By Andrew M. Moskowitz | July 21, 2023 at 10:00 AM
Where the court departed from the Appellate Division was the latter’s determination that the defendants bore the burden of demonstrating why a neutral third-party observer or an unobtrusive recording should not be permitted.
In DiFiore v. Pezic, A-58/59/60 September Term 2021, 087091, the New Jersey Supreme Court, in a unanimous opinion authored by Justice Rachel Wainer Apter, addressed whether a plaintiff has the right to record or have a third-party present for a defense medical examination (DME). (In DiFiore, the author argued as amicus on behalf of the National Employment Lawyers Association of New Jersey.) In overruling the central tenet of the Appellate Division’s holding—which was that the plaintiff bore the burden “to show special reasons why third-party observation or recording should be permitted”—the Supreme Court restored, at least in part, the judicial framework previously established by B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998). Instead, the DiFiore court held that defendants bore the burden of demonstrating why a third-party observer or an unobtrusive recording should not be permitted.
Landscape Prior to the Appellate Division’s Holding in ‘DiFiore’
In Carley, the Appellate Division held that the plaintiff was permitted to make an audio recording of a psychological DME. In so holding, the court found that “the defense psychologist d[id] not have the right to dictate the terms under which the examination shall be held.” The court determined that the plaintiff’s “right to preserve evidence of the nature of the examination, the accuracy of the examiner’s notes or recollections, the tones of voice and the like outweigh the examiner’s preference that there be no recording device.” In “explicitly overrul[ing]” Stoughton v.B.P.O.E., No. 2151, 281 N.J. Super. 605 (Law Div. 1995), the holding in Carleystood “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.”
Appellate Division Departs From ‘Carley’
In DiFiore v. Pezic, 472 N.J. Super. 100 (App. Div. 2022), the Appellate Division addressed three appeals in which all of the plaintiffs suffered cognitive impairments and/or were not fluent in English. In relevant part, the Appellate Division held that, “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.”The DMEs at issue were two neuropsychological examinations and an orthopedic examination. Although the Appellate Division did not agree with the defendants’ characterization of the DME as “a purely objective exercise,” it also found that it was not, “as plaintiffs tend to portray it, an adversarial proceeding inevitably designed to disprove claims of injury and trap plaintiffs into admitting or showing their claims are exaggerated or fabricated. The examiner is not a lawyer conducting a cross-examination. The exam is a professional assessment that must adhere to the standards of the examiner’s profession.”
The panel determined that, to the extent that “an examiner has unfairly or incorrectly opined about a plaintiff’s condition,” plaintiff’s counsel could utilize “cross-examination, impeachment evidence, and the testimony of a competing expert witness” to counter these opinions. The court further held that, in the ordinary course, a plaintiff was “very capable of correcting or rebutting” any inaccuracies in a defense examiner’s report. Where a plaintiff lacked this ability, it could seek “to justify to the court that third-party presence or recording, or both, is appropriate for a DME in a particular case.” As set forth infra, the Appellate Division set forth a six-part test for making this determination.
Supreme Court’s Holding
The DiFiore court took pains to note that it “agree[d] with much of the Appellate Division’s comprehensive opinion,” and that it was “affirm[ing] five prongs of the Appellate Division’s six-prong holding.” First, “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.’” The court likewise agreed “that trial courts should consider both audio and video recording,” that “smart phones can unobtrusively be used to record a DME with ‘minimal effort,’” and that “both audio and video recording seem easy to accomplish and not unduly disruptive.” Where a defense medical examiner expresses concern “that third-party observation, or an audio or video recording, could lead to the dissemination of proprietary information about the exam,” the court agreed “that ‘the parties sh[ould] cooperate to enter into a protective order … to ensure that information about a DME ‘is solely used for the purposes of the case and not otherwise divulged.’” Finally, the court “concur[red] that reasonable conditions should be imposed on third-party observers to ensure 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.”
Where the court departed from the Appellate Division was the latter’s determination that the defendants bore the burden of demonstrating why a neutral third-party observer or an unobtrusive recording should not be permitted. The Appellate Division had characterized the DME as “a professional assessment that must adhere to the standards of the examiner’s profession.” In contrast, the Supreme Court described the DME as a “compelled medical examination” that was “inherently adversarial.” The court noted that, because the DME was the only “instance in which a defense expert may conduct discovery on a plaintiff without plaintiff’s counsel present,” it was “unique in our adversarial system.” In particular, “for plaintiffs with alleged cognitivelimitations, psychological impairments, or language barriers, a DME reflects a profound power imbalance between the plaintiff and a medical professional with long experience in the examination of patients and participation in court proceedings.” The court found that, in determining whether a third-party observer or an unobtrusive recording was permissible, a “plaintiff’s age, ability to communicate, cognitive limitations, psychological impairments, inexperience with the legal system, and language barriers are all relevant,” and “other factors may be as well.”
In explaining why the defendant should bear the burden of demonstrating why a third-party observer or recording should not be permitted, the court noted the manner in which Rule 4:19, which governs DMEs, had changed. Prior to 2000, a defense medical examination was permitted only “on motion for good cause shown” and a defendant could “specify the time, place, manner, conditions, and scope of the examination,” (quoting Rule 4:19 (1994)). In contrast, the revised Rule 4:19 “permitted a defendant to dictate only ‘when, where, and by whom’ the examination will be conducted.” As such, the court found that the change to the Rule did “not support placing a burden on the plaintiff to justify third-party observation or recording of a DME.” Rather, placing the burden on the defendant to demonstrate why a third-party observer or “unobtrusive recording” was not appropriate “best comports with the realities of DMEs and the text of Rules 4:19 and 4:10-3, and, moreover, “ensures fairness in our civil justice system.”
The court was careful to note what the opinion was not permitting. It found “that [t]here is no need to turn the examining room into a court room” (Stoughton, 281 N.J. Super. at 611). Thus, unlike, for example, other states such as New York, California and Pennsylvania—all of which permit a plaintiff to have a representative present during the IME—the Court “emphasize[d] that [its] holding applie[d] only to neutral third-party observers, not attorneys,” and that such third parties were not permitted “to interfere with or disrupt the exam.”
Finally, the court noted that, although much of the discussion at oral argument concerned whether defendants could “record or observe examinations by non-treating physicians arranged by plaintiffs’ counsel solely for the purposes of litigation,” this issue was not briefed and, as such, the court would not make a determination. The court referred to the Civil Practice Committee the question of whether defendants should be permitted “to record or observe examinations by non-treating doctors arranged by plaintiffs’ counsel solely for the purposes of litigation.”
The Supreme Court noted its expectation that, in most cases, issues regarding third-party observation and recording of a DME will be resolved without the necessity of court intervention. The court expects that, utilizing the guideposts set forth in DiFiore, counsel will endeavor to reach agreement on the terms and conditions for a DME. Where such agreement is not reached, the defendant must demonstrate why the presence of a third party and/or a recording of a DME should not be permitted.
Andrew M. Moskowitz is a partner with Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, where he focuses his practice on employment law.
Reprinted with permission from the ISSUE DATE JULY 21, 2023 issue of NEW JERSEY LAW JOURNAL. © PUBLICATION YEAR 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved