When Defense Decides Not to Call its Medical Expert to Testify at Trial, Plaintiff Not Permitted to Tell Jury That Doctor Had Been Retained by Defense but Not Called to Testify

Plaintiff Peter Slomkowski had been involved in a rear end motor vehicle accident involving an underinsured motorist and sued New Jersey Manufacturers Insurance Co. (“NJM”) to recover benefits for his injuries. The key disputed issue at the trial of this matter was whether Plaintiff suffered a permanent injury as a result of the accident. In Slomkowski v. New Jersey Manufacturers, 2020 N.J. Super. Unpub. LEXIS 164 (App. Div. Jan. 24, 2020), the issue on appeal was whether the trial court judge correctly ruled that the plaintiff’s counsel was prohibited from telling the jury that the defense had retained an expert medical witness and elected not to call him to testify at trial. The plaintiff sought to overturn a no cause jury verdict on the basis of this ruling, as well as some other evidentiary rulings that had been decided against plaintiff by the trial court judge.

During discovery, NJM retained a medical expert, Dr. Richard Sacks, to perform an independent medical (“IME”) exam. He issued a report in which he concluded that the motor vehicle accident did cause the plaintiff to suffer a permanent injury. Because his report was unfavorable, the defense decided not to call him as a witness at trial.

The defendant had filed an in limine motion (a pre-trial motion which can be used to obtain a ruling to bar evidence) before the trial started, seeking to bar the plaintiff’s counsel from advising the jury that it was the defendant that had retained Dr. Sacks to examine Mr. Slomkowski. The defense did not object to the jury being told that the defendant did not present an expert to counter plaintiff’s medical expert. The defendant also did not object to having Dr. Sacks appear at trial as a witness on behalf of plaintiff. The defense only objected to the jury being told that the defendant had retained Dr. Sacks to conduct an IME on its behalf.

The trial court judge granted the defendant’s in limine motion. After the no cause jury verdict was reached in the defendant’s favor, the plaintiff filed an appeal challenging this ruling, as well as some additional evidentiary rulings made during the trial.

The Appellate Division noted that New Jersey law affords attorneys “broad latitude in summation.” However, the summation must be based upon the truth and counsel cannot misstate evidence or draw an inference without evidentiary support. Trial courts are given discretion to decide “whether failure to call a witness raises an inference or an unfavorable one and whether any reference in the summation or a charge [to the jury] is warranted.”

Plaintiff’s counsel wanted to be able to tell the jury that not only was his medical expert testimony unrebutted but that the defense had its own doctor who had examined the plaintiff and chose not to have him testify. The inference would have been that the defense doctor’s opinion was adverse to the defense and that the defense was trying to conceal Dr. Sack’s opinion from them.

The Appellate Division agreed with the trial court’s ruling that “it would have been inappropriate to allow plaintiff’s counsel to argue in summation that the defense had retained Dr. Sacks.”  To merit such an inference, the witness would have to be in the exclusive control of defense counsel. Here, the Court noted that, to the contrary, the plaintiff could have subpoenaed Dr. Sacks to testify at trial. Further, the plaintiff was free to point out to the jury that the defense did not call an expert to refute the plaintiff’s medical expert’s opinion.

Thus, the Appellate Division found that the trial court acted “well within its discretion” in precluding plaintiff’s counsel from “going one step further” by being able to tell the jury that “in essence that the defense had chosen to withhold unfavorable evidence from them.”

There were other evidentiary rulings upon which Plaintiff appealed as well. The Appellate Division found that none presented a sufficient legal justification to set aside the jury verdict. Thus, the verdict in favor of the defendant was affirmed.

Tags: adverse inference, expert