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 por tions of the opinion.

Kathleen DiFiore v. Tomo Pezic (A-58/59/60- 21 ) ( 087091) Argued January 3, 2023
-- Decided June 15, 20 23 WAINER APTER, J., writing for a unanimous Court. In this appeal, the Court clarifies procedures reg arding 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, so ught to record the examination s 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 rec onsideration 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 evaluate d by trial judges on a case- by

case basis, with no absolute prohibitions or entitl ements ”; (2) “ it shall be the plaintiff’s burden henceforth to justify to the cou rt 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 camer a that captures the actions and words of both the examiner and the plai ntiff ”; (4) when defense examiners are concerned that TPOs or rec ordings “ might reveal alleged proprietary information about the content and sequence of the e xam, the parties shall cooperate to enter into a protective order, so that such info rmation 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 o bserver from interacting with the plaintiff or otherwise interfe ring 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 pa rties 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 rec orded

-- 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 whe n third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption of or interference with the exam; and th at, 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 r easons why third-party observation or recording should be permitted in each case. Ins tead, once the defendant issues notice to the plaintiff of a Rule 4:19 exam, the pl aintiff should inform the defendant if they seek to bring a neutral observer or unobtru sively record the examination. If the defendant objects, the two sides should meet an d confer to attempt to reach agreement. If agreement is impossible, the defenda nt 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, l anguage barriers, age, and inexperience with the legal system may weigh in fav or of allowing unobtrusive recording and the presence of a neutral third-party observer.

*The Court is confident in the ability of trial cou rts 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 rele vant to this cas e -- Rule 4:19, entitled “Physical and Mental Examination of Person s,” 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 p hysical or mental examination by a medical or other expert by serving upon that part y a notice stating with specificity when, where, and by whom the examination will be co nducted and advising, to the extent practicable, as to the nature of the examina tion and any proposed tests. ” (e mphasis added). Before it was amended in 2000, however, the Rule al lowed a court, “on motion for good cause shown” and an “aff idavit stating the party’s refusal,” to order a refusing party to “submit to a physical or mental examination by a medical or oth er expert.” R. 4:19 (1994). The court order was required to spec ify the “time, place, manner, conditions, and scope of the examination.” (pp. 18- 20 )3

2. The Court has never before considered the recor ding 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 amendme nt 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 quest ion 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 attorn ey’s presence at or the recording of a physical exam, or whether the defendant has the b urden of showing special reasons to exclude the plaintiff’s attorney or othe r representative from a physical examination.” 458 N.J. Super. 373, 377- 80 (Law Div. 2018). The court found th at the minor plaintiff in that case was entitled to re cord 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 p laintiff’s treating physician. Id. at 380- 81 . (pp. 20- 23 ) 3. Noting that a video or audio recording, or a TP O, may in some circumstances be vital to preserving evidence of a DME, the Court ag rees 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 defen dants 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 physici an 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 p laintiff 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 t he time, place, manner, conditions, and scope of the examination and the person or pers o ns 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 add ed). 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 imp osed 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 n ot require a plaintiff to move for4

a protective order to bring a neutral TPO or a reco rding 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 r ead 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 b ring a TPO to a DME. And the analyses adopted by other states and by the Fed eral Rules of Civil Procedure likewise do not support placing the burden on the p laintiff 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 br ing a neutral TPO to a Rule 4:19 exam, or to audio or video record the exam, plainti ff’s counsel should notify defendant. If defense counsel opposes the third-pa rty observation or recording, the parties should meet and confer in an effort to reac h agreement. Failing an agreement, defendant can move for a protective orde r under Rule 4:10 -3 to bar the observation or recording. The Court provides guida nce to trial courts regarding the case- by -case analysis that must then be undertaken to deci de 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 Pr actice 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 Professio nal Neuropsychology and the position taken by the State Board of Psychological Examiners in this litigation, neuropsychologists will refuse to perform evaluatio ns if ordered by a court to permit a neutral TPO or recording. (pp. 34

- 37 ) 8. The question presented in this case involves on ly defense medical examinations, which are conducted solely for purposes of litigati on, not treatment. The Court refers to the Civil Practice Committee whether ther e 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 l itigation . (pp. 37

- 38 ) AFFIRMED AS MODIFIED. REMANDED to the trial court s. CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUSTICE WAINER APT ER’s opinion. JUSTIC E FASCIALE and JUDGE SABATINO (temporarily assigned) did not participate.1 SUPREME COURT OF NEW JERSEY A- 58/59/60 September Term 20 21

