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Welcome to Jersey Justice, a civil law podcast that shares

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practical tips and stories about personal and workplace injuries.

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Join two of the brightest New Jersey injury attorneys.

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Gerald Clark and Mark Morris of Clark Law Firm.

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As they take you behind the scenes of.

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Justice and civil law.

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But first, a quick disclaimer.

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The information shared on this podcast is for general information purposes only.

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Nothing on this site should be taken as legal advice for any

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individual case or situation.

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This information is not intended to create and does not constitute

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an attorney-client relationship.

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Hello everyone.

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Welcome back to Jersey Justice.

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We are all back after the 4th of July holiday.

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That is why Jerry's looking really tanned today.

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Mark, I don't know what happened where Mark was.

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We'll have to talk about that.

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Before we even begin this episode, I'd like to actually start off and say,

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how was everyone's holiday weekend?

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Classic fourth July weekend, couple hot dogs, couple hamburgers.

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Still got all 10 fingers.

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Uh, saw some fireworks, but it was great.

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Well, and I did go to the beach, believe it or not.

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I guess I look a little pasty, but I was at the beach at least

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a couple days in pool time.

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I.

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Well, nice.

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So you guys are bringing back to originally how you guys met.

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So people go back and listen to episode one of our show.

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We tell the story of how you guys actually met and how you got hired at the firm.

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And it all goes back to the story of a beach and a lost wallet and a bar.

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So if you didn't watch that episode, go rewind all the way to episode

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one, subscribe to all the episodes.

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And also, before I forget, I do wanna mention that we

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are now taking questions for.

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The podcast.

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So if you guys wanna submit your questions, you can

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check out on the show notes.

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The email address for that is questions@jerseyjusticepodcast.com.

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So if you have a question that you'd like us to answer on the show, you can

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submit your questions there and you might actually hear it answered on the show.

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But before we dive into that, Jerry, how was your 4th of July weekend

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and did you do anything exciting?

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It wasn't too bad kind of.

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Well, to be honest, I spent the last couple days writing a brief.

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Yeah.

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Like the weather was real nice yesterday, but I spent a lot of

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time writing a brief on a case.

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Okay.

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But other than that, it was good.

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But I don't mind because I find it hard to not do much for long, for after

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a day or two of just not doing much.

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I get, I can get a little buggy, so I go back and start working again.

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So I don't know.

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That's lawyer life for you guys.

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Lawyer life.

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We're taking behind the scenes what really happens, you know,

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this is what, what they do.

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Well, mark, you're gonna say something.

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I was gonna say it's a blessing and a curse, but it's the same thing

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couple days and I start getting antsy.

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It's, it's rare over a stretch of time, like that same thing, I won't just stop

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into the office, make sure stuff's good, go through mail, just something to feel

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productive for, you know, that long period of time, I guess I'm the same way.

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I was like, I don't know what to do with myself with all these days where there's

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like, so I'm like, glad to be here today.

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Alright, today, today you guys, you're gonna dive in.

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We have a really special episode for you guys.

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We're gonna be talking about litigation medical exams, and we're gonna be

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discussing a recent New Jersey Supreme Court opinion on medical exams.

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I think you're gonna find this really fascinating 'cause it's not

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a topic that too many other legal podcasts are talking about, and we're

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gonna bring it to you first hand.

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So I'm gonna start this conversation off because you know, for our audience.

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So maybe you know Jerry or Mark, whoever wants to share some information, if you

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can explain what some of the terms are that we're gonna be, you know, calling

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out such as D M E T P O and a couple of other terms that we're gonna be using

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like IMEs who want, I'm gonna pass it to Jerry 'cause I know he's not ready,

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so I'm gonna pass it to him purposely.

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So, all right.

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Yeah, so there was a recent Supreme Court opinion.

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The Supreme Court in New Jersey is the highest court, and so all the other

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courts and cases have to follow what they say on an area that they write about.

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And in June, actually on June 15th, Which happens to me, my birthday, they came

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out with a really awesome opinion that levels the playing field in these cases.

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So basically what happens in a personal injury case at some point.

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The defendant is probably going to send the, the plaintiff, the injured

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person to a defense medical exam, and basically, we've talked about this in

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other podcasts, but basically they're gonna be sent to a doctor that's

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paid for by the insurance company.

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They're picked and paid for by the defense, and they get to do a

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physical exam of the person and they review all their medical records

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and everything, and then they.

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Inevitably frequently come up with a report that downplays the injuries.

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You know, if there are real injuries, they'll often say

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it's from before the the crash.

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If there's like a broken bone that had surgery with pins and

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screws, they'll often say that.

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It was an excellent result.

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We've actually had cases where these doctors testified in one particular

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case I remember, is a person had a really bad broken leg and you could

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see on the X-ray film like that.

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It healed like this, like one part of the bone was overlapping The other.

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And the defense doctor said, you know, that was perfect.

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Anatomical alignment.

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So basically in these cases, at some point they're gonna be sent to the, to

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this doctor, and it's not for treatment, it's for purposes of then that doctor

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will testify in court and try to convince the jury that your injuries aren't

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severe, that they're not permanent, that they're not from the crash.

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And often they will suggest that the plaintiff is a liar, a cheat, and a fraud.

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They'll never come out and say those words.

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But they'll say it in fancy terminology, like the objective evidence doesn't match

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the subjective complaints, which means the M R I or the x-ray doesn't support

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what he's telling you, which means I.

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He is a liar.

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He or she's a liar, a cheat.

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And they're a cheat if they're trying to get something that they don't deserve.

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And they're, and they're a fraud.

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So, so what our office would of a lot of times do is they would go to these exams

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and then what, what we would find in these exams, 'cause we've been doing this

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a long time, is often the doctors will downplay what happens at the exam where.

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Outright misrepresent.

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What happens at the exam?

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So for example, it's if it's a shoulder injury, they'll, they'll do a test

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and yes, they were able Tori lift their arm to the ceiling with no pain.

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Or if there's a neck injury, they'll do like a neck exam and they'll

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say they performed perfectly on the neck exam with no complaints.

