On May 3, 2022, in a published decision captioned as Kathleen DiFiore v. Tomo Pezic, et al., the Appellate Division considered consolidated appeals relating to the conduct of “Independent Medical Examinations” – sometimes referred to as “defense medical examinations” – within the context of bodily injury litigation. This decision puts to rest years of confusion and disagreement between the plaintiffs’ and defense bar regarding when third-parties should be permitted to observe forensic examinations, or when those examinations should be recorded, and also yields a clear rule of law that allows defense medical experts a meaningful opportunity to examine allegedly injured claimants. Given the fact that, by the time defense medical experts are involved in a typical case, plaintiffs have usually spent significant time presenting to numerous experts of their own, without defendants being aware of these proceedings, let alone observing them, this ruling further balances the expert scales in bodily injury litigation.
Rule 4:19 of the Rules Governing the Courts of the State of New Jersey affords defendants an opportunity to have plaintiffs examined by qualified physicians as part of the discovery process. In 1998, the Appellate Division decided the case of B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998), in which the plaintiff was allowed to create an audio recording of a neuropsychological examination requested by the defense. The Court’s decision in Carley was silent as to whether video recording was permissible, nor did it indicate when, if ever, a third-party should be allowed to attend an Independent Medical Examination with a plaintiff. Moreover, the language of the decision was imprecise as to whose burden it was to demonstrate whether such interventions should be permitted. Following this decision, defendants in personal injury matters have routinely engaged in motion practice in the face of aggressive demands from the plaintiffs’ bar to record each examination and to have medical professionals hired to attend and “monitor” the examinations.
The proffered justification for these intrusions into the defense examinations has been a concern that the plaintiff may have communication challenges with the examining physician, or that the defense examiner may not accurately report what occurs at the examination. In response, defendants typically contend that these interventions are disruptive of the forensic process, and might distract the examinee from the proceeding, or otherwise thwart the legitimate purposes of the examinations.
In DiFiore, the Court clarified that there will not be a blanket rule permitting or prohibiting third-party observations or recordings of an IME, but rather that trial judges are to decide whether these are permitted on a case-by-case basis. Moreover, the Court overruled the dicta in Carley which created ambiguity about the burdens borne by the parties, and ruled affirmatively that it shall be the plaintiff’s burden to justify to the court that a third-party presence or recording – or both – would be appropriate in a particular case. Video recording was ruled to be a viable option for recording an examination, with a fixed camera that captures the actions and words of both the examiner and the plaintiff; and protective orders should be entered into by parties where there are concerns by the defense medical examiners that recording might reveal propriety information. Reasonable conditions should be imposed when a third-party observer is permitted, to prevent interaction with the plaintiff or interference with the exam. Lastly, if an interpreter is needed, the examiner should utilize a neutral interpreter agreed upon by the parties or appointed by the court.
After discussing the specific procedural and factual scenarios presented by a number of disputed examinations on appeal, the Appellate Division noted that “[t]he DME is not, as plaintiffs tend to portray it, an adversarial proceeding inevitably designed to disprove claims of injury and trap plaintiffs into admitting or showing their claims are exaggerated or fabricated. The examiner is not a lawyer conducting a cross-examination. The exam is a professional assessment that must adhere to the standards of the examiner’s profession.” The Court noted, as well, that these examinations are not necessarily ‘unaffected by any conscious or subconscious biases of the examiner.” Taking these factors into account, the Court ruled that plaintiffs must make particular showings in each case as to why a particular intrusion is warranted, which shall be evaluated by the trial courts on a case-by-case basis. Although largely very positive for defendants in these matters, the Court’s opinion did state that “[t]he evidential value of the recording [of an IME] to prove or disprove what occurred during the exam, in the event of a dispute, could be significant.” As such, motion practice on this issue is likely to continue, but at long last the ground rules for these disputes are clear.
For more information on this decision, or on New Jersey litigation more generally, please contact the author, Tom Emala.