Appellate Division revokes case law carrying a presumption that third-parties or recording devices are allowed in the examination room for psychological defense medical examinations, but require plaintiffs to show “special circumstances” warranting third-party observation or recording of physical examinations.
History of Third-Party Observation and Recording of Defense Medical Examinations
Rule 4:19 governs the terms under which defendants in civil actions can arrange to have a qualified medical or health care professional examine the condition of a plaintiff alleging bodily or mental health injury caused by the defendants. Where a personal injury claim is asserted or where the mental or physical condition of a party is otherwise 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[.]” R. 4:19. Importantly, the text of the Rule says nothing about the allowable conditions of such a physical or mental examination. In particular, the Rule does not address whether the exam may be recorded, or whether an examinee may be permitted to bring a medical proxy or counsel into the examination room.
Twenty-two years ago, our Appellate Division issued guidance on the issue in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998), where it held that “unobtrusive” audio recordings during psychological defense medical examinations (“DME”) were permissible. However, the opinion did not resolve whether video, as opposed to audio, recording can be allowed. Nor did the opinion clearly adjudicate when third-parties may, if ever, be allowed to attend DMEs. Further, just one year before our Appellate Division’s opinion in Carley, a Law Division judge addressed the presence of either third-parties or a recording device in a physical, rather than mental, examination under Rule 4:19. In Briglia v. Exxon Co., U.S., 310 N.J. Super. 498 (Law Div. 1997), the Law Division held that plaintiffs have the burden of showing “special circumstances” warranting an attorney’s presence at or recording of a physical exam under Rule 4:19. Given the conflicting language in Briglia (a physical DME case) and Carley (a mental DME case), the proper burden shifting framework with regard to prohibiting or permitting a representative or recording device at a DME remained somewhat unclear.
Impacts of New Law
In DiFiore v. Pezic, ___ N.J. Super. ___ (App. Div. 2022), our Appellate Division finally issued clear guidance on the issue in three consolidated cases in which plaintiffs and defendants battled over the presence of third-parties or recording devices in examination rooms. In one case, a plaintiff who alleged to have suffered cognitive losses, as well as physical injuries, sought to have a friend and medical proxy, along with a “legal nurse consultant,” attend the plaintiff’s orthopedic DME and to audio record the examination. In another case, a native Spanish speaker sought to make an audio recording of his psychological DME over concerns about his language barrier, as his bilingual attorney had spotted mistakes by the interpreter at the plaintiff’s deposition. In a third case, a non-native English speaker in her seventies sought to have a nurse practitioner observe her orthopedic DME for “evidence preservation purposes.”
Our Appellate Division sent the three cases back to the trial court for consideration based on six holdings.
First, any decision about recording or third-party observation of a DME should be made by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements.
Second, contrary to Carley, the plaintiff has the burden to justify the presence of a third-party or recording in a particular case.
Third, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.
Fourth, when a defense examiner is concerned that a recording or third-party observer will release proprietary information about the exam, the parties shall cooperate to enter into a protective order.
Fifth, if a third-party is permitted to attend the examination, reasonable conditions will be imposed to prevent the observer from interacting with the plaintiff or otherwise interfering with the examination.
And sixth, if a foreign language or sign language interpreter is needed, the parties shall use a neutral interpreter agreed on by the parties, otherwise an interpreter will be selected by the court.
- Moving forward, any decision about third-party observation or recording of defense examinations shall be made by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements.
- Plaintiffs have the burden to justify the presence of a third-party or recording in a particular case.
- However, given the decision’s deviation from Carley, and our New Jersey Supreme Court’s plenary power over Court Rules, the Appellate Division’s decision here appears to be a likely candidate for Supreme Court review if any party is dissatisfied with the Appellate Division’s ruling.