In Guevara v. Bluish, plaintiff was a passenger in a vehicle rear-ended by defendant, and alleged a rotator cuff tear which required surgery. During discovery, plaintiff attended an independent medical examination. However, defendant chose not to name the doctor as a medical expert and elected not to call an expert to testify at the time of trial.

At trial, the parties stipulated that defendant was negligent and caused the accident. However, the major point of contention was whether the accident caused plaintiff’s injuries. The jury found in favor of defendant, stating that the accident did not proximately cause plaintiff’s injuries.

Plaintiff appealed, arguing that the trial court erred based on the judge’s failure to instruct the jury that it could draw an inference against defendant for choosing not to call a medical expert to testify. The appellate court held that it was plaintiff’s burden to prove causation by a preponderance of the evidence and that defendant was not required to testify or to call any expert witness on his own behalf.  The appellate court indicated that it would have been improper to advise the jurors that they could draw an inference against defendant for his decision not to call an expert witness.

Whether or not a defendant chooses to call an expert witness at the time of trial to contest the testimony of plaintiff’s witnesses is a strategy call.  A defense witness may not be necessary if it appears that plaintiff has failed to meet his burden of proof.  Conversely, plaintiff could likely have called the same IME doctor as a witness, but elected not to do so.  Plaintiff should not, and is not, permitted to benefit from his incorrect strategy after the fact.  Thanks to Steve Kim for his contribution.  Please email Brian Gibbons with any questions.