Jorge Remache-Robalino v. Nader Boulos, M.D. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1248-23
JORGE REMACHE-ROBALINO,
Plaintiff-Appellant,
v.
NADER BOULOS, M.D., LANI
MENDELSON, M.D., and ST.
JOSEPH'S REGIONAL MEDICAL
CENTER,
Defendants-Respondents.
Argued September 12, 2024 – Decided September 23, 2024
Before Judges Sabatino, Gummer and Jacobs.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Hudson County,
Docket No. L-1929-19.
Christina Vassiliou Harvey argued the cause for
appellant (Lomurro Munson, LLC, attorneys; Jonathan
H. Lomurro, of counsel; Christina Vassiliou Harvey, of
counsel and on the briefs).
Charles E. Murray, III, argued the cause for
respondents (Farkas & Donohue, LLC, attorneys;
Charles E. Murray, III, of counsel and on the brief).
PER CURIAM
This matter concerning the conditions of a defense neuropsychological
examination ("DME") returns to this court a second time, following the Supreme
Court's remand to the trial court "for further proceedings consistent with [the
Court's] opinion" in DiFiore v. Pezic, 254 N.J. 212 (2023) (affirming and
modifying in part this court's opinion in DiFiore v. Pezic, 472 N.J. Super. 100(App. Div. 2022)).1 The dispute in this case centers on whether defendants met
their burden—as allocated in the Supreme Court's consolidated opinion—to bar
plaintiff from using an audio recording device to record the examination.
On remand, the trial court granted defendants' request, without expressly
addressing many of the offsetting considerations set forth in the appellate
opinions in DiFiore and language in those opinions specifically discussing this
case. We vacate the trial court's order and remand this case once again.
1
For ease of reference, we cite this court's published opinion as "DiFiore I," and
the Supreme Court's opinion as "DiFiore II." Both opinions consolidated the
present case with two other appeals involving different plaintiffs but
overlapping legal issues.
A-1248-23
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The underlying facts and procedural history of this case are described in
DiFiore I as follows:
Jorge Remache-Robalino, a native Spanish
speaker in his mid-fifties, was injured when a metal
fragment penetrated his right eye at work. He sought
treatment with defendants—two treating doctors and
their employer, St. Joseph’s Medical Center—who
failed to discover the fragment. Allegedly due to this
failure, Remache-Robalino went blind in his right eye.
He alleges that his condition resulted in depression,
anxiety, and impaired concentration.
Remache-Robalino filed a medical malpractice
complaint against defendants. Like DiFiore, Remache-
Robalino claimed that defendants' conduct caused him
to sustain, among other harms, permanent
psychological injuries.
In August 2021, defendants sent Remache-
Robalino a notice to attend a neuropsychological DME.
Remache-Robalino agreed to attend the exam, on the
condition that he be allowed to make an audio recording
of the session, as authorized by [B.D. v.] Carley, [307
N.J. Super. 259 (App. Div. 1998)]. Among other
things, plaintiff was concerned about his language
barrier, as his bilingual attorney had spotted mistakes
by the interpreter at plaintiff's deposition.
Defendants moved to compel the examination
without any monitoring or recording. Their motion
included a certification by their chosen
neuropsychologist, Dr. Joel Morgan, who stated that he
would not perform the examination if it had to be
recorded. According to Dr. Morgan, "the experience of
being observed and/or recorded can artificially alter an
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individual’s task performance and affect the reliability
and validity of test scores."
The trial judge granted defendants' motion to
compel an unrecorded neuropsychological DME over
Remache-Robalino’s objections. The judge was
especially persuaded by defendants' argument that
allowing Remache-Robalino to record a DME
conducted by an expert of defendants' choosing would
cause an evidentiary asymmetry. Defendants asserted,
as was then echoed by the trial court, that Remache-
Robalino had already undergone examinations by other
experts without giving the defense notice of those
exams or allowing them to have a representative attend
or have the exams recorded.
Remache-Robalino moved for reconsideration,
arguing he has an entitlement under Carley to use an
unobtrusive audio recording device at the DME. This
time, the judge granted Remache-Robalino's request,
finding that the earlier examinations "were not
generated by DMEs[,]" and therefore not undertaken
for discovery purposes. The trial court’s ensuing order
urged the parties to "enter into a confidentiality order
to protect the DME physician’s concerns" with regard
to the presence of an audio recording device.
