More than 20 years ago, in Stemper v. Speidell, the New Jersey Supreme Court recognized a defendant’s right to conduct an ex parte interview of a treating physician in a personal injury action. As a practical matter, products liability defense attorneys well know that ex parte interviews are not a mainstream element of the discovery process in New Jersey despite Stempler — often due to the unwillingness of courts to permit these interviews in the face of objections from plaintiffs based on the physician-patient privilege.
Defendants nonetheless must continue to fight for ex parte interviews. First, fundamental fairness and justice support a defendants’ right to conduct these interviews to avoid an unfair advantage to plaintiffs in terms of access to information. Second, the Stempler court made clear that a defendant’s right to these interviews in New Jersey is the rule, not the exception. Finally, in a personal injury suit, plaintiffs should not be permitted to bar such interviews based on the physician-patient privilege because New Jersey law unequivocally provides that the privilege is forfeited when a plaintiff puts his medical condition at issue in a lawsuit.
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