to plaintiff. The court explained: the burden of coming forward to establish the probative value of such procedure rests with defendant; plaintiff then must produce evidence that the proposed procedure presents a risk to plaintiff’s health or is of such a nature that it will create substantial discomfort or distress; thereafter, 17. Smith v. Am. Home Prods. Corp., 372 N.J. Super. 105 (Law Div. 2003). 18. Stempler v. Speidell, 100 N.J. 368 (1985). 19. In re Diet Drug Litig., 384 N.J. Super. 546 (Law Div. 2005). 20. Pub. L. 104-191, 42 U.S.C. 300gg-12. 21. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005). 22. Stempler v. Speidell, 100 N.J. 368 (1985). 23. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005) (citing Stempler v. Speidell, 100 N.J. 368, 382 (1985)). 24. Il Grande v. Dibenedetto, 366 N.J. Super. 597 (App. Div. 2004). the burden shifts back to defendant to establish the safety and reasonableness of the procedure.25 The Appellate Division also held: [A] defendant’s remedy, where defendant has failed to meet his burden to compel such an examination, is to challenge plaintiff’s expert on crossexamination. Where a plaintiff fails to submit to an invasive procedure that a judge has determined to be warranted, possible remedies include, but are not limited to, questioning both parties’ experts as to the nature of the proposed procedure and commenting to the jury as to plaintiff’s refusal to submit to the procedure. Only in the exceptional case may a judge impose the sanction of barring plaintiff’s claim.26 Use of a Subpoena to Obtain Medical Records The penalty for the misuse of subpoena power was discussed in Crescenzo v. Crane.27 In Crescenzo, the plaintiff was in the process of divorcing her husband when her husband’s attorney served
to plaintiff. The court explained: the burden of coming forward to establish the probative value of such procedure rests with defendant; plaintiff then must produce evidence that the proposed procedure presents a risk to plaintiff’s health or is of such a nature that it will create substantial discomfort or distress; thereafter, 17. Smith v. Am. Home Prods. Corp., 372 N.J. Super. 105 (Law Div. 2003). 18. Stempler v. Speidell, 100 N.J. 368 (1985). 19. In re Diet Drug Litig., 384 N.J. Super. 546 (Law Div. 2005). 20. Pub. L. 104-191, 42 U.S.C. 300gg-12. 21. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005). 22. Stempler v. Speidell, 100 N.J. 368 (1985). 23. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005) (citing Stempler v. Speidell, 100 N.J. 368, 382 (1985)). 24. Il Grande v. Dibenedetto, 366 N.J. Super. 597 (App. Div. 2004). the burden shifts back to defendant to establish the safety and reasonableness of the procedure.25 The Appellate Division also held: [A] defendant’s remedy, where defendant has failed to meet his burden to compel such an examination, is to challenge plaintiff’s expert on crossexamination. Where a plaintiff fails to submit to an invasive procedure that a judge has determined to be warranted, possible remedies include, but are not limited to, questioning both parties’ experts as to the nature of the proposed procedure and commenting to the jury as to plaintiff’s refusal to submit to the procedure. Only in the exceptional case may a judge impose the sanction of barring plaintiff’s claim.26 Use of a Subpoena to Obtain Medical Records The penalty for the misuse of subpoena power was discussed in Crescenzo v. Crane.27 In Crescenzo, the plaintiff was in the process of divorcing her husband when her husband’s attorney served