Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins Partner Andrew Moskowitz made a significant contribution to a recent decision by the New Jersey Supreme Court regarding the justification of third-party presence during a defense medical examination (DME).
On January 3, 2023, Mr. Moskowitz appeared before the New Jersey Supreme Court and argued on behalf of amicus curiae National Employment Lawyers Association of New Jersey in Kathleen DiFiore v. Tomo Pezic, Docket No. 083256. The issue before the Court was whether a plaintiff who was required to appear for a DME could record an examination by audio or video and have a third party present. The Appellate Division held that the plaintiff bore the burden “to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.”
In his amicus brief, Mr. Moskowitz argued that, because the DME was the only discovery procedure in which a plaintiff can be compelled to subject herself to a lengthy and often adversarial examination outside the presence of counsel, she should be permitted to record the examination by audio or video and have a third-party present.
The Firm is pleased to report that, in a unanimous opinion issued on June 15, 2023, the New Jersey Supreme Court held that the plaintiff did not bear the burden of justifying the presence of a third party or the making of a recording at a DME. Rather, the Court placed the burden on the defendant to demonstrate “why a neutral third-party observer or an unobtrusive recording should not be permitted ….”
The Court’s decision represents a significant step towards increased transparency in the DME process and establishes a valuable precedent for future cases.
A copy of the opinion can be found here. https://www.njcourts.gov/system/files/court-opinions/2023/a_58_59_60-21.pdf