N.J. Supreme Court Holds that Defendants Must Move for a Protective Order if They Seek to Bar Third-Party Observation or Recording of an IME

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By Caren Decter —

This article was originally published June 17, 2023.

Under New Jersey Court Rule 4:19, an adverse party can require a plaintiff in a personal injury action to submit to a physical or mental examination—i.e., an independent medical examination (“IME”) or DME. But when, if ever, is third-party observation or recording of an IME allowed? The Supreme Court of New Jersey issued a decision yesterday addressing these questions. See Kathleen DiFiore v. Tomo Pezic et al.Dore Deleon v. The Achilles Foot and Ankle Group et al.; and Jorge Remache-Robalino v. Nader Boulos M.D. et al. (A-58/59/60 September Term 2021, 087091).

These case were on appeal from the Appellate Division, which, as we blogged about previously here, held that absent consent, plaintiffs must seek court permission—and justify to the court why third-party observation or recording is appropriate in their particular case. The Supreme Court of New Jersey reversed that burden of proof—declining “to place the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case.” Instead, the burden is on a defendant to move for a protective order under Rule 4:10-3 if they seek to prevent an IME from being recorded, or to prevent a neutral third-party observer from attending. It will then be up to trial courts to determine on a case-by-case basis what conditions, if any, to place on an IME—including who may attend and whether it may be recorded—“with no absolute prohibitions or entitlements.”

In terms of process, the Supreme Court outlined the following: (1) the plaintiff must inform the defendant if they seek to bring a neutral observer or unobtrusively record the IME; (2) if the defendant objects, the two sides should meet and confer to attempt to reach agreement; (3) if agreement is impossible, the defendant may move for a protective order to prevent the exam from being recorded, or to prevent a neutral third-party observer from attending. Factors 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 and the presence of a neutral third-party observer. Neuropsychology exams may raise unique concerns that may weigh against recording or third-party observation in particular instances.

The Supreme Court of New Jersey made clear that video recording, in addition to audio recording, shall be included in the range of options, and that “smart phones can unobtrusively be used to record a DME with ‘minimal effort.’” The Court further noted that the parties shall enter into a protective order when a defense expert is concerned about the disclosure of proprietary information; that when third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption of or interference with the exam; and that, if a foreign or sign language interpreter is needed, a neutral interpreter shall be selected by the parties or, failing agreement, by the court. As to observers, the Supreme Court emphasized that its decision applies “only to neutral third-party observers, not attorneys” that might seek to interject on behalf of their client.

This ruling is likely to be heralded as a win for plaintiffs. Now, defendants bear the burden of moving for a protective order to bar third-party observation or recording of an IME.

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