NJ High Court Makes it Easier for Plaintiffs to Monitor and Record Defense Medical Examinations

In a New Jersey personal injury case, a court rule allows a defendant to have the plaintiff submit to examination by one or more medical experts chosen by defense counsel. These defense medical examinations (DMEs) give defense lawyers the opportunity to obtain their own assessment of the injuries plaintiff is claiming. Understandably, plaintiff’s attorneys believe that the doctors who perform DMEs are less than objective and they often seek to monitor the process. Now, the New Jersey Supreme Court has issued a ruling that should benefit plaintiffs seeking to have third parties observe DMEs and to make recordings of them.

The court, in DiFiore v. Pezic, held that although trial courts have wide discretion to decide who may attend a DME and whether it may be recorded, there is no burden on the plaintiff to show special reasons why third-party observation or recording should be permitted. Instead, plaintiffs need only give notice of their intent to bring a neutral observer and/or to videotape the exam. A defendant that objects may seek a protective order and the court will hold a hearing and fashion an appropriate order.

In addition to shifting the burden of persuasion, the court clarified these other procedural aspects of securing the right to observe and record defense medical examinations:

• In deciding on a request for a protective order, the trial court can find that such factors as the plaintiff’s cognitive limitations, psychological impairments, language barriers, age and inexperience with the legal system weigh in favor of allowing unobtrusive recording and the presence of a neutral third-party.
• Both video and audio recording are options for the parties and the court to consider.
• If a defense expert is concerned about rendering an opinion in the presence of a third party, then the parties should enter into an agreement not to divulge the opinion publicly.
• When third-party observation is allowed, the court will impose reasonable conditions to prevent any disruption of or interference with the DME.
• When a foreign language interpreter is needed, the parties should select a neutral interpreter or, if they can’t agree, the court will select one.

The ruling doesn’t necessarily cover DMEs in every personal injury case. It is specifically addressed to situations where the injured party has cognitive limitations, psychological impairments or language barriers. The court’s unanimous decision showed concern about vulnerable people potentially being taken advantage of during DMEs. However, the ruling sets out a rubric that very well could be followed in other scenarios.

At Seigel Law in Ridgewood, New Jersey, we represent accident victims in Bergen, Passaic, Essex and Hudson counties. If you have been injured due to someone else’s negligence, please call our office at 201-444-4000 or contact us online to discuss the situation in a no-cost consultation with one of our attorneys.