NJ Appellate Court Rules on Recording Devices or Presence of Third Parties During Defense Ordered Medical/Psychological Exams of Plaintiffs Who are Cognitively Impaired or Have a Language Barrier

05.05.22

It has long been the rule in New Jersey that plaintiffs are entitled to have recording devices or third-party monitors in the room when they undergo a defense-ordered medical examination. The appellate court has revoked the case law that carried the presumption that recording devices are allowed in the examination room and instead have put that decision in the hands of the trial judge on a case-by-case basis. It is the plaintiff’s burden to justify to the court that third-party presence or recording or both are required. If a third-party is permitted to attend, the court shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.

Plaintiffs and defendants each raised concerns about the defense ordered examination process where the plaintiff is alleged to be cognitively or physiologically impaired. Plaintiffs worry that the examiners the defense hire might not accurately describe what happened in the exam and this makes cross examination of the medical expert that much more difficult at trial. Defendant’s concern is that the presence of a third-party or recording device in the exam room might distract the plaintiff or otherwise interfere with the examination in some way. The Superior Court affirmed their prior holdings that the expert does not have the right to dictate the terms under which the examination shall be held.

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