Stephanie Washington v. Carlos Perez, Olympia Trails & Olympia Trails Bus Company (072522) , 219 N.J. 338 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Stephanie Washington v. Carlos A. Perez (A-10-13) (072522)
Argued March 17, 2014 -- Decided September 10, 2014
PATTERSON, J., writing for a unanimous Court.
In this appeal, in the context of a personal injury trial where a party declined to present the testimony of
expert witnesses whose opinions had been disclosed pursuant to the discovery rules, the Court considers the
principles established in State v. Clawans, 38 N.J. 162 (1962) and State v. Hill, 199 N.J. 545 (2009), which set forth
the standard for determining whether to issue an adverse inference jury charge when a party fails to call a witness.
In December 2006, plaintiff Stephanie Washington’s car was struck by a bus driven by defendant Carlos A.
Perez and owned by defendant Olympia Trails. Plaintiff, who had suffered injuries following a 2003 motor vehicle
collision, declined the offer of an ambulance because she had no apparent injuries and was not bleeding. However,
she later began experiencing aching and stiffness that worsened overnight. Approximately seven weeks after the
accident, plaintiff was examined by an orthopedic surgeon, Craig H. Rosen, M.D., who diagnosed her with a
herniated disc in her cervical spine. She subsequently was treated by a pain specialist, neurologist, and chiropractor
and received epidural-injection therapy from her primary care physician. Although plaintiff initially did not miss
work as a result of the accident, she later began taking days off and was granted disability early retirement in 2009.
Plaintiff filed a complaint, asserting negligence claims and seeking compensatory damages. Plaintiff’s
expert, Rosen, opined that the 2006 accident had aggravated her pre-existing cervical sprain and caused a small
herniation in a cervical disc. Defendants retained two experts, Scott R. Sharetts, M.D., a neurologist, and Gerald D.
Hayken, M.D., an orthopedist. In their reports, Sharetts opined that the 2006 accident had exacerbated plaintiff’s
prior injuries and Hayken opined that plaintiff’s cervical and radicular symptoms appeared more pronounced
following the 2006 accident. Although defendants served both reports on plaintiff’s counsel and identified the
doctors as expert witnesses expected to testify at trial, they never called them to testify. Plaintiff’s counsel’s
summation focused on the uncalled experts, suggesting that defendants had lied to the jury. On plaintiff’s request,
the court issued an adverse inference charge, instructing the jury that, if defendants would be expected to produce
Sharetts and Hayken, then the jurors could infer from their non-production that their testimony would be adverse to
defendants’ interests. The jury awarded plaintiff $500,000 for pain and suffering and $242,000 for lost wages.
Defendants moved for a new trial or remittitur, disclosing for the first time that Hayken had been
unavailable to testify during the trial. The court denied the motion, and defendants appealed. The Appellate
Division reversed, concluding that plaintiff failed to show that the experts were peculiarly within defendants’ control
or that their testimony would have been superior to that which was already utilized. Finding that the adverse
inference charge had inflicted palpable harm on defendants, the panel remanded the case to the trial court for a new
trial. This Court granted plaintiff’s petition for certification. 215 N.J. 487 (2013).
HELD: Given the significant distinctions between fact and expert witnesses, and the array of reasons why a party
may choose not to call a previously designated expert witness to testify, an adverse inference charge should rarely be
invoked to address the absence of an expert.
1. New Jersey law has long recognized the critical importance of accurate and precise jury instructions. Appellate
review of jury instructions requires scrutiny of the allegedly erroneous charge within the context of the charge as a
whole, as well as an inquiry as to whether any error may have affected the trial’s result. Reversible error occurs
where the outcome might have been different had the instruction been correct. Generally, erroneous instructions on
material points are presumed to be reversible error. (pp. 15-16)
2. In the event a party fails to produce a witness who it is within that party’s power to produce and who should have
1
been produced, the factfinder may invoke the adverse inference rule to infer that the witness’s evidence is
unfavorable to the party’s case. New Jersey courts first acknowledged the rule more than a century ago, and this
Court has consistently applied it with caution, utilizing a case-specific analysis. This approach was explained in
State v. Clawans, 38 N.J. 162, 170-71 (1962), in which the Court noted that the theoretical basis for the inference –
that the non-producing party believed the missing witness would elicit harmful testimony – only exists in the
absence of an alternative explanation for the witness’s failure to appear. Consequently, 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 would be
improper. Id. at 171. (pp. 16-22)
3. The principles established in Clawans were refined in State v. Hill, 199 N.J. 545 (2009), which set forth a four-
pronged test for determining whether to grant a request for an adverse inference charge. Specifically, courts must
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. Id. at 561-62. In both civil and criminal
trials, the adverse inference charge should only be given if the party seeking it gives appropriate notice to the court
and counsel and the trial court, after carefully considering the four factors identified in Hill, determines that it is
warranted. (pp. 22-28)
4. In both Clawans and Hill, the witnesses whose absence prompted the adverse inference charge were fact
witnesses. Here, the witnesses were experts. While this Court has not previously considered the propriety of a
Clawans charge as applied to situations where designated experts were not called at trial, Appellate Division panels
have reached divergent results. The Court notes several pertinent, significant distinctions between the testimony of
expert witnesses and fact witnesses. First, in light of the disclosure and discovery rules applicable to expert
witnesses, the content of an expert’s testimony is unlikely to be a mystery to any parties. Second, an expert is
unlikely to be in exclusive possession of factual evidence that would justify an adverse inference charge since any
facts or data supporting the expert’s opinion must be disclosed in his or her report. Third, aside from cases where
the testimony of at least one expert is necessary to withstand summary judgment and meet a party’s burden of proof,
a party who has disclosed the name and opinion of a particular expert is not compelled to call that expert to testify at
trial. Finally, in contrast to the fact witness setting, there are many strategic and practical reasons that may prompt a
party who has retained an expert to decide not to present the expert’s testimony at trial, including inability to
compensate the expert or unavailability of an expert at the time of trial. Thus, when the witness whom a party
declines to call at trial is an expert rather than a fact witness, the factors that may necessitate an adverse inference
charge addressing the absence of a fact witness are unlikely to be germane and, consequently, a Clawans charge
rarely will be warranted in the case of missing expert witnesses. (pp. 28-34)
5. Applying the Hill factors here, there is no evidence that either Sharetts or Hayken were in defendants’ exclusive
control and unavailable to testify for plaintiff. Thus, the first Hill factor weighs against the grant of a Clawans
charge since plaintiff was on notice prior to trial of the experts’ opinions and could have sought to present their
testimony at trial. However, it is unclear whether these witnesses were available to appear at trial, rendering the
second Hill factor inconclusive. Since their reports showed that the experts would have elucidated certain relevant
facts, the third Hill factor weighs to some extent in favor of an adverse inference charge, but the fourth factor
suggests a rejection of the request for a Clawans charge because the experts’ evidence was corroborative or
cumulative to plaintiff’s proofs. Accordingly, the Court concurs with the Appellate Division that the trial court
erred when it granted plaintiff’s application for an adverse inference charge pursuant to Clawans. This error is
reversible since the charge, as well as plaintiff’s counsel’s closing argument, strongly suggested to the jury that
defendants did not call the experts because they feared their testimony. (pp. 34-40)
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court
for a new trial in accordance with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and FERNANDEZ-VINA; and
JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE PATTERSON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-10 September Term 2013
072522
STEPHANIE WASHINGTON,
Plaintiff-Appellant,
v.
CARLOS A. PEREZ, OLYMPIA
TRAILS and OLYMPIA TRAILS BUS
COMPANY,
Defendants-Respondents.
Argued March 17, 2014 – Decided September 10, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 430 N.J. Super. 121 (2013).
Brian L. Katz argued the cause for appellant
(Dansky|Katz|Ringold|York, attorneys).
Michael K. Tuzzio argued the cause for
respondents (Ronan, Tuzzio & Giannone,
attorneys; Mr. Tuzzio and Thomas F. Rinaldi,
on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In State v. Clawans, 38 N.J. 162 (1962), and State v. Hill,
199 N.J. 545 (2009), this Court set forth the governing standard
that a trial court should apply to determine whether to give an
adverse inference jury charge when a party fails to call a
witness at trial. This case requires the Court to apply the
principles of Clawans and Hill in a setting not previously
addressed by the Court: a personal injury trial in which a
1
party declines to present the testimony of expert witnesses
whose opinions have been disclosed in accordance with the
discovery rules.
Plaintiff Stephanie Washington claims that she was injured
in a motor vehicle accident in New York City as the result of
the negligence of defendant Carlos Perez (Perez) and his
employer, defendant Olympia Trails Bus Company, Inc. (Olympia
Trails). Prior to trial, defendants served the expert reports
of two physicians, both of whom opined that plaintiff had
sustained injuries in a prior accident, but acknowledged that
plaintiff was also injured in the accident from which this case
arose. In his opening statement to the jury, defendants’
counsel argued that the evidence would show that plaintiff was
not injured in the accident at issue in this case. Defendants
did not call either of their expert witnesses to the stand.
At the request of plaintiff’s counsel, and over defendants’
objection, the trial court issued an adverse inference charge.
It instructed the jury that if it found that the two experts
were witnesses whom defendants would naturally be expected to
call at trial, it could infer that the experts’ testimony, if
presented, would have been adverse to the interests of
defendants.
The jury returned a verdict for plaintiff. An Appellate
Division panel reversed and remanded the matter for a new trial,
2
holding that the trial court abused its discretion when it gave
the adverse inference charge, and that the charge prejudiced
defendants. Washington v. Perez, 430 N.J. Super. 121, 131 (App.
Div. 2013).
We affirm the Appellate Division’s judgment. We hold that
given the significant distinctions between fact and expert
witnesses, and the array of reasons why a party may choose not
to call a previously designated expert witness to testify, an
adverse inference charge should rarely be invoked to address the
absence of an expert. We concur with the Appellate Division
that the record did not support an adverse inference charge
under the standard set forth in Hill. Accordingly, we remand
this case to the trial court for a new trial.
I.
Our review of the facts is based on the testimony and
evidence presented by the parties at trial.
On December 20, 2006, when the accident that gave rise to
this action occurred, plaintiff was an administrative assistant
at the New Jersey Department of the Treasury, Division of
Pensions and Benefits. Plaintiff had previously sustained
injuries during a 2003 motor vehicle collision. As a result of
that accident, plaintiff missed approximately ten weeks of work
and pursued a personal-injury action.
3
When her 2006 accident occurred, plaintiff was driving
eastbound on 42nd Street in New York City on her way to an
appointment. At a stoplight at the intersection of 42nd Street
and 8th Avenue, plaintiff pulled up in the left lane next to a
bus driven by defendant Perez and owned by defendant Olympia
Trails. According to plaintiff, when the light turned green she
and Perez proceeded through the intersection, but Perez
attempted to steer the bus into the left lane in front of her
car. She testified that the bus struck her car, sheared off the
passenger side wing mirror and removed the front bumper. She
stated that after striking her vehicle, the bus continued down
the street and came to a stop at the next intersection.
According to defendant Perez, as he was gradually moving his bus
into the left lane, plaintiff’s car initially moved toward
oncoming traffic, as if to go around the bus, and then returned
to the left lane, at which point the two vehicles collided.
Plaintiff testified that she declined a police officer’s
offer to call an ambulance because she had no apparent injuries
from the accident and was not bleeding. She stated, however,
that she began to experience aching, stiffness and soreness when
she returned home that evening. Plaintiff testified that her
symptoms worsened overnight but did not prevent her from going
to work the following day. She stated that she attempted to see
4
her primary care physician promptly but could not get an
immediate appointment.
In February 2007, about seven weeks after the accident,
plaintiff was examined by an orthopedic surgeon, Craig H. Rosen,
M.D. Based on the results of an MRI scan performed in May 2007,
Dr. Rosen diagnosed plaintiff with a herniated disc in her
cervical spine that necessitated pain management. Thereafter,
plaintiff was treated by a pain specialist, who administered
trigger-point injections to her spine. Her primary-care
physician also performed epidural-injection therapy on her neck
and thoracic spine. In addition to her primary-care physician,
Dr. Rosen and the consulting pain specialist, plaintiff was
treated by a neurologist and a chiropractor for her injuries.
Although initially she did not miss work as a result of the 2006
accident, she eventually began taking days off due to her
condition. Subsequently, plaintiff applied for and was granted
disability early retirement from her employment in 2009, citing
the injuries that she sustained in her 2006 accident as the
source of her disability.
Plaintiff filed this action in the Law Division, asserting
claims for negligence against defendants and seeking
compensatory damages. Defendants, represented by a different
law firm from the firm representing them in this appeal,
retained two experts, Scott R. Sharetts, M.D., a neurologist,
5
and Gerald D. Hayken, M.D., an orthopedist. Dr. Sharetts
examined plaintiff on June 14, 2010. In his report of the same
date, Dr. Sharetts opined that as a result of the 2006 accident,
plaintiff “sustained an exacerbation of [the] thoracic
symptomatology” that she had suffered in the 2003 accident, “as
well as cervical and to a degree lumbar musculoskeletal
symptomatology.” Dr. Hayken evaluated plaintiff on June 25,
2010. In his report prepared that day, Dr. Hayken opined that
plaintiff’s “present thoracic back pain [was] indistinguishable
on clinical grounds and objectively from her pre-accident back
pain,” but that her “cervical and radicular symptoms [appeared]
to be significantly more pronounced than they were prior to her
[December 20, 2006] injury.”1
Citing Skibinski v. Smith, 206 N.J. Super. 349 (App. Div.
1985), and Sallo v. Sabatino, 146 N.J. Super. 416 (App. Div.
1976), certif. denied, 75 N.J. 24 (1977), defendants served both
reports on plaintiff’s counsel with a disclaimer that the
reports did not constitute adoptive admissions of defendants.
In their pretrial information exchange, submitted pursuant to
Rule 4:25-7(b), defendants identified Dr. Sharetts and Dr.
Hayken as expert witnesses expected to testify at trial, and
1
Dr. Hayken later supplemented his report after reviewing
additional records, but his opinion did not change.
6
listed no “anticipated problems” for the trial court’s
consideration.
Plaintiff’s counsel designated her treating physician, Dr.
Rosen, as her expert witness. In his report, Dr. Rosen opined
that although plaintiff had sustained injuries in her 2003
accident, the 2006 accident at issue in this case had aggravated
a pre-existing cervical sprain and caused a small herniation in
a cervical disc. In testimony videotaped for use at trial, Dr.
Rosen was asked about Dr. Hayken’s opinion regarding plaintiff’s
alleged injuries. He testified that Dr. Hayken had opined “that
the cervical herniated disc and radiculopathy [were] related to
the accident [of December 20, 2006].” This testimony was
challenged prior to trial by defendants, who contended that Dr.
