On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3454-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
Plaintiff commenced this personal injury suit as a result of developing an infection following an ear piercing at the business of defendant Claire's Stores, Inc. (CSI). In this appeal of a judgment rendered in CSI's favor after an eight-day trial, plaintiff argues among other things that the judge erred in: (1) barring plaintiff from urging an adverse inference due to the absence at trial of CSI's former employee and, then, permitting CSI's use of the absent witness's deposition, and (2) allowing the jury to consider plaintiff's negligence. We reject these arguments and affirm.
Plaintiff had the ear cartilage toward the top of her left ear pierced by Maria Gonzalez, an employee of CSI's business at the Menlo Park Mall in Edison, on Monday, August 18, 2003.*fn1
During the course of this suit, CSI's counsel produced Gonzalez for a deposition even though she was no longer a CSI employee. Notwithstanding the availability of her deposition testimony, plaintiff's counsel sought Gonzalez's attendance at trial. Because Gonzalez was a named defendant and represented by CSI's counsel, plaintiff served a notice in lieu of subpoena on CSI's counsel. When CSI's counsel was unable to produce Gonzalez, plaintiff requested that the judge either charge the jury that her absence permitted an inference that her testimony would have been damaging to CSI or permit plaintiff's counsel to make such an argument in his closing statement. The judge denied both requests. In addition, the judge determined that Gonzalez was unavailable and that either party could read to the jury from her deposition. Plaintiff complains of both these rulings. We turn first to the adverse inference aspects of plaintiff's arguments.
Certainly, it is not the absence of just any witness that may give rise to an adverse inference, but the absence of a witness who "was within the power" of the party against whom the inference is to be drawn and whose testimony "would have been superior to that already utilized." State v. Clawans, 38 N.J. 162, 171 (1962). The record fully demonstrates that Gonzalez was not a witness within CSI's power to produce. Gonzalez was no longer a CSI employee. In addition, defense counsel, who was equally desirous of having Gonzalez testify in person, represented to the trial court that his office had sent numerous letters to Gonzalez's last known address and made telephone calls to her last known telephone number in an attempt to secure her attendance. The judge acted well within his discretion to conclude from these circumstances that it was not appropriate either to instruct the jury that it could draw an adverse inference or to allow plaintiff to make such an argument during closing statements.
Moreover, the record does not suggest that Gonzalez's appearance was as crucial as plaintiff argues. To be sure, live testimony is preferable. See Neno v. Clinton, 167 N.J. 573, 579 (2001). However, even if plaintiff is correct that Gonzalez would have been viewed by the jury as incapable of sufficiently conveying important warnings and instructions, the record reveals that Gonzalez provided written instructions to plaintiff and her mother.*fn2 Because plaintiff was seventeen years old at the time of the piercing, her mother was required to consent to the procedure. Plaintiff's mother was present at the time of the piercing and executed a form, which warned of the risks of the procedure and provided after-care directions.*fn3
This document, a copy of which was provided to plaintiff and her mother upon leaving the store, contained clear written warnings regarding the potential for infections and other problems:
I, the undersigned, acknowledge that I am aware that ear piercing may carry some risks. These risks include, but are not limited to, infection, metal sensitivity, allergic reactions, inflammation, embeddings, scarring, fainting and other complications.
In addition, in larger print, the document contained the following warning:
I FURTHER UNDERSTAND THAT EAR PIERCING OF THE CARTILAGE MAY CARRY A GREATER RISK OF REDNESS, SWELLING, LOCAL AND SYSTEMIC INFECTION, PERMANENT SCARRING, THE POTENTIAL OF CARTILAGE ...