1 

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-bycase 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). 
2 

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) 
3 

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 
4 

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. 
1 

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 
2 

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 

January 3, 2023 

Decided 

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 
3 

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; 
4 

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 
5 

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 thirdparty 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 shall 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 
6 

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. 
7 

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 
8 

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).
9 

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 
10

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 
11

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. 
12

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 sixpart 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. 
13

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 
14

Association of New Jersey (NELA) and to Medi-Law Solutions, LLC and the 

National Association of Certified Legal Nurse Consultants (collectively, MediLaw) 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 thirdparty 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
15

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 
16

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 
17

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. 
18

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 
19

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 . . . . 
20

[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 thirdparty 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. 
21

 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 
22

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 preamendment 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 
23

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 
24

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 
25

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 thirdparty 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 
26

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 
27

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 
28

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). 
29

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 
30

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 
31

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, 
32

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 
33

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 
34

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 third2

 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. 
35

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 
36

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. 
37

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 
38

therefore refer to the Civil Practice Committee whether there should be any 

provision to allow defendants to record or observe examinations by nontreating 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.