Appellate Division Issues Ruling On When Defense Medical Exam Can Be Video Or Audio Recorded Or Attended By A Third Party

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.

Tags: defense medical examinations, discovery