Yesterday, the Supreme Court of New Jersey, in Washington v. Perez, addressed when the sanction of an adverse inference charge for failing to call an expert to testify at trial was appropriate. Specifically, the appeal arose from a personal injury trial where defense counsel declined to call hired and disclosed medical experts to testify at trial. The trial court judge granted the Plaintiff’s counsel’s request for an adverse inference charge. Ultimately, the jury awarded the Plaintiff $500,000 for pain and suffering and $242,000 for lost wages. The Defense counsel appealed arguing that the trial court abused its discretion and prejudiced the Defendant.
The Appellate Division reversed the trial judge’s ruling holding that an adverse inference charge should rarely be invoked to address the absence of an expert witness and that the adverse inference jury charge was a reversible error. The Plaintiff appealed the Appellate Division holding and certification was granted.
The Supreme Court of New Jersey affirmed the Appellate Division holding that an adverse inference charge should be rarely given for the absence of an expert witness. Specifically, the Court held that the requesting party must meet the four prong Hill standard: (1) The uncalled witness is peculiarly within one party’s control or power; (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 facts to be proven. The Court emphasized that the Hill standard will be met by a requesting party in only extremely rare circumstances in a civil case. The Court ultimately held that the reversible error caused prejudice and harm to the defendant and a new trial was warranted.
The Supreme Court’s decision in Washington makes it clear that a trial judge should not provide an adverse inference charge if defense counsel decides not to call an expert to testify at trial absent exceptional circumstances. However, counsel should still be careful in choosing not to call a previously identified and disclosed witness or expert to testify at trial as an adverse inference charge is the most commonly requested sanction and can significantly affect a jury award.
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