Wade Clark Mulcahy LLP

On April 18, 2024, the Superior Court of New Jersey in DeVito v. 151 Route 72, LLC, No. A-1084-23, 2024 WL 1669567 (N.J. Super. Ct. App. Div. Apr. 18, 2024), reversed a trial court’s decision denying appellants’ motion to quash an aggressive subpoena.  The reversal marks a clear protection against potentially burdensome discovery requests and a confrontation of possible biases in independent medical evaluations.

The plaintiffs’ subpoena requested all reports, billing, and calendar information from over a year’s worth of independent medical evaluations conducted by the medical expert who evaluated one plaintiff in the underlying action.  Id. at 1.  This doctor also confirmed he had ownership interest in the IME entity, a non-party in the suit.  Id.  Refusing to comply, appellants claimed this amounted to 596 evaluations and would take a significant amount of time to complete at such a late stage in the litigation.  Id.  The Court recounted that during oral argument at the trial court, plaintiffs’ counsel took issue with the estimates, emphasizing that the expert’s evaluation rate would be roughly thirty-five evaluations per month. Id. at 2.  Counsel also called his integrity into question and pushed on the validity of his findings.  Id.  The trial court interjected and brought an exacting focus to the nature of IMEs—why cap discovery further if the dishonesty of a “hired gun” threatens disputes?  See id.  It thus reserved the protective limiting of subpoenas in this context for financial information such as personal tax returns.

On appeal, the Superior Court emphatically rejected this strict interpretation of precedent and held that the trial court failed to consider burdens, expenses, and New Jersey rules when denying the motion to quash.  Id. at 3.  Reversing, the Court stressed that discovery rights are not afforded to harass or burden litigants and experts.  Id. at 4.  It bolstered its decision by also explaining that this specific subpoena extended beyond the scope of permissible discovery and seemingly aimed to expose the operations of a non-party.  Id. 

Moving forward, New Jersey litigants and experts should be mindful of a more defined interplay between “permissible discovery,” accusations of bias, and the realities of building a case.

Thanks to Patrick McGovern for his contribution to this article.