“Adverse Inference” Jury Charges Regarding Failure to Call an Expert Witness to Testify

Washington v. Perez, 219 N.J. 338 (2014).  Under certain circumstances, a party is entitled to a charge that permits a jury to draw an adverse inference from an opposing party’s failure to call a witness whose testimony would naturally have been expected to be presented were it favorable to the party who might have called that witness.  The two leading cases in this area are State v. Clawans, 38 N.J. 162 (1962), and State v. Hill, 199 N.J. 545 (1999).  Neither of those cases, however, nor any other Supreme Court case, had addressed the question whether an adverse inference charge is proper in a personal injury action where “a party declines to present the testimony of expert witnesses whose opinions have been disclosed in accordance with the discovery rules.”  Defendant had elected not to call two experts who would have testified about the causation of plaintiff’s injuries.  In a unanimous opinion by Justice Patterson, the Court concluded that such an inference was not appropriate.

Justice Patterson meticulously traced the history of adverse inference jury charges in New Jersey, noting that the Supreme Court has “consistently applied the rule with caution.”  Previous Appellate Division cases had reached divergent outcomes regarding adverse inference charges in the context of expert witnesses, as distinct from fact witnesses.  Justice Patterson ultimately concluded that an adverse inference charge “will rarely be warranted” when the missing witness is an expert.  She cited four reasons that underlay that result.

First, the Court Rules require detailed disclosure, in advance, of expert opinions.  Those rules do not apply to fact witnesses.  Thus, the essence of an expert’s testimony is not a surprise to either side at trial.  As a result, it would be an unusual event that a party would decline to call an expert due to a fear of what that expert might unexpectedly say.

Second, and again unlike fact witnesses, “an expert is unlikely to be in exclusive possession of factual evidence that would justify an adverse inference charge.”  Parties normally would have no reason for concern that an expert, if called to testify, might “reveal unfavorable facts that might otherwise be disclosed.”

Third, in most cases, parties are not required to provide expert testimony (though Justice Patterson rightly noted some exceptions to that principle).  The rules “do not preclude a party from choosing among multiple experts identified before trial, or foregoing the presentation of expert testimony entirely.”

Finally, and again in contrast to fact witnesses, there are many valid reasons why a party would choose not to call an expert to testify at trial, as Justice Patterson carefully described.  Those reasons include expense, unavailability of the expert, a decision to call fewer than all experts whom a party had designated on a particular issue, or even the pre-trial resolution of an issue on which an expert might have testified.  In short, the factors that may lead to an adverse inference charge as a result of failure to call a fact witness are generally inapplicable to uncalled expert witnesses in most cases.  The reasons not to call an expert largely have nothing to do with the potential for an expert to have given adverse testimony if called.

Having completed that analysis and established the general rule, Justice Patterson went on to evaluate whether this case posed an “exceptional situation” that would call for an adverse inference charge.  Using a four-part test stated in Hill, she concluded that this was not such a situation.

As an aside, Justice Patterson discussed in a lengthy footnote Model Civil Jury Charge 1.18 (“Witness– Failure of a Party to Produce; Adverse Inference”) and suggested that, in contrast to the comparable criminal jury charge, Model Civil Charge 1.18 may not comply with Clawans and Hill.  She suggested that the Model Civil Jury Charge Committee review that charge in the context of those two cases.  This is not the first time in recent years that appellate court opinions have identified potential problems with Model Jury Charges.

The Court’s decision on the issue of adverse inference charges for uncalled expert witnesses seems to be a wise recognition of the differences between fact and expert witnesses and the reasons for not calling each type of witness.  In general, no adverse inference should attend a decision not to call an expert.  Justice Patterson’s decision leaves room, however, for such an inference if warranted in particular circumstances.