Stephanie Washington v. Carlos Perez, Olympia Trails & Olympia Trails Bus Company (072522)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

Stephanie Washington v. Carlos A. Perez (A-10-13) (072522)

Argued March 17, 2014 -- Decided September 10, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, in the context of a personal injury trial where a party declined to present the testimony of

expert witnesses whose opinions had been disclosed pursuant to the discovery rules, the Court considers the

principles established in State v. Clawans, 38 N.J. 162 (1962) and State v. Hill, 199 N.J. 545 (2009), which set forth

the standard for determining whether to issue an adverse inference jury charge when a party fails to call a witness.

In December 2006, plaintiff Stephanie Washington’s car was struck by a bus driven by defendant Carlos A.

Perez and owned by defendant Olympia Trails. Plaintiff, who had suffered injuries following a 2003 motor vehicle

collision, declined the offer of an ambulance because she had no apparent injuries and was not bleeding. However,

she later began experiencing aching and stiffness that worsened overnight. Approximately seven weeks after the

accident, plaintiff was examined by an orthopedic surgeon, Craig H. Rosen, M.D., who diagnosed her with a

herniated disc in her cervical spine. She subsequently was treated by a pain specialist, neurologist, and chiropractor

and received epidural-injection therapy from her primary care physician. Although plaintiff initially did not miss

work as a result of the accident, she later began taking days off and was granted disability early retirement in 2009.

Plaintiff filed a complaint, asserting negligence claims and seeking compensatory damages. Plaintiff’s

expert, Rosen, opined that the 2006 accident had aggravated her pre-existing cervical sprain and caused a small

herniation in a cervical disc. Defendants retained two experts, Scott R. Sharetts, M.D., a neurologist, and Gerald D.

Hayken, M.D., an orthopedist. In their reports, Sharetts opined that the 2006 accident had exacerbated plaintiff’s

prior injuries and Hayken opined that plaintiff’s cervical and radicular symptoms appeared more pronounced

following the 2006 accident. Although defendants served both reports on plaintiff’s counsel and identified the

doctors as expert witnesses expected to testify at trial, they never called them to testify. Plaintiff’s counsel’s

summation focused on the uncalled experts, suggesting that defendants had lied to the jury. On plaintiff’s request,

the court issued an adverse inference charge, instructing the jury that, if defendants would be expected to produce

Sharetts and Hayken, then the jurors could infer from their non-production that their testimony would be adverse to

defendants’ interests. The jury awarded plaintiff $500,000 for pain and suffering and $242,000 for lost wages.

Defendants moved for a new trial or remittitur, disclosing for the first time that Hayken had been

unavailable to testify during the trial. The court denied the motion, and defendants appealed. The Appellate

Division reversed, concluding that plaintiff failed to show that the experts were peculiarly within defendants’ control

or that their testimony would have been superior to that which was already utilized. Finding that the adverse

inference charge had inflicted palpable harm on defendants, the panel remanded the case to the trial court for a new

trial. This Court granted plaintiff’s petition for certification. 215 N.J. 487 (2013).

HELD: Given the significant distinctions between fact and expert witnesses, and the array of reasons why a party

may choose not to call a previously designated expert witness to testify, an adverse inference charge should rarely be

invoked to address the absence of an expert.

1. New Jersey law has long recognized the critical importance of accurate and precise jury instructions. Appellate

review of jury instructions requires scrutiny of the allegedly erroneous charge within the context of the charge as a

whole, as well as an inquiry as to whether any error may have affected the trial’s result. Reversible error occurs

where the outcome might have been different had the instruction been correct. Generally, erroneous instructions on

material points are presumed to be reversible error. (pp. 15-16)

2. In the event a party fails to produce a witness who it is within that party’s power to produce and who should have

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been produced, the factfinder may invoke the adverse inference rule to infer that the witness’s evidence is

unfavorable to the party’s case. New Jersey courts first acknowledged the rule more than a century ago, and this

Court has consistently applied it with caution, utilizing a case-specific analysis. This approach was explained in

State v. Clawans, 38 N.J. 162, 170-71 (1962), in which the Court noted that the theoretical basis for the inference –

that the non-producing party believed the missing witness would elicit harmful testimony – only exists in the

absence of an alternative explanation for the witness’s failure to appear. Consequently, where a witness is

unavailable, biased against the party who would otherwise be expected to call him or her, or if the testimony would

be “cumulative, unimportant or inferior” to other already-provided testimony, an adverse inference charge would be

improper. Id. at 171. (pp. 16-22)