Defendants moved for reconsideration of the
order permitting Remache-Robalino to use an audio
recording device at the DME. They emphasized the
reservations voiced by Dr. Morgan, who certified it was
against his professional custom to record such
examinations, and that the presence of the recording
device can taint the results.
In a third ruling, the motion judge then granted
defendants' motion for reconsideration, thereby
retracting Remache-Robalino's permission to bring an
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audio recording device into the DME. On reflection,
the judge concluded that Carley does not entitle
Remache-Robalino to an audio recording. The judge
reasoned it would be unfair if defendants were deprived
their choice of neuropsychologist merely because the
doctor was "following his [professional] association's
recommendations not to audio tape because of the
potential[ ] of invalidating the integrity of the
process[.]"
Plaintiff had expressed to the judge concerns that
defendants will select experts who similarly refuse to
perform recorded DMEs in future cases. Responding
to those concerns, the judge assured that "the judiciary
will address" any problematic pattern of defendants
strategically choosing neuropsychological examiners
whose professional customs are opposed to audio
recordings.
Lastly, the judge found that the presence of an
interpreter chosen by the defendants does not constitute
a waiver of defendants' arguments against the presence
of additional third parties or recording devices, and is
not inconsistent with those positions.
Having lost the third motion round, Remache-
Robalino moved once again for reconsideration. This
time, he presented an opposing certification by another
clinical neuropsychologist, George Carnevale, Ph.D.,
who offered a more flexible perspective about the
professional concerns involved in recording such
DMEs. Dr. Carnevale asserted that an audio recording
would not necessarily taint the results of a
neuropsychological exam. He also stated that a
protective order would effectively allay any concerns
with the copying of test material or intellectual
property.
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In a concise order, the judge summarily denied
Remache-Robalino's final motion as "merely
express[ing] disagreement with the Court’s decision."
This emergent interlocutory appeal by Remache-
Robalino ensued. We granted leave to appeal and
combined this case with the other two cases.
[DiFiore I, 472 N.J. Super. at 67–69.]
In DiFiore II, the Supreme Court's opinion encapsulated the background
of this case as follows:
In December 2017, Jorge Remache-Robalino, a
native Spanish speaker in his mid-fifties, was injured in
a work-related accident that damaged his right eye,
ultimately leading to blindness in that eye. A
psychiatrist later diagnosed him with major depressive
disorder and post-traumatic stress disorder, and noted
that his concentration and short-term memory were
"mildly impaired." After defendants—two doctors who
treated plaintiff's injuries and their employer, St.
Joseph's Regional Medical Center—noticed a
neuropsychological DME, Remache-Robalino sent a
letter informing defendants that, consistent with
[Carley], he would audio record the DME. He asserted
that his concentration and memory issues, along with
his lack of fluency in English, would leave him unable
to address any inconsistencies between the exam and
the defense expert's report and testimony. Remache-
Robalino specifically noted that "his bilingual attorney
had spotted mistakes by the interpreter at [his]
deposition," DiFiore, 472 N.J. Super. at 116, and
evidence of an inaccurate translation during the DME
would be lost without a recording or a third party
present.
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Defendants opposed an audio recording,
certifying that their chosen neuropsychologist, Dr. Joel
Morgan, would not perform the examination if it were
recorded. In support of his position, Dr. Morgan cited
the 2016 Policy Statement of the American Board of
Professional Neuropsychology Regarding Third Party
Observation and the Recording of Psychological Test
Administration in Neuropsychological Evaluations
(ABN Policy Statement). See Alan Lewandowski et al.,
ABN Policy Statement, 23 Applied Neuropsych. 391
(2016).
The trial court eventually ordered Remache-
Robalino to submit to an unrecorded and
unaccompanied DME. "[T]he judge found that the
presence of an interpreter chosen by the defendants
[did] not constitute a waiver of defendants’ arguments
against the presence of additional third parties or
recording devices." DiFiore, 472 N.J. Super. at 117.
[DiFiore II, 254 N.J. at 222–23.]
