Discovery

Three separate cases, each involving a separate personal injury, were appealed to the Appellate Division to decide the issue as to whether 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.” In the published decision of DiFiore v. Pezic, 2022 N.J. Super. LEXIS 58 (App. Div. May 3, 2022), the Court set forth the parameters under Court Rule 4:19 as to attendance by a third party or the video or audio recording of a DME (also known as an “IME”) would be permitted.

Under R. 4:19, when a personal injury claim is asserted or where the mental or physical condition of a party is at issue, the adverse party may require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by a medical or other expert. The rule does not set forth the allowable conditions of a physical or mental examination. It does not address whether the exam may be recorded, or whether a third-party may be brought into the exam room.

The issue of an audio recording was addressed previously in the published Appellate Division decision, B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998), although it was in the context of a neuropsychological examination. In Carley, the only request had been to use an audio recording device. Therefore, the Court did not resolve the propriety of the presence of a third-party or counsel.

These three cases, consolidated for purposes of appeal, involved two neuropsychological DME’s and one orthopedic DME. The parties asked the Court to revisit and update its opinion in B.D. v. Carley, in which the Court authorized the unobtrusive audio recording of a neuropsychological DME of a plaintiff who claimed in her civil action that she was suffering emotional distress. The Carley decision did not resolve whether video, as opposed to audio recording, could be allowed. Further, Carley did not clearly adjudicate when third parties may, if ever, be allowed to attend DMEs.

The parties in DiFiore raised concerns about the proper administration of DMEs in cases in which the plaintiff allegedly is cognitively or psychologically impaired or may have other challenges with observation or communication. Plaintiffs were concerned that examiners hired by the defense might not accurately describe what occurred at the exam and because of the limitations of plaintiffs, they may not be capable of effectively rebutting the examiners’ versions of the sessions in their reports and trial testimony.

On the flip side, defendants were concerned that the presence of a third party or a recording device within the exam room could distract the plaintiff or otherwise interfere with the DME.

In the DiFiore case, the Appellate Division set forth guidance to be followed by the trial courts as to video or audio recording DMEs and/or attendance by a third party as follows:

1. Any disagreement over whether to permit third party observation or recording of a DME would be evaluated by the trial judge on a case by case basis “with no absolute prohibitions or entitlements.”
   
2. It will be the plaintiff’s burden “to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.”
   
3. The range or options “should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.”
   
4. To the extent there is a concern by the defense that a third-party observer or a recording might reveal alleged proprietary information about the content and the 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.
   
5. If the court rules that a third-party is permitted to attend the DME, it shall impose reasonable conditions to prevent the observer from interfering with the plaintiff or otherwise interfering with the exam.
   
6. If a foreign or sign language interpreter is needed, the examiner shall utilize a neutral interpreter agreed upon by the parties or if no such agreement is reached, an interpreter selected by the court.

While ruling on these cases, the Appellate Division did note that the pertinent court rule has not been revised in over twenty years. Thus, the Supreme Court Committee might consider whether any comparable discovery rule or guideline should be adopted to the recording or third-party attendance examinations arranged by plaintiff’s counsel, a subject which is beyond the scope of the appeals of these three cases.

One of the significant parts of this opinion is that despite contrary language in the Carley case, the Appellate Division found that, going forward, it shall be the plaintiff’s burden to justify to the court that third-party presence or recording, or both, is appropriate for a DME in a particular case absent consent to those conditions.

Although the Carley case only addressed mental examinations, the DiFiore decision does not seem to limit its opinion to only mental examinations. Nor did it seem to limit its decision to situations in which the plaintiff had no cognitive impairment to be able to participate in the exam or a language impairment in which an interpreter was needed. The DiFiore decision seems to be a much more comprehensive decision covering all types of defense medical examinations.

The plaintiff Trenton Renewable Power, LLC owned and operated an anaerobic biodigester facility in Trenton and contracted with non-party Symbiont Science, Engineering and Construction, LLC (“Symbiont”) to design and build out the facility.  Defendant Denali Water Solutions, LLC (“Denali”) contracted with plaintiff to supply the organic waste for processing at the facility in Trenton.  The issue in Trenton Renewable Power, LLC v. Denali Water Solutions, LLC, 2022 N.J. Super. LEXIS 9 (App. Div. Jan. 24, 2022) was the scope of discovery that could be obtained from the non-party Symbiont via a subpoena.

