Kathleen DiFiore v. Tomo Pezic; Dora Deleon v. the Achilles Foot and Ankle Group; Jorge Remache-Robalino v. Nader Boulos, M.D.
CourtSupreme Court of New Jersey
Date FiledJune 15, 2023
DocketA-58/59/60-21
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.
Kathleen DiFiore v. Tomo Pezic (A-58/59/60-21) (087091)
Argued January 3, 2023 -- Decided June 15, 2023
WAINER APTER, J., writing for a unanimous Court.
In this appeal, the Court clarifies procedures regarding who may attend a
defense medical examination (DME) -- as well as whether and how such
examinations may be recorded -- when a plaintiff has alleged cognitive limitations,
psychological impairments, or language barriers.
In each of these three personal injury actions, the defendants required the
plaintiffs to submit to a DME. Plaintiffs, who had alleged cognitive limitations,
psychological impairments, or language barriers, sought to record the examinations
or to be accompanied by a third-party observer (TPO) at the examination. After
various trial court rulings, the Appellate Division consolidated the cases for
purposes of its opinion. 472 N.J. Super. 100, 104 n.1 (App. Div. 2022).
The Appellate Division remanded all three cases for reconsideration in light
of its six-part holding that (1) “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”; (2) “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” “despite contrary language” in
B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998); (3) the range of options
available “should include video recording, using a fixed camera that captures the
actions and words of both the examiner and the plaintiff”; (4) when defense
examiners are concerned that TPOs or recordings “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”; (5) a court that permits a TPO to
attend a DME “shall impose reasonable conditions to prevent the observer from
interacting with the plaintiff or otherwise interfering with the exam”; and (6) “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.” Id. at 106-07. The Court granted
leave to appeal. 251 N.J. 374 (2022); 251 N.J. 376 (2022).
1
HELD: *The Court affirms the Appellate Division’s core holding that trial
courts determine on a case-by-case basis what conditions, if any, to place on a DME
-- including who may attend and whether it may be recorded -- with no absolute
prohibitions or entitlements. The Court further affirms that video recording, in
addition to audio recording, should be included in the range of options; that the
parties shall enter into a protective order when a defense expert is concerned about
the disclosure of proprietary information; that when third-party observation is
permitted, the trial court shall impose reasonable conditions to prevent any
disruption of or interference with the exam; and that, if a foreign or sign language
interpreter is needed, a neutral interpreter shall be selected by the parties or, failing
agreement, by the court.
*The Court departs from the Appellate Division only in declining to
place the burden on the plaintiff to show special reasons why third-party observation
or recording should be permitted in each case. Instead, once the defendant issues
notice to the plaintiff of a Rule 4:19 exam, the plaintiff should inform the defendant
if they seek to bring a neutral observer or unobtrusively record the examination. If
the defendant objects, the two sides should meet and confer to attempt to reach
agreement. If agreement is impossible, the defendant may move for a protective
order under Rule 4:10-3 seeking to prevent the exam from being recorded, or to
prevent a neutral third-party observer from attending. Factors including a plaintiff’s
cognitive limitations, psychological impairments, language barriers, age, and
inexperience with the legal system may weigh in favor of allowing unobtrusive
recording and the presence of a neutral third-party observer.
*The Court is confident in the ability of trial courts to decide what to
permit and what to forbid so that examinations can proceed with fairness to both
parties. The Court anticipates that in most cases, disputes regarding third-party
observation and recording can and will be resolved without involving the court.
1. The Court reviews the text of the Court Rules relevant to this case -- Rule 4:19,
entitled “Physical and Mental Examination of Persons,” and Rule 4:10-3, which
allows a plaintiff who objects to a noticed DME to move for a protective order.
Rule 4:19 now provides that defendants may require plaintiffs “whose physical or
mental condition is in controversy to submit to a physical or mental examination by
a medical or other expert by serving upon that party a notice stating with specificity
when, where, and by whom the examination will be conducted and advising, to the
extent practicable, as to the nature of the examination and any proposed tests.”