Rosen had mischaracterized Dr. Hayken’s opinion, and sought a
redaction of Dr. Rosen’s videotaped testimony to remove what
they considered to be misleading statements about the defense
expert’s opinion. Although plaintiff’s counsel acknowledged
that Dr. Rosen had not accurately characterized Dr. Hayken’s
opinion, the trial court denied defendants’ motion, noting that
defendants could call Dr. Hayken as a witness to refute Dr.
Rosen’s comments. At the pretrial hearing, defendants’ counsel
advised the trial court and plaintiff’s counsel, for the first
time, that defendants did not intend to call Dr. Hayken to the
stand.
7
During jury selection, the trial court represented to
prospective jurors that defendants’ experts, Dr. Sharetts and
Dr. Hayken, would testify. In determining whether prospective
jurors were acquainted with witnesses who would appear at trial,
the court identified both physicians as witnesses who would be
called by defendant, first describing them as “the physicians
who examined the plaintiff,” and then identifying the expert
witnesses by name. The record does not reflect any objection by
defendants to the trial court’s reference to Dr. Sharetts and
Dr. Hayken, or an indication during jury selection that
defendants had decided not to present the testimony of their
experts.
During his opening statement, defendants’ counsel told the
jury that it would hear plaintiff’s expert witness, Dr. Rosen,
testify on videotape that plaintiff was treated for neck pain
for three years prior to her 2006 accident. Defendants’ counsel
did not mention either Dr. Sharetts or Dr. Hayken, or indicate
to the jury whether defendants would present expert testimony.
He concluded his opening statement by stating, “[l]adies and
gentlemen, the evidence will show that [plaintiff] was not
injured in the accident of December 20, 2006.”
During plaintiff’s case-in-chief, plaintiff testified and
presented the videotaped testimony of Dr. Rosen, including the
expert’s characterization of Dr. Hayken’s opinion. Shortly
8
before plaintiff’s counsel completed his presentation of
evidence, he acknowledged that plaintiff was on notice that Dr.
Hayken would not testify on defendants’ behalf. He informed the
trial court and defendants’ counsel that he intended “to seek a
negative inference or a [Clawans] charge with respect to the
non-production of Dr. Hayken.” The trial court did not
immediately respond to plaintiff’s statement regarding Dr.
Hayken. It then granted an application by defendants for access
to MRI films, so that the films could be shown to Dr. Sharetts
before the expert’s anticipated testimony.
Despite the trial court’s ruling regarding the MRI,
defendants did not call Dr. Sharetts as an expert witness at
trial. According to plaintiff’s counsel, defendants’ counsel
advised him just before commencing defendants’ case that
defendants did not intend to present the testimony of Dr.
Sharetts. Defendants’ sole witness was defendant Perez, the bus
driver. They presented no expert testimony.
At the charge conference conducted following the close of
the proofs, plaintiff’s counsel renewed his request for an
adverse inference jury charge pursuant to Clawans, premised on
defendants’ failure to call either of their experts as witnesses
at trial. Defendants’ counsel objected, arguing that a Clawans
charge would be inappropriate because the experts’ testimony
9
would be cumulative.2 With little discussion, the court granted
plaintiff’s request for a Clawans charge with respect to
defendants’ failure to call their two expert witnesses. Neither
the trial court nor plaintiff’s counsel suggested that a Clawans
charge was necessary because of defense counsel’s claim in his
opening statement that the evidence would demonstrate that
plaintiff sustained no injuries in her December 20, 2006,
accident. Instead, the charge was justified solely by the
absence of Dr. Sharetts and Dr. Hayken from trial.
In his summation, defendants’ counsel acknowledged that
defendants had retained experts but elected not to call them.
He attributed that decision to plaintiff’s failure to “prove his
case.” Plaintiff counsel’s summation focused on the defendants’
failure to call their expert witnesses. Prompting no objection
from defense counsel, plaintiff’s counsel stated to the jury
that, “instead of bringing forth to you evidence[,] [defendants
have] hid evidence from you, [have] avoided you hearing what Dr.
Hayken has to say.” He speculated to the jury that the expert
was not called because his testimony “[did not] support what
2
The trial court initially suggested that, in addition to giving
an adverse inference instruction under Clawans against
defendants, it would give a Clawans charge against plaintiff
because she had not called one of her treating physicians.
However, plaintiff objected to the trial court’s suggestion on
the ground that a treating physician is a witness who can be
called by any party. As a result, the trial court gave a
Clawans charge only with respect to defendants’ expert
witnesses.
10
[defendants would] like you to believe.” Plaintiff’s counsel
also commented to the jury that Dr. Sharetts was not called to
testify despite defendants’ statement that the evidence would
show that plaintiff sustained no injuries in her 2006 accident.
After asking counsel to state the experts’ names, the trial
court gave the following adverse inference charge:
Anyway, reference has been made to those
doctors as being witnesses in this case and
that [defendants have] failed to call him --
them to testify. If you find that if those
doctors are people or -- or a person whom
you would naturally expect the defendant to
produce to testify, you have a right to
infer from the non-production of the
witness, that his testimony would be adverse
to the interests of the . . . defendant.
The basis for this rule is that where a
party fails to produce a witness who
probably could clarify certain facts in
issue, it raises a natural inference that
the non-producing party fears that the
testimony of the witness on the issue would
be . . . unfavorable to him or her.
However, an adverse inference should not be
drawn if [Hayken] or [Sharetts] is not a
witness whom the defendant would naturally
be expected to produce, nor if there . . .
has been a satisfactory explanation for his
non-production nor if he is equally
available to both parties, nor if his
testimony would be comparatively
unimportant, cumulative in nature or
inferior to that which you already have
before you. Whether or not an adverse
inference should be drawn is for your
determination based upon the principles that
I have just set forth.
The jury returned a verdict in plaintiff’s favor, awarding
$500,000 to compensate her for pain, suffering, disability,
11
impairment and loss of enjoyment of life, and $242,000 to
compensate her for lost wages.
Defendants filed a motion for a new trial or, in the
alternative, remittitur. For the first time, defendants’
counsel disclosed to the trial court and plaintiff’s counsel
that his pretrial telephone calls to Dr. Hayken had not been
returned, and that Dr. Hayken had been unavailable to testify
during the scheduled trial. Defendants’ counsel provided no
explanation for defendants’ failure to present the testimony of
Dr. Sharetts.
The trial court responded that it was unhappy with
plaintiff counsel’s argument to the jury that the defense
experts were not called because defendants intended to conceal
evidence. The court commented that it “should probably grant a
new trial,” but would not, given the lack of experts testifying
for the defense. The court denied defendants’ motion.
Defendants appealed, and the Appellate Division reversed
the trial court’s determination. Washington, supra, 430 N.J.
Super. at 123. The panel concluded that plaintiff had failed to
make a showing as to two of the four factors set forth by this
Court in Hill, specifically that the experts were “‘peculiarly
within the control or power of only the one party,’” and that
their testimony would have been “‘superior to that already
utilized in respect to the fact to be proven.’” Id. at 130-31
12
(quoting Hill, supra, 199 N.J. at 561).3 The panel concluded
that the trial court’s adverse inference charge had inflicted
“palpable” harm on defendants, placing “the weight of the
court’s authority behind plaintiff’s argument about the missing
witness.” Id. at 131 (citing Wild v. Roman, 91 N.J. Super. 410,
415 (App. Div. 1966)). It remanded the case to the trial court
for a new trial, and declined to reach the remaining issues
raised by defendants. Id. at 125, 131.
