Winning the Expert Shell Game

September 16, 2006

Dealing with defense expert testimony consumes more resources than any other aspect of a medical malpractice case. Nevertheless, if a medical malpractice case has merit and is effectively prepared, inroads into the defense expert’s position should inevitably be made during the expert’s deposition. Undermining a defense expert’s position during discovery will increase the likelihood of getting the defendant’s consent to settle and avoiding trial. However, poor performance by defense experts during depositions is being dealt with in another way. When such experts give up key concessions or provide sworn testimony that conflicts with other proofs already in the case, the defense will often simply abandon that witness at the time of trial. While this has always occurred to some degree, it seems to be happening with greater frequency.

Ordinarily, when an adversary fails to call a key witness at trial, the other side has a simple remedy: An adverse inference charge can be requested and given to the jury by the court pursuant to Model Civil Charge 1.18. Adverse inference charges are useful tools that tend to keep things honest. First, the prospect of an adverse inference charge forces parties to evaluate their cases realistically during settlement negotiations, because all sides know that if a vital piece of evidence favors their adversary, the jury’s attention will be drawn to it one way or another. Second, the ability to obtain an adverse inference charge decreases the likelihood that the outcome of a case will be determined by trial tactics and gamesmanship.

Regrettably, it has been our experience that it is difficult to obtain an adverse inference charge from a trial judge when a defense expert is not called in a medical malpractice trial. Two poorly written Appellate Division cases have indicated in a generic way that adverse inference charges are inappropriate when a party fails to call an expert. Defense attorneys are relying on these cases to take the position that they have absolute discretion about deciding whether they must call a previously named expert witness produced during discovery. This is unfortunate on several different levels. First, giving defendants the ability to bar juries from hearing the opinions of their experts when these witnesses give up key concessions during discovery serves to insulate medical malpractice jurors from some of the most relevant and probative evidence available in such cases. Further, because defendants are being permitted to hire and then dismiss an expert with no adverse consequences, medical malpractice cases are turning into an expensive defense expert “shell-game” for plaintiff attorneys. Much like the games that take place on the street corners, these games are premised on slight of hand and are impossible to win. Significant billable time, resources and money are spent to conduct discovery on witnesses who are likely to never appear at trial. Discovery and trial strategy is developed, but after the plaintiff rests, whatever was under the shell suddenly disappears.

State v. Clawans, 38 N.J. 162 (1962), is the leading case in New Jersey regarding the propriety of adverse inference charges. According to the New Jersey Supreme Court, the following three factors must be present for an adverse inference charge to be provided: (1) the witness must have been within the power of the noncalling party to produce; (2) there must be a showing that the testimony of the witness not called would not have been unimportant, cumulative and inferior to that already utilized in respect to the fact to be proved; and (3) the witness must not be equally available to the adverse party.

Clawans dealt with the issue of an adverse inference charge in the context of an uncalled fact witness, but other decisions before and after Clawans have held adverse inference charges were appropriate when the uncalled witness was an expert. De Pasquale v. Contalvi, 126 N.J.L. 136 (1941); Bayer v. Frank P Farrell, Inc., 69 N.J. Super. 346, 364-65 (App. Div. 1961); Kochen v. Consolidated Police and Firemen’s Pension Fund Commission, 71 N.J. Super. 463, 473 (App. Div. 1962).Other appellate decisions since Clawans have also indicated that an adverse inference charge was appropriate when an expert is not called to testify at the time of trial. Parentini v. S. Klein Department Stores, 94 N.J. Super. 452 (App. Div. 1967); Genovese v. N.J. Transit Rail Operations, 234 N.J. Super. 375 (App. Div. 1989).

In contrast to the above decisions holding that an adverse inference charge is appropriate when an expert witness is not called to testify at trial, there have been post-Clawans decisions that reach the opposite result. Interestingly, in these holdings, no Clawans analysis was performed. In McQuaid v. Burlington County Memorial Hospital, 212 N.J. Super. 472 (App. Div. 1986), the Appellate

Division, while ruling that the plaintiff was not entitled to an adverse inference charge when defense counsel failed to call an expert witness, the Court provided no legal rationale at all. Rather, the Court merely cited Anderson v. Somberg, 158 N.J. Super. 384, 395 (App. Div. 1978), for the proposition, “the failure of a party to call an expert witness does not normally justify an adverse inference charge.” A similar analysis and result occurred in Bradford v. Kupper Associates, 283 N.J. Super. 556 (App. Div. 1995). While it ultimately reached the same result, which was relied upon in both McQuaid and Bradford, the Appellate Division in Anderson v. Somberg reiterated that the decision about whether to allow an adverse inference charge is discretionary. Further, the Appellate Division actually conducted a Clawans analysis to evaluate the trial court’s denial of the adverse inference charge. Thus, notwithstanding the Appellate Division’s holdings in McQuaid and Bradford, expert witnesses were treated no differently than fact witnesses in Anderson. The importance of this is twofold. First, the decisions in McQuaid and Bradford, which are often cited as support for the idea that expert witnesses should be accorded different treatment when it comes to adverse inference charges, represent a departure from previous case law. In this respect, the McQuaid/Bradford branch of the split in the Appellate Division is unsupported. Second, since Anderson actually supported the use of a Clawans analysis to determine the propriety of an adverse inference charge with respect to an uncalled expert, the Supreme Court of New Jersey, by denying certification, gave tacit approval to the proposition that expert witnesses were to be treated the same as fact witnesses for the purpose of determining whether an adverse inference charge was appropriate.

