holding that a plaintiff is entitled to have an attorney present during a DME
How later courts described this case
- holding that a plaintiff is entitled to have an attorney present during a DME
- recording of a DME does not impede an examiner’s ability to conduct a fair examination
- because a DME is part of the adversarial process, a plaintiff is entitled to video record a DME
- detailing the process that applies if a plaintiff who refuses to undergo a Rule 4:19 DME moves for a protective order under Rule 4:10-3
Written by the judges who cited it.
The 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.J.
Super. 597 (App. Div. 2004) (detailing the process that
applies if a plaintiff who refuses to undergo a Rule 4:19
DME moves for a protective order under Rule 4:10-3).]
Rule 4:19 was substantially amended in 2000. Before the amendment,
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.” Ibid. (emphasis added).
C.
No decision of this Court has ever 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. In Carley, the defendant scheduled a psychological
DME. 307 N.J. Super. at 260. Plaintiff’s counsel indicated that his client
intended to audio record the exam. Ibid. The trial judge granted defendant’s
motion to preclude a recording, relying in part upon the “examining
psychologist’s statement that she believed audiotaping would influence the
examination and might affect the examination’s validity.” Ibid.
20
The Appellate Division reversed. It noted that “in a psychological or
psychiatric examination,” the presence of the plaintiff’s attorney “could be
distracting,” but held there was no similar issue with audio recording:
We determine here that the defense psychologist does
not have the right to dictate the terms under which the
examination shall be held. This is a discovery
psychological examination, not one in which plaintiff
is being treated. Plaintiff’s right to preserve evidence
of the nature of the examination, the accuracy of the
examiner’s notes or recollections, the tones of voice
and the like outweigh the examiner’s preference that
there be no recording device.
[Id. at 262 (emphasis added).]
Carley explicitly overruled Stoughton v. B.P.O.E. No. 2151, 281 N.J.
Super. 605 (Law Div. 1995), insofar as it had “generally limit[ed] without
special reasons, the presence of counsel or a representative at physical
examinations (other than psychological or psychiatric examinations) and also
limit[ed] the use of recording devices at psychiatric or psychological
examinations.” Carley, 307 N.J. Super. at 262 (emphasis added). Carley thus
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.
The Law Division applied the amended Rule 4:19 to the question of
third-party observation and recording in one published decision, Wellmann ex
21
rel. Wellmann v. Rd. Runner Sports, Inc., 458 N.J. Super. 373 (Law Div.
2018). In Wellmann, the defendant filed a motion to compel seven-year-old
Ryan to attend two medical examinations “without condition, without
attendance of a third party (including one of her parents), and without the
ability to record the examination.” Id. at 375-76. Plaintiffs “cross-move[d]
for a protective order that permits recording by either audio or video, or both,
of any defense medical examinations, and permits third-party representatives
to be present during the examinations.” Id. at 376. The court denied
defendants’ motion and granted plaintiffs’ cross-motion. Ibid.
As an initial matter, the Wellmann court noted that although Carley
suggested that “defendant has the burden of showing special reasons to
exclude the plaintiff’s attorney or other representative from a physical
examination,” an earlier opinion of the Law Division had stated that the pre -
amendment Rule 4:19 “place[d] the burden on plaintiffs to justify why in their
particular case their attorney should be present and/or a recording device
should be used.” Id. at 377-78 (citing Carley, 307 N.J. Super. at 262; Briglia
v. Exxon Co., USA, 310 N.J. Super. 498, 502 (Law Div. 1997)). It was
therefore 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
22
reasons to exclude the plaintiff’s attorney or other representative from a
physical examination.” Id. at 380. Regardless of who bore the burden, the
court held, Ryan should be permitted to audio and/or video record the exam,
and to have her counsel and/or her parents present. Id. at 380-81. In so
holding, the court emphasized the many ways in which a DME differs from an
examination with a plaintiff’s treating physician. Ibid.
IV.
With that background in mind, we address the question presented in this
case: whether the presence of third-party observers and the recording of
DMEs are permitted when a plaintiff has alleged cognitive limitations,
psychological impairments, or language barriers.
A.
We agree with much of the Appellate Division’s comprehensive opinion.
