N.J. Supreme Court Ruling May Reshape IME Procedures for Defendants

A recent N.J. Supreme Court decision and subsequent update to New Jersey Rule 14:19-2 has changed how parties, specifically defendants, need to approach Independent Medical Examinations (IMEs) in bodily injury matters. These formal developments follow what was already a shifting landscape.

In DiFiore v. Pezic, 254 N.J. 212 (2023), the Court discussed whether the attendance of third-party observers at an IME should be permitted. The Court found that trial judges “must balance both the need for an accurate record and the imbalance of power between a medical professional and a patient against any valid concern regarding the expert’s ability to conduct an accurate assessment of the patient’s condition with a recording or a neutral third-party observer.” Id. at 238. Such a balancing test, the Court stated, must be conducted on a case-by-case basis, without “absolute prohibitions or entitlements.” The Court provided several factors that can influence this balancing test, such as “the plaintiff’s age, ability to communicate, cognitive limitations, psychological impairments, inexperience with the legal system, and language barriers.” However, the Court noted that none of these factors are dispositive. Id. at 238.

Following DiFiore, the burden was shifted to defendants to demonstrate why a plaintiff should not be entitled to having a third-party observer present at an IME.

DiFiore follows a rising trend in personal injury matters: plaintiffs are now seeking to have third-party observers attend IMEs. Although the extent of observation varies, firms generally hire an independent nurse or seek to audio or visually record the examination. Typically, plaintiffs seek such observations or recordings, they argue, in the interest of fairness. However, these observations can create an imbalance at trial, as defendants are typically not presented with the same opportunity to observe or record plaintiffs’ treatment with their treating physicians, who will ultimately provide a narrative report.

In September 2024, following DiFiore, Rule 4:19-2 came into effect, which provides that once a notice for an IME has been served, the party receiving the IME notice must serve, within fourteen days, a notice to utilize a third-party observer. If the party who noticed the IME objects, then that party may then move for a protective order under Rule 4:10-3.

DiFiore and the newly adopted Rule 4:19-2 have now shifted the burden to defendants to establish, vis-à-vis a protective order, that a plaintiff is not permitted to have a third-party observer attend an IME. Although DiFiore and Rule 4:19-2 shift the burden to defendants, subsequent decisions by New Jersey trial courts have signaled that DiFiore is not absolute, and defendants may still prevail in securing a protective order for a plaintiff’s IME. A few considerations should be taken into account for inclusion in a motion for a protective order.

Upon retention of an IME expert, defendants should confirm that their doctor is comfortable with the potential third-party observer attending an eventual IME. Further, upon notice of an IME, counsel should be aware of factors that may weigh in favor of a court entering a protective order, such as when plaintiff’s counsel first requested the observer; who the third-party observer is (i.e., is this truly a neutral observer); if plaintiff has been deposed in the matter, and whether plaintiff demonstrated the need for a third-party observer, either through cognitive limitations, psychological impairments, or language barriers; and the type of IME requested.

The post-DiFiore landscape has created new issues that parties must consider from the inception of litigation if they plan to seek a protective order barring observation or recording at an IME. These considerations will continue to develop as parties work to establish further clarity on when and why a plaintiff will be allowed to record or bring a third-party observer to an IME.