(emphasis added). Before it was amended in 2000, however, the Rule allowed a
court, “on motion for good cause shown” and an “affidavit stating the party’s
refusal,” to order a refusing party to “submit to a physical or mental examination by
a medical or other expert.” R. 4:19 (1994). The court order was required to specify
the “time, place, manner, conditions, and scope of the examination.” (pp. 18-20)
2
2. The Court has never before considered the recording or third-party observation of
a DME under Rule 4:19 or Rule 4:10-3. Carley is the only such published Appellate
Division decision, and it predates the 2000 amendment to Rule 4:19. Carley stands
for the proposition that a plaintiff need not show special reasons to justify recording
a psychological examination or bringing counsel or a representative to a physical
examination. In Wellmann ex rel Wellmann v. Road Runner Sports, Inc., the Law
Division applied the amended Rule 4:19 to the question of third-party observation
and recording and noted that it was unclear “whether the plaintiff has the burden of
showing special circumstances to warrant the attorney’s presence at or the recording
of a physical exam, or whether the defendant has the burden of showing special
reasons to exclude the plaintiff’s attorney or other representative from a physical
examination.” 458 N.J. Super. 373, 377-80 (Law Div. 2018). The court found that
the minor plaintiff in that case was entitled to record and have counsel and/or her
parents present regardless of who bore the burden, and it emphasized the many ways
in which a DME differs from an examination with a plaintiff’s treating physician.
Id. at 380-81. (pp. 20-23)
3. Noting that a video or audio recording, or a TPO, may in some circumstances be
vital to preserving evidence of a DME, the Court agrees with prongs (1) and (3)
through (6) of the Appellate Division’s six-prong holding. (pp. 23-25)
4. The Court departs from the Appellate Division’s holding on prong (2),
concluding instead that placing the burden on defendants to show why a neutral TPO
or an unobtrusive recording should not be permitted in a particular case best
comports with the realities of DMEs and the text of Rules 4:19 and 4:10-3. It also
ensures fairness in our civil justice system. A DME is very different from a
plaintiff’s examination by her own treating physician or any doctor of her choosing
and has unique status within our adversarial legal system as the only instance in
which a defense expert may conduct discovery on a plaintiff without plaintiff’s
counsel present. The Court notes that a DME itself is inherently adversarial. The
Court disagrees with the Appellate Division’s view that altering the burden of proof
was justified by the 2000 amendments to Rule 4:19. Whereas the pre-2000 Rule
4:19 stated that the court’s order “shall specify the time, place, manner, conditions,
and scope of the examination and the person or persons by whom it is to be made,”
the amended Rule 4:19 permits a defendant to dictate only “when, where, and by
whom” the examination will be conducted. (emphases added). The change to Rule
4:19 thus does not support placing a burden on the plaintiff to justify third-party
observation or recording of a DME. (pp. 25-28)
5. Further, Rule 4:19 does not require plaintiffs to move for a protective order if
they oppose the conditions that a defendant has imposed on a DME. Instead, it
provides that plaintiffs must move for a protective order if they refuse to submit to
the Rule 4:19 examination. Rule 4:10-3 also does not require a plaintiff to move for
3
a protective order to bring a neutral TPO or a recording device to a DME.
Subsection (a) of that Rule can be read to refer to a motion by a plaintiff who refuses
to submit to a DME, whereas subsection (e) can be read to reference a motion by a
defendant to preclude third-party observation at a DME. None of the provisions of
Rule 4:10-3 seem to apply to a plaintiff who seeks to bring a TPO to a DME. And
the analyses adopted by other states and by the Federal Rules of Civil Procedure
likewise do not support placing the burden on the plaintiff to show special
circumstances to justify a neutral TPO or recording in each particular case.