A video or audio recording, or a third-party observer, the Appellate Division
rightly held, may in some circumstances be vital to preserving evidence of a
DME. DiFiore, 472 N.J. Super. at 122-23. Often, a defense expert’s written
report is the only evidence of the exam. And the report may, of course,
“include observations and findings . . . that are inaccurate.” Id. at 122. While
in certain “routine scenarios” plaintiffs may be able to “refute the examiner’s
account of what occurred at the DME” at trial, that may not be true for
23
plaintiffs with cognitive limitations, psychological impairments, or language
barriers. Ibid. Even for people without such limitations, impairments, or
barriers, the Appellate Division correctly recognized that “the stress and
anxiety of the exam itself with an unfamiliar doctor or other professional may ”
diminish a person’s ability to “absorb and recall what occurred at [a] DME.”
Id. at 123.
We therefore affirm five prongs of the Appellate Division’s six-prong
holding. On prong one, we agree that trial judges must decide whether to
permit third-party attendance and/or recording of a DME on a case-by-case
basis, without “absolute prohibitions or entitlements.” Id. at 129.
On prong three, we concur that trial courts should consider both audio
and video recording, as the value of both in resolving a dispute as to what
occurred during a DME “could be significant.” Id. at 130. We likewise
concur that smart phones can unobtrusively be used to record a DME with
“minimal effort.” Ibid. Especially in the age of virtual meetings, both audio
and video recording seem easy to accomplish and not unduly disruptive.
As to prong four, we agree with the prescription that “the parties shall
cooperate to enter into a protective order” when a defense medical examiner is
concerned that third-party observation, or an audio or video recording, could
lead to the dissemination of proprietary information about the exam. Id. at
24
131. We likewise agree with the Appellate Division that a protective order is
appropriate to ensure that information about a DME “is solely used for the
purposes of the case and not otherwise divulged.” Ibid.
With regard to prongs five and six, we concur that reasonable conditions
should be imposed on third-party observers to ensure they do not interfere with
exams and that, where needed, a neutral foreign- or sign-language interpreter
shall be agreed on by the parties or, failing agreement, selected by the court.
B.
We depart from the Appellate Division’s decision only on prong two, the
appellate court’s holding that “despite contrary language in Carley . . . going
forward, it shall be the plaintiff’s burden to justify to the court that third-party
presence or recording, or both, is appropriate for a DME.” Id. at 130. We
conclude that placing the burden on defendants to show why a neutral third-
party observer 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 a compelled medical examination. It is very different from a
plaintiff’s examination by her own treating physician or any doctor of her
choosing. Whereas a plaintiff can choose to see a new doctor if she is
uncomfortable with her treating physician or with a doctor suggested by her
25
attorney, a DME can involve a plaintiff being physically touched without her
consent, or asked extraordinarily personal questions about her mental health
without her consent.
A DME is also unique in our adversarial system. It is the only instance
in which a defense expert may conduct discovery on a plaintiff without
plaintiff’s counsel present. And especially for plaintiffs with alleged cognitive
limitations, psychological impairments, or language barriers, a DME reflects a
profound power imbalance between the plaintiff and a medical professional
with long experience in the examination of patients and participation in court
proceedings. Just as “[a]t trial, if there is a dispute as to what happened in the
examinations, the likelihood of a seven-year-old’s testimony adequately
countering the testimony of an expert witness[] . . . , who has testified
hundreds of times, may be low,” Wellmann, 458 N.J. Super. at 381, the same
is often true for plaintiffs with cognitive disabilities or language barriers, and
for many other plaintiffs.
While defendants are correct that plaintiffs put their mental or physical
condition in controversy by filing a lawsuit, their contention that a DME is “no
more ‘adversarial’ than a plaintiff’s medical exam” by the plaintiff’s own
treating physician is incorrect. As the Kentucky Supreme Court has noted,
“[t]he examining party, almost by definition, moves for a [DME] with the hope
26
of furthering its litigation position. Thus, the examining physician will nearly
always be hired with an adversarial mind-set.” Metro. Prop. & Cas. Ins. Co. v.
Overstreet, 103 S.W.3d 31, 38 (Ky. 2003) (footnote omitted). Even if the
Appellate Division was correct that a DME is not “inevitably designed to
disprove claims of injury and trap plaintiffs into admitting or showing their
claims are exaggerated or fabricated,” DiFiore, 472 N.J. Super. at 121, the
examination is inherently adversarial.