087091
Kathleen DiFiore, Plaintiff-Appellant,

v. Tomo Pezic, Pezo, Inc., Great American Assurance Co., Chubb, and Arthur J. Gallagher & Co.,

& Bollinger, Inc., Defendant s, 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, and2 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. 20 22 ). Argued January 3, 2023 Decided June 15, 2023
Nicholas T. Delaney argued the cause for appellan t Kathleen DiFiore (Houghton Delaney, attorneys; Nicholas T. Delaney and Katherine G. Houghton, on t he briefs). Sherry L. Foley argued the cause for appellant Dora Deleon (Foley & Foley and Greenberg & Walden, attorneys; Sherry L. Foley, Timothy J. Foley, and M arvin R. Walden, Jr., of counsel and on the brief). Christina Vassiliou Harvey argued the cause for app ellant Jorge Remache-Robalino (Lomurro, Munson, Comer, Brown & Schottland, attorneys; Jonathan H. Lomurro, of counsel, Christina Vassiliou Harvey, of counsel and on3 the briefs, and Jeffrey J. Niesz and Andrew B. Broo me, 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. Satt er and Shaun I. Blick, on the brief). Monique D. Moreira argued the cause for respondents Franklin N. Levinson and Eileen F. Levinson (Moreir a Sayles Ramirez, attorneys; Monique D. Moreira, on t he brief). Charles E. Murray, III, argued the cause for respon dents 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 o n the briefs). Catherine B. Derenze argued the cause for amici cur iae Medi-Law Solutions, LLC and the National Associatio n of Certified Legal Nurse Consultants (Lite DePalma Greenberg & Afanador, attorneys; Catherine B. Deren ze 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 N ew 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, arg ued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attor ney;4 Donna Arons, Assistant Attorney General, of counsel , and Nancy Costello Miller, on the brief). Michelle M. O’Brien argued the cause for amicus cur iae 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 C ourt.
We are asked here to clarify procedures regarding w ho 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 whic h the mental or physical condition of the plaintiff is in controver sy, Rule 4:19 allows defendants to require plaintiffs to be physical ly or mental ly examined by the defendants’ chosen expert. After examin ing 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 ea ch, the defendants required the plaintiffs to submit to a DME; two of the DMEs were5

neuropsychological exams, and one was an orthopedic exam. Plaintif fs , who had alleged cognitive limitations, psychological im pairments, or language barriers, sough t to record the examinations or to be accompanied b y a thirdparty observer (TPO) at the examination. After var ious trial court rulings, the Appellate Division consolidated the cases for purpo ses of its opinion

. DiFiore v. Pezic, 472 N.J. Super. 100, 104 n.1 (App. Div. 2 022). 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 rec orded

-- with no absolute prohibitions or entitlements. We furth er affirm that video recording, in addition to audio recording, should b e 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 proprie tary information; that when third-party observation is permitted, the trial cou rt shall impose reasonable conditions to prevent any disruption of or interfer ence 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 t he 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 observation6

or recording should be permitted in each case. Ins tead, once the defendant issue s notice to the plaintiff of a Rule 4:19 exam, the plaintiff should inform the defendant if they seek to bring a neutral obser ver or unobtrusively record the examination. If the defendant objects, the two sides should meet and confer to attempt to reach agreement. If agreement is im possible , the defendant may move for a protective order under Rul e 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 limitatio ns, psychological impairments, language barriers, age, and inexperience with the legal system may weigh in favor of allowing unobtru sive recording and the presence of a neutral third-party observer. Although defense neuropsychologists cannot dictate the terms under w hich 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 an d what to forbid so that examinations can proceed with fairness to both part ies. We also anticipate that
in most cases , dis putes regarding third-party observation and recordi ng can and will be resolved without involving the court

.7 I. The underlying facts and procedural history are car efully described in the Appellate Division’s thorough opinion. We include only a summary here

. A. Plaintiff Kathleen DiFiore was in her early seventi es in 2018 when she suffered serious injuries in an accident while ridi ng in a taxicab. She was hospitalized for three weeks and diagnosed with a t raumatic brain injury, amnesia, expressive aphasia, memory loss, seizure, neck fractures, twelve rib fractures, a fractured sternum, and bilateral colla psed 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, ac companied by her friend and medical proxy, Susan Harper Lloyd, and he r nurse consultant, Jane Barone. In October 2020, two of the defendants