Expert witnesses are clearly available to testify for the party who retained and named them. Thus, the first Clawans requirement is not at issue when a defendant fails to call an expert in a medical malpractice trial. With respect to the second Clawans requirement, that a witness not be equally available to both parties, the inquiry of whether a witness is “equally available” goes to whether the testimony of the noncalled witness would likely be as favorable to one party as the other. In examining whether a witness is “unavailable” in this context, courts look to the relationship of the witness to the parties and the nature of the testimony expected in light of previous statements by the witness. Hickman v. Pace, 82 N.J. Super. 483, 492 (App. Div. 1964). Therefore, the second requirement of Clawans is also not at issue when a defendant fails to call an expert in a medical malpractice trial, since the sum of the defense expert’s testimony is indisputably more favorable to the defense, and the expert’s relationship with the defendant belies the idea that the expert’s trial testimony will be neutral. Inevitably, when a party fails to call a retained expert in a medical malpractice case, the focal point of the argument between counsel and the court is whether the testimony of the missing expert is unimportant, cumulative or inferior to that already utilized with respect to facts to be proven. There are few reported adverse inference cases in New Jersey that provide thoughtful analysis to this issue. In fact, the most in-depth discussion of this particular Clawans factor appeared in the Clawans decision itself.

The prosecutor argued that a non-called witness’ testimony would have been cumulative to the testimony of a witness who did testify. The Court observed, however, that although the testimony might have actually been identical, this did not necessarily mean that it was cumulative in the sense that it was unnecessarily redundant. The Court concluded that the testimony was better seen as corroborative under the circumstances of the case, because the facts at issue were disputed. Significantly, the Clawans Court examined the noncalling party’s position that this witness’ testimony would have been cumulative with a critical eye, and carefully scrutinized how all of the witnesses’ testimony fit together with the other evidence in the case to analyze whether it was cumulative in nature.

The Appellate Division has held that expert testimony is inherently superior and noncumulative in nature. In Genovese, supra, the Appellate Division concluded that an adverse inference charge would normally be appropriate when an expert witness is not called at trial because “opinion testimony would usually not be cumulative or inferior to other evidence.” Mirroring the situation in New Jersey, most decisions from other jurisdictions that have held that an adverse inference charge was not appropriate because an absent expert witness’ testimony would have been cumulative, fail to provide a detailed analysis supporting this conclusion.

The one case which closely examined a defendant’s factual contention that an expert’s testimony was cumulative, and so concluded, was Kersey v. Rush Trucking, Inc., 344 Ill. App. 3d 690 (III. App. 2 Dist. 2003). In Kersey, the plaintiff was killed when her vehicle was struck by a truck driven by the defendant. During trial, defense counsel advised the judge that he would not be calling an accident reconstruction expert he had previously named and produced for depositions. Defense counsel asserted that the testimony of his accident reconstruction expert was cumulative in nature, a proposition with which the trial court agreed.

The appellate court in Kersey examined the defendant’s claim that the uncalled witness’ testimony would have been cumulative with a critical eye. Specifically, the Kersey appellate court noted that while some of the points made by the defense expert mirrored concessions made by the plaintiff’s expert on cross-examination, there was deposition testimony by the defense expert to the effect that the defendant’s truck was traveling above the posted speed limit at the time of the accident. The Appellate Court concluded that because this aspect of the defense expert’s testimony supported the plaintiff’s theory that the defendant was speeding, and contradicted the sworn testimony of the defendant, the uncalled defense expert’s testimony was not cumulative in nature, and the adverse inference charge should have been given.

Attorneys should keep a record of the legal time and expenses expended preparing for and contending with defense expert opinions in medical malpractice cases. Accounting for the tremendous expenditures required to meet the opinions of defense experts throughout the course of a medical malpractice case renders a defendant’s position that an expert is being abandoned at trial solely to avoid expenses as hypocritical. The foregoing information should be included in a motion seeking an adverse inference charge, along with a statement of facts that highlight the important concessions made by a potentially absent expert.

When plaintiff’s experts are being prepared for trial, they should be fully apprised of the key concessions made by a potentially absent defense expert. At the time of trial, the plaintiff’s expert should be prepared to testify about how the jury’s findings on this key issue can undermine the defense and support the plaintiff’s case. Thus, this testimony will then be relied upon during trial to support the plaintiff’s position that the testimony of the absent witness is important, relates to a key fact at issue in the case and is “noncumulative.”

Applications for an adverse inference charge should be made as part of the R.4:25-7 mandated Pretrial Exchange of Information. By doing so, plaintiff’s counsel will alert the trial court to the defense’s decision to abandon its expert witness even before an analysis of the trial testimony lead to a conclusion that a witness’ testimony would only be cumulative in nature. Additionally, Clawans should be relied upon for the proposition that identical testimony is not always cumulative if it is corroborative of a key issue. Clawans, 38 N.J. at 173. Finally, the Illinois decision in Kersey v. Rush Trucking, Inc., supra should be cited as persuasive authority that the trial court must analyze the testimony of an absent expert in light of how it impacts all key issues in a case.