N.J. Appellate Division Rules that Plaintiffs Need Court Permission to Record or Have a Third Party Observe Independent Medical Exams

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By Caren Decter —

This article was originally published May 16, 2022. 

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 Superior Court of New Jersey, Appellate Division recently issued a published opinion addressing these questions. See Kathleen DiFiore v. Tomo Pezic et al., Case No. A-2826-20; Dore Deleon v. The Achilles Foot and Ankle Group et al., Case No. A-0367-21; and Jorge Remache-Robalino v. Nader Boulos M.D. et al., Case No. A-1331-21.

The Appellate Division held that personal injury plaintiffs in New Jersey are not automatically entitled to record IMEs—even by audio only.  Nor are they automatically entitled to have a third party observe their IMEs. Instead, absent consent, plaintiffs must seek court permission—and justify to the court why third-party observation or recording (by video or audio) is appropriate in their particular case.

This represents a significant shift in the caselaw, as New Jersey plaintiffs were previously entitled to conduct “unobtrusive” audio recordings of IMEs. Specifically, in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998), the Appellate Division authorized the “unobtrusive” audio recording of a neuropsychological IME of a plaintiff. However, the Carley opinion did not resolve whether video, as opposed to audio, recording is allowed. Nor did Carley clearly resolve when third parties may, if ever, be allowed to attend IMEs.

On this appeal, the parties in three separate cases asked the Appellate Division to revisit its Carley decision to clarify when, if ever, third-party observation or recording of an IME is allowed. The court held that third-party observation or recording of IMEs is not automatically permitted.  Instead, the court outlined the following framework for allowing third-party observation and recording of IMEs:

• Disagreements over whether to permit third-party observation or recording of an IME shall be evaluated by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements.
• Plaintiffs bear the burden of justifying to the court that third-party presence or recording, or both, is appropriate for an IME in a particular case, absent consent to those conditions.
• Given advances in technology since Carley, the range of recording options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.
• 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.
• If the court permits a third party to attend the IME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.
• 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.

While this ruling is likely to be heralded as a win for defendants, it is important to note that the court underscored the “the potential utility of evidence preservation relating to the DME.” The court stated that a plaintiff cannot always be depended on “to be a reliable witness to rebut or correct errors in the report or the examiner’s testimony.”  Therefore, the “evidential value of the recording to prove or disprove what occurred during the exam, in the event of a dispute, could be significant.” Furthermore, the court took judicial notice that “pocket-sized smart phones” can be “unobtrusively placed on a tripod with minimal effort” and stated that “[t]rial judges may take this into account when weighing the parties’ positions.”

As to third-party observation, the court also noted that there “may well be at times a legitimate need for a plaintiff, due to infirmity, age, or other special traits, to have another person accompany the plaintiff to a DME.” By way of example, the court listed young children, elderly plaintiffs who have difficulty walking or speaking, and non-native English speakers.

That said, this ruling represents a significant departure from Carley, which has been interpreted to hold that plaintiffs have a vested entitlement to record IMEs. Now, plaintiffs bear the burden of justifying to the court that these special examination conditions are appropriate for an IME in a particular case.

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