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I remember one trial I did, I did recently.

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I'm just, I, I have in front of me the closing.

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The closing slides from that trial.

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So anyway, in one particular, in one particular trial, the defense expert

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testified that the neck exam was normal, and then for the low back exam.

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He testified in front of the jury that the, that the plaintiff

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refused to do the low back exam.

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But what we did is we had a nurse attend the exam and the nurse recorded the exam

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and the nurse then wrote a report which showed that the neck exam was not normal.

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That during it, that the client, when she was tilting her head

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doing it, that she had pain.

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And that she had limitations with that, but the defense doctor testified that it

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was full range of motion with no pain.

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And then what happens was we had, we had a transcript made of the recording,

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and these are my notes from trial with the highlights and the red and

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everything, which is different things I wanted to focus on at trial and.

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The transcript from that showed that it wasn't true because it,

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it, it indicated that, and like as to the low back, the doctor

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testified she refused to do the exam.

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But then when we, we had the transcript from the exam and we had the nurse, what

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actually happened, the question was, all right, why don't you stand up for a sec.

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Just face me here.

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This is the doctor talking.

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So I want you to try to touch your toes if you can.

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It's okay.

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Just do what you can do.

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And then the, our, our client says That's about it.

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And the doctor's like, great, come up.

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Come on up now.

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Now I want you to go to the side.

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To the other side.

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Okay.

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And then the, our client says, I'm losing my balance.

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And then the doctor says, yep, you can sit.

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Is that better?

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And our client, her name, and then our client says, says, yeah, that's better.

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So basically what happened was, The client lost her balance because of

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the situation and wasn't able to do the low back exam, and the doctor

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testified she refused to do it.

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So that's like another example.

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So basically the thing is we would, we would send nurses to, to these

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exams to review them, to observe them.

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And then depending on what the doctor testifies to at trial, we then put

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the nurse on right after the doctor, preferably, who then will talk about what

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they saw happen and then we'll record it.

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Okay.

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So the, so the insurance companies and the defense was resisting sending,

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allowing us to have nurses at the exams because, Basically what happens is you

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have a highly trained doctor in a room alone with, with a plaintiff who's

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looking for a recovery, and the defense says that this doctor's independent

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and it's always the farthest thing from independent, but they call them

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independent anyway, so it becomes a he said, she said, which is totally unfair.

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And so we would, we would send the nurses.

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We would record the exams and they're resisting that.

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So there was a, there was an opinion from a lower court in New Jersey, which

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says that if the plaintiff wants to bring a nurse to the exam, that they

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have to prove like a good reason for it and file like a motion and do a bunch

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of work and kind of climb like a hill.

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And jumped through a bunch of hoops to, to allow that to happen.

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So the Supreme Court reviewed that case and basically said that

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defense medical exams, they're not independent, they're defense medical

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exams because you know it's by the insurance company, it's by the defense.

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It's for purposes of testifying in the litigation.

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It's not independent and to level the playing field the plaintiff, Should be

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allowed to bring a third party observer, non-obtrusive observer to observe the

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exam and record what happened and record it should be permitted as a default rule.

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And then they, they flipped it and said, if the defense doesn't want that,

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then the defense has to file a motion and prove, you know, a good reason

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why they shouldn't be able to do that.

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And what happened was, When I heard about this issue, I wrote an article

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on this issue that was published in the New Jersey Law Journal.

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It's also on our website.

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It's called, there is no Such Thing as an I M E in New Jersey.

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Injury Litigation, and I m E is what the defense would call these things.

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I M e Standing for Independent Medical Examination, which is the funniest

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thing because people have been calling these these defense medical exams,

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independent medical exams for years.

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And, you know, in recent time the plaintiff's lawyers, you know, talking

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about why are, why are these called IMEs?

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They're not IMEs, they're the farthest thing from independent.

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You know, we, we've shown in cases that some of these doctors make

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millions of dollars a year testifying almost exclusively for the defense.

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So I, I got wind of this case.

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I heard about, you know, this issue and that it was, it was going around and then

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when the lower court opinion came down, I, I thought it was re I, I thought it was

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a mistake for the, for the court to say that the burden should be on the plaintiff

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to prove good reason why they should be allowed to get a nurse at the exam.

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I mean, I was thinking to myself like, It's such an important thing.

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I mean, there's millions of dollars at stake.

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It's, it's, it's, it's a super, super important event in an injury case when you

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have the plaintiff examined by a doctor.

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So I'm like, why wouldn't this be recorded?

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You know, when we have depositions in cases it's recorded, police

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today have to wear body cams.

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Everywhere you go, there's surveillance videos.

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But somehow these defense doctors hired by these insurance companies making.

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Gazillions of dollars doing these exams and testifying for the defense.

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Get to get to do it in the secret, you know, so it's just their word against the,

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it didn't make sense and it especially didn't make sense because we've had

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so many situations where the doctor misreports, what happens at the exam.

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There's also, there's like a big company.

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There's some big companies out there that do this, and some lawyers actually

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believe, because what happens is these doctors do, like, they might do like

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maybe 10 or 20 of these defense exams on the given day, and they don't remember

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the P, like they don't know who they are.

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So when they see them in court again, They don't remember them from the exam.

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I think they dictate a report and then they send it off to the company

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that then prepares the report and all that and sends it out.

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And some lawyers believe that the company changes what's in the report and they're,

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it appears they're working off templates because they often say the same things.

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So, so there's that whole thing.

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So we thought it was unfair to not allow.

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A nurse or or a third party in there to record it.

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Supreme Court takes the case.

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Oh, and before the Supreme Court took the case, I decided the case.

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I wrote an article that was published in the New Jersey Law

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Journal and I talked about this.

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I said like, I've been doing this for 22 years, and I said, in my

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whole time doing this, I've never seen an independent medical exam.

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And I explained kind of the reality of the medical exams.

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And the other thing too is the lower court said that these exams

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aren't necessarily adversarial.

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And I also took issue with that.

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I said, no, they're inherently adversarial.

