Defense medical examinations and the reports that follow are often at the forefront of developing a defense strategy. New Jersey Court Rule 4:19 permits an adverse party to require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by an expert. Aside from noticing and scheduling requirements, the rule offers little guidance as to the manner in which a defense medical examination is to be conducted. On May 3, 2022, the Appellate Division decided DiFiore v. Pezic, No. A-2826-20, 2022 N.J. Super. LEXIS 58 (May 3, 2022), positioned to become the seminal case regarding defense medical examinations (DME).

DiFiore is a review of three cases from the superior court, in which different aspects of a DME were at issue. Upon review, and with participation of the New Jersey Association for Justice, New Jersey Defense Association, and Office of the Attorney General, the DiFiore court held:

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, despite contrary language in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998), it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.

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.

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.

The significance of DiFiore is that it overrules the previous governing case on DME parameters, B.D. v. Carley. Since 1998, the Carley court, in a short and concise opinion, has long held that during a DME, the plaintiff is entitled to have the examination recorded by an unobtrusive recording device. In DiFiore, the appellate court noted what litigants have long critiqued about Carley – that it offers little guidance as to examinations, as well as ample opportunity for conflicting trial court interpretation.

The question now is whether DiFiore accomplishes its goal of providing clarity to Carley’s uncertainty, or just leaves more questions unanswered. The answer appears to be both. One of the notable aspects of the DiFiore holding is that although it does not outrightly prohibit third-party observation or the recording of an examination, it does place the burden upon the plaintiff to justify the condition being sought. In the event of a dispute between parties – which there will be – the court is to decide whether to permit the observation or recording on a case-by-case basis. From the perspective of the defense, the prospect of a plaintiff having the ability to record an examination is problematic. Doctors can and will object to the recording of their examinations, potentially diminishing the pool of experts from which the defense may choose from. Not to mention, the pivotal defense expert report may be subject to a he said/she said between the plaintiff’s recording and the doctor’s report. However, should the need arise, defendants may at least object to a recording, and leave it to the courts to decide. In that regard, the trial court is required to balance the competing advantages and disadvantages tailored to the particular case. Pursuant to DiFiore, the trial court is afforded much discretion in determining whether the plaintiff has met her burden.

In addition, the DiFiore court does not draw a distinction between the different types of examinations. It is worth noting that one of three cases appealed involved a neuropsychological exam, in which the plaintiff claimed to suffer from memory loss, and early stages of dementia, following a motor vehicle accident. The plaintiff’s counsel brought up concerns regarding the plaintiff’s ability to answer questions during the interview portion of a neuropsychological evaluation. While the need for a recording may be more acceptable under these particular set of circumstances, the need for a recording in a routine orthopedic evaluation is less clear. While one of the appealed cases did involve an orthopedic examination, the DiFiore court’s holdings did not make any distinctions based upon the nature of the examination. Presumably, the type of examination to be observed or recorded will be a factor in the court’s case-by-case analysis, and ultimately left to the motion judge’s discretion.

Despite its strengths and ambiguities, DiFiore v. Pezic is significant in that it will affect a crucial part of a case’s defense – the DME. DiFiore comes more than two decades after its predecessor and reflects how litigation has changed since that time. The New Jersey Supreme Court has granted leave to appeal, and only time will tell if DiFiore becomes the new norm, or if the Supreme Court will fill in the gaps that the case leaves behind.