The Court granted plaintiff’s petition for certification.
215 N.J. 487 (2013).
II.
Plaintiff argues that the Appellate Division improperly
reversed the trial court’s determination. She contends that the
Appellate Division failed to apply a sufficiently deferential
standard of review, and urges the Court to review the trial
court’s determination under an abuse of discretion standard.
She asserts that she provided adequate proof to satisfy the test
articulated by this Court in Clawans because defendants’ expert
witnesses were clearly witnesses who would be expected to
testify at trial, defendants had the power to produce them by
3
The panel noted divergent opinions in the Appellate Division
regarding whether an adverse inference charge would ever be
appropriate when the witness in question was an expert, but
declined to address that issue because the parties had not
briefed it. See Washington, supra, 430 N.J. Super. at 129-30.
13
live testimony or by videotape, and the experts’ testimony would
have been superior to a defense presentation devoid of expert
testimony. Citing Graham v. Gielchinsky, 126 N.J. 361 (1991),
plaintiff argues that she was not in a position to call the
defense expert witnesses to testify because the experts could
not be compelled to testify and would require compensation to
appear at trial. She contends that, consequently, the expert
witnesses were unavailable to testify on her behalf. Plaintiff
characterizes the trial court’s Clawans charge as a “modified”
charge that permitted, rather than compelled, the jury to draw
an adverse inference, and argues that if the charge constituted
error, any such error was harmless.
Defendants counter that the Appellate Division properly
reviewed the trial court’s determination de novo, and that the
Clawans charge constituted reversible error in this case. They
note that the trial court did not apply the four-factor analysis
adopted by this Court in Hill when it agreed to give the Clawans
charge, and that an application of those factors to the setting
of this case demonstrates that no adverse inference instruction
was warranted. Defendants contend that Dr. Sharetts and Dr.
Hayken were not solely under defendants’ control, and that
plaintiff could have called the expert witnesses to testify had
she considered their opinions helpful to the jury. Defendants
urge the Court to affirm the Appellate Division’s determination.
14
III.
Our law has long recognized the critical importance of
accurate and precise instructions to the jury. “It is
fundamental that ‘[a]ppropriate and proper charges to a jury are
essential for a fair trial.’” Velazquez v. Portadin, 163 N.J.
677, 688 (2000) (alteration in original) (quoting State v.
Green, 86 N.J. 281, 287 (1981)). “A jury is entitled to an
explanation of the applicable legal principles and how they are
to be applied in light of the parties’ contentions and the
evidence produced in the case.” Viscik v. Fowler Equip. Co.,
173 N.J. 1, 18 (2002) (internal quotation marks omitted). “The
jury charge ‘should set forth an understandable and clear
exposition of the issues.’” Mogull v. CB Commercial Real Estate
Grp., Inc., 162 N.J. 449, 464 (2000) (quoting Campos v.
Firestone Tire & Rubber Co., 98 N.J. 198, 210 (1984)).
Appellate review of a challenged jury instruction entails
not only scrutiny of the charge itself, but an inquiry as to
whether an erroneous charge may have affected the trial’s
result. Notably, “in construing a jury charge, a court must
examine the charge as a whole, rather than focus on individual
errors in isolation.” Viscik, supra, 173 N.J. at 18 (citing
Ryder v. Westinghouse Electric Corp., 128 F.3d 128, 137 (3d Cir.
1997), cert. denied, 522 U.S. 1116, 118 S. Ct. 1052, 140 L. Ed.
2d 115 (1998)). “As a general matter, [appellate courts] will
15
not reverse if an erroneous jury instruction was ‘incapable of
producing an unjust result or prejudicing substantial rights.’”
Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296
(App. Div.) (quoting Fisch v. Bellshot, 135 N.J. 374, 392
(1994)), certif. denied, 216 N.J. 4 (2013). However, erroneous
jury instructions “constitute[] reversible error where the jury
outcome might have been different had the jury been instructed
correctly.” Velazquez, supra, 163 N.J. at 688. Generally,
“‘erroneous instructions on material points are presumed to be
reversible error.’” McClelland v. Tucker, 273 N.J. Super. 410,
417 (App. Div. 1994) (quoting State v. Martin, 119 N.J. 2, 15
(1990)). Applying that standard of review, the Court considers
the trial court’s adverse inference charge.
A.
When “a party fails to produce a witness who is within its
power to produce and who should have been produced,” the adverse
inference rule permits the factfinder “to infer that the
witness’s evidence is unfavorable to the party’s case.” Black’s
Law Dictionary 62 (9th ed. 2009). As the United States Supreme
Court has observed, “if a party has it peculiarly within his
power to produce witnesses whose testimony would elucidate the
transaction, the fact that he does not do it creates the
presumption that the testimony, if produced, would be
unfavorable.” Graves v. United States, 150 U.S. 118, 121, 14 S.
16
Ct. 40, 41, 37 L. Ed. 1021, 1023 (1893). As the Third Circuit
has noted, “a missing witness charge has long been accepted as
appropriate even in criminal cases.” United States v. Am.
Radiator & Standard Sanitary Corp., 433 F.2d 174, 206 (3d Cir.
1970) (citing Graves, supra, 150 U.S. at 121, 14 S. Ct. at 41,
37 L. Ed. at 1023), cert. denied, 401 U.S. 948, 91 S. Ct. 929,
28 L. Ed. 2d 231 (1971); see also United State v. Restaino, 369
F.2d 544, 547 (3d Cir. 1966) (noting in context of criminal
case, that inference undergirding missing witness charge is of
“ancient lineage” and “enjoys almost universal acceptance”).
Our courts first acknowledged the adverse inference charge
more than a century ago:
[T]he rule seems to be, according to the
weight of authority, that the non-production
of a witness, either by the state or the
defendant, may be considered by the jury in
weighing the effect of evidence applicable
to the subject in dispute, but it will not
justify an arbitrary presumption of
suppression of evidence, nor does it raise
any presumption of guilt or innocence.
[State v. Callahan, 76 N.J.L. 426, 428 (Sup.
Ct. 1908), aff’d, 77 N.J.L. 685 (E. & A.
1909).]
Similarly, in State v. Elliott, it was held that the failure of
both the State and the defendant to call certain witnesses
entitled the jury to infer “that [the witnesses] would not
testify favorably” for either party. 129 N.J.L. 169, 170-71
(Sup. Ct. 1942), aff’d, 130 N.J.L. 174 (E. & A. 1943).
17
Notwithstanding the expansive reach of the adverse
inference rule articulated by the United States Supreme Court in
Graves, and followed by New Jersey courts for many years, this
Court has consistently applied the rule with caution, requiring
a case-specific analysis to determine whether an adverse
inference charge is warranted in a particular setting. The
Court first addressed the adverse inference charge in State v.
Cooper, 10 N.J. 532 (1952). Noting that “the mere failure to
produce a witness does not of itself permit the jury to infer
that” the witness would have contradicted the testimony of other
prosecution witnesses, the Court held that the charge was
inappropriate when the absence of the disputed witness was
explained by his confinement to his home following surgery. Id.
at 566; cf. Michaels v. Brookchester, Inc., 26 N.J. 379, 391
(1958) (finding that trial court did not err by charging “that
[the] defendant’s unexplained failure to produce two of its
employees permitted an inference that their testimony would have
been unfavorable to [the defendant]”).