3. The principles established in Clawans were refined in State v. Hill, 199 N.J. 545 (2009), which set forth a four-

pronged test for determining whether to grant a request for an adverse inference charge. Specifically, courts must

make findings as to whether: (1) the uncalled witness is peculiarly within one party’s control or power, or there is a

special relationship between the party and witness, or the party has superior knowledge of the witness’s identity or

expected testimony; (2) the witness is practically and physically available to the party; (3) the testimony of the

uncalled witness will elucidate relevant and critical facts in issue; and (4) the uncalled witness’s testimony appears

to be superior to that already utilized with respect to the fact to be proven. Id. at 561-62. In both civil and criminal

trials, the adverse inference charge should only be given if the party seeking it gives appropriate notice to the court

and counsel and the trial court, after carefully considering the four factors identified in Hill, determines that it is

warranted. (pp. 22-28)

4. In both Clawans and Hill, the witnesses whose absence prompted the adverse inference charge were fact

witnesses. Here, the witnesses were experts. While this Court has not previously considered the propriety of a

Clawans charge as applied to situations where designated experts were not called at trial, Appellate Division panels

have reached divergent results. The Court notes several pertinent, significant distinctions between the testimony of

expert witnesses and fact witnesses. First, in light of the disclosure and discovery rules applicable to expert

witnesses, the content of an expert’s testimony is unlikely to be a mystery to any parties. Second, an expert is

unlikely to be in exclusive possession of factual evidence that would justify an adverse inference charge since any

facts or data supporting the expert’s opinion must be disclosed in his or her report. Third, aside from cases where

the testimony of at least one expert is necessary to withstand summary judgment and meet a party’s burden of proof,

a party who has disclosed the name and opinion of a particular expert is not compelled to call that expert to testify at

trial. Finally, in contrast to the fact witness setting, there are many strategic and practical reasons that may prompt a

party who has retained an expert to decide not to present the expert’s testimony at trial, including inability to

compensate the expert or unavailability of an expert at the time of trial. Thus, when the witness whom a party

declines to call at trial is an expert rather than a fact witness, the factors that may necessitate an adverse inference

charge addressing the absence of a fact witness are unlikely to be germane and, consequently, a Clawans charge

rarely will be warranted in the case of missing expert witnesses. (pp. 28-34)

5. Applying the Hill factors here, there is no evidence that either Sharetts or Hayken were in defendants’ exclusive

control and unavailable to testify for plaintiff. Thus, the first Hill factor weighs against the grant of a Clawans

charge since plaintiff was on notice prior to trial of the experts’ opinions and could have sought to present their

testimony at trial. However, it is unclear whether these witnesses were available to appear at trial, rendering the

second Hill factor inconclusive. Since their reports showed that the experts would have elucidated certain relevant

facts, the third Hill factor weighs to some extent in favor of an adverse inference charge, but the fourth factor

suggests a rejection of the request for a Clawans charge because the experts’ evidence was corroborative or

cumulative to plaintiff’s proofs. Accordingly, the Court concurs with the Appellate Division that the trial court

erred when it granted plaintiff’s application for an adverse inference charge pursuant to Clawans. This error is

reversible since the charge, as well as plaintiff’s counsel’s closing argument, strongly suggested to the jury that

defendants did not call the experts because they feared their testimony. (pp. 34-40)

The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court

for a new trial in accordance with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and FERNANDEZ-VINA; and

JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE PATTERSON’s opinion.

2

SUPREME COURT OF NEW JERSEY

A-10 September Term 2013

072522

STEPHANIE WASHINGTON,

Plaintiff-Appellant,

v.

CARLOS A. PEREZ, OLYMPIA

TRAILS and OLYMPIA TRAILS BUS

COMPANY,

Defendants-Respondents.

Argued March 17, 2014 – Decided September 10, 2014

On certification to the Superior Court,

Appellate Division, whose opinion is

reported at 430 N.J. Super. 121 (2013).

Brian L. Katz argued the cause for appellant

(Dansky|Katz|Ringold|York, attorneys).

Michael K. Tuzzio argued the cause for

respondents (Ronan, Tuzzio & Giannone,

attorneys; Mr. Tuzzio and Thomas F. Rinaldi,

on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In State v. Clawans, 38 N.J. 162 (1962), and State v. Hill,

199 N.J. 545 (2009), this Court set forth the governing standard

that a trial court should apply to determine whether to give an

adverse inference jury charge when a party fails to call a

witness at trial. This case requires the Court to apply the

principles of Clawans and Hill in a setting not previously

addressed by the Court: a personal injury trial in which a

1

party declines to present the testimony of expert witnesses

whose opinions have been disclosed in accordance with the

discovery rules.

Plaintiff Stephanie Washington claims that she was injured

in a motor vehicle accident in New York City as the result of

the negligence of defendant Carlos Perez (Perez) and his

employer, defendant Olympia Trails Bus Company, Inc. (Olympia

Trails). Prior to trial, defendants served the expert reports

of two physicians, both of whom opined that plaintiff had

sustained injuries in a prior accident, but acknowledged that

plaintiff was also injured in the accident from which this case

arose. In his opening statement to the jury, defendants’

counsel argued that the evidence would show that plaintiff was

not injured in the accident at issue in this case. Defendants

did not call either of their expert witnesses to the stand.

At the request of plaintiff’s counsel, and over defendants’

objection, the trial court issued an adverse inference charge.

It instructed the jury that if it found that the two experts

were witnesses whom defendants would naturally be expected to

call at trial, it could infer that the experts’ testimony, if

presented, would have been adverse to the interests of

defendants.

The jury returned a verdict for plaintiff. An Appellate

Division panel reversed and remanded the matter for a new trial,

2

holding that the trial court abused its discretion when it gave

the adverse inference charge, and that the charge prejudiced

defendants. Washington v. Perez, 430 N.J. Super. 121, 131 (App.

Div. 2013).

We affirm the Appellate Division’s judgment. We hold that

given the significant distinctions between fact and expert

witnesses, and the array of reasons why a party may choose not

to call a previously designated expert witness to testify, an

adverse inference charge should rarely be invoked to address the

absence of an expert. We concur with the Appellate Division

that the record did not support an adverse inference charge

under the standard set forth in Hill. Accordingly, we remand

this case to the trial court for a new trial.

I.

Our review of the facts is based on the testimony and

evidence presented by the parties at trial.

On December 20, 2006, when the accident that gave rise to

this action occurred, plaintiff was an administrative assistant

at the New Jersey Department of the Treasury, Division of

Pensions and Benefits. Plaintiff had previously sustained

injuries during a 2003 motor vehicle collision. As a result of

that accident, plaintiff missed approximately ten weeks of work

and pursued a personal-injury action.

3

When her 2006 accident occurred, plaintiff was driving

eastbound on 42nd Street in New York City on her way to an

appointment. At a stoplight at the intersection of 42nd Street

and 8th Avenue, plaintiff pulled up in the left lane next to a

bus driven by defendant Perez and owned by defendant Olympia

Trails. According to plaintiff, when the light turned green she

and Perez proceeded through the intersection, but Perez

attempted to steer the bus into the left lane in front of her

car. She testified that the bus struck her car, sheared off the

passenger side wing mirror and removed the front bumper. She

stated that after striking her vehicle, the bus continued down

the street and came to a stop at the next intersection.

According to defendant Perez, as he was gradually moving his bus

into the left lane, plaintiff’s car initially moved toward

oncoming traffic, as if to go around the bus, and then returned

to the left lane, at which point the two vehicles collided.

Plaintiff testified that she declined a police officer’s

offer to call an ambulance because she had no apparent injuries

from the accident and was not bleeding. She stated, however,

that she began to experience aching, stiffness and soreness when

she returned home that evening. Plaintiff testified that her

symptoms worsened overnight but did not prevent her from going

to work the following day. She stated that she attempted to see

4

her primary care physician promptly but could not get an

immediate appointment.

In February 2007, about seven weeks after the accident,

plaintiff was examined by an orthopedic surgeon, Craig H. Rosen,

M.D. Based on the results of an MRI scan performed in May 2007,

Dr. Rosen diagnosed plaintiff with a herniated disc in her

cervical spine that necessitated pain management. Thereafter,

plaintiff was treated by a pain specialist, who administered

trigger-point injections to her spine. Her primary-care

physician also performed epidural-injection therapy on her neck

and thoracic spine. In addition to her primary-care physician,

Dr. Rosen and the consulting pain specialist, plaintiff was

treated by a neurologist and a chiropractor for her injuries.

Although initially she did not miss work as a result of the 2006

accident, she eventually began taking days off due to her

condition. Subsequently, plaintiff applied for and was granted

disability early retirement from her employment in 2009, citing

the injuries that she sustained in her 2006 accident as the

source of her disability.

Plaintiff filed this action in the Law Division, asserting

claims for negligence against defendants and seeking

compensatory damages. Defendants, represented by a different

law firm from the firm representing them in this appeal,

retained two experts, Scott R. Sharetts, M.D., a neurologist,

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and Gerald D. Hayken, M.D., an orthopedist. Dr. Sharetts

examined plaintiff on June 14, 2010. In his report of the same

date, Dr. Sharetts opined that as a result of the 2006 accident,

plaintiff “sustained an exacerbation of [the] thoracic

symptomatology” that she had suffered in the 2003 accident, “as

well as cervical and to a degree lumbar musculoskeletal

symptomatology.” Dr. Hayken evaluated plaintiff on June 25,

2010. In his report prepared that day, Dr. Hayken opined that

plaintiff’s “present thoracic back pain [was] indistinguishable

on clinical grounds and objectively from her pre-accident back

pain,” but that her “cervical and radicular symptoms [appeared]

to be significantly more pronounced than they were prior to her

[December 20, 2006] injury.”1

Citing Skibinski v. Smith, 206 N.J. Super. 349 (App. Div.

1985), and Sallo v. Sabatino, 146 N.J. Super. 416 (App. Div.

1976), certif. denied, 75 N.J. 24 (1977), defendants served both

reports on plaintiff’s counsel with a disclaimer that the

reports did not constitute adoptive admissions of defendants.

In their pretrial information exchange, submitted pursuant to

Rule 4:25-7(b), defendants identified Dr. Sharetts and Dr.

Hayken as expert witnesses expected to testify at trial, and

1

Dr. Hayken later supplemented his report after reviewing

additional records, but his opinion did not change.

6

listed no “anticipated problems” for the trial court’s

consideration.

Plaintiff’s counsel designated her treating physician, Dr.

Rosen, as her expert witness. In his report, Dr. Rosen opined

that although plaintiff had sustained injuries in her 2003

accident, the 2006 accident at issue in this case had aggravated

a pre-existing cervical sprain and caused a small herniation in

a cervical disc. In testimony videotaped for use at trial, Dr.

Rosen was asked about Dr. Hayken’s opinion regarding plaintiff’s

alleged injuries. He testified that Dr. Hayken had opined “that

the cervical herniated disc and radiculopathy [were] related to

the accident [of December 20, 2006].” This testimony was

challenged prior to trial by defendants, who contended that Dr.

Rosen had mischaracterized Dr. Hayken’s opinion, and sought a

redaction of Dr. Rosen’s videotaped testimony to remove what

they considered to be misleading statements about the defense

expert’s opinion. Although plaintiff’s counsel acknowledged

that Dr. Rosen had not accurately characterized Dr. Hayken’s

opinion, the trial court denied defendants’ motion, noting that

defendants could call Dr. Hayken as a witness to refute Dr.

Rosen’s comments. At the pretrial hearing, defendants’ counsel

advised the trial court and plaintiff’s counsel, for the first

time, that defendants did not intend to call Dr. Hayken to the

stand.

7

During jury selection, the trial court represented to

prospective jurors that defendants’ experts, Dr. Sharetts and

Dr. Hayken, would testify. In determining whether prospective

jurors were acquainted with witnesses who would appear at trial,

the court identified both physicians as witnesses who would be

called by defendant, first describing them as “the physicians

who examined the plaintiff,” and then identifying the expert

witnesses by name. The record does not reflect any objection by

defendants to the trial court’s reference to Dr. Sharetts and

Dr. Hayken, or an indication during jury selection that

defendants had decided not to present the testimony of their

experts.

During his opening statement, defendants’ counsel told the

jury that it would hear plaintiff’s expert witness, Dr. Rosen,

testify on videotape that plaintiff was treated for neck pain

for three years prior to her 2006 accident. Defendants’ counsel

did not mention either Dr. Sharetts or Dr. Hayken, or indicate

to the jury whether defendants would present expert testimony.

He concluded his opening statement by stating, “[l]adies and

gentlemen, the evidence will show that [plaintiff] was not

injured in the accident of December 20, 2006.”

During plaintiff’s case-in-chief, plaintiff testified and

presented the videotaped testimony of Dr. Rosen, including the

expert’s characterization of Dr. Hayken’s opinion. Shortly

8

before plaintiff’s counsel completed his presentation of

evidence, he acknowledged that plaintiff was on notice that Dr.

Hayken would not testify on defendants’ behalf. He informed the

trial court and defendants’ counsel that he intended “to seek a

negative inference or a [Clawans] charge with respect to the

non-production of Dr. Hayken.” The trial court did not

immediately respond to plaintiff’s statement regarding Dr.

Hayken. It then granted an application by defendants for access

to MRI films, so that the films could be shown to Dr. Sharetts

before the expert’s anticipated testimony.

Despite the trial court’s ruling regarding the MRI,

defendants did not call Dr. Sharetts as an expert witness at

trial. According to plaintiff’s counsel, defendants’ counsel

advised him just before commencing defendants’ case that

defendants did not intend to present the testimony of Dr.

Sharetts. Defendants’ sole witness was defendant Perez, the bus

driver. They presented no expert testimony.

At the charge conference conducted following the close of

the proofs, plaintiff’s counsel renewed his request for an

adverse inference jury charge pursuant to Clawans, premised on

defendants’ failure to call either of their experts as witnesses

at trial. Defendants’ counsel objected, arguing that a Clawans

charge would be inappropriate because the experts’ testimony

9

would be cumulative.2 With little discussion, the court granted

plaintiff’s request for a Clawans charge with respect to

defendants’ failure to call their two expert witnesses. Neither

the trial court nor plaintiff’s counsel suggested that a Clawans

charge was necessary because of defense counsel’s claim in his

opening statement that the evidence would demonstrate that

plaintiff sustained no injuries in her December 20, 2006,

accident. Instead, the charge was justified solely by the

absence of Dr. Sharetts and Dr. Hayken from trial.

In his summation, defendants’ counsel acknowledged that

defendants had retained experts but elected not to call them.

He attributed that decision to plaintiff’s failure to “prove his

case.” Plaintiff counsel’s summation focused on the defendants’

failure to call their expert witnesses. Prompting no objection

from defense counsel, plaintiff’s counsel stated to the jury

that, “instead of bringing forth to you evidence[,] [defendants

have] hid evidence from you, [have] avoided you hearing what Dr.

Hayken has to say.” He speculated to the jury that the expert

was not called because his testimony “[did not] support what

2

The trial court initially suggested that, in addition to giving

an adverse inference instruction under Clawans against

defendants, it would give a Clawans charge against plaintiff

because she had not called one of her treating physicians.

However, plaintiff objected to the trial court’s suggestion on

the ground that a treating physician is a witness who can be

called by any party. As a result, the trial court gave a

Clawans charge only with respect to defendants’ expert

witnesses.

10

[defendants would] like you to believe.” Plaintiff’s counsel

also commented to the jury that Dr. Sharetts was not called to

testify despite defendants’ statement that the evidence would

show that plaintiff sustained no injuries in her 2006 accident.

After asking counsel to state the experts’ names, the trial

court gave the following adverse inference charge:

Anyway, reference has been made to those

doctors as being witnesses in this case and

that [defendants have] failed to call him --

them to testify. If you find that if those

doctors are people or -- or a person whom

you would naturally expect the defendant to

produce to testify, you have a right to

infer from the non-production of the

witness, that his testimony would be adverse

to the interests of the . . . defendant.

The basis for this rule is that where a

party fails to produce a witness who

probably could clarify certain facts in

issue, it raises a natural inference that

the non-producing party fears that the

testimony of the witness on the issue would

be . . . unfavorable to him or her.

However, an adverse inference should not be

drawn if [Hayken] or [Sharetts] is not a

witness whom the defendant would naturally

be expected to produce, nor if there . . .

has been a satisfactory explanation for his

non-production nor if he is equally

available to both parties, nor if his

testimony would be comparatively

unimportant, cumulative in nature or

inferior to that which you already have

before you. Whether or not an adverse

inference should be drawn is for your

determination based upon the principles that

I have just set forth.

The jury returned a verdict in plaintiff’s favor, awarding

$500,000 to compensate her for pain, suffering, disability,

11

impairment and loss of enjoyment of life, and $242,000 to

compensate her for lost wages.

Defendants filed a motion for a new trial or, in the

alternative, remittitur. For the first time, defendants’

counsel disclosed to the trial court and plaintiff’s counsel

that his pretrial telephone calls to Dr. Hayken had not been

returned, and that Dr. Hayken had been unavailable to testify

during the scheduled trial. Defendants’ counsel provided no

explanation for defendants’ failure to present the testimony of

Dr. Sharetts.

The trial court responded that it was unhappy with

plaintiff counsel’s argument to the jury that the defense

experts were not called because defendants intended to conceal

evidence. The court commented that it “should probably grant a

new trial,” but would not, given the lack of experts testifying

for the defense. The court denied defendants’ motion.

Defendants appealed, and the Appellate Division reversed

the trial court’s determination. Washington, supra, 430 N.J.

Super. at 123. The panel concluded that plaintiff had failed to

make a showing as to two of the four factors set forth by this

Court in Hill, specifically that the experts were “‘peculiarly

within the control or power of only the one party,’” and that

their testimony would have been “‘superior to that already

utilized in respect to the fact to be proven.’” Id. at 130-31

12

(quoting Hill, supra, 199 N.J. at 561).3 The panel concluded

that the trial court’s adverse inference charge had inflicted

“palpable” harm on defendants, placing “the weight of the

court’s authority behind plaintiff’s argument about the missing

witness.” Id. at 131 (citing Wild v. Roman, 91 N.J. Super. 410,

415 (App. Div. 1966)). It remanded the case to the trial court

for a new trial, and declined to reach the remaining issues

raised by defendants. Id. at 125, 131.

The Court granted plaintiff’s petition for certification.

215 N.J. 487 (2013).

II.

Plaintiff argues that the Appellate Division improperly

reversed the trial court’s determination. She contends that the

Appellate Division failed to apply a sufficiently deferential

standard of review, and urges the Court to review the trial

court’s determination under an abuse of discretion standard.

She asserts that she provided adequate proof to satisfy the test

articulated by this Court in Clawans because defendants’ expert

witnesses were clearly witnesses who would be expected to

testify at trial, defendants had the power to produce them by

3

The panel noted divergent opinions in the Appellate Division

regarding whether an adverse inference charge would ever be

appropriate when the witness in question was an expert, but

declined to address that issue because the parties had not

briefed it. See Washington, supra, 430 N.J. Super. at 129-30.

13

live testimony or by videotape, and the experts’ testimony would

have been superior to a defense presentation devoid of expert

testimony. Citing Graham v. Gielchinsky, 126 N.J. 361 (1991),

plaintiff argues that she was not in a position to call the

defense expert witnesses to testify because the experts could

not be compelled to testify and would require compensation to

appear at trial. She contends that, consequently, the expert

witnesses were unavailable to testify on her behalf. Plaintiff

characterizes the trial court’s Clawans charge as a “modified”

charge that permitted, rather than compelled, the jury to draw

an adverse inference, and argues that if the charge constituted

error, any such error was harmless.

Defendants counter that the Appellate Division properly

reviewed the trial court’s determination de novo, and that the

Clawans charge constituted reversible error in this case. They

note that the trial court did not apply the four-factor analysis

adopted by this Court in Hill when it agreed to give the Clawans

charge, and that an application of those factors to the setting

of this case demonstrates that no adverse inference instruction

was warranted. Defendants contend that Dr. Sharetts and Dr.

Hayken were not solely under defendants’ control, and that

plaintiff could have called the expert witnesses to testify had

she considered their opinions helpful to the jury. Defendants

urge the Court to affirm the Appellate Division’s determination.

14

III.

Our law has long recognized the critical importance of

accurate and precise instructions to the jury. “It is

fundamental that ‘[a]ppropriate and proper charges to a jury are

essential for a fair trial.’” Velazquez v. Portadin, 163 N.J.

677, 688 (2000) (alteration in original) (quoting State v.

Green, 86 N.J. 281, 287 (1981)). “A jury is entitled to an

explanation of the applicable legal principles and how they are

to be applied in light of the parties’ contentions and the

evidence produced in the case.” Viscik v. Fowler Equip. Co.,

173 N.J. 1, 18 (2002) (internal quotation marks omitted). “The

jury charge ‘should set forth an understandable and clear

exposition of the issues.’” Mogull v. CB Commercial Real Estate

Grp., Inc., 162 N.J. 449, 464 (2000) (quoting Campos v.

Firestone Tire & Rubber Co., 98 N.J. 198, 210 (1984)).

Appellate review of a challenged jury instruction entails

not only scrutiny of the charge itself, but an inquiry as to

whether an erroneous charge may have affected the trial’s

result. Notably, “in construing a jury charge, a court must

examine the charge as a whole, rather than focus on individual

errors in isolation.” Viscik, supra, 173 N.J. at 18 (citing

Ryder v. Westinghouse Electric Corp., 128 F.3d 128, 137 (3d Cir.

1997), cert. denied, 522 U.S. 1116, 118 S. Ct. 1052, 140 L. Ed.

2d 115 (1998)). “As a general matter, [appellate courts] will

15

not reverse if an erroneous jury instruction was ‘incapable of

producing an unjust result or prejudicing substantial rights.’”

Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296

(App. Div.) (quoting Fisch v. Bellshot, 135 N.J. 374, 392

(1994)), certif. denied, 216 N.J. 4 (2013). However, erroneous

jury instructions “constitute[] reversible error where the jury

outcome might have been different had the jury been instructed

correctly.” Velazquez, supra, 163 N.J. at 688. Generally,

“‘erroneous instructions on material points are presumed to be

reversible error.’” McClelland v. Tucker, 273 N.J. Super. 410,

417 (App. Div. 1994) (quoting State v. Martin, 119 N.J. 2, 15

(1990)). Applying that standard of review, the Court considers

the trial court’s adverse inference charge.

A.

When “a party fails to produce a witness who is within its

power to produce and who should have been produced,” the adverse

inference rule permits the factfinder “to infer that the

witness’s evidence is unfavorable to the party’s case.” Black’s

Law Dictionary 62 (9th ed. 2009). As the United States Supreme

Court has observed, “if a party has it peculiarly within his

power to produce witnesses whose testimony would elucidate the

transaction, the fact that he does not do it creates the

presumption that the testimony, if produced, would be

unfavorable.” Graves v. United States, 150 U.S. 118, 121, 14 S.

16

Ct. 40, 41, 37 L. Ed. 1021, 1023 (1893). As the Third Circuit

has noted, “a missing witness charge has long been accepted as

appropriate even in criminal cases.” United States v. Am.

Radiator & Standard Sanitary Corp., 433 F.2d 174, 206 (3d Cir.

1970) (citing Graves, supra, 150 U.S. at 121, 14 S. Ct. at 41,

37 L. Ed. at 1023), cert. denied, 401 U.S. 948, 91 S. Ct. 929,

28 L. Ed. 2d 231 (1971); see also United State v. Restaino, 369

F.2d 544, 547 (3d Cir. 1966) (noting in context of criminal

case, that inference undergirding missing witness charge is of

“ancient lineage” and “enjoys almost universal acceptance”).

Our courts first acknowledged the adverse inference charge

more than a century ago:

[T]he rule seems to be, according to the

weight of authority, that the non-production

of a witness, either by the state or the

defendant, may be considered by the jury in

weighing the effect of evidence applicable

to the subject in dispute, but it will not

justify an arbitrary presumption of

suppression of evidence, nor does it raise

any presumption of guilt or innocence.

[State v. Callahan, 76 N.J.L. 426, 428 (Sup.

Ct. 1908), aff’d, 77 N.J.L. 685 (E. & A.

1909).]

Similarly, in State v. Elliott, it was held that the failure of

both the State and the defendant to call certain witnesses

entitled the jury to infer “that [the witnesses] would not

testify favorably” for either party. 129 N.J.L. 169, 170-71

(Sup. Ct. 1942), aff’d, 130 N.J.L. 174 (E. & A. 1943).

17

Notwithstanding the expansive reach of the adverse

inference rule articulated by the United States Supreme Court in

Graves, and followed by New Jersey courts for many years, this

Court has consistently applied the rule with caution, requiring

a case-specific analysis to determine whether an adverse

inference charge is warranted in a particular setting. The

Court first addressed the adverse inference charge in State v.

Cooper, 10 N.J. 532 (1952). Noting that “the mere failure to

produce a witness does not of itself permit the jury to infer

that” the witness would have contradicted the testimony of other

prosecution witnesses, the Court held that the charge was

inappropriate when the absence of the disputed witness was

explained by his confinement to his home following surgery. Id.

at 566; cf. Michaels v. Brookchester, Inc., 26 N.J. 379, 391

(1958) (finding that trial court did not err by charging “that

[the] defendant’s unexplained failure to produce two of its

employees permitted an inference that their testimony would have

been unfavorable to [the defendant]”).

The Court’s case-specific approach to the adverse inference

charge was explained in Clawans, supra, 38 N.J. at 170-72.

There, the State prosecuted a criminal defense attorney for

suborning perjury, based upon a courthouse conversation that the

attorney was alleged to have conducted with an inmate in the

presence of a corrections officer and another inmate. Id. at

18

165-66. Although two detectives stood nearby and observed the

defendant lawyer speaking with the inmate, they could not

testify about the substance of the conversation. Id. at 167.

No trial witnesses corroborated the inmate’s testimony that the

attorney had instructed her to testify falsely. Ibid. Although

the State admitted that the corrections officer was available to

testify, it did not call either the officer or the second inmate

to testify regarding the conversation that they allegedly

witnessed. Id. at 167, 173. The defendant requested that the

trial court issue an adverse inference charge that mandated,

rather than permitted, the jury to conclude that the State’s

failure to call these two witnesses meant that the disputed

conversation had never occurred. Id. at 170. The trial court

declined that request. Ibid. The jury convicted the defendant

attorney, and she appealed. Id. at 168.

This Court noted that the theoretical basis for the

inference -- the non-producing party’s purported concern that

the missing witness would elicit testimony harmful to its case -

- only exists in the absence of an alternative explanation for

the witness’s failure to appear:

[The] failure of a party to produce before a

trial tribunal proof which, it appears,

would serve to elucidate the facts in issue,

raises a natural inference that the party so

failing fears [that] exposure of those facts

would be unfavorable to him. But such an

inference cannot arise except upon certain

19

conditions and the inference is always open

to destruction by explanation of

circumstances which make some other

hypothesis a more natural one than the

party’s fear of exposure.

[Id. at 170-71 (internal citations

omitted).]

The Court commented that an adverse inference charge would be

improper if the witness were unavailable, if the witness were

biased against the party who would otherwise be expected to call

him or her, or if the witness’s testimony “would be cumulative,

unimportant or inferior to what had been already utilized.” Id.

at 171. It rejected the notion that an adverse inference should

never be raised when a witness is available to both parties,

holding:

[T]he more logical approach views this

situation as posing a possible inference

against both [parties], the questions of the

existence and strength of the inference

against either being dependent upon the

circumstances of the case, including whether

one party has superior knowledge of the

identity of the witness and what testimony

might be expected from him, as well as the

relationship of the witness to the parties.

[Id. at 171-72.]

Applying these principles to the case before it, the Court

held in Clawans that the defendant was not entitled to the jury

charge that she had requested -- a charge that would have

mandated, not simply authorized, an inference that the disputed

conversation never occurred. Id. at 170, 174-75. It held,

20

however, that the defendant was entitled to a narrower adverse

inference instruction, permitting the jury to infer that the

testimony of the corrections officer, who had clearly heard the

disputed conversation and whose absence was unexplained by the

State, would have been unfavorable to the State. Id. at 174-75.

Accordingly, the Court reversed the defendant’s conviction and

remanded for a new trial. Id. at 175.

Thus, in Clawans, the Court confirmed that the adverse

inference charge should not be a reflexive response whenever a

party fails to call an expected witness. Id. at 170-71.