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For all the reasons we kind of talked about.

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And then I talked about like the prior case law on the issue

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and talked about these things.

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And then the Supreme Court came down and now this was published in the New Jersey

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Law Journal, the article that I wrote.

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And one would expect that, you know, lawyers read that.

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Certainly judges and Supreme Court justices would read that and.

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You know, they never, they didn't cite my article or anything.

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I don't know if it was talked about or if it was in, cited by any of the

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briefs that they reviewed, but their opinion closely matches what, what I

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put in the article in particular, I.

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I said the mistake in the lower court was putting the burden on the plaintiff.

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And that's, that's what they focused on.

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And that's the only thing they changed from the lower court opinion, was putting

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the burden on the plaintiff to, to jump through hoops to get a nurse there.

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And, you know, they talked about the reality of these situations.

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So that's, that's really good news.

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It's good news for people, you know, it's just, it's just common sense Fairness.

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So, yeah, that, that, that was a, that was, that's what it's about.

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Sorry for the super long wizard answer.

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No, it, it's okay.

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And I mean, for our audience too, can you explain to them why the insurance

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companies did not want this recorded?

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Because you know that, and Mark knows that, and I know that, but for, you

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know, the general audience who doesn't know what really, you know, happens

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in law, Winning trials is really hard.

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Okay.

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Like the insurance companies have so many resources.

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The corporations that we go against, they're so well funded.

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They often get the best, the best.

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Among the best lawyers out there, they can pay for the best experts.

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So these trials are like really hard and you lose them.

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Like you'll go in and you know the person's injured and these

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doctors will get up there and say the most ridiculous things such as.

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That's perfect.

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Anatomical alignment, and the jury believes him.

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They often will believe him because you have like a highly trained medical doctor

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and a downtrodden injured, usually middle class or lower middle class person.

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Often I.

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And they're like, who are you gonna believe?

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And they often just believe the doctors.

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And then a lot of people go into trials or jurors go in 'cause of

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stuff they've seen on tv, whatever.

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And they just, right away they think, oh, a plaintiff, they must be faking it.

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You know?

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And these doctors play right into that.

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And a lot of times these juries, bite, hook, line, and sinker.

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Because, because, and I've said this before, like.

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We don't in our office, like if the plaintiff's not hurt or they're not

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legitimate, we're not taking the case.

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We, we reject so many cases every year.

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We only take a small percentage of the cases that come to us because

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even the good cases are hard.

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We only take the good cases.

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We only take cases where people are like legitimately injured.

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Frankly, I see a lot of that out there because I also arbitrate where

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I'm an arbitrator, so I'll kind of give my arbitrator opinion on cases.

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And most of these cases, these people are legit hurt and most of

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the plaintiffs that go to these defense medical exams are legit hurt.

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So if the facts.

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Against you.

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You know, like you don't want it recorded the least the, so that's a long-winded

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way of answering your question.

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The truth hurts.

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They don't want it recorded.

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They want the doctor to be freely able to say that.

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They refused to do the low back exam when the reality is they

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couldn't do it because they lost their balance and, and were in pain.

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They want the doctors to freely be able to say that the neck exam was completely

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normal without it being recorded.

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That actually they couldn't do the exam all the way and were in clear pain.

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That's why they don't wanna record it.

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I mean, it's just, it's just common sense like, You know that and, and that's

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why the opinion from the Supreme Court is so great because it's common sense.

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I talked about in the article that was published before on, on

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this issue, before the opinion.

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I mean, police officers have to wear body cams, surveillance videos everywhere.

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Everything in court is on the record.

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But somehow these doctors from the insurance company are gonna

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like, be, be an exception a lot of ways you can think about it.

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And you can analogize this at trial, is that like the doctor, Dr.

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Jones or whoever is on their own private island and meaning like all the medical

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records in the case and all the treating doctors say the plaintiff's legitimately

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hurt and it's from the crash and this is what the person's gonna need.

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And then all the people in the case, all the doctors, medical

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providers, The doctor's the only one that says they're not hurt or

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it's a minor injury, or it predates.

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So the doctor's like on his, you know, his or her own private island and the

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island's being funded by the insurance company, by all the money they make doing

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these exams, and the doctor doesn't want to get kicked off the island, you know?

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So that's why they keep saying what, what they say.

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So hopefully that answers your question as to why.

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Why, and this is all my opinion, you know, take, take it,

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take it for a grain of salt.

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But I, I've seen it and, and that's what I believe.

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So, dimple, you had asked Jerry a question earlier about, you

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know, why did, why did the defense not want these things recorded?

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These medical examinations recorded?

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The word that kind of came to mind for me is, is it exposes,

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like what really happens there?

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Because you get, like there's, Jerry referenced a book or

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did a reading from a book.

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There's a lot of good books.

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Kind of trying cases and you know, just what goes into practicing law.

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And one of the ones that, that I've read, I think Jerry's read

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it too, it talks about like these defense doctors, they present well,

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you know, they're persuasive, they look great when they go into court.

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And the juries like them.

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Otherwise the defendants wouldn't pay him so much money to keep

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testifying in these cases.

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So, so these doctors that a lot of times the jurors don't know what they're really

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about, all they see is this suit that comes into a courtroom and is persuasive

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and puts on this good presentation.

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But what the recording does or what having a third party observer at a

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defense medical exam does is it exposes what really happens there, which in.

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Jerry and I both have countless stories of, I had a client that

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had a low back injury and they asked her to touch her toes.

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There's a standard kind of, you know, battery of tests that they diff, they're

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like, all right, touch your toes.

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And she couldn't do it.

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So the doctor physically pushed her down so that she got further down

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and then recorded, oh, you know, full range of motion to able to touch toes.

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Obviously that caused her pain.

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We had a nurse there.

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A nurse takes a note, doctor pushed her down.

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She cried out in pain doctor records in his, you know, exam.

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Narrative, you know, full range of motion, whatever percent.

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And without a third party observer there, all we have is the doctor's report that

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says, you know, full range of motion, you know, fine, no complaints of pain.

