On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3934-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 12, 2013 -
Before Judges Fisher, Alvarez and St. John.
The opinion of the court was delivered by FISHER, P.J.A.D.
In this appeal, we consider whether the trial judge committed reversible error by instructing the jury that it could draw an adverse inference against defendants because they did not call their medical experts to testify. We agree with defendants that the judge mistakenly gave this instruction and reverse and remand for a new trial.
Plaintiff Stephanie Washington commenced this action alleging personal injuries as a result of an auto accident in New York City on December 20, 2006. She claims her injuries were caused by defendant Carlos A. Perez's negligent operation of a bus owned by defendant Olympia Trails Bus Company, Inc.
During a five-day jury trial, the jury heard, among other things, testimony regarding the nature of plaintiff's claim of injuries. In his opening statement to the jury, defense counsel*fn1 argued plaintiff was not injured in the accident but, later, offered no evidence of the lack of injuries. Instead, the defense only called the bus driver to testify. Even though defendants obtained and served on plaintiff the medical reports of Dr. Gerald Hayken and Dr. Scott Sharrits, defendants did not call them to testify. Consequently, plaintiff requested an adverse inference charge, and, over defendants' objection, the judge advised the jurors that if they found defendants' medical experts were witnesses defendants would naturally be expected to call to testify, the jurors could infer the testimony of defendants' experts would have been adverse to defendants' interests.
The jury found defendants negligent and awarded plaintiff $500,000 in pain and suffering and $242,000 in economic losses. The trial judge denied defendants' motion for a new trial or for a remittitur.
Defendants appeal, arguing:
I. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL AND/OR REMITTITUR.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT CHARGED THE JURY ON ADVERSE INFERENCE AND PERMITTED COUNSEL TO ARGUE IN SUMMATION THAT SUCH AN INFERENCE CAN BE MADE BY THE NON-APPEARANCE OF DEFENSE EXPERTS.
A. The trial court committed reversible error in giving the adverse inference charge because Drs. Hayken and Sharrits were not "peculiarly ...