In the recent decision of Washington v. Carlos Perez, the New Jersey Supreme Court examined whether a party is entitled to an adverse inference charge when the opposing party fails to produce a previously named expert witness at trial.

In Washington, the plaintiff was involved in a motor vehicle accident, and alleged injuries to her cervical spine.  The defendants served medical expert reports stating that the plaintiff’s injuries were an exacerbation of pre-existing injuries.  Although the defendants’ medical experts were named as experts who were expected to testify at trial, they were never called to testify by the defense. In his summation, the plaintiff’s attorney focused on the uncalled experts, suggesting that the defendants had lied to the jury. The court entered an adverse inference charge, instructing that the jury could infer that the testimony of the defendants’ medical experts would be adverse to defendants’ interests. The jury eventually awarded the plaintiff $742,000.

The defendants moved for a new trial, stating that their medical expert had been unavailable to testify at trial.  The trial court denied the motion, but the Appellate Division reversed, and remanded the case for a new trial.  The Supreme Court agreed with the Appellate Division finding that, given the significant distinction between fact and expert witnesses, and the array of reasons why a party may choose not to call a previously designated expert witness, an adverse inference charge should rarely be invoked to address the absence of an expert.

Thanks to Heather Aquino for her contribution to this post. For more information, please contact Nicole Y. Brown at .