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Wellmann v. Road Runner Sports, Inc.

Superior Court of New Jersey, Law Division, Middlesex

April 2, 2019

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,
v.
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,
v.
TERESA SWIFT, Third Party Defendant.

          Andrew S. Blumer, attorney for plaintiffs (The Law Offices of Andrew S. Blumer, attorneys.

          Lisa 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)

          WOLINETZ, J.S.C.

         This is an action for personal injuries to a seven-year-old girl, who was injured when she was three years old.

         Before 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.

         Second, 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 GRANTED.

         Discussion

         A 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.
[R. 4:19.]

         This 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).

         Both of 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 ...

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