(pp. 28-32)
6. The Court holds that if a plaintiff seeks to bring a neutral TPO to a Rule 4:19
exam, or to audio or video record the exam, plaintiff’s counsel should notify
defendant. If defense counsel opposes the third-party observation or recording, the
parties should meet and confer in an effort to reach agreement. Failing an
agreement, defendant can move for a protective order under Rule 4:10-3 to bar the
observation or recording. The Court provides guidance to trial courts regarding the
case-by-case analysis that must then be undertaken to decide what to permit or
forbid. The Court’s holding applies only to neutral TPOs, not attorneys, and it is
limited to third-party observers, not third parties who seek to interfere with or
disrupt the exam. The Court refers to the Civil Practice Committee whether Rules
4:19 or 4:10-3 should be amended to reflect the holding in this case. (pp. 32-34)
7. The Court explains why it finds unwarranted the concern that, in light of the 2016
Policy Statement of the American Board of Professional Neuropsychology and the
position taken by the State Board of Psychological Examiners in this litigation,
neuropsychologists will refuse to perform evaluations if ordered by a court to permit
a neutral TPO or recording. (pp. 34-37)
8. The question presented in this case involves only defense medical examinations,
which are conducted solely for purposes of litigation, not treatment. The Court
refers to the Civil Practice Committee whether there should be any provision to
allow defendants to record or observe examinations by non-treating doctors arranged
by plaintiffs’ counsel solely for the purposes of litigation. (pp. 37-38)
AFFIRMED AS MODIFIED. REMANDED to the trial courts.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, and
PIERRE-LOUIS join in JUSTICE WAINER APTER’s opinion. JUSTICE
FASCIALE and JUDGE SABATINO (temporarily assigned) did not
participate.
4
SUPREME COURT OF NEW JERSEY
A-58/59/60 September Term 2021
087091
Kathleen DiFiore,
Plaintiff-Appellant,
v.
Tomo Pezic, Pezo, Inc.,
Great American Assurance Co.,
Chubb, and Arthur J. Gallagher & Co.,
& Bollinger, Inc.,
Defendants,
and
Driss Elhamdouchi,
Route 94 Limousine, Inc.,
and 201 Taxicab, LLC,
Defendants-Respondents.
Dora Deleon,
Plaintiff-Appellant,
v.
The Achilles Foot and Ankle Group,
Defendant,
and
1
Franklin N. Levinson, and
Eileen F. Levinson,
Defendants-Respondents.
Jorge Remache-Robalino,
Plaintiff-Appellant,
v.
Nader Boulos, M.D.,
Lani Mendelson, M.D., and
St. Joseph’s Regional Medical Center,
Defendants-Respondents.
On appeal from the Superior Court,
Appellate Division, whose opinion is reported at
472 N.J. Super. 100 (App. Div. 2022).
Argued Decided
January 3, 2023 June 15, 2023
Nicholas T. Delaney argued the cause for appellant
Kathleen DiFiore (Houghton Delaney, attorneys;
Nicholas T. Delaney and Katherine G. Houghton, on the
briefs).
Sherry L. Foley argued the cause for appellant Dora
Deleon (Foley & Foley and Greenberg & Walden,
attorneys; Sherry L. Foley, Timothy J. Foley, and Marvin
R. Walden, Jr., of counsel and on the brief).
Christina Vassiliou Harvey argued the cause for appellant
Jorge Remache-Robalino (Lomurro, Munson, Comer,
Brown & Schottland, attorneys; Jonathan H. Lomurro, of
counsel, Christina Vassiliou Harvey, of counsel and on
2
the briefs, and Jeffrey J. Niesz and Andrew B. Broome,
on the briefs).
Cynthia A. Satter argued the cause for respondents Driss
Elhamdouchi, Route 94 Limousine, Inc., and 201
Taxicab, LLC (Blick Law, attorneys; Cynthia A. Satter
and Shaun I. Blick, on the brief).
Monique D. Moreira argued the cause for respondents
Franklin N. Levinson and Eileen F. Levinson (Moreira
Sayles Ramirez, attorneys; Monique D. Moreira, on the
brief).
