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Does New Jersey Permit Recording of Defense IME’s?

By on April 18, 2019 in Other with 0 Comments

Under New Jersey Court rules, when a plaintiff has made a claim for personal injuries, the adverse party may require that the plaintiff submit to a physical or mental examination pursuant to R. 4:19.  The issue sometimes arises as to whether the defense medical examination may be recorded or attended by a representative of the plaintiff’s counsel.  That issue was addressed by a published Law Division decision, Wellmann v. Road Runner Sports, 2018 N.J. Super. LEXIS 186 (Law Div. April 27, 2018).

This action dealt with personal injuries to a 7-year-old girl, Ryan, who was injured when she was 3.  The defendants sought by motion to compel the minor to attend two medical examinations, without condition, without attendance of a third party (including one of her parents) and without the ability to record the examination.

The plaintiffs, on the other hand, cross-moved for a Protective Order that would permit recording by either audio, video, or both, of any defense medical examination and to permit third party representatives to be present during the exam.

The pertinent Court Rule (R. 4:19) is silent as to whether the medical examination may be recorded and there are a few cases on point.  However this Law Division Judge found that the “law is clear,” that [i]t is within the Court’s discretion to allow counsel, or one of Ryan’s parents to appear with her at the physical examinations and permit the recording of the physical examinations.”

However, the Court noted that which party has the burden to prove whether the recording should or should not be permitted is unclear.  Should the plaintiff have the burden to show special circumstances to warrant the attorney’s presence at the recording of the physical exam? Or should the defendant have the burden of showing special reasons to exclude the plaintiff’s attorney or other representative from a physical exam?

This Court did not decide which side has the burden with respect to this issue.  However, the Court ruled in “balancing the burdens on the Movants and their doctors to obtain an independent medical examination to mount an adequate defense, and the Movants’ need for information, with the interests of Ryan, the Court deems an unobtrusive recording and the presence of one of Ryan’s parents, or her lawyer (or a representative from counsel’s office) or both, far outweighs the difficulties that counsel for the Movants argues in his Brief, namely that these conditions are ‘impractical and unfair.’”

In reaching this determination, the Court considered that the medical examination of Ryan, who is a young child, would be conducted by two doctors she has never met.  These doctors hired by an adverse party may testify against Ryan at a deposition or trial.  Under these circumstances, an accurate record of the exam would be “crucial to the administration of justice and fair to both sides.”    

The Court recognized that if a dispute arose during trial as to what happened at the examination “the likelihood of a 7 year old’s testimony adequately countering the testimony of an expert witness’s testimony, who has testified hundreds of time, may be low.”  Using a small cell phone or video recording device could be done without interfering with the performance of the exam.  Further Ryan’s counsel or representative, may attend the exams or one of Ryan’s parents without obstructing them in any way.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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