The Court’s case-specific approach to the adverse inference
charge was explained in Clawans, supra, 38 N.J. at 170-72.
There, the State prosecuted a criminal defense attorney for
suborning perjury, based upon a courthouse conversation that the
attorney was alleged to have conducted with an inmate in the
presence of a corrections officer and another inmate. Id. at
18
165-66. Although two detectives stood nearby and observed the
defendant lawyer speaking with the inmate, they could not
testify about the substance of the conversation. Id. at 167.
No trial witnesses corroborated the inmate’s testimony that the
attorney had instructed her to testify falsely. Ibid. Although
the State admitted that the corrections officer was available to
testify, it did not call either the officer or the second inmate
to testify regarding the conversation that they allegedly
witnessed. Id. at 167, 173. The defendant requested that the
trial court issue an adverse inference charge that mandated,
rather than permitted, the jury to conclude that the State’s
failure to call these two witnesses meant that the disputed
conversation had never occurred. Id. at 170. The trial court
declined that request. Ibid. The jury convicted the defendant
attorney, and she appealed. Id. at 168.
This Court noted that the theoretical basis for the
inference -- the non-producing party’s purported concern that
the missing witness would elicit testimony harmful to its case -
- only exists in the absence of an alternative explanation for
the witness’s failure to appear:
[The] failure of a party to produce before a
trial tribunal proof which, it appears,
would serve to elucidate the facts in issue,
raises a natural inference that the party so
failing fears [that] exposure of those facts
would be unfavorable to him. But such an
inference cannot arise except upon certain
19
conditions and the inference is always open
to destruction by explanation of
circumstances which make some other
hypothesis a more natural one than the
party’s fear of exposure.
[Id. at 170-71 (internal citations
omitted).]
The Court commented that an adverse inference charge would be
improper if the witness were unavailable, if the witness were
biased against the party who would otherwise be expected to call
him or her, or if the witness’s testimony “would be cumulative,
unimportant or inferior to what had been already utilized.” Id.
at 171. It rejected the notion that an adverse inference should
never be raised when a witness is available to both parties,
holding:
[T]he more logical approach views this
situation as posing a possible inference
against both [parties], the questions of the
existence and strength of the inference
against either being dependent upon the
circumstances of the case, including whether
one party has superior knowledge of the
identity of the witness and what testimony
might be expected from him, as well as the
relationship of the witness to the parties.
[Id. at 171-72.]
Applying these principles to the case before it, the Court
held in Clawans that the defendant was not entitled to the jury
charge that she had requested -- a charge that would have
mandated, not simply authorized, an inference that the disputed
conversation never occurred. Id. at 170, 174-75. It held,
20
however, that the defendant was entitled to a narrower adverse
inference instruction, permitting the jury to infer that the
testimony of the corrections officer, who had clearly heard the
disputed conversation and whose absence was unexplained by the
State, would have been unfavorable to the State. Id. at 174-75.
Accordingly, the Court reversed the defendant’s conviction and
remanded for a new trial. Id. at 175.
Thus, in Clawans, the Court confirmed that the adverse
inference charge should not be a reflexive response whenever a
party fails to call an expected witness. Id. at 170-71.
Instead, the Court required that the trial court carefully
analyze the specific facts before it. Id. at 172. To that end,
the Court recommended that a party seeking the benefit of an
adverse inference charge provide sufficient notice so that the
opposing party has a meaningful opportunity to respond. Ibid.;
see also State v. Irving, 114 N.J. 427, 442 (1989) (noting that
notice envisioned by the Court in Clawans is intended “to
provide the party accused of non-production an opportunity
either to call the witness or to explain his failure to do so”).
With the benefit of counsel’s explanation for the witness’s
absence, the Court in Clawans anticipated that a trial court
would thoughtfully analyze the witness’s potential testimony,
circumstances, and relationship with each party, and would
decline to give an adverse inference charge if it were
21
unwarranted. Clawans, supra, 38 N.J. at 172; see Irving, supra,114 N.J. at 442.
The principles of Clawans were refined in Hill, supra,which arose from a defendant’s conviction for robbery on a
theory of accomplice liability. 199 N.J. at 550. There, the
defendant failed to call as a witness his nephew, who was
involved in the robbery for which the defendant was tried.
Ibid. The defendant testified at trial that he did not know the
exact location of his nephew, but believed that he was in
Alabama. Id. at 554. Citing defendant’s family relationship
with the missing witness, the potential superiority of the
nephew’s testimony, and the lack of evidence showing that
defendant had sought to locate his nephew or attempt to produce
him at trial, the trial court gave a Clawans charge regarding
the nephew. Id. at 556-57. It instructed the jury that it had
the right to infer that had the witness appeared, his testimony
would have been adverse to the interests of the defendant. Id.
at 557. On appeal, the Appellate Division held that the Clawans
charge was inappropriate, but that it constituted harmless
error. Id. at 558.
This Court observed that “‘[i]t is one thing for counsel in
his summation to point to the absence of particular witnesses;
it is quite another when the court puts the weight of its
authority behind such a summation by telling the jury it may
22
draw an adverse inference from their absence.’” Id. at 561(quoting Wild, supra, 91 N.J. Super. at 415). Accordingly, the
Court restricted the use of the Clawans charge in several
significant respects. First, the Court made mandatory the
notice procedure suggested in Clawans: “[t]he party seeking the
jury charge must notify the opposing party and the judge,
outside the presence of the jury, must state the name of the
witness . . . not called, and must set forth the basis for the
belief that the witness . . . [has] superior knowledge of
relevant facts.” Id. at 560-61 (citing Clawans, supra, 38 N.J.
at 172). Second, the Court prescribed a four-pronged test to be
applied by a trial court when determining whether to grant a
request for an adverse inference charge in a particular setting:
When making a determination about a Clawans
charge, a court must demonstrate that it has
taken into consideration all relevant
circumstances by placing, on the record,
findings on each of the following:
“(1) that the uncalled witness is
peculiarly within the control or
power of only the one party, or
that there is a special
relationship between the party and
the witness or the party has
superior knowledge of the identity
of the witness or of the testimony
the witness might be expected to
give; (2) that the witness is
available to that party both
practically and physically; (3)
that the testimony of the uncalled
witness will elucidate relevant
and critical facts in issue[;] and
23
(4) that such testimony appears to
be superior to that already
utilized in respect to the fact to
be proven.”
[Id. at 561-62 (alteration in original)
(quoting State v. Hickman, 204 N.J. Super.
409, 414 (App. Div. 1985), certif. denied,
103 N.J. 495 (1986)).]
Finally, noting the risk that a Clawans charge could
mislead or confuse the jury about the State’s burden of proof,
the Court held “that it would be the rare case, if any, that
would warrant” such a charge against a criminal defendant. Id.
at 566-67; see also State v. Velasquez, 391 N.J. Super. 291, 306
(App. Div. 2007) (noting “the need for trial courts to exercise
caution in authorizing the inference”). Accordingly, the Court
reversed the defendant’s conviction, and remanded for a new
trial. Hill, supra, 199 N.J. at 570. Thus, although a Clawans
charge against the State may be an appropriate remedy “to
balance the scales of justice” in favor of a defendant in a
criminal case, State v. Dabas, 215 N.J. 114, 140 (2013), it
should rarely, if ever, be used against a defendant in the wake
of this Court’s decision in Hill, supra, 199 N.J. at 566-67.