Turning to the applicable legal standards, our opinion in DiFiore I
recognized the competing interests of plaintiffs weighed against defendants and
defense experts in either recording or having a third-party observer attend a
DME, particularly where a plaintiff is alleged to have cognitive limitations or
language barriers (both of which exist here) that can make it difficult for that
plaintiff to rebut or correct the examiner's version of what occurred during the
examination. DiFiore I, 472 N.J. Super. at 71–75. That discussion included a
policy statement from the American Board of Professional Neuropsychology
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disfavoring third-party observation or recording of such examinations, but also
recognizing the authority of a court to require such conditions over the
examiner's objection after reasonable alternatives have been exhausted. Id. at
72–74.
After assessing the competing interests, we adopted the following multi-
factor approach to such disputes, going forward:
First, a disagreement over whether to permit
third-party observation or recording of a DME shall be
evaluated by trial judges on a case-by-case basis, with
no absolute prohibitions or entitlements.
Second, despite contrary language in Carley, it
shall be the plaintiff's burden henceforth to justify to
the court that third-party presence or recording, or both,
is appropriate in a particular case.
Third, given advances in technology since 1998,
the range of options should include video recording,
using a fixed camera that captures the actions and
words of both the examiner and the plaintiff.
Fourth, to the extent that examiners hired by the
defense are concerned that a third-party observer or a
recording might reveal alleged proprietary information
about the content and sequence of the exam, the parties
shall cooperate to enter into a protective order, so that
such information is solely used for the purposes of the
case and not otherwise divulged.
Fifth, if the court permits a third party to attend
the DME, it shall impose reasonable conditions to
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prevent the observer from interacting with the plaintiff
or otherwise interfering with the exam.
Sixth, if a foreign or sign language interpreter is
needed for the exam (as is the case in two of the appeals
before us) the examiner shall utilize a neutral
interpreter agreed upon by the parties or, if such
agreement is not attained, an interpreter selected by the
court.
[Id. at 106–107.]
The Supreme Court's opinion adopted this court's holdings except for one
of the factors (prong 2) concerning the allocation of the burden of proof:
We therefore affirm five prongs of the Appellate
Division's six-prong holding. On prong one, we agree
that trial judges must decide whether to permit third-
party attendance and/or recording of a DME on a case-
by-case basis, without "absolute prohibitions or
entitlements." Id. at 129.
On prong three, we concur that trial courts should
consider both audio and video recording, as the value
of both in resolving a dispute as to what occurred
during a DME "could be significant." Id. at 130. We
likewise concur that smart phones can unobtrusively be
used to record a DME with "minimal effort." Ibid.
Especially in the age of virtual meetings, both audio
and video recording seem easy to accomplish and not
unduly disruptive.
As to prong four, we agree with the prescription
that "the parties shall cooperate to enter into a
protective order" when a defense medical examiner is
concerned that third-party observation, or an audio or
video recording, could lead to the dissemination of
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proprietary information about the exam. Id. at 131. We
likewise agree with the Appellate Division that a
protective order is appropriate to ensure that
information about a DME "is solely used for the
purposes of the case and not otherwise divulged." Ibid.
With regard to prongs five and six, we concur that
reasonable conditions should be imposed on third-party
observers to ensure they do not interfere with exams
and that, where needed, a neutral foreign- or sign-
language interpreter shall be agreed on by the parties
or, failing agreement, selected by the court.
[DiFiore II¸ 254 N.J. at 232–33 (emphasis added).]
Regarding the burden of proof, the Court departed from this court's
holding and placed the burden instead on defendants "to show why a neutral
third-party observer or an unobtrusive recording should not be permitted in a
particular case best comports with the realities of DMEs and the text of Rules
4:19 and 4:10-3." Id. at 233. "It also ensures fairness in our civil justice
system." Ibid. Among other things, the Court recognized that "especially for
plaintiffs with alleged cognitive limitations, psychological impairments, or
language barriers, a DME reflects a profound power imbalance between the
plaintiff and a medical professional with long experience in the examination of
patients and participation in court proceedings." Id. at 234. That power
imbalance, and the experience in many other states allowing DME recordings
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and observers, id. at 237–38, led the Court to mandate the following, which
included a specific query about Remache-Robalino's case:
We therefore hold that if a plaintiff seeks to bring
a neutral third-party observer to a Rule 4:19 exam, or
to audio or video record the exam, plaintiff's counsel
should notify defendant. If defense counsel opposes the
third-party observation or recording, the parties should
meet and confer in an effort to reach agreement. Failing
an agreement, defendant can move for a protective
order under Rule 4:10-3 to bar the observation or
recording.
