On November 19, 2015, in an unpublished decision, the New Jersey Appellate Division held that a jury cannot draw a negative inference from defendant’s failure to call an expert. In Guevara v. Bluish, Docket No. A-5769-13T3 (App. Div. Nov. 19, 2015), the plaintiff was a passenger in a vehicle that was rear-ended by the defendant. There was no contention as to liability. The only issue was was whether the accident caused the injuries allegedly sustained by plaintiff. During discovery, the plaintiff, at the defendant’s request, attended an independent medical examination. The defendant, however, never named the evaluating physician as an expert and, when the case was tried, the only expert testimony heard by the jury came from the plaintiff’s expert. At the close of the trial, the plaintiff sought the judge’s instruction to the jury that it could draw an inference against defendant for choosing not to call his evaluating physician, which the trial court denied. The jury returned a verdict in favor of the defendant.
On appeal, the New Jersey Appellate Division affirmed the trial court’s ruling, relying upon the New Jersey Supreme Court’s earlier decision in Washington v. Perez, 219 N.J. 338, 364 (2014) (holding that an adverse inference charge is rarely warranted when the missing witness is not a fact witness, but an expert). The Guevara court stated:
[T]hat a defendant identified in interrogatory answers an expert who was never called to testify, or obtained an expert report but never named the expert as a potential witness, or forewent the right to have a plaintiff examined by a physician, makes no difference. It was plaintiff’s burden to prove causation by a preponderance of the evidence; defendant was not required to testify or to call any fact or expert witness on his own behalf, and it would have been unfair and inappropriate for the judge to give his imprimatur to plaintiff’s factual contentions by advising the jurors they could assume defendant’s decision not to call any such witnesses or take advantage of his rights as a litigant would have proven damaging to defendant’s position.
(Slip Op. at 4-5) (internal citations omitted).