See Model Jury Charge (Criminal), “Witness -- Failure of the
Defendant to Produce” (June 14, 2010).
As the Court observed in Clawans, supra, the adverse
inference charge may be given in civil as well as criminal
trials. 38 N.J. at 171. In the civil setting, as in criminal
24
cases, courts have recognized the prejudicial impact of a
Clawans charge, and have addressed a litigant’s request for such
a charge with caution. This Court noted in Gonzalez v. Safe &
Sound Sec. Corp. that “[t]he adverse inference is not to be
utilized when the witness is unavailable or likely to be
prejudiced against the party calling him.” 185 N.J. 100, 118
(2005). As a federal appellate court has noted in the setting
of a civil case, “[a]n adverse inference instruction is a
powerful tool in a jury trial” that “when not warranted, creates
a substantial danger of unfair prejudice.” Morris v. Union Pac.
R.R., 373 F.3d 896, 900, 903 (8th Cir. 2004). Thus, courts have
recognized that in civil cases, as in criminal cases, an adverse
inference charge can have a decisive impact upon a jury’s
determination.
In Wild, supra, the Appellate Division noted that our
courts have not construed Clawans to “always compel[] the giving
of [the adverse inference] charge when a possible witness does
not appear, even upon request and even if the rules laid down in
Clawans . . . are complied with.” 91 N.J. Super. at 414.
There, the panel reversed a trial court’s decision to give a
Clawans charge after the plaintiffs, who alleged dental
malpractice against the defendant, failed to call certain of
their treating dentists “whose names appeared in the case.” Id.
at 413, 418-19 (internal quotation marks omitted). The panel
25
noted that “there was ample reason for plaintiffs’ attorney to
conclude that the testimony of [the dentists] . . . was
unnecessary and not worth the fees they would necessarily charge
for testifying,” and acknowledged “that it would have been an
imposition upon these [dentists] to disrupt their practices for
the little that they could contribute by way of testimony.” Id.
at 418; see also ASHI-GTO Assocs. v. Irvington Pediatrics, P.A.,
414 N.J. Super. 351, 361 (App. Div.) (affirming trial court’s
denial of request for adverse inference charge regarding fact
witness, who was “equally available to both sides”), certif.
denied, 205 N.J. 96 (2010); Anderson v. Somberg, 158 N.J. Super.
384, 394-95 (App. Div.) (affirming trial court’s denial of
request for adverse inference charge regarding proposed
metallurgical expert witness because, among other things, party
requesting charge failed to demonstrate that expert witness “was
not equally available” to be called to testify), certif. denied,
77 N.J. 509 (1978); Hill v. Newman, 126 N.J. Super. 557, 564
(App. Div. 1973) (affirming trial court’s denial of defendant’s
request for adverse inference charge regarding fact witness and
noting that “[t]he trial judge emphasized [the witness’s]
availability to all parties in denying [the] defendant’s
request”), certif. denied, 64 N.J. 508 (1974).
Nothing in the Court’s decision in Hill, supra, limits the
four-part test set forth in that case to criminal trials. 199
26
N.J. at 561-62. In civil cases as well as criminal trials, the
adverse inference charge should only be given if the party
seeking it gives appropriate notice to the court and counsel,
and the trial court, after carefully considering the four
factors identified in Hill, determines that it is warranted.
Ibid.4 When the court’s findings with respect to those factors
do not support an adverse inference charge, the jury is free to
independently draw an inference from the absence of an important
4
In the instant case, the trial court substantially followed a
section of the Model Jury Charge (Civil) 1.18, “Witness --
Failure of a Party to Produce; Adverse Inference” (Revised Aug.
2011) [Hereinafter “Model Civil Charge 1.18”], entitled
“Alternative A.” This portion of Model Civil Charge 1.18
instructs the jury to determine whether an adverse inference
should be drawn, based upon the following factors: (1) whether
the witness is one “whom the plaintiff/defendant would naturally
be expected to produce;” (2) whether “there has been a
satisfactory explanation for [the witness’s] non-production;”
(3) whether the witness “is equally available to both parties;”
and (4) whether the witness’s “testimony would be comparatively
unimportant, cumulative in nature or inferior to that which you
already have before you.” In contrast to Model Jury Charge
(Criminal), “Witness -- Failure of the Defendant to Produce”
(June 14, 2010), and Model Jury Charge (Criminal), “Witness --
Failure of the State to Produce” (June 14, 2010), Model Civil
Charge 1.18 does not direct the trial court to conduct the
inquiry required by Hill before giving a Clawans charge.
Moreover, Model Civil Charge 1.18 directs the jury -- not the
trial court -- to determine why a particular witness did not
appear at trial. Such an inquiry inappropriately compels an
attorney for a party seeking to avoid an adverse inference
charge to explain to a jury his or her efforts to locate or
communicate with a witness, and invites counsel to argue before
the jury as to whether a witness is available to testify on
behalf of either side. We urge the Model Civil Jury Charge
Committee to review Model Civil Charge 1.18 to ensure that it
complies with Hill, and that it does not allocate to the jury
determinations that are properly conducted by the trial judge.
27
witness. The trial court, however, maintains its neutrality
with respect to that inference.
B.
In this case, the witnesses whose absence prompted the
Clawans charge were not fact witnesses, as were the witnesses
disputed in Clawans and Hill, but were experts retained by a
party. This Court has not previously analyzed the adverse
inference charge in the expert witness setting.5
As the Appellate Division noted in the instant case, prior
Appellate Division panels have reached divergent results
regarding the propriety of a Clawans charge as applied to expert
witnesses. See Washington, supra, 430 N.J. Super. at 129-30
(declining to reach the issue “in light of the parties’ failure
to brief it”); see also Bradford v. Kupper Assocs., 283 N.J.
Super. 556, 580 (App. Div. 1995) (holding that “[p]laintiffs
could have subpoenaed the potential defense witnesses” and that
“the failure of a party to call an expert who was earlier
deposed does not normally justify an adverse inference charge”)
5
Neither of the two prior cases decided by the Court involving
adverse inference issues in the expert setting directly raised
the issue that is now before the Court. See Bender v. Adelson,
187 N.J. 411, 435 (2006) (holding that trial court should not
have permitted plaintiff’s counsel to argue that jury should
draw adverse inference because of absence of defendants’ expert
witnesses, given trial court’s entry of order barring defendants
from calling witnesses at trial); Biruk v. Wilson, 50 N.J. 253,
261 (1967) (reviewing trial court’s application of adverse
inference charge to fact witness, but not its application of
charge to expert witnesses).
28
(internal quotation marks omitted), certif. denied, 144 N.J. 586(1996); Genovese v. N.J. Transit Rail Operations, Inc., 234 N.J.
Super. 375, 382 (App. Div.) (holding that party is ordinarily
entitled to benefit of adverse inference “if an expert witness
is not produced at trial and the R. 4:14-9(e) deposition is not
offered”), certif. denied, 118 N.J. 195 (1989); McQuaid v.
Burlington Cnty. Mem’l Hosp., 212 N.J. Super. 472, 476 (App.