According to the Appellate Division, altering the burden of proof was
justified by the 2000 amendments to Rule 4:19 and the rules adopted by other
states and by the Federal Rules of Civil Procedure. We disagree.
The 2000 amendment to Rule 4:19 made several significant changes. As
relevant here, the amended Rule allows defendants to require plaintiffs to
attend a DME without obtaining a court order based on a showing of good
cause. In the ordinary course, plaintiffs thus must submit to DMEs without
any court review, and without a defendant making any demonstration of good
cause for their attendance.
However, 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 allows defendants only to serve a notice “stating with specificity
27
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.” (emphases added). Rather than maintaining the original language,
under which a defendant would have been able to prescribe the “manner,
conditions, and scope of the examination,” the amended Rule instead 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.
Defendants assert that Rule 4:19 requires plaintiffs to move for a
protective order if they oppose the conditions that a defendant has imposed on
a DME, including as to third-party observation or recording. But the text of
Rule 4:19 does not support that reading. Instead, the Rule provides that a
defendant may notice only “when, where, and by whom” the examination will
be conducted, and that plaintiffs must move for a protective order if they
refuse to submit to the Rule 4:19 examination. R. 4:19 (emphasis added); see
also Il Grande, 366 N.J. Super. 597 (detailing the burden shifting framework
that applies if a plaintiff who refuses to undergo a noticed Rule 4:19 DME
moves for a protective order under Rule 4:10-3).
28
Rule 4:10-3 also does not require a plaintiff to move for a protective
order to bring a neutral third-party observer or a recording device to a DME.
While Fed. R. Civ. P. 26 requires a “party or any person from whom discovery
is sought” to move for a protective order to “designat[e] the persons who may
be present while the discovery is conducted,” Fed. R. Civ. P. 26(c)(1)(E)
(emphasis added), our Rule 4:10-3 has no similar provision. Instead, it
provides that “[o]n motion by a party or by the person from whom discovery is
sought,” the court may order “(a) That the discovery not be had;” or “(e) That
discovery be conducted with no one present except persons designated by the
court.” R. 4:10-3 (emphasis added). Subsection (a) 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 third-party observer to a DME.
We find that 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 third-party observer
or recording in each particular case. As the Appellate Division correctly
noted, “[t]he majority rule adopted by the federal courts is that the court may,
and often should, exclude third-party observers, including counsel, from
29
medical or psychiatric evaluations.” Flack v. Nutribullet, L.L.C., 333 F.R.D.
508, 517 (C.D. Cal. 2019) (quoting Smolko v. Unimark Lowboy Transp., LLC,
327 F.R.D. 59, 61 (M.D. Pa. 2018)); see DiFiore, 472 N.J. Super. at 128.
However, that is based in part on the text of Fed. R. Civ. P. 35(a)(2)(B) --
which, like the pre-amendment version of Rule 4:19, requires the court’s order
to “specify the time, place, manner, conditions, and scope of the examination”
-- and Fed. R. Civ. P. 26(c) -- which, as earlier noted, requires a “party or any
person from whom discovery is sought” to move for a protective order to
“designat[e] the persons who may be present while the discovery is
conducted.” (emphases added). Our current Rules 4:19 and 4:10-3 are
markedly different from the federal rules.
In contrast to the federal courts, the court rules of many states explicitly
allow for third-party attendance or recording of DMEs. See, e.g., William
Scott Wyatt & Richard A. Bales, The Presence of Third Parties at Rule 35
Examinations, 71 Temple L. Rev. 103, 123 (1998) (“The procedural rules or
judicial decisions of many states expressly or impliedly allow third parties to
be present at the examination.”); Pa. R. Civ. P. 4010(a)(4)(i) (“The person to
be examined shall have the right to have counsel or other representative
present during the examination.”); Ariz. R. Civ. P. 35(c) (both third-party
attendance and recording are permitted, so long as neither will “adversely
30
affect the examination’s outcome”); Cal. Code Civ. P. § 2032.510 (the
examinee’s attorney or a representative for the attorney may attend and record
the exam, “but shall not participate in or disrupt it”); Fla. R. Civ. P.