Charles E. Murray, III, argued the cause for respondents
Nader Boulos, M.D., Lani Mendelson, M.D., and St.
Joseph’s Regional Medical Center (Farkas & Donohue,
attorneys; Charles E. Murray, III, of counsel and on the
briefs).
Catherine B. Derenze argued the cause for amici curiae
Medi-Law Solutions, LLC and the National Association
of Certified Legal Nurse Consultants (Lite DePalma
Greenberg & Afanador, attorneys; Catherine B. Derenze
and Bruce D. Greenberg, on the brief).
Andrew M. Moskowitz argued the cause for amicus
curiae National Employment Lawyers Association of
New Jersey (Javerbaum Wurgaft Hicks Kahn Wikstrom
& Sinins, attorneys; Andrew M. Moskowitz, on the
brief).
James S. Lynch argued the cause for amicus curiae New
Jersey Association for Justice (Lynch, Lynch, Held &
Rosenberg, attorneys; James S. Lynch and Joseph M.
Cerra, on the brief).
Nancy Costello Miller, Deputy Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Matthew J. Platkin, Attorney General, attorney;
3
Donna Arons, Assistant Attorney General, of counsel,
and Nancy Costello Miller, on the brief).
Michelle M. O’Brien argued the cause for amicus curiae
New Jersey Defense Association (Flanagan, Barone &
O’Brien, attorneys; Michelle M. O’Brien, of counsel and
on the brief).
JUSTICE WAINER APTER delivered the opinion of the Court.
We are asked here to clarify procedures regarding who may attend a
defense medical examination -- as well as whether and how such examinations
may be recorded -- when a plaintiff has alleged cognitive limitations,
psychological impairments, or language barriers.
In personal injury actions and other cases in which the mental or
physical condition of the plaintiff is in controversy, Rule 4:19 allows
defendants to require plaintiffs to be physically or mentally examined by the
defendants’ chosen expert. After examining the plaintiff, the selected doctor
generally prepares a report opining on the plaintiff’s condition, which is used
in evaluating the existence and extent of plaintiff’s injury, illness , or capacity.
Often, the doctor who conducted the defense medical examination (DME) will
testify at trial for the defense.
Before us are three personal injury actions. In each, the defendants
required the plaintiffs to submit to a DME; two of the DMEs were
4
neuropsychological exams, and one was an orthopedic exam. Plaintiffs, who
had alleged cognitive limitations, psychological impairments, or language
barriers, sought to record the examinations or to be accompanied by a third-
party observer (TPO) at the examination. After various trial court rulings, the
Appellate Division consolidated the cases for purposes of its opinion. DiFiore
v. Pezic, 472 N.J. Super. 100, 104 n.1 (App. Div. 2022).
We granted leave to appeal and now affirm the Appellate Division’s
decision as modified. We affirm the Appellate Division’s core holding that
trial courts determine on a case-by-case basis what conditions, if any, to place
on a DME -- including who may attend and whether it may be recorded -- with
no absolute prohibitions or entitlements. We further affirm that video
recording, in addition to audio recording, should be included in the range of
options; that the parties shall enter into a protective order when a defense
expert is concerned about the disclosure of proprietary information; that when
third-party observation is permitted, the trial court shall impose reasonable
conditions to prevent any disruption of or interference with the exam; and that,
if a foreign or sign language interpreter is needed, a neutral interpreter shal l be
selected by the parties or, failing agreement, by the court.
We depart from the Appellate Division only in that we decline to place
the burden on the plaintiff to show special reasons why third-party observation
5
or recording should be permitted in each case. Instead, once the defendant
issues notice to the plaintiff of a Rule 4:19 exam, the plaintiff should inform
the defendant if they seek to bring a neutral observer or unobtrusively record
the examination. If the defendant objects, the two sides should meet and
confer to attempt to reach agreement. If agreement is impossible, the
defendant may move for a protective order under Rule 4:10-3 seeking to
prevent the exam from being recorded, or to prevent a neutral third-party
observer from attending. Factors including a plaintiff’s cognitive limitations,
psychological impairments, language barriers, age, and inexperience with the
legal system may weigh in favor of allowing unobtrusive recording and the
presence of a neutral third-party observer. Although defense
neuropsychologists cannot dictate the terms under which DMEs are held, they
can raise concerns that may weigh against recording or third-party observation
in particular instances.
