“Cumulative Error” Results in Reversal of a Plaintiffs’ Jury Verdict

Torres v. Pabon, 225 N.J. 167 (2016).  As Justice Patterson explained in her decision today for a unanimous Supreme Court, “cumulative error” exists when “the aggregate effect of a series of errors” deprives a party of a fair trial.  In such a case, a court “need not consider whether each individual error was prejudicial.”  In today’s decision, which involved an automobile negligence case, the Court found cumulative error, based on five separate mistaken rulings, and reversed a jury verdict for plaintiff that the Appellate Division had upheld.

The first error occurred before and during trial, and related to requests for admissions that plaintiff had issued under Rule 4:22.  Those requests “were served long after the close of discovery, so close to the trial date that the thirty-day period to respond did not expire until the trial was well under way.”  Justice Patterson found that since the requests were “untimely, … defendants had no obligation to respond to them.”  Indeed, defendants did not respond.

Moreover, the requests were “substantively improper.”  Instead of seeking admissions as to facts or attempting to authenticate documents, the two key purposes of Rule 4:22, plaintiff’s requests demanded that defendants admit certain portions of the report of defendants’ orthopedic expert.

Despite this dual impropriety of the requests for admission, plaintiff was permitted to read the requests to the jury.  That was error and an abuse of discretion.

The next two errors related to adverse inference charges given to the jury.  Plaintiff presented to the jury the deposition testimony of defendant Pabon.  Defendants then chose not to call Pabon to testify.  Plaintiff sought and obtained a charge that the jury could draw an adverse inference from the decision not to offer Pabon as a live witness.  Similarly, when defendants decided not to call their orthopedic expert (the same one who was the subject of the belated and improper requests for admission) to testify at trial, the trial court charged the jury that the expert’s failure to testify could support an adverse inference.

Justice Patterson found error in both of those uses of an adverse inference.  Such inferences can be available, but are not always warranted, when a witness is not called.  Justice Patterson pointed to the four-part test of State v. Hill, 199 N.J. 545 (2009), as the relevant standard.  In summary, that test requires that an uncalled witness be within the control of only the party against whom the inference is sought, that the witness be “physically and practically” available, that the witness’ testimony “elucidate relevant and critical facts in issue,” and that the testimony be superior to evidence already used regarding the fact(s) in issue.

The adverse inference regarding the silence of Pabon was not justified because the first and fourth factors of Hill were not satisfied.  Plaintiff could have called Pabon to testify, using a notice in lieu of subpoena under Rule 1:9-1, or by consent.  Thus, Pabon was not within the sole control of the defense.  The fourth factor too, Justice Patterson found, defeated an adverse inference as to Pabon.  “[G]iven plaintiff’s affirmative use of Pabon’s deposition testimony in her case,” Pabon’s live testimony would not have been superior to the deposition testimony already offered to the jury.

The adverse inference regarding the defense expert was improper under three of the Hill factors.  Moreover, citing Washington v. Perez, 219 N.J. 338 (2014), Justice Patterson observed that an adverse inference charge “will rarely be warranted when the missing witness is not a fact witness, but an expert.”  A party may choose not to call an expert to testify based on “strategic considerations” having nothing to do with fear that the expert’s testimony may be harmful to that party.

The fourth error related to a jury charge regarding N.J.S.A. 39:4-89, a statute that requires a driver to maintain a safe distance when following another vehicle.  A Model Civil Jury Charge, given here, envisions that the following driver is the defendant, not the plaintiff.  Here, however, that was not so, but the trial judge did not tailor the charge to account for that fact.  Justice Patterson found that the charge, as given, was “contradictory and confusing, and constituted error.”

Finally, the Court found error in the trial court’s failure to instruct the jury that, having collected Personal Injury Protection benefits, plaintiff could not obtain an award of medical expenses as damages at the trial.  In her trial testimony, plaintiff told the jury that she was unable to pay “hundreds, thousands of dollars in medical bills.”  That led Justice Patterson to conclude that “[w]ithout the guidance of that charge, the jury may have mistakenly assumed that the medical expenses described by plaintiff constituted an element of her claim for damages.”