I had previously reported on the Appellate Division decision of DiFiore v. Pezic, 472 N.J. Super. 100 (App. Div. 2022) which concerned the circumstances upon which a DME (defense medical exam) may be recorded or a third-party observer permitted. This case went up on certification to the New Jersey Supreme Court, which affirmed certain portions of the Appellate Division decision, but reversed the Appellate Division’s order placing the burden upon the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. In DiFiore v. Pezic, 2023 N.J. LEXIS 647 (2023) the Supreme Court set forth its ruling concerning the recording or third-party observation of defense IME’s.
By way of background, the DiFiore case dealt with three consolidated cases, two of which were defense neuropsychological exams and one was an orthopedic exam. In each one of these cases, the plaintiffs alleged either cognitive limitations, psychological impairments or language barriers and sought to record the examinations or to be accompanied by a third-party observer.
The Supreme Court affirmed the Appellate Division’s core holding that the trial court should determine on a case-by-case basis what conditions, if any to place on a DME, which would include who may attend and whether it may be recorded. The Court affirmed that video recording, in addition to audio recording, should be included in the range of options. Further, the Court held that the parties should enter into a protective order when a defense expert is concerned about the disclosure for proprietary information. When third-party observation is permitted, the trial court shall impose reasonable condition to prevent any disruption or interference with the exam.
However, the Supreme Court disagreed with the Appellate Division, which had placed the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. Instead, the Supreme Court ruled that once the defendant issues a notice to the plaintiff of a DME, the plaintiff should inform the defendant if they seek to bring a neutral observer or record the exam. If the defendant objects, the two sides should meet and confer to attempt to reach agreement. If agreement is not reached, the defendant may move for a protective order, seeking to prevent the exam from being recorded or to prevent a neutral third-party observer from attending.
The Court noted that “[f]actors including a plaintiff’s cognitive limitations, psychological impairments, language barriers, age, and inexperience with the legal system may weigh in favor of allowing unobtrusive recording in the presence of a neutral third-party observer. Although a defense neuropsychologist cannot dictate the terms under which DMEs are held, they can raise concerns that may weigh against recording or third-party observation in particular instances.”
Thus, the major difference between the Supreme Court and the Appellate Division decisions was whether the burden should be on the plaintiff to show that a recording or observation was necessary versus upon the defendant. That is where the Supreme Court ruling departed from the Appellate Division decision. The Supreme Court ruled as follows: “[w]e conclude that placing the burden on defendants to show why a neutral third-party observer or an unobtrusive recording should not be permitted in a particular case best comports with the realities of DMEs and the text of Rules 4:19 and 4:10-3. It also ensures fairness in our civil justice system.”
Hence, the Court’s ruling that the burden would be on defense counsel to move for a protective order to bar the observation or recording. Note, however, that the Court ruled that the parties must first meet and confer in an effort to reach agreement. Barring an agreement, the defendant then must move for a protective order to bar the observation or recording. The trial court must decide the issue in a case-by-case basis, balancing “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 patient’s condition with a recording or a neutral third-party observer.”
Very significantly, the Court applied its holding only to neutral third-party observers, not attorneys. The Court made it clear that its holding was limited to third-party observers, not third parties who seek to interfere with or disrupt the exam.
Last, the Supreme Court noted that its decision only involved defense medical examinations. It did not decide whether defendants should be permitted recording or third-party observation and examinations conducted by plaintiff’s treating physicians or non-treating physicians. The Supreme Court referred the matter to the Civil Practice Committee “whether there should be any provision to allow defendants to record or observe examinations by non-treating doctors arranged by plaintiffs’ counsel solely for the purposes of litigation.”