Guided by the principles we discuss below, we are confident in the
ability of trial courts to decide what to permit and what to forbid so that
examinations can proceed with fairness to both parties. We also anticipate that
in most cases, disputes regarding third-party observation and recording can
and will be resolved without involving the court.
6
I.
The underlying facts and procedural history are carefully described in
the Appellate Division’s thorough opinion. We include only a summary here.
A.
Plaintiff Kathleen DiFiore was in her early seventies in 2018 when she
suffered serious injuries in an accident while riding in a taxicab. She was
hospitalized for three weeks and diagnosed with a traumatic brain injury,
amnesia, expressive aphasia, memory loss, seizure, neck fractures, twelve rib
fractures, a fractured sternum, and bilateral collapsed lungs. In an assessment
completed two years later, DiFiore’s expert opined that her traumatic brain
injury was so severe that she “requires a home health aide 24 hours per day for
her lifetime.”
DiFiore attended an orthopedic DME in May 2020, accompanied by her
friend and medical proxy, Susan Harper Lloyd, and her nurse consultant, Jane
Barone. In October 2020, two of the defendants -- Driss Elhamdouchi, the taxi
driver, and Route 94 Limousine, Inc., the taxi proprietor -- scheduled DiFiore
for a neuropsychological DME with Dr. Keith Benoff.1 Plaintiff advised that
1
According to the Cleveland Clinic, “[n]europsychology is a specialty field
that joins the medical fields of neurology, psychology and psychiatry.
Neuropsychology involves determining how well the brain is working when it
is disrupted by a brain injury or psychological disorder,” and “[a]
neuropsychological assessment is a comprehensive test of a wide range of
7
she would again be accompanied by her medical proxy and a nurse consultant.
Defendant claims that plaintiff’s medical proxy stated that she would answer
questions on plaintiff’s behalf, but plaintiff disputes that contention, and states
that the medical proxy intended to simply observe the exam. Defendant
eventually filed a motion to compel the DME with only one person present --
the medical proxy or the nurse consultant -- and then sought to bar any third
party from attending. Plaintiff argued that because of her injuries, she would
have no memory of the DME and would be unable to assist her attorneys in
preparing for trial. Dr. Benoff certified that “he would be ‘prevented’ from
‘fairly and accurately assessing’” DiFiore if a representative was “permitted to
answer[] questions” on her behalf. DiFiore, 472 N.J. Super. at 114-15.
However, as the Appellate Division noted, “Dr. Benoff did not state that the
presence of a third party in the examination room would prevent him from
being able to properly assess a patient,” and he “made no statement . . . about
the use of recording devices of any kind.” Id. at 115. The trial court
eventually ordered DiFiore to attend the exam unaccompanied, with the
exception that the nurse consultant could enter the exam room to turn on an
audio recording device and then leave.
mental functions including behavior.” See https://my.clevelandclinic.org/
health/diagnostics/4893-neuropsychological-testing-and-assessment (last
visited June 8, 2023).
8
B.
In December 2017, Jorge Remache-Robalino, a native Spanish speaker
in his mid-fifties, was injured in a work-related accident that damaged his right
eye, ultimately leading to blindness in that eye. A psychiatrist later diagnosed
him with major depressive disorder and post-traumatic stress disorder, and
noted that his concentration and short-term memory were “mildly impaired.”
After defendants -- two doctors who treated plaintiff’s injuries and their
employer, St. Joseph’s Regional Medical Center -- noticed a
neuropsychological DME, Remache-Robalino sent a letter informing
defendants that, consistent with B.D. v. Carley, 307 N.J. Super. 259 (App. Div.