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And, uh, the case we're talking about, this dfu a decision that

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came down from the Supreme Court.

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It's, it's really strong and it talks a lot about types of things that

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Jerry wrote about in his article that we've experienced in practice.

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I don't know if it makes sense to you, but I could, I could read a,

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like a short section from it just because the Supreme Court said it.

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I mean, we're sitting here talking about it.

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The Supreme Court, the highest court in New Jersey said it.

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And, and they say A D M E reflects a profound power imbalance between

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the plaintiff and a medical professional with long experience

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in the examination of patients and participation in court proceedings.

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It talks about how A D M E can involve a plaintiff being physically touched

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without their consent, or asked extraordinarily personal questions about

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their mental health without their consent.

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A D M E is unique in our adversarial system.

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It is the only instance in which a defense expert may conduct discovery

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on a plaintiff without plaintiff's counsel present, which is true.

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So ever casting this in a light of like independent medical examination,

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it's just such, it's such bss.

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It's not.

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That has kind of gotten smoked out and now the highest court in our

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state has said, you know what, it is bss in much more artful legalese

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terminology, but it's great that that's now the state of the law.

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So when it comes to defense medical examinations, right, this Supreme

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Court decision, what is the impact that it's, it's going to have or has had

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on, on the procedures going forward?

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It is been our practice for a long time where when we get a notice that our

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client's gonna get sent to one of these defense medical examinations, we send out

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a letter, we say, Hey, these are the terms for the medical examination to go forward.

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We're gonna be sending a third party observer.

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She'll sit there quietly and either take notes or make an audio visual recording.

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So, so that's been our practice for a long time.

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The appellate Division came out with a decision that said if the

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plaintiff wants to send a third party observer or make a recording of one

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of these examinations, then it's their burden to show, you know, special

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reason why or what the circumstances are, where that should happen.

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Something somewhat along those lines and for a short window of time.

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Then we would, we'd get into these issues where we'd either have to file

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a motion or someone would file a motion for us not to have a nurse there.

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But what the Supreme Court decision says is that now if the defense wants to stop

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us from sending a third party or having, you know, the examination recorded,

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then they have to apply to the court.

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Essentially, it lays out the steps.

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Essentially, number one, defense should say that they have an issue

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with the recording being made.

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They should talk with plaintiff's counsel, see if they can resolve it, and then if

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they can't, they should file a motion.

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They should make an application to the court for a protective order saying

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that there shouldn't be, you know, a recording made or third party observer.

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But the, the.

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Supreme Court's pretty, I guess, broad with it, where they say that in most cases

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it looks like it would be permissible to have a third party observer.

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They talk about things like psychological issues, language barriers, but then

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they, they throw in what I kind of see as more of a catchall or also, you

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know, a litigant's inexperience with, with litigation like a plaintiff's

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inexperience with litigation.

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So for the most part, I guess, unless you're a serial litigant, You're gonna

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have this power imbalance where when you go to A D M E, you're not gonna be as

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sophisticated as the the defense doctor.

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And that doesn't mean like if you're an engineer who gets hurt, that you know,

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you don't get a third party observer.

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But I just think they make it really, really kind of broad, where it seems that

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more often than not, plaintiff should be allowed to have a third party there

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and that it's gonna be the defense's burden to show that they shouldn't.

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Yeah, dimple.

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The, the practical effect is basically you get to have your

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third party observer at the thing.

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It's just like, Hey, what's the practical effect that body cams have been ordered?

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Well, the practical effect now is every time you come encounter with

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law enforcement in the state of New Jersey, they're turning on their

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body cam, recording the encounter, which is, I think, a good thing.

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But, so I'll do, I'll, I'll just give a, I'll give a quick, I'll do a quick little,

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I'll give a, a quick little reading here.

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So this is from the article I wrote, which is on our website, but this

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is an example of a trial I had done recently at the time I wrote this.

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So this is the question and answer that I asked the nurse.

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So the defense doctor had just testified and then, and then he, he said a bunch

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of stuff about what happened at the exam, and then right after he got off the stand,

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we had our nurse who was there testify.

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And the question for the.

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Nurses.

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The defense doctor testified that when he touched the shoulder, he complained

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of pain all over the shoulder.

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Did that actually happen at the exam?

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No, it did not.

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So basically that point there is like, oh, my whole shoulder hurts.

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Oh, don't touch me there.

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Everything hurts.

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Like that's, that's what the doctor's trying to get across to the jury.

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Like that.

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This person's like, Ooh, that hurts.

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And this hurts too.

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I, I hurt everywhere.

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So that's what that's about.

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And then we said, question.

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Describe what happened at the exam.

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Where did he touch the shoulder and what actually happened on that answer?

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The nurse says he touched it right in his deltoid area, and that's where it hurt.

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It wasn't all over.

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He specifically said the proximal area.

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And then question.

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And the defense doctor also testified whenever you touched him on the

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body, he said, Ooh, that hurts.

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Pain here, pain there.

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Did that ever happen at the exam?

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Answer, no, it did not.

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Okay.

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And did the plaintiff ever complain of pain all over his body?

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Diffuse pain.

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So the doctor got up in front of the jury before this and said, and yes, Mr.

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Munoz, that was his name in this case.

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Testified that he was, he had pain all over his body trying to put him out.

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And this justice, like this stuff just kind of like infuriates me because,

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you know, and this doctor's like highly trained and this doctor made like $23

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million selling an exam company and makes like, I think it was like $1.2 million a

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year during, during a certain time period.

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So they say that and then, so what the insurance company's

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trying to do is make it so that.

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The nurse can't go there so that the doctor can get up in front of the jury

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and say they were complained of pain all over their body with no one to refute it.

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So if the plaintiff refutes it, like what good is that?

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The plaintiff's, the one who's trying, who's injured and trying to get money.

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So who's gonna believe that person?

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Okay, so, and did he ever complain of pain all over his body?

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And, and the answer was no.

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So that's, that's another kind of example of.

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This, this kind of thing that they're trying to prevent and why

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It's a great Supreme Court opinion.

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You know, the opinion's not groundbreaking because a lot of states allow the

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nurse, it's in their court rules, allow the third party observer.

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It's a great opinion, but it's not surprising opinion.

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It's just common sense that, that you would have such a consequential

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litigation event recorded.

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Yeah, especially in this day and age in 2023.

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Everybody's got a smartphone just to put, and that's part of the decision too.

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We talk about sending a third party observer.

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You know, you just throw down a phone and record it.

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Audio visual, I mean, what better evidence, what really happened for me too?

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I said expose, it puts it into context too.

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Like what really happens at these things?

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Because we're talking about DMEs, like they're, you know,

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these really significant.

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And they are, but they take oftentimes five minutes or less, sometimes two

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minutes for the doctor to take a history, run through the medical records,

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perform a physical examination, and then send the plaintiff on their way.

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It's, and it's, you think about the guy gets up there and he

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talks for 45 minutes about exam, examination, showed this, that review.

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These records.

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That records, and it's like, and I've had, we've had cases where it's like a

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minute and a half that they spend doing these things, and you just wouldn't

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know that if you didn't have a recording or didn't have a third party there.

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So it's a great decision.

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So dimple.

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I gotta do one more reading for you from this article.

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So I, I did, when I wrote this article, I cited Dorothy Clay Sims Dorothy Clay

Speaker: 00:29:07

Sims is an attorney in Florida and she's written an awesome like series of books.

Speaker: 00:29:14

It's called exposing deceptive Defense Doctors.

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And I quoted her in in this article and she says, why do many DMEs

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behave in such a disturbed manner?

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Why did they lie so often and so easily?

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And she writes, A friend attended a D M E conference where the audience was asked,

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how many times do you think you can reach a conclusion contrary to the interest

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of the insurance industry and still be used as an expert for their carriers,

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meaning their insurance carriers?

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The audience was unanimous.

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Twice, they replied two times.

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A defense medical expert can be honest, and after that he, he can forget those

Speaker: 00:29:52

tasty referrals resulting in big fees.

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Referrals that don't involve haggling with insurance companies or Medicare,

Speaker: 00:29:58

fighting over down coding of bills or treatment of unhappy patients.

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Referrals that have no potential for malpractice suits because the

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doctor's not a treating doctor.

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It's just too tempting.

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Perhaps even for someone who genuinely wants or even needs to be honest.

Speaker: 00:30:13

And that comes from Sims exposing deceptive defense

Speaker: 00:30:16

doctors a 2011 publication.

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So I think the more people that send, because not all lawyers do it.

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Not all lawyers have the exams recorded or send third party observers.

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We've been doing it for a while in most of our cases, but I think

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it's gonna change things because.

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In the, probably the past 15, 20 years, juries have gotten very stingy

Speaker: 00:30:38

and very skeptical of plaintiffs and you hear so many deserving plaintiffs

Speaker: 00:30:43

just frankly get, get screwed out of a recovery for things like this.

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So I think it's gonna change a lot.

Speaker: 00:30:48

Gary, do you think this is gonna really change the way that,

Speaker: 00:30:51

you know, lawyers are gonna be approaching DMEs for their clients?

Speaker: 00:30:55

Yeah, I think so.

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I think, I think more, more lawyers are gonna, are gonna send.

Speaker: 00:31:00

Third party observers like our office has been doing for a long time.

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You know, and it's not a bad thing to ask.

Speaker: 00:31:05

If you have to go to a defense medical exam, ask your lawyer,

Speaker: 00:31:08

Hey, can someone come with me?

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Can I record this?

Speaker: 00:31:12

It's an important thing.

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Yeah.

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I think we're taking for granted that all the plaintiff attorneys

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out there have read this decision.

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You know, internalized it and implemented it as part of their policy.

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Like we've been sending nurses as long as I've been here, Jerry, I'm

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sure you know, as long as you've been practicing, you've been sending

Speaker: 00:31:29

nurses and that's not, I don't know that that's the norm necessarily.

Speaker: 00:31:34

And for us, this is a big decision because it just reaffirms what we've been doing.

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But for other firms out there that may not be doing that, may not wanna

Speaker: 00:31:41

spend the time, the money to do that, it might not change anything.

Speaker: 00:31:45

So, Again, your attorney matters, and you're right.

Speaker: 00:31:48

If you're listening to this and you know you're with another law firm,

Speaker: 00:31:51

you're going to one of these defense medical exams, it's really, really

Speaker: 00:31:55

helpful for your case to have a third party there or to make a recording.

Speaker: 00:31:59

That's great.

Speaker: 00:31:59

Thanks for sharing that with our audience, mark.

Speaker: 00:32:01

So you know, Jerry, like let's talk about how this decision is going

Speaker: 00:32:05

to impact plaintiffs who allege cognitive limitations, psychological

Speaker: 00:32:10

impairments, or language barriers.

Speaker: 00:32:12

Well, there's a lot of these doctors, they don't wanna be recorded.

Speaker: 00:32:16

They wanna have full control of the situation.

Speaker: 00:32:19

They don't want anyone looking over their shoulder, so they'll come up with.

Speaker: 00:32:23

They'll come up with any arguments they can to prevent it.

Speaker: 00:32:27

And one of the arguments they came up with in, in the case that the

Speaker: 00:32:31

Supreme Court decided was, well, if you're doing a psychological exam,

Speaker: 00:32:35

no one could be in the room because that will affect the person somehow.

Speaker: 00:32:39

So, you know, I think, I think that even in cases where there's like

Speaker: 00:32:43

emotional injuries or psychological injuries, They still, you'll still be

Speaker: 00:32:48

able to have a third party observer there, you know, mark, any thoughts?

Speaker: 00:32:52

Yeah, I do it.

Speaker: 00:32:53

It's funny you say that.

Speaker: 00:32:55

I think one of the, we had an expert one time in one of these cases where we

Speaker: 00:33:00

wanted to send a third party observer.

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This was before D Fre came out, and it was actually a neuropsychologist

Speaker: 00:33:06

and the law firm objected.

Speaker: 00:33:09

They said, no, you know, there shouldn't be a third party.

Speaker: 00:33:11

It'll interfere with the psychological examination and all that.

Speaker: 00:33:15

I forget how or what means we found it, but we actually found a certification

Speaker: 00:33:19

from that neuropsychologist that said the presence of a third party observer

Speaker: 00:33:24

would not interfere in any way with the psychological examination and

Speaker: 00:33:28

that we filed, we submitted that with our opposition to the defendant's

Speaker: 00:33:32

motion to bar our third party, and they just withdrew their motion.

Speaker: 00:33:37

So we sent the letter saying it was a psychological exam, and we

Speaker: 00:33:41

sent a letter, I think it was Dr.

Speaker: 00:33:43

B if I remember, and they wrote back saying, we object.

Speaker: 00:33:47

We're not gonna do that.

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And then they filed a motion to Boris bringing the doctor in.

Speaker: 00:33:51

I.

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Then on the motion they said this would interfere with the doctor doctor's exam.

Speaker: 00:33:58

But that doctor happened to be the same doctor in the De Fury, the Supreme

Speaker: 00:34:04

Court case we've been talking about.

Speaker: 00:34:05

And in that case, he certified that it wouldn't interfere with the exam.

Speaker: 00:34:11

Right.

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The exact opposite of what the lawyers were saying to try to prevent it there.

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To prevent it.

Speaker: 00:34:17

Correct.

Speaker: 00:34:17

I'm trying to pull it up E Exactly.

Speaker: 00:34:19

It was a certification that said the presence of a third party observer

Speaker: 00:34:22

would not interfere with the taking of the, you know, neuropsychological exam.

Speaker: 00:34:27

And it was just the funniest thing because a lot of times, and that

Speaker: 00:34:30

comes up in De Fiore as well, or they say the doctor's not the one that's

Speaker: 00:34:33

objecting to having a third party there.

Speaker: 00:34:35

It's oftentimes the defense law firms or you know, the defense insurance companies.

Speaker: 00:34:40

Yeah, we had that with this case where it was a neuropsychologist

Speaker: 00:34:43

and they're sensitive about the battery of tests that they give.

Speaker: 00:34:47

You know, I think there's, there's copyright stuff.

Speaker: 00:34:49

They don't want the test that they give to get.

Speaker: 00:34:51

You know, I guess utilized by someone else in some other way, but there's

Speaker: 00:34:54

other ways around that you can do protective orders if you need to.

Speaker: 00:34:57

And here's the defense was like, oh, you can't have a third party.

Speaker: 00:35:00

And we found this certification and it just killed their whole argument that

Speaker: 00:35:03

they didn't even have the court decide it.

Speaker: 00:35:05

They just were like, yep, we pulled that back.

Speaker: 00:35:07

So to give people kind of a, a real world thing.

Speaker: 00:35:11

So, so the way, the way this works in cases is a lot of times, so like

Speaker: 00:35:14

if we do a trial, We'll, we will do a, we do like closing argument.

Speaker: 00:35:19

And so this is, this is like some, some slides from a trial that we recent,

Speaker: 00:35:26

we recently did, and we kind of go through it all and kind of lay it out.

Speaker: 00:35:30

Everything, everything for the jury to kind of summarize.

Speaker: 00:35:34

And when we do these closings, you don't wanna rehash the, in the entire case.

Speaker: 00:35:39

Just because the jury's been sitting there the whole time.

Speaker: 00:35:41

So you want us to do the highlights?

Speaker: 00:35:43

So in, in this particular case, the testimony from the defense and the

Speaker: 00:35:48

defense position was basically that our client was fabricating her injuries,

Speaker: 00:35:52

that she was fabricating the case.

Speaker: 00:35:54

And I don't remember if they explicitly said fabricating or suggested it.

Speaker: 00:35:58

Normally they'll suggest it sometimes.

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Some defense lawyers will get really aggressive and actually call them a liar.

Speaker: 00:36:04

I've, I've actually experienced that.

Speaker: 00:36:06

Or they'll actually say they're fabricating, which is a little

Speaker: 00:36:08

edgy because it can backfire.

Speaker: 00:36:11

So, so we asked our doctor, this is Dr.

Speaker: 00:36:14

Landa, he's an awesome spine surgeon in Monmouth County, New Jersey.

Speaker: 00:36:18

And, and here I'll just play a little clip about, I asked him, is it true,

Speaker: 00:36:23

like the defense is saying that Linda was fabricating her injury.

Speaker: 00:36:26

So here, I'll play this.

Speaker: 00:36:27

Hopefully you can hear it.

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In fact it, it would be almost impossible for me to believe

Speaker: 00:36:34

that, that she's fabricating her.

Speaker: 00:36:37

For many reasons, including her objective finding, she underwent a

Speaker: 00:36:40

massive operation and it's not like she didn't know what it was and she

Speaker: 00:36:44

had two massive operations in the past.

Speaker: 00:36:46

So she knew, broadly speaking, presumably knew what she was getting into there.

Speaker: 00:36:51

So this, it's just completely unreasonable to, to say that

Speaker: 00:36:55

she's like somehow fabricating.

Speaker: 00:36:57

I mean, that just seems preposterous to me.

Speaker: 00:37:01

So we replayed that clip in closing, just to remind the jury as we go through

Speaker: 00:37:04

all the, all the issues and stuff in the case, you know, 'cause we'll have

Speaker: 00:37:08

them testify in video a lot of times.

Speaker: 00:37:10

And then the, this is an actual slide that was played, it's part of the public record

Speaker: 00:37:15

in this case, which was in Bergen County.

Speaker: 00:37:17

The jury saw it.

Speaker: 00:37:18

It's all part of the public record in the case.

Speaker: 00:37:21

And then it's also fair game to appraise the jury that if the defense

Speaker: 00:37:25

doctor's getting paid and how much they're getting paid and how much they.

Speaker: 00:37:29

Make doing this stuff.