-- Driss Elhamdouchi, the taxi driver, and Route 94 Limousine, Inc., the taxi prop rietor

-- scheduled DiFiore for a neuropsychological DME with Dr. Keith Benoff. 1 Plaintiff advised that

1 According to the Cleveland Clinic, “[n]europsycholo gy is a specialty field that joins the medical fields of neurology, psychol ogy and psychiatry. Neuropsychology involves determining how well the b rain is working when it is disrupted by a brain injury or psychological dis order ,” and “[a] neuropsychological assessment is a comprehensive te st of a wide range of8

she would again be accompanied by her medical proxy and a nurse consultant. Defendant claims that plaintiff’s medical proxy stated that she would ans wer questions on plaintiff’s behalf , but plaintiff disputes that contention, and state s that the medical proxy intended to simply observe t he exam. Defendant eventually filed a motion to compel the DME with on ly 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 as sist her attorneys in preparing for trial. Dr. Benoff certified that “he would be ‘prevented’ from ‘fairly and accurately assessing’” DiFiore if a rep resentative was “permitted to answer[] questions” on her behalf. DiFiore, 472 N.J. Super. at 114

- 15. However, as the Appellate Division noted, “Dr. Beno ff did not state that the presence of a third party in the examination room w ould prevent him from being able to properly assess a patient,” and he “m ade no statement . . . about the use of recording devic es of any kind.” Id. at 115. The trial court eventually ordered DiFiore to attend the exam unacc ompanied, 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 vi sited Jun e 8, 2023).9 B. In December 2017, Jorge Remache-Robalino, a native Spanish speaker in his mid-fifties, was injured in a work-related a ccident that damaged his right eye, ultimately leading to blindness in that eye. A psychiatrist later diagnosed him with major depressive disorder and post-traumat ic 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, 30 7 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 e xam 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 t hat their chosen neuropsychologist, Dr. Joel Morgan, would not perfo rm the examination if it were recorded. In support of his position, Dr. Mor gan cited the 2016 Policy10

Statement of the American Board of Professional Neu ropsychology Regarding Third Party Observation and the Recording of Psycho logical Test Administration in Neuropsychological Evaluations (A BN 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 c onstitute a waiver of defendants’ arguments against the presence of addit ional 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 condi tions on the sidewalk

. Defendants

-- the property owner and a commercial tenant

-- noticed an orthopedic DME with Dr. Adibe. Deleon informed def endants that she would attend with a nurse practitioner from Medi-Law Solu tions, LLC (Medi-Law). Defendants, not Dr. Adibe, objected to the nurse pr actitioner’s attendance and moved to compel an unrecorded and unaccompanied DME

. Deleon opposed11

the motion. In opposition to the motion , Deleon submitted a certification from Jane Barone, the owner and president of Medi-Law an d the nurse consultant who had sought to accompany DiFiore to her appointment with Dr. B enoff. 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 th e DME alone and without recording, finding that plaintiff had not proven an y 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 b e video or audio recorded in order to preserve objective evidence of what occ urred during the examination.” DiFiore, 472 N.J. Super. at 105. The Appellate Div ision also granted motions to participate as amici curiae to t he New Jersey Association for Justice (NJAJ) and the New Jersey Defense Assoc iation (NJDA), and invited the Attorney General to participate on beha lf 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 occurre d 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 “th at the presence of a third party or a recording device within the exam room might distrac t the plaintiff or otherwise interfere with the DME.” Id. at 105.
A lthough a DME is not “an adversarial proceeding,” the Appellate Division stated, it is also not “always a purely objective exercise

. ” Id. at 121.
“T he examiners tend to be hired repeatedly by insuran ce 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 Divi sion issued a sixpart holding:

First, a disagreement over whether to permit third- party observation or recording of a DME shall be evaluate d 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, us ing 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 o r a recording might reveal alleged proprietary informat ion about the content and sequence of the exam, the parties shall cooperate to enter into a protective order, s o 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 preve nt 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 b efore us) the examiner shall utilize a neutral interprete r 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 reconsiderat ion. Id. at 1 07.
I n separate orders, we granted plaintiffs’ motions for leave to appeal

. See 251 N.J. 374 (2022); 251 N.J. 376 (2022). In a ddition to the amici who participated before the Appellate Division and cont inued to participate before this Court, w e also granted leave to the National Employment Lawye rs14

Association of New Jersey (NELA) and to Medi-Law So lutions, LLC and the National Association of Certified Legal Nurse Consu ltants (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
Je rsey 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 to15