1998), he would audio record the DME. He asserted that his concentration and
memory issues, along with his lack of fluency in English, would leave him
unable to address any inconsistencies between the exam and the defense
expert’s report and testimony. Remache-Robalino specifically noted that “his
bilingual attorney had spotted mistakes by the interpreter at [his] deposition,”
DiFiore, 472 N.J. Super. at 116, and evidence of an inaccurate translation
during the DME would be lost without a recording or a third party present.
Defendants opposed an audio recording, certifying that their chosen
neuropsychologist, Dr. Joel Morgan, would not perform the examination if it
were recorded. In support of his position, Dr. Morgan cited the 2016 Policy
9
Statement of the American Board of Professional Neuropsychology Regarding
Third Party Observation and the Recording of Psychological Test
Administration in Neuropsychological Evaluations (ABN Policy Statement).
See Alan Lewandowski et al., ABN Policy Statement, 23 Applied Neuropsych.
391 (2016).
The trial court eventually ordered Remache-Robalino to submit to an
unrecorded and unaccompanied DME. “[T]he judge found that the presence of
an interpreter chosen by the defendants [did] not constitute a waiver of
defendants’ arguments against the presence of additional third parties or
recording devices.” DiFiore, 472 N.J. Super. at 117.
C.
Plaintiff Dora Deleon suffered severe injuries to her cervical and lumbar
spines, as well as to both knees, after falling in front of a commercial property
in May 2019. Deleon, who is in her early seventies and speaks only Spanish,
alleged that her fall was caused by hazardous conditions on the sidewalk.
Defendants -- the property owner and a commercial tenant -- noticed an
orthopedic DME with Dr. Adibe. Deleon informed defendants that she would
attend with a nurse practitioner from Medi-Law Solutions, LLC (Medi-Law).
Defendants, not Dr. Adibe, objected to the nurse practitioner’s attendance and
moved to compel an unrecorded and unaccompanied DME. Deleon opposed
10
the motion. In opposition to the motion, Deleon submitted a certification from
Jane Barone, the owner and president of Medi-Law and the nurse consultant
who had sought to accompany DiFiore to her appointment with Dr. Benoff.
Barone certified that her office had attended over 2,500 DMEs in the last ten
years without complaint, including several with Dr. Adibe. She noted that the
nurses sit “unobtrusively” and simply take notes during the examination. The
trial court nonetheless ordered Deleon to attend the DME alone and without
recording, finding that plaintiff had not proven any special circumstances
warranting the presence of a nurse consultant.
D.
The Appellate Division granted plaintiffs’ motions for leave to appeal to
determine “when, if ever, a plaintiff with alleged cognitive limitations,
psychological impairments, or language barriers can be accompanied by a third
party to a [DME], or require that the examination be video or audio recorded
in order to preserve objective evidence of what occurred during the
examination.” DiFiore, 472 N.J. Super. at 105. The Appellate Division also
granted motions to participate as amici curiae to the New Jersey Association
for Justice (NJAJ) and the New Jersey Defense Association (NJDA), and
invited the Attorney General to participate on behalf of the State Board of
Psychological Examiners (Board). Id. at 119.
11
In a published opinion, the appellate court sought to balance plaintiffs’
concerns that experts “might not accurately describe what occurred at the
exam” and that plaintiffs “might not be capable of effectively rebutting the
examiners’ versions of the sessions” without a recording or third-party
observer, against defendants’ concern “that the presence of a third party or a
recording device within the exam room might distract the plaintiff or otherwise
interfere with the DME.” Id. at 105.
Although a DME is not “an adversarial proceeding,” the Appellate
Division stated, it is also not “always a purely objective exercise.” Id. at 121.
