DiFiore v. Pezic

These three consolidated appeals before the New Jersey Appellate Division posed “related but distinct questions involving the application of Rule 4:19.” The appeals concerned when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments, or language barriers can be accompanied by a third party to a defense medical examination (“DME”), or require that the examination be video or audio recorded to preserve objective evidence of what occurred during the examination. The Court ruled: “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 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, 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. And 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.”

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