The trial court must then decide what to permit or
forbid with no absolute prohibitions or entitlements. In
undertaking a case-by-case analysis, trial courts must
balance both the need for an accurate record and the
imbalance of power between a medical professional and
a patient against any valid concerns regarding the
expert's ability to conduct an accurate assessment of the
patient's condition with a recording or a neutral third-
party observer. The plaintiff's age, ability to
communicate, cognitive limitations, psychological
impairments, inexperience with the legal system, and
language barriers are all relevant to this determination;
other factors may be as well.
The degree of possible negative impact on an
examination must also be assessed. It is difficult to
imagine, for example, how a third party who silently
observes a dental examination could negatively impact
the exam. As discussed below, a neuropsychological
examination may raise different concerns. Whether the
examination will already be attended by anyone other
than the doctor and plaintiff is also relevant. For
example, for a person with limited English proficiency
who will already be accompanied by an interpreter,
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despite the trial court's holding regarding Remache-
Robalino, it is not immediately obvious how an
unobtrusive recording device would call the validity of
the examination into question in a way that the
interpreter would not.
Pertinent too is the type of observer. A licensed
nurse silently taking notes is different in kind from an
attorney interjecting on behalf of their client. We agree
with the Stoughton court that "[t]here is no need to turn
the examining room into a court room." 281 N.J. Super.
at 611. We therefore emphasize that our holding
applies only to neutral third-party observers, not
attorneys. Similarly, our holding is limited to third-
party observers, not third parties who seek to interfere
with or disrupt the exam. A person who sits silently
and unobtrusively takes notes is a far cry from a third
party who seeks to control, or participate in, the exam
herself.
[Id. at 238–39 (emphasis added) (footnote omitted).]
As of September 2024, the Supreme Court has revised Rule 4:19, as
recommended by the Civil Practice Committee, to codify in part these holdings.
See R. 4:19-2 (eff. Sept. 1, 2024). The Court declined to adopt a "reciprocal"
rule authorizing the recording of examinations of plaintiffs by their own medical
experts.
On remand, the trial court considered written submissions of the parties
and chose, as is its prerogative, not to hold oral argument. The court then issued
a short written order on December 1, 2023 that reiterated its November 19, 2021
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order disallowing the use of the recording device. The order stated that the
court's "prior order found that good cause existed to prohibit the use of recording
devices and observers, as it would deprive the Defendants' right to utilize the
Expert of their choosing."
As highlighted by appellant's counsel, the trial court's remand order is
problematic in several respects. It does not discuss any of the six factors
delineated in DiFiore I and DiFiore II. It incorrectly treats as an unqualified
"right" the ability of defendants to use an expert of their own choosing, contrary
to the holdings of DiFiore I and DiFiore II. The order does not acknowledge the
Supreme Court's shifting of the burden to defendants to justify a protective
order. The order does not address expressly the offsetting considerations that
must be balanced against defendants' interests. The order does not address the
Supreme Court's observation that "it is not immediately obvious how an
unobtrusive recording device would call the validity of the examination into
question in a way that the interpreter would not." Id. at 239.
The matter must be remanded again to address these omissions from the
analysis. We decline plaintiff's request that we exercise original jurisdiction and
decide the motion ourselves. Given that the motion judge has considered this
matter in five sequential orders, with varying outcomes, we respectfully deem it
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most prudent to have the motion reassigned to a different judge who can
approach the matter from a fresh perspective. See Graziano v. Grant, 326 N.J.
Super. 328, 350 (App. Div. 1999) (stating the power to remand a case to
a different judge "may be exercised when there is a concern that the
trial judge has a potential commitment to his or her prior findings."); see
also Freedman v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023)
(remanding a matter to a different judge as the same judge "may have a
commitment to her prior findings").
Vacated and remanded. We do not retain jurisdiction.
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