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 16 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 18 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 . . . . 19 [R. 4:10-3; see also Il Grande v. DiBenedetto, 366 N.