommend that their clients see treating physicians who are plaintiff-oriented medical experts, and those treating examinations – which often take place before discovery begins or is exchanged – occur without any opportunity for a defendant to observe or record.
With that in mind, this ruling may create inequities where a defendant has no ability to observe or record a plaintiff’s medical examination with his or her treating physician (even though that physician would likely testify at any trial), but now a plaintiff can scrutinize a DME on cross-examination through a recording or the testimony of a neutral observer. Should an observer or recording be permitted at a DME, defense counsel must carefully prepare their medical experts for the prospect of such scrutiny on cross examination.
Going forward, assuming a request for recording of or attendance by a third party at a DME is made after a Rule 4:19 notice is sent by the defendant to the plaintiff, counsel must be ready to meet and confer on the issue. If meeting and conferring fails, and if the facts warrant it, defense counsel should be ready to immediately seek a protective order pursuant to Rule 4:10-3 to preclude recording of or neutral third-party attendance at the examination.