Washington v. Perez, 430 N.J. Super. 121 (App. Div. 2013). In proper circumstances, a jury may be told that it can consider the fact that a party did not call a particular witness against that party. That is an “adverse inference charge.” In this personal injury case, the Law Division gave such a charge regarding the defense’s decision not to call to testify either of the two medical experts whom the defense had identified. The jury rendered a verdict for plaintiff. Defendants appealed and, in an opinion by Judge Fisher, the Appellate Division reversed, finding the adverse inference charge improper in the circumstances of this case.
Judge Fisher laid out the history and rationale of the adverse inference charge, essentially gathering in one place virtually all the law on this subject. He then observed that the caselaw was not clear as to whether the adverse inference charge doctrine applied equally to expert witnesses as to fact witnesses. Since the parties had not argued that issue, though, the panel assumed that an adverse inference charge could be proper as to expert witnesses.
As stated by the Supreme Court in State v. Hill, 199 N.J. 545 (2009), and quoted by Judge Fisher here, a court considering an adverse inference charge must consider (1) whether the “uncalled witness” was “peculiarly within” one party’s control; (2) whether the witness was “available both practically and physically”; (3) whether the witness’ testimony will “elucidate relevant and critical facts in issue”; and (4) whether “such testimony appears to be superior to that already utilized in respect to the fact to be proven.” Here, plaintiff did not contend that the expert testimony was superior or would enlighten the jury about critical facts, but merely that the experts, had they testified, would not have contradicted what plaintiff’s expert had to say. Even without the adverse inference charge, plaintiff would have been free to argue that her own expert’s testimony stood unrebutted.
Moreover, plaintiff used the absence of the experts to attack the candor of defense counsel, “exceed[ing] the bounds of propriety by arguing that defendants’ failure to call the missing witnesses suggested that the defense had not been honestly presented.” Defendants were thus prejudiced by the adverse inference charge, and the jury verdict had to be reversed. The panel remanded the case for a new trial.