“The examiners tend to be hired repeatedly by insurance companies and
defense firms” and often testify against plaintiffs at trial. Ibid. The court
analyzed the text of Rule 4:19, the 2000 amendments to the Rule, and the 2016
ABN Policy Statement. Id. at 126. The appellate court also reviewed its prior
published opinion in B.D. v. Carley, as well as relevant Law Division
decisions. Concluding that Carley “should be updated and revised in some
respects,” DiFiore, 472 N.J. Super. at 129, the Appellate Division issued a six-
part holding:
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.
12
Second, despite contrary language in Carley, 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 (as is the case in two of the appeals before
us) 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.
[Id. at 106-07.]
The court remanded all three cases for reconsideration. Id. at 107.
In separate orders, we granted plaintiffs’ motions for leave to appeal.
See 251 N.J. 374 (2022); 251 N.J. 376 (2022). In addition to the amici who
participated before the Appellate Division and continued to participate before
this Court, we also granted leave to the National Employment Lawyers
13
Association of New Jersey (NELA) and to Medi-Law Solutions, LLC and the
National Association of Certified Legal Nurse Consultants (collectively, Medi-
Law) to appear as amici curiae.
II.
Plaintiffs argue that Carley created a “presumption” in favor of allowing
a third-party observer or recording at a DME. By shifting the burden to
plaintiffs to “justify third-party presence and/or recording,” plaintiffs contend,
the Appellate Division improperly created a “sea change departing from New
Jersey case law.” The Appellate Division also erred, plaintiffs maintain, when
it determined “that DMEs are not ‘an adversarial proceeding’ per se.”
Plaintiffs urge this Court to read Rules 4:19 and 4:10-3 in tandem to hold that
the party seeking to restrict access to an exam -- whether it be in the form of a
third-party observer or a recording device -- should be compelled to move for
a protective order and bear the burden of demonstrating why such limitations
are necessary.
According to defendants, a DME is no more adversarial than a plaintiff’s
medical exam. Defendants contend that the Appellate Division correctly
placed the burden on plaintiffs to demonstrate a need for a recording or a third-
party observer, as “the party with access to the most information as to the
plaintiff’s health and needs should bear the burden of demonstrating such to
14
the court.” The Appellate Division’s decision, defendants maintain, rests on
“sound legal reasoning” and “should not be disturbed,” as neither Rule 4:19
nor Rule 4:10-3 contemplates a defendant bearing the burden when a plaintiff
seeks to impose conditions on a DME. Defendants also assert that plaintiffs
seek to “evade the effectiveness of neuro-psychological examinations” by
seeking to record DMEs, knowing the best neuropsychologists refuse to
perform recorded exams.
The Attorney General advises that the Board endorses the ABN Policy
Statement, which it says demonstrates that the presence of third-party
observers violates guidelines for neuropsychological examiners. If a
psychologist is “found to have deviated from professional standards and, by
having done so, violated the Board’s regulations,” the Attorney General
asserts, the practitioner could be subject to sanctions. The Attorney General
argues that separation of powers would not preclude the Board from
disciplining an examiner for violating standards of practice, even if performed
under a court order. However, the Attorney General acknowledges that the
Judiciary has the constitutional authority to control pretrial discovery.
NJAJ urges this Court to clarify that under Carley and the 2000
amendments to Rule 4:19, plaintiffs have a presumptive right to record and to
the presence of a patient advocate during a DME, and defendants can limit
15
those rights only upon a showing of “special reasons.” Responding to the
Board and the ABN Policy Statement, NJAJ cites the American Psychological
Association’s “Statement on Third Party Observers in Psychological Testing
and Assessment: A Framework for Decision Making,” which notes there is no
ethical rule barring third-party observation at psychological exams.
Additionally, NJAJ argues that it would be “arbitrary and capricious agency
action for the state [Board] to sanction a mental health professional for”
abiding by a court order.
NELA reasons that a DME is an adversarial proceeding and an
“anomaly” in civil litigation, as the only discovery procedure through which a
plaintiff can be compelled to undergo an adversarial examination outside the
presence of counsel. Citing other states that permit third-party representatives,
audio, and video recording of DMEs, NJAJ argues that placing the burden on
defendants to prove an “undue burden” is consistent with Rule 4:10-3.
