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Stoughton v. B.P.O.E. No. 2151 (Brick Twsp Elks)

February 21, 1995


Piscal, J.s.c.

The opinion of the court was delivered by: Piscal


Defendant moves to dismiss plaintiff's complaint for failure to comply with a Case Management Order dated January 19, 1995, by James P. Courtney, Jr., J.S.C., requiring the psychiatric examination of plaintiff be completed by January 30, 1995.

The complaint alleges an assault and battery at the Brick Township Elks Club upon plaintiff Carol Stoughton on July 12, 1991, by Agnes Rumbolo.

Plaintiff consulted Dr. James A. Huddy, a psychologist between August 1991 and April 1993. Plaintiff was deposed on November 23, 1993 and stated she had received no psychological therapy or treatment since April 21, 1993. Then on December 5, 1994 a report was submitted to the defense indicating that plaintiff began receiving psychotherapy again, starting March 1994. Defense counsel immediately sought an examination by a psychiatrist, Dr. Motley, but plaintiff refused to submit to such examination without her attorney in attendance or a tape recorder. Defendant refused for reasons stated in the letter of the proposed examining physician.

The issue to be determined here is whether a psychiatric examination to be conducted by a licensed medical expert, at the request of the defense, can be conducted by the expert without the presence of plaintiff's attorney, a tape recording device or any third party being present.

The starting point for our inquiry must be the discovery rule, R. 4:19. Note that an order to submit to a mental or physical examination is made "only on motion for good cause shown, supported by affidavit stating the party's refusal to submit to an examination upon the movant's request...."

Thus, in the great majority of cases, the plaintiff is requested to be examined by a physician of defendant's choosing and the appointment is kept. Reports could then be exchanged pursuant to R 4:17-1 to :18-2.

As a Judge sitting on civil for approximately five years, I can say that few motions are heard involving the conditions of actual examinations. Many motions are brought concerning the when and the where of an examination; yet I can recall no instance where the presence of a third party, a reporter or tape recording during an examination was the subject of any compromise or led to a motion. This background is important to our inquiry, as the authorities cited by counsel in their moving papers are all from outside this jurisdiction. Although New Jersey is silent on this issue, the customs and practice regarding examinations should nevertheless be taken into account.

From the cases relating to physical examination, as distinguished from mental examination, it appears that courts in some jurisdictions have opted for permitting the presence of counsel. The prevailing rationale is to thwart intrusive questions about liability asked under the guise of obtaining the "history." See Sharff v Superior Court of San Francisco, 44 Cal. 2d 508, 282 P.2d 896 (Cal. 1955); Bartell v. McCarrick, 498 So. 2d 1378 (Fla. 4th DCA 1986); Zawacki v. Detroit Harvester Co., 310 Mich. 415, 17 N.W.2d 234 (Mich. 1945); Jakubowski v. Lengen, 86 A.D.2d 398, 450 N.Y.S.2d 612 (N.Y. App. Div. 1982); Tietjen v. Department of Labor & Indus., 13 Wash. App. 86, 534 P.2d 151 (Wash. Ct. App. 1975). Many of those same jurisdictions, however, will bar the presence of counsel at a physical examination if the opponent establishes a need for exclusion. Bartell, 498 So. 2d at 1370; Jakubowski, supra, 450 N.Y.S.2d at 614; Reardon v. Port Auth. of New York, supra, 503 N.Y.S.2d 233, 235 (N.Y. 1986).

Special circumstances arise in mental examination situations. As with physical exams, there appears to be a split among jurisdictions as to whether the presence of counsel should be permitted. All of these cases, however, present common themes, namely, there is the claim that the doctor selected by the defense is in fact an adversary. Reardon, supra, 503 N.Y.S.2d at 234-235; Jakubowski, supra, 450 N.Y.S.2d at 614. Furthermore, there is the argument that no confidential or privileged relationship attaches to such an examination. Tietien, supra, 534 P.2d at 154 (however, Washington's counterpart to Fed. R. Evid. 35 permits an attorney to be present during a physical examination.)

In opposition, many defendants argue that the chance for a meaningful examination is skewed in favor of the plaintiffs since they are able to be examined and treated by their own experts without intrusion from the defense. As such, these defendants believe it is only fair that they be afforded the same opportunity when their experts conduct an examination.

The more persuasive argument is that the mere presence of a third party interferes with the close communication between examinee and physician that is essential to the procedure's effectiveness. It is for this reason that many courts will deny the presence of counsel at an examination. See Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543 (S.D. N.Y. 1978); Pedro v. Glenn, 8 Ariz. App. 332, 446 P.2d 31 (Ariz. Ct. App. 1968); Edwards v. Superior Court of Santa Clara County, 16 Cal. 3d 905, 549 P.2d 846, 130 Cal. Rptr. 14 (Cal. 1976); Vinson v. Superior Court, 43 Cal. 3d 833, 740 P.2d 404, 239 Cal. Rptr. 292 (Cal. 1987); Rochen v. Huang, 558 A.2d 1108 (Del. Super. 1988).

In Pedro v Glenn, supra, the Court of Appeals of Arizona overruled the trial court's decision to allow the presence of plaintiff's counsel or a court reporter at the ...

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