Speaker: 00:37:31

So for this particular defense expert in this trial, his testimony indicated

Speaker: 00:37:36

that he takes in about $200,000 a year in extra income testifying, uh, largely

Speaker: 00:37:42

or almost exclusively for the defense.

Speaker: 00:37:44

So we actually explicitly asked him, asked him this question, hopefully,

Speaker: 00:37:48

were you able to hear the prior one?

Speaker: 00:37:49

All right, cool.

Speaker: 00:37:50

So here, we'll play this one.

Speaker: 00:37:51

And you got into this type of work.

Speaker: 00:37:56

You're doing this work for the money, basically, right?

Speaker: 00:38:00

You know, we all work for compensation and for our expertise.

Speaker: 00:38:05

So yes, this, this helps me earn extra income.

Speaker: 00:38:08

Yes.

Speaker: 00:38:09

And, and this is doing defense medical exams for the insurance company,

Speaker: 00:38:15

examining the patients writing reports and testifying at trial about what they

Speaker: 00:38:20

think the injury is, which is all why it's so critical, like, Having a client

Speaker: 00:38:26

in a lot of cases, having them go into a defense medical exam alone, it's like

Speaker: 00:38:30

sending the a chicken into the wolves den, you know, like alone with no protection.

Speaker: 00:38:34

Yeah.

Speaker: 00:38:34

Or like a kid in the lion's den, you know?

Speaker: 00:38:36

Yeah, yeah.

Speaker: 00:38:37

Let's talk about how did the court decide to not place the burden on the

Speaker: 00:38:42

plaintiff to show special reasons why third party observation or recording

Speaker: 00:38:48

should be permitted in each case?

Speaker: 00:38:50

Well, they did it.

Speaker: 00:38:51

They did it based upon the reality of the situation, what we've already been

Speaker: 00:38:54

talking about, that it is just fairness.

Speaker: 00:38:56

I mean, there's no reason to not have the third party observer

Speaker: 00:38:59

is not interfering in the exam.

Speaker: 00:39:01

They're not taking part in the exam.

Speaker: 00:39:04

It's not a lawyer.

Speaker: 00:39:05

The Supreme Court isn't saying you now get to have your lawyer at the exam and

Speaker: 00:39:08

have the lawyer object and interfere.

Speaker: 00:39:10

That's not what it is.

Speaker: 00:39:11

It's basically permitting a camera into the exam.

Speaker: 00:39:16

That was it.

Speaker: 00:39:17

And the court talked about other Juris, other states that allow it.

Speaker: 00:39:21

The common sense part of it.

Speaker: 00:39:23

They talked about some prior New Jersey court decisions that allowed it, and

Speaker: 00:39:27

they essentially agreed with the lower court, except for the part that we've

Speaker: 00:39:30

been talking about, about flipping that burden, which again is in the article

Speaker: 00:39:34

that I wrote before, the opinion came out is really the only issue we had

Speaker: 00:39:39

with the lower court opinion as well.

Speaker: 00:39:40

So I think that's mostly what it was based on.

Speaker: 00:39:43

Yeah, that and the fact that if there's a, I don't wanna say a neutral third

Speaker: 00:39:46

party, but a third party observer just sitting there quietly taking notes.

Speaker: 00:39:50

How is that gonna interfere with the exam the same way if you just hit

Speaker: 00:39:53

record on a cell phone or whatever, how is that gonna interfere either?

Speaker: 00:39:57

And again, as we're talking about this in the kind of real world

Speaker: 00:40:01

realities of things, the, the court essentially memorialized all this

Speaker: 00:40:05

in a formal holding that's now the law of the land in New Jersey.

Speaker: 00:40:09

Which is great.

Speaker: 00:40:10

Like they, and they say it like, you know, the degree, the degree

Speaker: 00:40:13

of possible negative impact on an examination must also be assessed.

Speaker: 00:40:17

It is difficult to imagine, for example, how a third party who

Speaker: 00:40:20

silently observes a dental examination could negatively impact the exam.

Speaker: 00:40:25

But nonetheless, lo and behold, I've had dental examinations

Speaker: 00:40:28

where they've said Absolutely not.

Speaker: 00:40:29

No third party sitting in the corner taking notes.

Speaker: 00:40:32

This will affect the examination.

Speaker: 00:40:34

It's nonstop.

Speaker: 00:40:35

And we've gotten orders saying, yeah, it's just.

Speaker: 00:40:37

It's nuts.

Speaker: 00:40:38

So it's great to have this settled.

Speaker: 00:40:39

And same thing they say like, you know how an unobtrusive recording

Speaker: 00:40:43

device would call the validity of an examination into question in a way

Speaker: 00:40:47

that an interpreter would not like.

Speaker: 00:40:48

It's just, it's a common sense opinion that I think really reflects the realities

Speaker: 00:40:52

of how these personal injury lawsuits go.

Speaker: 00:40:55

It's a lamb to slaughter.

Speaker: 00:40:56

It's a chicken of the wolves, you know, whatever you want to call it.

Speaker: 00:40:59

It's not a fair power balance.

Speaker: 00:41:01

Just having our client go to a sophisticated defense

Speaker: 00:41:03

medical exam, unaccompanied.

Speaker: 00:41:05

Yeah.

Speaker: 00:41:06

Thank you.

Speaker: 00:41:06

Thank you, mark.

Speaker: 00:41:07

And you know, what do you think the consequences that this decision can have

Speaker: 00:41:11

for the future of personal injury cases?

Speaker: 00:41:16

Hopefully more prevalence of, of firms doing what we do and hopefully more just

Speaker: 00:41:22

fair verdicts for people who get injured.

Speaker: 00:41:24

Because what's really happening at these defense medical examinations that the

Speaker: 00:41:29

WS kind of getting pulled back over juror's eyes because that's what it is.

Speaker: 00:41:33

It's a presentation when the defense doctor comes in and testifies and it

Speaker: 00:41:36

oftentimes, it's a presentation when any expert comes in and testifies.

Speaker: 00:41:40

We try and we've talked about the guy who pounds the table and

Speaker: 00:41:43

says, you know, OSHA's written in the blood of injured workers.

