Red Rover is a classic child’s team game involving potential switching of allegiances. It is not a game when an expert switches side in litigation. In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/08/Of-Interest-August.pdf">Meglino v. Liberty Mutual Insurance Company</a></em>, the Appellate Division was confronted with exactly what should be divulged to a jury when a Red Rover expert testifies.
<em>Meglino</em> involved a UIM claim in which the insured plaintiff produced the insurer’s IME expert at trial. The doctor had examined the plaintiff in connection with a PIP claim. Thereafter, his videotaped deposition was presented to a jury as part of the plaintiff’s case. However, the trial judge did not allow the jury to hear that the doctor had been retained by the insurer initially.
Recognizing the doctor as a “Red Rover expert,” the court delineated the potential pitfalls if information of initial retention is given to the jury. “[T]he Red Rover witness may lead the jury to view him as something of a super-expert, whether that is warranted or not, and to assess the testimony less critically than would otherwise be the case.” Rather, the court indicated that the focus of the jury should be on the expert’s credentials and opinions. Therefore, the Court was satisfied that the trial judge was within his discretion to prohibit the reference to the prior testimony in the PIP action.
On a second note, the court also affirmed the trial court’s decision allowing the UIM insurer to stand in the shoes of the tortfeasor driver for purposes of trial. As such, it was entirely proper to instruct the jury that defense counsel represented the tortfeasor rather than the UIM carrier and eliminate all references to insurance coverage that might otherwise distract jurors from a fair evaluation of the evidence.
Thanks to Ann Marie Murzin for her contribution.
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