1.360(a)(1)(A) (setting forth detailed requirements for when “the examination
is to be recorded or observed by others”); Idaho R. Civ. P. 35(a)(3) (“Upon
reasonable notice, the party being examined . . . must have the right to have a
representative of his or her choice present for the examination.”); 735 Ill.
Comp. Stat. Ann. 5/2-1003(d) (“[T]he plaintiff has the right to have his or her
attorney, or such other person as the plaintiff may wish, present at [a
demanded] physical or mental examination.”); Okla. Stat. tit. 12, § 3235(D)
(“A representative of the person to be examined may be present at the
examination.”); Wash. CR 35(a)(2) (“The party being examined may have a
representative present at the examination, who may observe but not interfere
with or obstruct the examination.”); Utah R. Civ. P. 35(a) (allowing audio or
video recording of an examination “unless the party requesting the
examination shows that the recording would unduly interfere with the
examination”).
Even where court rules do not unambiguously permit third-party
observation or recording at DMEs, the courts of many of our sister states have
interpreted them to so authorize, in part because a DME is adversarial. See,
31
e.g., Jakubowski v. Lengen, 450 N.Y.S.2d 612, 613-14 (App. Div. 1982)
(holding that a plaintiff is entitled to have an attorney present during a DME);
Langfeldt-Haaland v. Saupe Enters., Inc., 768 P.2d 1144, 1146-47 (Alaska
1989) (plaintiff’s counsel is allowed to attend and record a DME “as a matter
of course” because a DME is “part of the litigation process”); Jacob v.
Chaplin, 639 N.E.2d 1010, 1013 (Ind. 1994) (recording of a DME does not
impede an examiner’s ability to conduct a fair examination); Thorpe v. Poore,
83 Va. Cir. 453, 453-54 (2011) (because a DME is part of the adversarial
process, a plaintiff is entitled to video record a DME).
We therefore hold that if a plaintiff seeks to bring a neutral third-party
observer 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 trial court must then decide what to permit or forbid with no
absolute prohibitions or entitlements. In undertaking a case-by-case analysis,
trial courts must balance both the need for an accurate record and the
imbalance of power between a medical professional and a patient against any
valid concerns regarding the expert’s ability to conduct an accurate assessment
32
of the patient’s condition with a recording or a neutral third-party observer.
The plaintiff’s age, ability to communicate, cognitive limitations,
psychological impairments, inexperience with the legal system, and language
barriers are all relevant to this determination; other factors may be as well.
The degree of possible negative impact on an examination must also be
assessed. It is difficult to imagine, for example, how a third party who silently
observes a dental examination could negatively impact the exam. As discussed
below, a neuropsychological examination may raise different concerns.
Whether the examination will already be attended by anyone other than the
doctor and plaintiff is also relevant. For example, for a person with limited
English proficiency who will already be accompanied by an interpreter, despite
the trial court’s holding regarding Remache-Robalino, it is not immediately
obvious how an unobtrusive recording device would call the validity of the
examination into question in a way that the interpreter would not.
Pertinent too is the type of observer. A licensed nurse silently taking
notes is different in kind from an attorney interjecting on behalf of their client.
We agree with the Stoughton court that “[t]here is no need to turn the
examining room into a court room.” 281 N.J. Super. at 611. We therefore
emphasize that our holding applies only to neutral third-party observers, not
33
attorneys.2 Similarly, our holding is limited to third-party observers, not third
parties who seek to interfere with or disrupt the exam. A person who sits
silently and unobtrusively takes notes is a far cry from a third party who seeks
to control, or participate in, the exam herself.
Given our constitutional authority over the practices and procedures of
New Jersey courts pursuant to Article VI, Section 2, Paragraph 3 of the New
Jersey Constitution, we also refer to the Civil Practice Committee whether
Rule 4:19 or Rule 4:10-3 should be amended to reflect our holding in this case.
C.
We respond only briefly to the defendants’ and Attorney General’s
prediction that in light of the 2016 ABN Policy Statement and the Board’s
position in this litigation, neuropsychologists will refuse to perform
evaluations if ordered by a court to permit a neutral third-party observer or
recording. In our view, that concern is unwarranted.