A disagreement arose between plaintiff and Denali concerning Denali’s agreement to deliver under the contract.  Denali cited the contract’s force majeure provision, claiming that the Covid-19 pandemic made it impossible for it to perform as required by the agreement.  Further, Denali claimed that the Trenton Facility could not process all categories and quantities of waste Denali was required to deliver under the contract due to a fundamental design flaw and inadequate equipment and technology at the plant.  The parties were not able to resolve this dispute and plaintiff filed suit.

In discovery, Denali served a subpoena upon Symbiont to obtain records.  Symbiont filed a motion to quash the subpoena or, in the alternative for a protective order limiting the scope of the request on the basis that it would be unduly burdensome and also sought to shift the cost of compliance to Denali.  That application was denied and Symbiont filed a motion before the Appellate Division seeking leave to appeal the denial of its motion, which was granted.

This subpoena was very broad, requesting that Symbiont produce for a deposition a corporate designee with knowledge of 17 different topics, as well as a voluminous amount of documents.  Symbiont’s counsel provided a list of 55 custodians who worked on the project and designated 11 who were key personnel and suggested that the parties confer to identify the custodians whose records Denali would like Symbiont to search.  Denali refused to limit its request.

In its motion to quash the subpoena, Symbiont’s counsel represented that it had identified four computer drives that included some information on the Trenton project with approximately 40,000 files and approximately 136 gigabytes of data.  This did not include the e-mails of Symbiont’s 100 workers, most of whom had some involvement with the Trenton project, because the e-mails were stored elsewhere in the system.  Symbiont searched only the e-mails that the key personnel had identified and located about 31,000 potentially responsive e-mails.  Symbiont’s counsel certified that an outside vendor estimated the cost of producing the data would be $10,000 plus an additional $5,330 per month in storage fees.

The trial court judge did not find Denali’s demands of Symbiont to be overly broad or unduly burdensome and denied Symbiont’s motion to quash.  Upon appeal, Symbiont renewed its argument that it would be an unreasonable burden and cost in providing the electronically stored information (ESI) demanded by Denali and the same information was successful from other sources, including plaintiff.

The Appellate Division noted that, while the discovery rules are to be construed liberally in favor of a broad pretrial discovery, discovery rights were not unlimited.  For good cause shown, any party can seek an order, for good cause shown, when “justice requires to protect a party or person from annoyance, embarrassment, impression, or undue burden or expense.”

The Court noted that the status of a witness as a non-party entitles the witness to consideration regarding expenses and inconvenience.  Here, the Appellate Division found that the trial court judge had utilized the standard concerning parties in determining whether to quash a subpoena, not the standard governing a subpoena issued upon a non-party.  He failed to consider the distinction between the burden plaintiff carried in opposing Denali’s broad discovery request and the “qualitatively” different burden imposed upon Symbiont.

Denali argued that the discovery from Symbiont was necessary to support its claim that the Trenton Facility’s imperfections made it impossible for plaintiff to process the organic waste products that Denali was contractually obligated to deliver under the agreement.  Some of the information Denali sought from Symbiont would undoubtedly be in plaintiff’s possession, as would communications between plaintiff and Symbiont regarding the Trenton Facility’s design and operation.  Yet, rather than waiting for the discovery responses to be provided by plaintiff, Denali chose to compel production from both at the same time.  Denali acknowledged that it was essentially a strategic decision on its part and not compelled by any necessity.

The Appellate Division found that the trial court judge did not recognize the burden upon Symbiont in how much work it would take to produce its ESI subject to assertions of privilege and confidentiality. Thus, the Court reversed the trial court’s rulings but expressed no opinion on Denali’s ability to compel production of the requested information from Symbiont in the future if the parties could otherwise agree to an appropriate scope of production. 

