In a significant legal development, the Supreme Court recently rendered a decision in Kathleen DiFiore v. Tomo Pezic that sheds light on the procedures and nuances associated with defense medical examinations (DMEs). In every case where an injury is being alleged, the defense attorneys are entitled to have the claimant, evaluated by a physician of their choosing. This evaluation becomes the basis for the doctor’s report, and, ultimately, the basis for their testimony later.
The case involved three personal injury actions where plaintiffs, who had alleged cognitive limitations, psychological impairments, or language barriers, were required to undergo DMEs. The primary issue revolved around whether the plaintiffs could record the examinations or have a third-party observer present. The Appellate Division consolidated the cases and established a six-part holding, suggesting that the allowance for third-party observation or recording should be assessed on a case-by-case basis. Generally, these evaluations were unobserved or unrecorded, so these cases were appealed even further to New Jersey Supreme Court.
However, the New Jersey Supreme Court unanimously affirmed the Appellate Division's core holding, endorsing a case-by-case approach to determine the conditions for DMEs. This includes deciding who may attend the examination and whether it can be recorded. The Court agreed with most aspects of the Appellate Division's ruling, such as the inclusion of video recording, protective orders to safeguard proprietary information, and imposing reasonable conditions for third-party observers. However, it disagreed with placing the burden on the plaintiff to justify the need for third-party observation or recording. Going forward, the burden is on the defense attorneys to show why their evaluation should not be observed or recorded after being provided proper notice. The parties are encouraged to engage in meaningful discussions to reach an agreement on how the exam should take place. If no consensus is reached, the defendant can seek a protective order.
By endorsing a case-by-case approach, the Court emphasizes the need for fairness and consideration of specific circumstances. The whole point of our judicial system is a search for the truth of what happened in a situation, and if someone is injured that we get a clear picture of the effects of those injuries. We are very encouraged that the Court recognized the importance that the evaluations by the physicians need to be fair and open for all parties so that we can get to a meaningful resolution of the case.