As an initial matter, we note that Dr. Benoff, one of the
neuropsychologists in this case, did not oppose the presence of a neutral third-
2
In their briefing before this Court, plaintiffs for the first time suggested that
“the right to legal representation during a DME may indeed arise from New
Jersey’s constitution and Statutes.” We do not ordinarily address legal claims
raised for the first time before our Court, see, e.g., State v. Tate, 220 N.J. 393,
412 (2015), and we decline to do so here.
34
party observer or a recording at DiFiore’s DME. Instead, he certified that “he
would be ‘prevented’ from ‘fairly and accurately assessing’” DiFiore if her
medical proxy was “permitted to answer[] questions on [her] behalf.” DiFiore,
472 N.J. Super. at 114-15 (emphasis added). Our holding would allow no such
thing.
The 2016 ABN Policy Statement likewise does not prohibit
neuropsychologists from abiding by court orders to allow neutral third-party
observation or recording. Instead, it discusses various “General Principles,”
including “Integrity” and “Justice,” and “Ethical Standards” including
“Competence” and “Assessment.” Lewandowski, 23 Applied Neuropsych. at
391-94. Under “Ethical Standard 2: Competence,” the Policy Statement notes
that neuropsychological testing must be conducted in an environment that is
free from interference or distraction, which generally means only the examiner
and examinee present in the room. Id. at 393. And under “Ethical Standard 9:
Assessment,” the Policy Statement notes that “[t]he psychologist cannot
provide opinions or evaluative statements” when a third-party observer is
present, because “TPO presence yields [an] evaluation of questionable
validity.” Ibid. However, the Policy Statement also recognizes that the
presence of an “unbiased, impartial, and neutral third-party observer may be
necessary to proceed with or complete a neuropsychological assessment” for
35
certain children, elderly adults, or others with specific disabilities. Id. at 395-
96. When such a third party is present, the “examiner is ethically required to
document . . . any deviations of standardization or modifications in test
administration” and to note any “limitations of . . . findings.” Id. at 396.
While the Policy Statement concludes that “altering test procedures to
accommodate observation or recording compromises test standardization and
affects the subsequent data set obtained,” it also acknowledges that neutral
third-party observers may be necessary in certain situations, including because
of a court order. Id. at 395-96.
We leave to the competent hands of the trial courts how to address the
Policy Statement if a particular neuropsychologist raises it in a particular case .
We note, however, that with all due respect to professional associations, they
do not set court rules of this state. As the Appellate Division correctly held,
“the expert assigned to conduct the Rule 4:19 examination ‘does not have the
right to dictate the terms under which the examination shall be held.’”
DiFiore, 472 N.J. Super. at 130 (quoting Carley, 307 N.J. Super. at 262).
Neither does the State Board of Psychological Examiners. The Attorney
General asserts that although the Board never codified the ABN Policy
Statement into regulation, it could still discipline a psychologist for deviating
from professional standards, including those set forth in the Policy Statement.
36
A threat of discipline or sanction could then “limit the pool of evaluators”
available to a court. The Attorney General maintains that even if the
neuropsychologist was complying with a court order, “the order alone would
not necessarily insulate the psychologist from Board scrutiny” or discipline.
However, the Attorney General conceded that no such scrutiny or discipline
has ever been imposed or even contemplated. If the Board ever attempted to
sanction a psychologist for following a court order and allowing a neutral
third-party observer or recording, we could address any challenge that arose.
D.
Finally, we note that the question presented in this case involves only
defense medical examinations, which are conducted solely for purposes of
litigation, not treatment. Defendants never argued that recording or third-party
observation should be available at examinations conducted by plaintiffs’
treating physicians. So too, in their briefing below and to this court, they did
not explicitly request or demand the ability to record or observe examinations
by non-treating physicians arranged by plaintiffs’ counsel solely for the
purposes of litigation. While there was significant discussion of that
possibility at oral argument, it is beyond the grant of certification in this case.
We generally do not reach issues that the parties did not brief and decline to do
so here. See, e.g., Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014). We
37
therefore refer 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.
V.
The judgment of the Appellate Division is affirmed as modified, and the
matters are remanded to the trial courts for further proceedings consistent with
this opinion.
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.
38