Plaintiff Abigail Perdomo appealed the trial court’s decision barring the expert report of her treating physician, Dr. Wayne Petermann, a chiropractor, as a net opinion.  Plaintiff had been in two different motor vehicle accidents in December, 2010 and, three years later, in November, 2013.  The issue in Perdomo v. Orgacki, 2018 N.J. Super. Unpub. LEXIS 1013 (App. Div. May 1, 2018) was whether Dr. Petermann’s expert report should be barred because he failed to satisfactorily explain how the 2013 accident could have caused plaintiff a 70% permanent injury to her lower back when he had previously opined that the 2010 accident caused the same permanent injury. 

Plaintiff had been a passenger in an automobile accident in December, 2010.  Three months later, she came under Dr. Petermann’s care and an MRI exam showed that she had suffered disc bulges at L4-5 and L5-S1 that were attributable to her accident.  Three years later, in November, 2013, she was in another automobile accident in which she was driving and she was rear-ended by the automobile driven by defendant Orgacki. 

A subsequent lumbar MRI showed disc bulging at L4-5 and L5-S1.  Dr. Petermann, again treated the plaintiff and issued an expert report that acknowledged the prior diagnosis of a lower back injury “with some degree of permanency” from the 2010 accident, and relied upon the 2013 MRI results, to opine that she “suffered a further permanent partial impairment of her lower back (70%) attributable to” the 2013 accident. 

At the completion of discovery, the defendant Orgacki moved for summary judgment, arguing that the plaintiff, whose claim was subject to the verbal threshold, “failed to establish credible objective medical evidence that she sustained a permanent injury because of the accident.”  In the alternative, the defendant requested that Dr. Petermann’s expert report be barred as a net opinion.

The trial court judge did not dismiss plaintiff’s complaint but instead determined that Dr. Petermann’s report was a net opinion and, therefore, barred.  The judge found that his report was vague.  Dr. Petermann had concluded that Plaintiff had suffered a permanent partial impairment that is 70% attributable to the 2013 motor vehicle accident.  This finding took into account that she had suffered a permanent injury to her lumbar spinal disc as evidenced by the MRI findings and that her activities of daily living had been affected to some degree.  However, the trial court judge noted that there was no other objective testing performed by Dr. Petermann.  There was no explanation as to how he arrived at the 70% permanent injury opinion.  Dr. Petermann had stated that “until additional evidence or medical records became available, it’s my opinion that it’s a [seventy] permanent injury from this accident.”  That statement said to the Judge that the expert had not reviewed anything else.

Upon appeal, the Appellate Division noted that the standard under Rule of Evidence 703 to recognize an expert opinion was as follows: it must be “be grounded from facts or data derived from (1) expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is normally the type of data relied upon by experts.”   From this standard, the net opinion rule developed to “forbid the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.”  The Appellate Division noted that an expert must explain the causal connection between the act or incident complained of and the injury or damages resulting from that incident.  Further, expert testimony cannot be “based merely on unfounded speculation and unquantified possibilities”.  Finally, the Appellate Division noted that the experts must “give the why and wherefore of their opinions, not mere conclusions.”

Using these principles, the Appellate Division found no merit to the plaintiff’s argument that Dr. Petermann’s expert report was not a net opinion.  Dr. Petermann’s opinion that the plaintiff’s back injury was 70% permanently injured due to the 2013 accident was a baseless conclusion because he failed to state the “why and wherefore” of this opinion.

Although the plaintiff had not affirmatively plead an aggravation to her prior injury, the Appellate Division stated that a diagnosis of aggravation of a pre-existing injury or condition had to be based upon “an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post-trauma.”  This analysis was required to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not. Here the Appellate Division found that there was also no proof of aggravation.            

Accordingly, the Appellate Division found no reason to disturb the motion judge’s prior determination that Dr. Petermann’s opinion was inadmissible because it was a net opinion.  Thus, the Appellate Division affirmed the trial court’s decision, barring the expert report of the treating physician. Realistically, without an expert report available to opine as to a permanent injury to meet the verbal threshold standard, the next step would be a dismissal of the lawsuit.