Superior Court of New Jersey, Law Division, Middlesex
NATHYN WELLMANN, her father as guardian ad litemon behalf of RYAN WELLMANN, a minor, NATHYN WELLMANN, individually, and KELLY SWIFT-WELLMANN, her mother, individually, Plaintiffs,
ROAD RUNNER SPORTS, INC., -ROAD RUNNER SPORTS RETAIL, INC., JASON CYTRYN, an agent, servant and/or employee, includinga Store Manager of ROAD RUNNERSPORTS, INC. and/or ROAD RUNNERSPORTS RETAIL, INC., REBECCAMCCULLOUGH, an agent, servantand/or employee, including a Fit Expert of ROAD RUNNER SPORTS, INC. and/or ROAD RUNNER SPORTSRETAIL, INC., and SPORTS ART AMERICA, INC. d/b/a SPORTS ART, Defendants, ROAD RUNNER SPORTS, INC., ROAD RUNNER SPORTS RETAIL, INC., JASON CYTRYN, and REBECCA MCCULLOUGH, Third Party Plaintiffs,
TERESA SWIFT, Third Party Defendant.
S. Blumer, attorney for plaintiffs (The Law Offices of Andrew
S. Blumer, attorneys.
Marie DeRogatis, attorney for defendants and third party
plaintiffs (Law Offices of William E. Staehle, attorneys).
Stephen R. Katzman, attorney for third party defendant
(Methfessel & Werbel, attorneys)
an action for personal injuries to a seven-year-old girl, who
was injured when she was three years old.
the court are two motions. First, defendants Road Runner
Sports, Inc., Road Runner Sports Retail, Inc., Jason Cytryn,
and Rebeccah McCullough (collectively, the
"Movants"), seek to compel plaintiff Ryan Wellman
("Ryan") to attend two medical examinations (with
Dr. John Cozzone on May 17, 2018, and with Dr. Jeffrey Lakin
on May 31, 2018) without condition, without attendance of a
third party (including one of her parents), and without the
ability to record the examination.
Ryan, Nathyn Wellmann, as Guardian Ad Litem on behalf of
Ryan, Nathyn Wellmann, individually as Ryan's father, and
Kelly Swift-Wellmann, individually as Ryan's mother
(collectively, the "Wellmans"), cross-move for a
protective order that permits recording by either audio or
video, or both, of any defense medical examinations, and
permits third-party representatives to be present during the
examinations. For the reasons that follow, the Movants'
motion is DENIED, and the Wellmans' cross-motion is
medical examination, such as those sought in this case, is
governed by Rule 4:19, which provides the following:
In an action in which a claim is asserted by a party for
personal injuries or in which the mental or physical
condition of a party is in controversy, the adverse party may
require the party whose physical or mental condition is in
controversy to submit to a physical or mental examination by
a medical or other expert by serving upon that party a notice
stating with specificity when, where, and by whom the
examination will be conducted and advising, to the extent
practicable, as to the nature of the examination and any
proposed tests. The time for the examination stated in the
notice shall not be scheduled to take place prior to 45 days
following the service of the notice, and a party who receives
such notice and who seeks a protective order shall file a
motion therefor, returnable within said 45-day period. The
court may, on motion pursuant to R. 4:23-5, either compel the
discovery or dismiss the pleading of a party who fails to
submit to the examination, to timely move for a protective
order, or to reschedule the date of and submit to the
examination within a reasonable time following the originally
scheduled date. A court order shall, however, be required for
a reexamination by the adverse party's expert if the
examined party does not consent thereto. This rule shall be
applicable to all actions, whenever commenced, in which a
physical or mental examination has not yet been conducted.
rule, however, is silent as to the issue in this case,
regarding whether the scheduled medical examinations may be
recorded. And, New Jersey law discussing whether a medical
examination may be recorded is sparse. Essentially, there are
two published New Jersey cases that provide this court with
guidance: Briglia v. Exxon Co., USA, 310 N.J.Super.
498 (Law Div. 1997), and B.D. v. Carley, 307
N.J.Super. 259 (App. Div. 1998).
these two cases are discussed in the commentary to the Rule,
which explains the considerations this court must balance in
this case, see Pressler, Current N.J. Court
Rules, comment 3 on R. 4:19 (2018), and also
provides the relevant law from Briglia and
Carley, see Pressler, Current N.J.
Court Rules, comment 4 on R. 4:19 (2018).
Comment three provides the balancing test a court must
consider in determining when a plaintiff may resist a motion
to compel a medical examination:
3. Obligation to Submit to Examination. A requested physical
examination may be successfully resisted where it can be
shown that its probative value will be substantially
outweighed by the mental and physical distress it is likely
to cause. Duprey v. Wager, 186 N.J.Super. 81 (Law
Div. 1982). Where the plaintiff claims that the impartial
medical examination is physically intrusive, the court must
balance the burden to plaintiff and the defendant's need,
and if it finds that plaintiff's refusal to submit is
unreasonable under the circumstances, sanctions short of
dismissal of the claim should be ...