Wade Clark Mulcahy LLP

<p style="text-align: justify;">It is common practice for a defendant in a personal injury action to retain a doctor to conduct an independent medical exam (“IME”) of the plaintiff, with the intention of refuting the findings of the plaintiff’s medical expert.  Often, but not always, the defense report is favorable and the IME doctor will be called by the defense to testify at trial.  In <a href="https://scholar.google.com/scholar_case?case=13949486004517803253&amp;q=Slomkowski+v.+New+Jersey+Manufacturers&amp;hl=en&amp;as_sdt=6,31"></a><a href="https://www.wcmlaw.com/wp-content/uploads/2020/03/Slomkowski-v.-New-Jersey-Manufacturers-Insurance-Company.pdf"><em>Slomkowski v. New Jersey Manufacturers Insurance Company</em></a>, the appellate division in New Jersey recently held that the defendant’s decision against calling its IME doctor as a trial witness did not take away from a fair trial for the plaintiffs.</p>
<p style="text-align: justify;">The plaintiffs' car was rear ended by a vehicle operated by an underinsured motorist.  The plaintiffs sued New Jersey Manufacturers Insurance Co. seeking recovery for personal injuries.  The expert hired by the defense determined that the injuries had been caused by the underinsured motorist and rendered a report to that effect, essentially agreeing with the plaintiffs' medical expert.  Based on the opinion, the defense decided not to call the IME doctor to testify at the trial.</p>
<p style="text-align: justify;">Prior to trial, the defense filed a carefully crafted motion to preclude the plaintiff’s counsel from advising the jury during summation that the defense doctor had been retained by the defendant.  Defense counsel did not seek to bar the jury being informed that the defense did not put forth an expert to rebut the plaintiff’s medical expert, nor did the defense object to the plaintiff calling the the defense doctor during their case in chief.  The motion was granted and the jury rendered a no cause verdict in the defendant’s favor.</p>
<p style="text-align: justify;">On appeal, the court evaluated “whether failure to call a witness raises an unfavorable inference and whether any reference in the summation or a charge [to the jury] is warranted.”  In affirming the trial court’s ruling prohibiting the plaintiff’s counsel from advising the jury that an expert was retained by the defense, the court noted that attorneys are given “broad latitude in summation.”  However, as the court highlighted, the latitude is not limitless and must be based on facts within the record, which in this case, did not include the defense doctor's testimony.   The court further determined that in order to support the plaintiff’s desired inference that the defense was attempting to conceal the opinion (which concurred with the plaintiff’s doctor), the defense would have had to have been in exclusive control of the doctor.  Here, the defense was not in exclusive control as it did not call the expert as a defense witness and did not seek to preclude plaintiffs' counsel from doing so..</p>
<p style="text-align: justify;">The court highlighted the fact that the plaintiff was free to subpoena the defense expert's testimony, but did not.  In affirming the trial court’s decision, the appellate court determined that the trial court did not abuse its discretion in preventing the plaintiffs' counsel from suggesting to the jury that the defense “had chosen to withhold unfavorable evidence from them,” particularly where the plaintiff had every opportunity to obtain the desired testimony.   The strategy does not end with a bad report.  Experienced litigators can find a way.</p>
Thanks to Emily Kidder for her contribution to this post.  If you have any questions or comments, please contact <a href="mailto:vterrasi@wcmlaw.com">Vincent Terrasi</a>.