In a prior article posted on this site, we reported the Appellate Division decision to make the personal injury plaintiff responsible for justifying the attendance of a third party observer at a defense medical exam. This practice is customary in my office in order to protect the plaintiff from any unconscionable or improper activity on the part of the examining physician, who is being paid by the defendant’s insurance company. In the article, we pointed out that the defense examiner’s role is to minimize the victim’s condition to enable the insurer to pay less in settlement or a verdict. Vigilance on the plaintiff’s side is crucial in such situations.
I am pleased to report that the New Jersey Supreme Court reversed the Appellate Division decision in DiFiore v Pezic to put the burden on the defendant to demonstrate why a third party observer or an “unobtrusive recording” should not be permitted at a defense exam.
The Court went on to confirm that attendance should be determined on a case by case basis, “without absolute prohibitions or entitlements”. It suggested that audio and video recording, using a smartphone, could be easy and unobtrusive. The Court also noted that a party could apply for a protective order to limit the use of the information recorded during the exam if warranted.
It was also noted that reasonable conditions could be imposed on the third party observer to prevent interference with the exams and to provide for interpreters where the plaintiff does not speak English or where the use of sign language is needed.
The Supreme Court emphasized that the examining room should not be turned into a courtroom.
It is gratifying to me personally that my consistent and long time practice of sending third party observers to defense exams has been blessed by the highest court of this State.
I am a veteran personal injury attorney handling cases primarily in Middlesex, Somerset, Union, Monmouth and Ocean Counties. Please call for a free consultation on your crash or accident today.
