Most defense attorneys have been faced with a situation where their expert’s opinion is not as strong as expected, or the circumstances of the case simply limit the amount of favorable “spin” an expert put on dismal facts for the defense, either on liability or damages issues. In some cases, defense counsel will choose to serve IME reports that for the most part confirm the plaintiff’s expert’s conclusions, if only to prevent exaggeration of the injuries by plaintiff’s expert at trial or to explain the treatment options available in the future. Or, for example, where a plaintiff has been injured by coming into contact with an unguarded pinch point on a machine, where a guard is clearly feasible, the best the defense expert may be able to do is opine that the machine is not defective because it can be operated safely without a guard. Serving a defense report during discovery in circumstances like these is often done as a precaution, but there is real doubt on the part of defense counsel as to the value of calling the expert at trial, holding them in counsel’s pocket simply as insurance should something unexpected arise in plaintiff’s case in chief that needs to be addressed thought expert testimony. There are risks associated with that strategy, of course, including the risk of an adverse inference charge at trial if counsel decides not to call the expert.
In New Jersey, that risk has been substantially reduced. On September 10, 2014, the New Jersey Supreme Court held that an adverse inference charge should rarely be given where an expert witness who is not called to testify at trial, despite the fact that the expert’s report was served in discovery and he was designated as a trial witness.
The Court’s decision in Washington v. Perez, N.J. (September 10, 2014), arose out a December 20006 motor vehicle accident in which a bus driven by the defendant, Carlos Perez, struck Stephanie Washington’s car. Washington filed a complaint seeking damages for injuries suffered in the accident. Her expert orthopedic surgeon prepared a report in which he opined the accident had aggravated a pre-existing cervical sprain and caused Washington to suffer a herniated disc. Defense counsel retained two experts, Scott Sharetts, M.D., a neurologist, and Gerald Hayken, M.D., an orthopedist, who prepared expert reports which were served on plaintiff’s counsel, and who opined plaintiff had sustained injuries in a prior accident, but also acknowledged that she had also suffered injuries in the accident at issue. Although these defense experts were also identified as witnesses to be called at trial, defense counsel did not call them to testify at trial.
In his summation, plaintiff’s counsel focused on the two uncalled expert witnesses and suggested to the jury that defense counsel had misled them by arguing his client has not been injured in the accident. Plaintiff’s counsel also requested, and received, an adverse inference charge, in which the trial judge instructed the jury that if the defendants would be expected to produce the experts they had designated as witnesses, the jury could infer by the fact that the witnesses were not called, that their testimony would be adverse to the defendants’ interests. The jury awarded plaintiff $742,000.
Defendants moved for a new trial or remittitur. The trial court denied the motion and defendants appealed. The New Jersey Appellate Division reversed the trial court and ordered a new trial based on the fact that the court’s adverse inference charge was improper and had prejudiced the defendants. Plaintiff moved for certification to the New Jersey Supreme Court, which was granted.
The New Jersey Supreme Court noted that the rationale for an adverse inference charge was that non-producing party likely believed the missing witness would elicit harmful testimony. However, that inference is appropriate only in the absence of an alternative explanation for the witness’s failure to appear. Where a witness is unavailable, biased against the party who would otherwise be expected to call him or her, or if the testimony would be “cumulative, unimportant or inferior” to other already-provided testimony, an adverse inference charge is improper. New Jersey has developed a four-part test which require courts to make findings as to whether: (1) the uncalled witness is peculiarly within one party’s control or power, or there is a special relationship between the party and witness, or the party has superior knowledge of the witness’s identity or expected testimony; (2) the witness is practically and physically available to the party; (3) the testimony of the uncalled witness will elucidate relevant and critical facts in issue; and (4) the uncalled witness’s testimony appears to be superior to that already utilized with respect to the fact to be proven.
The Court noted, however, that the four-part test was developed in the context of fact witnesses, not experts, and that there were several important distinctions between the two types of witnesses. First, the disclosure and discovery rules applicable to expert witnesses make it unlikely that an opposing party will be unaware of the content of an expert’s testimony. Second, an expert will not typically be in exclusive possession of factual evidence since any facts or data supporting the expert’s opinion must be disclosed in a report. Third, simply because a party has disclosed the name and opinion of an expert does not require the party to call that expert to testify at trial. Fourth, there are many strategic and practical reasons that may influence a party’s decision not to call the expert at trial. Accordingly, the Court held that an adverse inference charge will rarely be appropriate in the case of an expert witness.
In the Washington case, the Court also found that there was no evidence that the experts in the Washington case were in the exclusive control of defendants, and unavailable to testify for plaintiff. It was also unclear whether these witnesses were actually available to testify at trial at all. Although the experts’ reports did indicate that they were in possession of potentially relevant information, that testimony would have been corroborative and cumulative to the testimony of plaintiff’s treating physician.
While there are many valid strategic considerations that may warrant against serving a bad report or even calling good expert witness at trial whose testimony will be favorable based on how the trial has progressed to that moment, in New Jersey, fear of an adverse inference charge should no longer be a consideration in most cases.