LIGHTS, CAMERA, ACTION: Coming to a Personal Injury Action Defense Medical Examination (DME) Near You
The Supreme Court of New Jersey provided a decision in DiFiore v. Pezic regarding Rule 4:19 and whether a recording device or a neutral third-party observer should be permitted at a defense independent medical examination (“DME” or “IME”). 2023 N.J. LEXIS 647 (N.J. 2023). This matter was on appeal from the Superior Court of New Jersey Appellate Division’s May 3, 2002 decision. DiFiore v. Pezic, 472 N.J. Super (2022). The Supreme Court affirmed the decision as modified.
What You Need to Know on New Jersey Court Rule 4:19
DiFiore v. Pezic, looked at three personal injury cases on appeal: Remache-Robalino v. Boulos, DiFiore v. Pezic, and DeLeon v. The Achilles Foot and Ankle Group. The Court examined whether a plaintiff with alleged cognitive limitations, psychological impairments, or language barriers could be accompanied by a third party to a defense medical examination, or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination. In an attempt to provide guidance, the Supreme Court of New Jersey outlined the following protocols:
First, a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements.
Second, it shall be the defendant's burden henceforth to justify to the court that third-party presence or recording, or both, is not appropriate in a particular case. (This change is due to the amendment of Rule 4:19 allowing defendant to dictate the when, where, and by whom of the DME instead of the court doing so.)
Third, given advances in technology since 1998, 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, to the extent that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content and 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. This is of particular concern during neuropsychological testing when proprietary testing materials akin to the SATs are administered to avoid dissemination into the public and impacting testing results.
Fifth, if the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.
Sixth, if a foreign or sign language interpreter is needed for the exam the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.
A New Burden on Defendants
Reversing the Appellate Division’s opinion, the Supreme Court of New Jersey declined to place the burden on the plaintiff to show special reason why third-party observation or recording should be permitted in each case. The Court further indicated that the opposing parties should meet and confer in an attempt to reach an agreement. If an agreement is impossible to reach, then defendant may move for a protective order under Rule 4:10-3 seeking to bar the recording or third-party observation of a DME.
Lastly, the Supreme Court of New Jersey held that it will be up to the trial courts to decide on a case-by-case basis what to permit and what to forbid so that examinations can proceed with fairness to both parties.
What You Can Do
Try to work things out with opposing counsel prior to getting the trial court involved in the disagreement.
Know your judge, as these matters will be decided on a case-by-case bases with no absolute prohibitions or entitlements.
File a protective order under Rule 4:10-3.
Include a clause in your initial pleading requesting advance notice of all forensic medical examinations scheduled by plaintiff’s counsel. As the old saying goes: "What is good for the goose is good for the gander." If advance notice is not given, it could lead to discovery sanctions. Plaintiff’s counsel may be barred from using videotaped recording of the defense doctor at trial, and may dissuade plaintiff’s counsel from requesting videotaping of future defense medical exams.