Div. 1986) (stating that “[e]ven were [the expert] not equally
available to both parties, the failure of a party to call an
expert witness does not normally justify an adverse inference
charge”); Anderson, supra, 158 N.J. Super. at 395 (same);
Parentini v. S. Klein Dep’t Stores, Inc., 94 N.J. Super. 452,
457-58 (App. Div.) (holding that trial court’s decision to give
adverse inference charge regarding expert witness did not
constitute plain error, although “[t]here was no basis for an
assumption that [the expert’s] testimony would have been
favorable or unfavorable to anyone”), certif. denied, 49 N.J.
371 (1967). In short, no definitive rule has developed in our
case law regarding the use of adverse-inference charges when
expert witnesses who are designated by a party are not called to
testify at trial.
There are significant distinctions between the testimony of
expert witnesses and the testimony of fact witnesses, which are
pertinent to the adverse-inference charge. First, the content
29
of an expert witness’s testimony is unlikely to be a mystery to
the parties and their counsel when a case proceeds to trial.
Expert witnesses in civil cases are subject to disclosure and
discovery rules that do not apply to fact witnesses. Pursuant
to Rule 4:10-2(d)(1), the identity of an expert witness whom a
party “expects to call at trial,” is discoverable through
interrogatories. R. 4:10-2(d)(1). Interrogatories served upon
a party pursuant to Rule 4:10-2(d)(1) “may also require, as
provided in [Rule] 4:17-4(a), the furnishing of a copy of that
person’s report.” R. 4:10-2(d)(1). “If an interrogatory
requires a copy of the report of an expert witness or treating
or examining physician as set forth in [Rule] 4:10-2(d)(1),” the
proffered report must state the expert’s “opinions and the basis
therefor,” identify “the facts and data considered in forming
the opinions,” set forth the expert’s qualifications, including
a list of publications for the preceding ten years, and disclose
“whether compensation has been or is to be paid for the report
and testimony and, if so, the terms of the compensation.” R.
4:17-4(e). The expert witness may be deposed “as to the opinion
stated” in his or her report, with the party conducting the
deposition responsible for the payment of “a reasonable fee for
the appearance.” R. 4:10-2(d)(2).
In short, our rules afford to a civil litigant broad
discovery of the expert witnesses whom an adversary expects to
30
call to testify at trial. In contrast to the testimony of a
fact witness, the opinion of an expert witness is rarely a
surprise to opposing counsel in a civil trial.
Second, an expert is unlikely to be in exclusive possession
of factual evidence that would justify an adverse inference
charge. Depending upon the nature of the case and the strategy
of the party, an expert may base his or her conclusions entirely
on facts developed by others, or conduct his or her own
investigation in accordance with the court rules. See, e.g., R.
4:18-1(a) (authorizing inspection of documents and tangible
things, and “entry upon designated land or other property . . .
for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any
designated object or operation thereon”); R. 4:19 (providing for
physical and mental examinations by expert witnesses “in an
action in which a claim is asserted by a party for personal
injuries or in which the mental or physical condition of a party
is in controversy”). When a physical examination is conducted
pursuant to Rule 4:19, or a party voluntarily submits to a
physical examination by an opposing expert, Rule 4:10-2(d)(1)
provides for discovery regarding the expert “whether or not [the
expert is] expected to testify.”
Thus, although an expert may develop factual information
and present it at trial, any facts or data that support the
31
expert’s opinion must be disclosed in his or her report. R.
4:17-4(e). Rarely will an expert be in a position to reveal
previously undisclosed factual information, for the first time,
on the stand at trial. Given the broad expert disclosures
compelled by our rules, it is the unusual setting in which a
party’s decision not to call an expert witness will be prompted
by the party’s fear that the expert will reveal unfavorable
facts that would otherwise not be disclosed. Clawans, supra, 38
N.J. at 170-71.
Third, notwithstanding the detailed requirements that
govern the development of expert witness testimony and mandate
expert discovery, our court rules do not compel a litigant who
has disclosed the name and opinion of a particular expert to
call that expert to testify at trial. There are, of course,
categories of cases in which the testimony of at least one
expert is necessary to withstand a motion for summary judgment
and to meet the party’s burden of proof.6 Subject to that
6
See, e.g., Rosenberg v. Cahill, 99 N.J. 318, 327 (1985)
(stating that under circumstances of case, “competent expert
testimony” was necessary “to establish the applicable duty of
care with respect to the proper chiropractic practices”);
Schueler v. Strelinger, 43 N.J. 330, 345-46 (1964) (reversing
finding of negligence against defendant doctor and holding that
“evidence of a deviation from accepted medical standards must be
provided by competent and qualified physicians”); Dare v.
Freefall Adventures, Inc., 349 N.J. Super. 205, 215-16 (App.
Div.) (affirming grant of summary judgment to defendant skydiver
and holding that “expert testimony was necessary to establish
what standard of care applied”), certif. denied, 174 N.J. 4332
constraint, however, our rules do not preclude a party from
choosing among multiple experts identified before trial, or
foregoing the presentation of expert testimony entirely.
Fourth, in contrast to the fact witness setting, there are
many strategic and practical reasons that may prompt a party who
has retained an expert witness to decide not to present the
expert’s testimony at trial. Expert witnesses are almost always
compensated for their time; a party may decide against calling a
particular expert at trial to save resources. A litigant may
retain and identify multiple expert witnesses in the same field
of expertise, reserving until trial the selection of the one
best suited for the case. A plaintiff might settle his or her
dispute with one defendant while proceeding to trial against
another, and abandon plans to call an expert whose testimony
focused upon the defendant who has settled. An expert’s
testimony may no longer be relevant because a previously
contested issue has been resolved. An expert may prove to be
unavailable when and where the case proceeds to trial.
(2002); Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J.
Super. 320, 327, 341-42 (App. Div. 2000) (holding that
plaintiffs’ failure to proffer expert testimony in support of
defective design claim against manufacturer of train car
emergency unlock mechanism warranted grant of summary judgment
in favor of defendant manufacturers); Giantonnio v. Taccard, 291
N.J. Super. 31, 43-44 (App. Div. 1996) (holding that expert
testimony was necessary to establish standard of care in safe
conduct of funeral procession).
33
There are, in short, many explanations for a party’s
decision not to call a particular expert that may have nothing
to do with a party’s fear that the expert will reveal
prejudicial information. See Anderson, supra, 158 N.J. Super.
at 395 (holding that in absence of evidence that missing expert
had superior knowledge, defendant’s application for Clawans
charge “constituted an inappropriate endeavor to have the jury
draw an adverse inference against [its codefendant] simply
because he chose not to use at trial a witness he had earlier
identified as a potential expert witness”).
Thus, when the witness whom a party declines to call at
trial is an expert rather than a fact witness, the factors that
may necessitate an adverse inference charge addressing the
absence of a fact witness are unlikely to be germane.
Accordingly, a Clawans charge will rarely be warranted when the
missing witness is not a fact witness, but an expert.7
C.
In determining whether this case presents the exceptional
situation in which the absence of an expert witness warrants a
7
If a Clawans jury instruction is not given with respect to a
witness, counsel should not be permitted to argue to the jury
that it should draw an adverse inference from the absence of the
witness. State v. Hill, 199 N.J. 545, 560-61 (2009); State v.
Driker, 214 N.J. Super. 467, 472 (App. Div. 1987).
34
Clawans charge, the Court is guided by the four-part standard
adopted in Hill, supra, 199 N.J. at 561-62.8
In accordance with Hill, a trial court considering an
adverse inference charge must first determine whether “the
uncalled witness is peculiarly within the control or power of
only the one party,” whether “there is a special relationship
between the party and the witness” and whether “the party has
superior knowledge of the identity of the witness or of the
testimony the witness might be expected to give.” Id. at 561(internal quotation marks omitted).