Medi-Law notes that the power imbalance between a physician and a
plaintiff has long been ameliorated by the presence of a legal nurse consultant
(LNC) in the examination room. Medi-Law contends that an LNC -- “a
registered nurse who undergoes additional training and accreditation that
allows them to assist counsel in understanding medical issues that arise in their
cases” -- does not serve as a plaintiff advocate, but as a silent observer. An
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LNC’s presence during a DME, Medi-Law maintains, protects a plaintiff’s
right to cross-examination when a plaintiff is unable to recount what occurred
during a DME.
NJDA asserts DMEs are not adversarial proceedings and contends that
plaintiffs are seeking accompaniment not by an “independent observer,” but by
an advocate. The Appellate Division’s decision leaves plaintiffs and
defendants on “equal footing,” NJDA explains, but plaintiffs seek to gain the
“upper hand” in seeking additional safeguards under Rule 4:19. According to
NJDA, the Appellate Division was therefore correct to reconsider Carley.
III.
A.
This case concerns a discovery dispute over a court rule. Generally, “[a]
trial court’s resolution of a discovery issue is entitled to substantial deference
and will not be overturned absent an abuse of discretion.” State v. Stein, 225
N.J. 582, 593 (2016). We defer to the trial court’s decision so long as it is not
“so wide [of] the mark that a manifest denial of justice resulted,” Rowe v. Bell
& Gossett Co., 239 N.J. 531, 551-52 (2019) (alteration in original) (quoting
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)), or is not “based on a
mistaken understanding of the applicable law,” State in Int. of A.B., 219 N.J.
17
542, 554 (2014) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 371 (2011)).
However, we review the meaning or scope of a court rule de novo,
applying “ordinary principles of statutory construction to interpret the court
rules.” State v. Robinson, 229 N.J. 44, 67 (2017). We begin with the plain
language of the rule, and “ascribe to the [words of the rule] their ordinary
meaning and significance . . . and read them in context with related provisions
so as to give sense to the [court rules] as a whole.” Wiese v. Dedhia, 188 N.J.
587, 592 (2006) (alterations in original) (quoting DiProspero v. Penn, 183 N.J.
477, 492 (2005)). Unlike statutes, which we have no license to amend, our
Constitution vests us with authority to “make rules governing the
administration of all courts in the State and, subject to the law, the practice and
procedure in all such courts.” N.J. Const. art. VI, § 2, ¶ 3. We exercise this
authority to “ensure greater fairness in the administration of justice” -- to make
our civil justice system more fair. Orientale v. Jennings, 239 N.J. 569, 592
(2019) (emphasis added).
B.
Rule 4:19, entitled “Physical and Mental Examination of Persons,”
provides in part:
In an action in which a claim is asserted by a party for
personal injuries or in which the mental or physical
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condition of a party is in controversy, the adverse party
may require the party whose physical or mental
condition is in controversy to submit to a physical or
mental examination by a medical or other expert by
serving upon that party a notice stating with specificity
when, where, and by whom the examination will be
conducted and advising, to the extent practicable, as to
the nature of the examination and any proposed tests.
[R. 4:19 (emphasis added).]
A plaintiff who objects to the noticed DME can move for a protective
order under Rule 4:10-3, which provides:
On motion by a party or by the person from whom
discovery is sought, the court, for good cause shown or
by stipulation of the parties, may make any order that
justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue
burden or expense, including, but not limited to, one or
more of the following:
(a) That the discovery not be had;
(b) That the discovery may be had only on specified
terms and conditions, including a designation of the
time or place;
(c) That the discovery may be had only by a method
of discovery other than that selected by the party
seeking discovery;
(d) That certain matters not be inquired into, or that
the scope of the discovery be limited to certain
matters;
(e) That discovery be conducted with no one present
except persons designated by the court . . . .
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[R. 4:10-3; see also Il Grande v. DiBenedetto, 366 N.