Speaker: 00:41:47

Like, you know, if the expert really believes what they're testifying to,

Speaker: 00:41:50

it's, I think they do real wealth.

Speaker: 00:41:52

But here, unfortunately, I think some of these defense guys might have

Speaker: 00:41:55

convinced themselves that they believe what they're, what they're saying.

Speaker: 00:41:58

Because like Jerry read, you know, two opinions that go contrary to what the

Speaker: 00:42:03

insurance company wants you to say.

Speaker: 00:42:05

And you know, they might not give you any more business.

Speaker: 00:42:08

And we're talking to the tunes of hundreds of thousands of dollars,

Speaker: 00:42:10

if not more for these guys.

Speaker: 00:42:12

So we've found that sometimes sending a third party observer, we get a little

Speaker: 00:42:18

less, I guess, strong of a report.

Speaker: 00:42:20

Sometimes against us it might be a little bit more accurate because if they do,

Speaker: 00:42:24

you know, 20 examinations a day, 19, of which there's no nurse in there,

Speaker: 00:42:28

Then for the 20th hours as a nurse, he is just like, eh, you know what?

Speaker: 00:42:32

Shoulder only got this high.

Speaker: 00:42:33

That's what I'll put in the report.

Speaker: 00:42:34

Whereas with the others, it gets there.

Speaker: 00:42:35

He says, oh, no issues, because there's no one there to check it.

Speaker: 00:42:39

So hopefully there's more kind of checks on the system.

Speaker: 00:42:42

Hopefully it's, you know, a mechanism for plaintiff's attorneys

Speaker: 00:42:45

to more accurately show to jurors the courts what happened at this.

Speaker: 00:42:49

And hopefully it results in people being able to get fair compensation

Speaker: 00:42:52

for their injuries without.

Speaker: 00:42:54

Defense doctors being able to kind of keep in the dark what, what

Speaker: 00:42:56

really happens at these exams.

Speaker: 00:42:58

Yeah.

Speaker: 00:42:58

Thank you so much.

Speaker: 00:42:59

And I mean, any of you guys can answer this one, but do you guys think that

Speaker: 00:43:03

this decision is going to ripple down into other areas of law or do

Speaker: 00:43:07

you think it's going to be mostly contained into cases involving DMEs?

Speaker: 00:43:11

I think it's pretty clear it's limited to defense medical exams

Speaker: 00:43:15

and, and personal injury litigation, but it's not so much like it.

Speaker: 00:43:20

Rippling down.

Speaker: 00:43:21

It's just really consistent with the way the world's going.

Speaker: 00:43:23

I mean, there's cameras everywhere now.

Speaker: 00:43:26

Why shouldn't they also be in the defense, medical exam room

Speaker: 00:43:29

when the plaintiff wants it?

Speaker: 00:43:30

Yeah.

Speaker: 00:43:30

I think they should have the right to do that.

Speaker: 00:43:32

Yeah.

Speaker: 00:43:32

Like, yeah.

Speaker: 00:43:33

Can you, can you imagine if there's a car crash and one person says, this is what

Speaker: 00:43:37

happened at the crash, and the other says, no, this is what happened at the crash.

Speaker: 00:43:41

Do you have the option of playing a video of what happened at the crash?

Speaker: 00:43:45

As a jury, what as you know, system that's supposed to be based on what's the truth?

Speaker: 00:43:49

Like what really happened?

Speaker: 00:43:51

Why would you not want that recording or why would you not want that independent

Speaker: 00:43:54

witness standing on the corner that says, no, I saw the car crash.

Speaker: 00:43:57

You know, this guy would do was doing that.

Speaker: 00:43:59

That guy was doing that.

Speaker: 00:44:00

That's just, it's just fair.

Speaker: 00:44:02

I just have one last question, which is, you know, when the ruling

Speaker: 00:44:05

refers to a neutral third party observer, can you clarify what's

Speaker: 00:44:11

meant by neutral in this context?

Speaker: 00:44:13

As best I can read the opinion, I think it means not having the attorney there.

Speaker: 00:44:18

I I agree.

Speaker: 00:44:19

It, they don't wanna turn it into, I guess, any more of an

Speaker: 00:44:22

adversarial proceeding than it is.

Speaker: 00:44:24

It's not someone that's supposed to be in there, be an advocate arguing

Speaker: 00:44:27

for you fighting with the doctor.

Speaker: 00:44:29

You know, I think it's, it's exactly what it sounds like.

Speaker: 00:44:32

Just a neutral third party sitting there recording what happens.

Speaker: 00:44:35

I think the neutrality is not that they're not for one side or the other,

Speaker: 00:44:39

but they're not doing anything other than observing, taking notes and recording.

Speaker: 00:44:43

I think that's where the neutral comes in.

Speaker: 00:44:45

Agreed.

Speaker: 00:44:45

I think the court touches on that too, where they say

Speaker: 00:44:47

like, Hey, we're making clear.

Speaker: 00:44:49

We're not sending saying the attorney can go in there.

Speaker: 00:44:51

I.

Speaker: 00:44:51

We're saying it's a neutral, I think like unobtrusive third party.

Speaker: 00:44:55

Awesome.

Speaker: 00:44:56

Thank you so much.

Speaker: 00:44:56

So I wanna actually remind our listeners that they can send in their questions to

Speaker: 00:45:01

questions@jerseyjusticepodcast.com because your question may be featured on a feature

Speaker: 00:45:07

episode where we'll answer it live.

Speaker: 00:45:09

So please feel free to reach out to us.

Speaker: 00:45:11

It's going to be also in the show notes for you, and make sure

Speaker: 00:45:14

that you share this out with all your friends in your community.

Speaker: 00:45:17

Because we wanna make sure that they're also in the know when it comes to what's

Speaker: 00:45:21

going on in New Jersey and what happens behind the scenes in a lawyer life.

Speaker: 00:45:25

Alright, we'll see you guys next time.

Speaker: 00:45:31

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Speaker: 00:45:32

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