In this case, there is no evidence that either Dr. Sharetts
or Dr. Hayken were in defendants’ exclusive control and thus
unavailable to testify for plaintiff. As the Court held in
Fitzgerald v. Stanley Roberts, Inc., “no party to litigation has
‘anything resembling a proprietary right’ to any witness’
evidence.” 186 N.J. 286, 301 (2006) (quoting Cogdell v. Brown,
220 N.J. Super. 330, 334 (Law Div. 1987), certif. denied, 114
N.J. 517 (1989)). There, the Court noted that “[b]y declaring
that an expert witness will be produced at trial and providing
the expert’s identity and opinion to another party, as required
8
In the instant case, the trial court did not require plaintiff
to make a showing with respect to the factors set forth in Hill,
and did not discuss them when it granted plaintiff’s application
for a Clawans charge. On appeal, the Appellate Division applied
the Hill standard to reverse the trial court’s determination.
Washington, supra, 430 N.J. Super. at 130-31.
35
by Rule 4:10-2(d)(1), the original proponent has waived his
claim that the information is privileged.” Id. at 302. Under
Fitzgerald, “access to [a] testifying witness is allowed and the
adversary may produce a willing expert at trial.” Id. at 302.9
Accordingly, if a party decides not to call an expert witness
whose identity and report have been disclosed, and who possesses
factual information relevant to the case, the principle set
forth in Fitzgerald may permit the adversary to call the expert
and present the evidence at trial.
Here, by virtue of the expert witnesses’ reports, plaintiff
was on notice prior to trial of the results of the physical
examinations conducted by the experts, and of their respective
opinions. Following defendants’ pretrial announcement that they
would not call Dr. Hayken to testify, and their notification to
plaintiff during the trial that Dr. Sharetts would not testify
on their behalf, plaintiff was in a position to contact the
experts and seek to present their testimony at trial, but did
9
The rule of Fitzgerald applies only to expert witnesses who are
designated by a party to testify at trial, not to consulting
experts who are not named as trial witnesses. In Fitzgerald,
the Court reaffirmed the rule articulated in Graham, supra, 126
N.J. at 373, but distinguished Graham from the case before it.
In Graham, the Court held that a consulting expert who has not
been designated as a party’s trial expert witness is prohibited
from testifying on behalf of the adversary of the party who
retained him or her, absent “exceptional circumstances” that
would authorize discovery of the consultant’s identity and
opinion under the standard of Rule 4:10-2(d)(3). Ibid. In
Fitzgerald, supra, the Court held that the rule of Graham “has
no applicability to a testifying witness.” 186 N.J. at 301.
36
not do so. Accordingly, the first factor identified in Hill
weighs against the grant of an adverse inference charge.
The second consideration set forth in Hill is whether “the
witness is available to [the party against whom the adverse
inference charge is sought] both practically and physically.”
Hill, supra, 199 N.J. at 561 (internal quotation marks omitted).
Before the trial court granted plaintiff’s application for a
Clawans charge, defendants’ counsel never suggested that either
expert witness was unavailable, or sought an adjournment to
accommodate the witnesses’ schedules. It was not until the
argument of a post-trial motion that defendants revealed for the
first time that Dr. Hayken had been unavailable to testify at
trial. Defendants never suggested that their other expert, Dr.
Sharetts, was unavailable to testify, and the record does not
reveal whether he would have appeared at trial if called by
defendants. Thus, it is unclear whether these witnesses were
available to appear at trial. Applied to this case, the second
Hill factor is inconclusive.
The third consideration identified in Hill is whether the
missing witnesses’ testimony would have “elucidate[d] relevant
and critical facts in issue.” Ibid. (internal quotation marks
omitted). In this case, each expert witness examined plaintiff,
each independently developed factual information and opinions
regarding this case, and each disclosed factual information as
37
well as his opinion in his report. Significantly, plaintiff was
also examined by Dr. Rosen, and was available to be examined
again at her counsel’s direction or by court order.
Nonetheless, there was sufficient evidence in the experts’
reports to support a finding that the testimony of Dr. Sharetts
and Dr. Hayken would have elucidated certain relevant facts.
Accordingly, the third factor of Hill weighs to some extent in
favor of an adverse inference charge.
Finally, the Court directed in Hill that trial courts must
consider whether the missing witness’s “testimony appears to be
superior to that already utilized in respect to the fact to be
proven.” Ibid. (internal quotation marks omitted). In the case
of an expert, this factor requires that the court determine
whether the missing witness offers factual information superior
to the evidence available from other sources. See Anderson,
supra, 158 N.J. Super. at 395 (noting lack of evidence in
support of conclusion that expert designated, but not called, by
defendant “had knowledge superior to that of [the codefendant’s
expert] . . . regarding the manufacture and design” of product
at issue). Nothing in the record suggests that the testimony of
Dr. Sharrets or Dr. Hayken would have been superior to the
expert testimony already before the jury. Plaintiff presented
the testimony of her treating physician, who examined and
treated her five times between February 2007 and October 2010,
38
and recommended her course of treatment. We share the Appellate
Division’s view that the defense experts’ evidence was “merely
corroborative or cumulative to plaintiff’s proofs,” and that
this fourth Hill factor “suggests a rejection of the request for
a missing-witness charge.” Washington, supra, 430 N.J. Super.
at 131.
Accordingly, the Court concurs with the Appellate Division
that the trial court erred when it granted plaintiff’s
application for an adverse inference charge pursuant to Clawans.
The four factors identified in Hill do not support a Clawans
charge when applied to the record before the Court. This case
does not present the rare circumstance in which a party’s
decision not to call an expert witness justifies a Clawans
charge. The trial court erred when it granted plaintiff’s
request for an adverse inference charge in this case.
Moreover, that error was not harmless, but reversible. The
trial court’s adverse inference charge strongly suggested to the
jury that defendants did not call their witnesses because they
feared their testimony.10 That error was compounded when
10
If the trial court intended the Clawans charge to serve as a
sanction for defendants’ trial counsel’s representation to the
jury in his opening statement that the evidence would establish
that plaintiff sustained no injuries in her December 20, 2006
accident, it gave no such indication in its brief discussion of
the charge. In any event, an adverse inference charge would not
be an appropriate remedy for a mischaracterization of the
evidence in an opening statement. Given the evidence before the
39
plaintiff’s counsel argued to the jury in summation that
defendants had declined to call Dr. Hayken because they feared
his testimony. We agree with the Appellate Division’s
observation that by virtue of the authority of the trial judge
supporting the adverse inference, “the harm to defendants was
palpable.” Ibid.
Accordingly, the Appellate Division properly reversed the
trial court’s judgment. Defendants are entitled to a new trial.
IV.
The judgment of the Appellate Division is affirmed, and the
case is remanded to the trial court for a new trial in
accordance with this opinion.
jury that plaintiff was injured in the 2006 accident, any claim
to the contrary by defendants’ counsel was subject to effective
rebuttal by plaintiff’s counsel in summation.
40
SUPREME COURT OF NEW JERSEY
NO. A-10 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STEPHANIE WASHINGTON,
Plaintiff-Appellant,
v.
CARLOS A. PEREZ, OLYMPIA
TRAILS and OLYMPIA TRAILS BUS
COMPANY,
Defendants-Respondents.
DECIDED September 10, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM/REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1