A judge’s instruction that jurors in a personal injury case could draw an adverse inference from the defendants’ failure to call their medical expert witnesses was reversible error, an appeals court held on Thursday.
The published ruling, in Washington v. Perez, A-4284-11, vacates a $742,000 damages award and orders a new trial.
“[We] view what occurred here as evidence of the danger of an unfettered use of the missing-witness charge,” the Appellate Division said.
The panel found that Burlington County Superior Court Judge Charles Little erred in giving the charge without going through the proper analysis.
The case arose from a 2006 traffic accident. A bus owned by Olympia Trails Bus Co. and driven by employee Carlos Perez struck Stephanie Washington’s car. She did not seek medical attention until two weeks after the crash, which, her doctor testified, aggravated back injuries sustained in a 2003 accident.
Though Olympia Trails had obtained medical reports from two doctors to bolster its claim that Washington was not injured in the collision, it did not call them as expert witnesses.
In his summation, plaintiff attorney Brian Katz commented, “what does it tell you about the candor in which the defense has approached this case … when they say she’s not hurt in the … accident and they don’t bring in their own doctors to support that theory?”
On Katz’s request, Little charged the jurors: “you have a right to infer” from the nonproduction of the defense doctors that the “testimony would be adverse to the interests of the defendant.”
The jury awarded Washington $500,000 for pain and suffering and $242,000 in economic losses.
On appeal, Judges Clarkson Fisher Jr., Carmen Alvarez and Jerome St. John found that Little failed to follow the Supreme Court’s directive in State v. Hill, 199 N.J. 545 (2009), which set four conditions predicate for an adverse-inference charge:
• the uncalled witness is “peculiarly within” one party’s control,
• the witness is available “both practically and physically,”
• the testimony “will elucidate relevant and critical facts in issue,” and
• the testimony “appears to be superior to that already utilized in respect to the facts to be proven.”
The court said Washington had satisfied only Hill’s first and third prongs, not the second and fourth.
“Because this analysis of the four factors suggests that the determination to give the instruction was, at best, a close call, the proper exercise of discretion should have been to deny plaintiff’s request,” Fisher wrote for the panel.
That would not have been detrimental to the plaintiff, whose lawyer “still was free to argue to the jury that his expert testimony was unrebutted — that the only medical expert to testify had found that plaintiff had sustained the injuries that he described.”
But by giving the charge, “the harm to defendants was palpable,” Fisher said, since “the judge had put the weight of the court’s authority behind plaintiff’s argument about the missing witness.”
Worse, the plaintiff attorney did not just rely on the judge’s instruction but “exceeded the bounds of propriety by arguing that defendants’ failure to call the missing witnesses suggested that the defense had not been honestly presented,” Fisher said. “[He] used this instruction as a platform for casting aspersions and for questioning defense counsel’s ‘candor.’”
Olympia Trails’ attorney on the appeal, Michael Tuzzio of Tinton Falls’ Ronan, Tuzzio & Giannone, says the charge was clearly prejudicial. “In a case where you have a damages award based on these facts, you have to ask yourself why. The adverse-inference charge was the reason,” he says.
Olympia Trails’ attorney at trial, Jeffrey Beacham, of Florham Park’s McGivney & Kluger, recalls that he did not call the two experts to testify because they were unavailable during the trial.
Katz, of Marlton’s Dansky Katz Ringold York, says he is considering appealing to the Supreme Court. If he does, Katz says, he will ask the court to resolve a split between Appellate Division panels over giving the adverse- inference charge with respect to not calling expert witnesses, which Fisher had described in the opinion.
In McQuaid v. Burlington County Memorial Hospital, 212 N.J. Super. 472 (App. Div. 1986), a panel said “failure of a party to call an expert witness does not normally justify an adverse inference charge.” But in Genovese v. New Jersey Transit Rail Operations, 234 N.J. Super. 375 (App. Div. 1989), another panel said that “if an expert witness is not produced at trial … an advers[e] party would ordinarily be entitled to the benefit of an adverse inference.”
Fisher added that the Supreme Court’s holding in Bender v. Adelson, 187 N.J. 411 (2006), “presupposes” the adverse-inference charge’s availability when a party fails to call an expert.