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 neuropsychologica l examiners. If a psychologist is “found to have deviated from pr ofessional 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 t o the presence of a patient advocate during a DME, an d defendants can limit16

th ose 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 psy chological exams. Additionally, NJAJ argues that it would be “ arbitrary and capricious agency action for the state [Board] to sanction a mental h ealth 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 adversaria l examination outside the presence of counsel. Citing other states that perm it third-party representatives, audio, and video recording of DMEs, NJAJ argues tha t 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 p hysician and a plaintiff has long been ameliorated by the presence of a legal nurse consultant (LNC) in the examination room. Medi-Law contends t hat an LNC

-- “ a registered nurse who undergoes additional training and accreditation that allows them to assist counsel in understanding medi cal issues that arise in their

cases ”

-- does not serve as a plaintiff advocate, but as a s ilent observer. An17

LNC’s presence during a DME , Medi-Law maintains, protects a plaintiff’s right to cross-examination when a plaintiff is unab le to recount what occurred during a DME.
NJDA asserts DMEs are not adversarial proceedings and co ntends 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 en titled to substantial deference and will not be overturned absent an abuse of discr etion .” 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) (alterat ion in original) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (19 99)) , 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. N ew 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 construc tion to interpret the court rules.” State v. Robinson, 229 N.J. 44, 67 (2017). We beg in with the plain language of the rule, and “ascribe to the [words of the rule] their ordin ary meaning and significance . . . and read them in con text 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) ( quo ting 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, subj ect 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 ju stice ”

-- to make our civil justice system more fair. Orientale v. J ennings, 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 part y for personal injuries or in which the mental or physica l19 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 speci ficity 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 test s. [ 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 show n or by stipulation of the parties, may make any order t hat justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue bu rden 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 th e 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 t hat 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 Rul e 4:19 DME moves for a protective order under Rule 4:10 -3).] Rule 4:19 was substantially amended in 2000. Before the ame ndment , 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 phy sical or mental examination by a medical or other expert.” R. 4:19 (1994). The court order was required to specify the “time, place, man ner, conditions, and scope of the examination.” Ibid. (emphasis added).
C. No decision of this Court has ever considered the r ecording or thirdparty observation of a DME under Rule 4:19 or Rule 4:10 -3

. Carley is the only such publish ed Appellate Division decision, and it predates t he 2000 amendment to Rule 4:19 . In Carley , the defendant scheduled a psychological DME. 307 N.J. Super. at 260. P laintiff’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 upo n the “examining psychologist’s statement that she believed audiotap ing would influence the examination and might affect the examination’s vali dity.” Ibid.21

The Appel late Division reversed. It noted that “in a psycho logical or psychiatric examination,” the presence of the plaintiff’s attorney “could be distracting,” but held there was no similar issue with audio recordin g:

We determine here that the defense psychologist doe s 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 plainti ff is being treated. Plaintiff ’ s right to preserve evidence of the nature of the examination, the accuracy of t he 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 repre sentative at physical examinations (other than psychological or psychiatr ic examinations) and also limit[ed] the use of recording devices at psychiatr ic or psychological examinations.” Carley, 307 N.J. Super. at 262 (emphasis added). C arley thus stands for the proposition that a plaintiff need no t show special reasons to justify recording a psychological examination or br ing ing counsel or a representative to a physical examination. The Law D ivision applied the amended Rule 4:19 to the question of third-party observation and recording in one publis hed decision, Wellmann ex22

rel. Wellmann v. Rd. Runner Sports, Inc., 458 N.J. Super. 373 (Law Div. 2018). In Wellmann, the defendant filed a motion t o compel seven-year- old Ryan to attend two medical examinations “without co ndition, without attendance of a third party (including one of her p arents), and without the ability to record the examination. ” Id. at 375-76. Plaintiffs “ cross-move[d] for a protective order that permits recording by ei ther audio or video, or both, of any defense medical examinations, and permits th ird-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 tha t although Carley suggested that “defendant has the burden of showing special reasons to exclude the plaintiff’s attorney or other represent ative from a physical examination,” an earlier opinion of the Law Divisio n 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 an d/or a recording device should be used.” Id. at 3 77

- 78 (citing Carley, 307 N.J. Super. at 262; Briglia v. Exxon Co., USA, 310 N.J. Super. 498, 502 (L aw Div. 1997))

. It was therefore unclear “ whether the plaintiff has the burden of showing spe cial circumstances to warrant the attorney’s presence at or the recording of a physical exam, or whether the defendant has the bur den of showing special23

reasons to exclude the plaintiff’s attorney or othe r representative from a physical examination .” Id. at 380. Regardless of who bore the burden, the court held, Ryan sh ould 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 d iffers from an examination with a plaintiff’s treating physician

. Ibid.
IV. With that background in mind, we address the quest ion presented in this case: whether the presence of third-party observer s and the recording of DMEs are permitted when a plaintiff has alleged cog nitive limitations, psychological impairments, or language barriers.
A.
W e agree with much of the Appellate Division’s comprehensive opinion. A video or audio recording, or a third-party observ er, 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 r eport may, of course,

“ include observations and findings . . . that are inaccurate.” Id. at 122. While in certain “routine scenarios” plaintiffs may be able to “refu te the examiner’s account of what occurred at the DME” at trial, that may not be true for24

plaintiffs w ith cognitive limitations, psychological impairments, or language barriers. Ibid. Even for people without such limi tations, impairments, or barriers , the Appellate Division correctly recognized that “the stress and anxiety of the exam itself with an unfamiliar docto r or other professional may ” diminish a person’s ability to “absorb and recall what occur red 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 dec ide 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 resolv ing a dispute as to what occurred during a DME “could be significant.” Id. at 1 30. 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, b oth audio and video recording seem easy to accomplish and not unduly disruptive. As to prong four, we agree with the prescription tha t “ 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 informatio n about the exam. Id. at25

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 reaso nable conditions should be imposed on third-party observers to ensur e 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 agree ment, 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 s how why a neutral thirdparty observer or an unobtrusive recording should n ot 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 c ivil justice system. A DME is a compelled medical examination. It is ve ry 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 her26

attorney, a DME can involve a plaintiff being physi cally touched without her consent, or asked extraordinarily personal question s 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 with out plaintiff’s counsel present. And especially for pl aintiffs 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 wh at 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,” Wellma nn , 458 N.J. Super. at 381, the same is often true for plaintiffs with cognitive disabil ities or language barriers, and for many other plaintiffs. While defendants are correct that plaintiffs put th eir mental or physical condition in controversy by filing a lawsuit, th eir 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 [D ME] with the hope27

of furthering its litigation position. Thus, the e xamining 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 Ap pellate Division was correct that a DME is not “ine vitably 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 1 21 , the examination is inherently adversarial. According to the Appellate Division, altering the b urden 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 t o require plaintiffs to attend a DME without obtaining a court order based on a showing of good cause. In the ordinary course, plaintiffs thus mus t submit to DMEs without any court review, and without a defendant making an y 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 spe cificity28

when, where, and by whom the examination will be co nducted and advising, to the extent practicable, as to the nature of the exa mination and any proposed tests.” (emphases added). Rather than maintain ing 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 r ecording. 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 p rotective order if they refuse to submit to the Rule 4:19 examination. R. 4:19 (emphasi s 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 p erson 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 disc overy is sought ,” the court may order “(a) That the discovery not be had;” or “ (e) That discovery be conducted with no one present except p ersons 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 DM E, 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 observ er to a DME. We find that the analys es adopted by other states and by the Federal Rules of Civil Procedure likewise do not support pl acing the burden on the plaintiff to show special circumstances to justify a neutral third-party observer or recording in each particular case. As the Appel late Division correctly noted , “[ t]he majority rule adopted by the federal courts is that the court may, and often should, exclude third-party observers, in cluding counsel, from30

medical or psychiatric evaluations. ” Flack v. Nutribullet, L.L.C., 333 F.R.D. 508, 517 (C.D. Cal. 2019) (quoting Smolko v. Unimar k Lowboy Transp., LLC , 327 F.R.D. 59, 61 (M.D. Pa. 2018)); see DiFiore, 47 2 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 orde r to

“ designat[e] the persons who may be present while th e 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 DM Es. See, e.g., William Scott Wyatt & Richard A. Bales, The Presence of Thi rd Parties at Rule 35 Examinations, 71 Temple L. Rev. 103, 123 (1998) (“The procedural rules or judicial decisions of many states expressly or impl iedly 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 th ird -party attendance and recording are permitted, so long as neither will “adversely31

affect the examination’s outcome”); Cal. Code Civ. P. § 2032.510 (the examinee’s attorney or a representative for the at torney 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) (“ U pon reasonable notice, the party being examined . . . m ust 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 i nterfere with the examination ” )

. Even where court rules do not unambiguously permit third-party observation or recording at DMEs, the courts of man y 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 at torney 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) (recordi ng of a DME does not
i mpede an examiner’s ability to conduct a fair exami nation); Thorpe v. Poore , 83 Va. Cir. 453, 453-54 (2011) (because a DME is pa rt of the adversarial
process, a plaintiff is entitled to video record a DME). We therefore hold that i f a plaintiff seeks to bring a neutral third-party observer to a Rule 4:19 exam, or to audio or video record the exam, plainti ff’s counsel should notify defendant. If defense counse l opposes the third-party observation or recording, the parties should meet a nd confer in an effort to reach agreement. Failing an agreement, defendant c an move for a protective order under Rule 4:10 -3 to b ar 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 accu rate record and the imbalance of power between a medical professional a nd a patient against any valid concerns regarding the expert’s ability to conduct an accurate assessment33

of the patient’s condition with a recording or a ne utral third -party observer. The plaintiff’s age, ability to communicate, cognit ive limitations, psychological impairments, inexperience with the le gal system, and language barriers are all relevant to th is determination; other factors may be as well

. The degree of possible negative impact on an examin ation must also be assessed. It is difficult to imagine, for example, how a third party who silently observes a dental examination could negatively impa ct th e 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 holdin g 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 interpr eter would not. Pertinent too is the type of observer. A licensed nurse silently taking notes is different in kind from an attorney interje cting 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, not34

attorneys. 2 Similarly, our holding is limited to third-party ob servers, 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 practic es and procedures of New Jersey courts pursuant to Article VI , Section 2, Paragraph 3 of the New Jersey Co nstitution, 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 neutr al third-party observer or recording. In our view, th at 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 cla ims 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 ce rtified that “he would be ‘prevented’ from ‘fairly and accurately as sessing’” 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 pro hibit neuropsychologists from abiding by court orders to allow neutral third-party observation or recording. Instead, it discusses va rious “ General Principles, ” including “ Integrity ” and “ Justice, ” and “ Ethical Standards ” includ ing

“ Competence ” and “ Assessment. ” Lewandowski, 23 Applied Neuropsych. at 391

- 94. Under “ Ethical Standard 2: Competence, ” the Policy Statement notes that neuropsychological test ing must be conducted in an environment that is free from interference or distraction, which genera lly 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 ” whe n a third-party observer is present, because “ TPO presence yields [a n] evaluation of questionable validity.” I bid. However, the Policy Statement also recognizes that the presence of an “unbiased, impartial, and neutral th ird -party observer may be necessary to proceed with or complete a neuropsycho logical assessment ” for36

certain children, elderly adults, or others with sp ecific disabilities. Id. at 395

- 96

. When such a third party is present, the “examiner is ethically requir ed to document . . . any deviations of standardization or modifications in test administration” and to note any “limitations of

. . . findings.” Id. at 396. While the Policy S tatement concludes that “altering test procedures t o accommodate observation or recording compromises te st standardization and affects the subsequent data set obtained,” it also acknowledges that neutral third-party observers may be necessary in certain s ituations, including because of a court order. I d. at 3 95 -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 w ith all due respect to professional associations, they do not set court rules of this state. As the Appel late 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 exam ination 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 Exami ners. The Attorney General asserts that although the Board never codif ied the ABN Policy Statement into regulation, it could still disciplin e a psychologist for deviating from professional standards, including those set fo rth in the Policy Statement.37

A threat of discipline or sanction cou ld then “limit the pool of evaluators” available to a court. The Attorney General maintai ns that even if the neuropsychologist was complying with a court order, “the order alone would not necessarily insulate the psychologist from Boar d scrutiny ” or disci pline. 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 thi s case involves only defense medical examinations, which are conducted s olely 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 bel ow and to this court, they did not explicitly request or demand the ability to rec ord or observe examinations by non-treating physicians arranged by plaintiffs’ counsel solely for the purposes of litigation. While there was significan t 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 d id not brief and decline to do so here. See, e.g. , Gormley v. Wood- El , 218 N.J. 72, 95 n.8 (2014). We38

therefore refer to the Civil Practice Committee whe ther there should be any provision to allow defendants to record or observe examinations by nontreating doctors arranged by plaintiffs’ counsel so lely 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 furthe r proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMO N, and PIERRE- LOUIS join in JUSTICE WAINER APTER’s opinion. JUSTICE FASCIALE and JUDGE SABATINO (temporarily assigned) did not participate.