Instead, the Court required that the trial court carefully

analyze the specific facts before it. Id. at 172. To that end,

the Court recommended that a party seeking the benefit of an

adverse inference charge provide sufficient notice so that the

opposing party has a meaningful opportunity to respond. Ibid.;

see also State v. Irving, 114 N.J. 427, 442 (1989) (noting that

notice envisioned by the Court in Clawans is intended “to

provide the party accused of non-production an opportunity

either to call the witness or to explain his failure to do so”).

With the benefit of counsel’s explanation for the witness’s

absence, the Court in Clawans anticipated that a trial court

would thoughtfully analyze the witness’s potential testimony,

circumstances, and relationship with each party, and would

decline to give an adverse inference charge if it were

21

unwarranted. Clawans, supra, 38 N.J. at 172; see Irving, supra,

114 N.J. at 442.

The principles of Clawans were refined in Hill, supra,

which arose from a defendant’s conviction for robbery on a

theory of accomplice liability. 199 N.J. at 550. There, the

defendant failed to call as a witness his nephew, who was

involved in the robbery for which the defendant was tried.

Ibid. The defendant testified at trial that he did not know the

exact location of his nephew, but believed that he was in

Alabama. Id. at 554. Citing defendant’s family relationship

with the missing witness, the potential superiority of the

nephew’s testimony, and the lack of evidence showing that

defendant had sought to locate his nephew or attempt to produce

him at trial, the trial court gave a Clawans charge regarding

the nephew. Id. at 556-57. It instructed the jury that it had

the right to infer that had the witness appeared, his testimony

would have been adverse to the interests of the defendant. Id.

at 557. On appeal, the Appellate Division held that the Clawans

charge was inappropriate, but that it constituted harmless

error. Id. at 558.

This Court observed that “‘[i]t is one thing for counsel in

his summation to point to the absence of particular witnesses;

it is quite another when the court puts the weight of its

authority behind such a summation by telling the jury it may

22

draw an adverse inference from their absence.’” Id. at 561

(quoting Wild, supra, 91 N.J. Super. at 415). Accordingly, the

Court restricted the use of the Clawans charge in several

significant respects. First, the Court made mandatory the

notice procedure suggested in Clawans: “[t]he party seeking the

jury charge must notify the opposing party and the judge,

outside the presence of the jury, must state the name of the

witness . . . not called, and must set forth the basis for the

belief that the witness . . . [has] superior knowledge of

relevant facts.” Id. at 560-61 (citing Clawans, supra, 38 N.J.

at 172). Second, the Court prescribed a four-pronged test to be

applied by a trial court when determining whether to grant a

request for an adverse inference charge in a particular setting:

When making a determination about a Clawans

charge, a court must demonstrate that it has

taken into consideration all relevant

circumstances by placing, on the record,

findings on each of the following:

“(1) that the uncalled witness is

peculiarly within the control or

power of only the one party, or

that there is a special

relationship between the party and

the witness or the party has

superior knowledge of the identity

of the witness or of the testimony

the witness might be expected to

give; (2) that the witness is

available to that party both

practically and physically; (3)

that the testimony of the uncalled

witness will elucidate relevant

and critical facts in issue[;] and

23

(4) that such testimony appears to

be superior to that already

utilized in respect to the fact to

be proven.”

[Id. at 561-62 (alteration in original)

(quoting State v. Hickman, 204 N.J. Super.

409, 414 (App. Div. 1985), certif. denied,

103 N.J. 495 (1986)).]

Finally, noting the risk that a Clawans charge could

mislead or confuse the jury about the State’s burden of proof,

the Court held “that it would be the rare case, if any, that

would warrant” such a charge against a criminal defendant. Id.

at 566-67; see also State v. Velasquez, 391 N.J. Super. 291, 306

(App. Div. 2007) (noting “the need for trial courts to exercise

caution in authorizing the inference”). Accordingly, the Court

reversed the defendant’s conviction, and remanded for a new

trial. Hill, supra, 199 N.J. at 570. Thus, although a Clawans

charge against the State may be an appropriate remedy “to

balance the scales of justice” in favor of a defendant in a

criminal case, State v. Dabas, 215 N.J. 114, 140 (2013), it

should rarely, if ever, be used against a defendant in the wake

of this Court’s decision in Hill, supra, 199 N.J. at 566-67.

See Model Jury Charge (Criminal), “Witness -- Failure of the

Defendant to Produce” (June 14, 2010).

As the Court observed in Clawans, supra, the adverse

inference charge may be given in civil as well as criminal

trials. 38 N.J. at 171. In the civil setting, as in criminal

24

cases, courts have recognized the prejudicial impact of a

Clawans charge, and have addressed a litigant’s request for such

a charge with caution. This Court noted in Gonzalez v. Safe &

Sound Sec. Corp. that “[t]he adverse inference is not to be

utilized when the witness is unavailable or likely to be

prejudiced against the party calling him.” 185 N.J. 100, 118

(2005). As a federal appellate court has noted in the setting

of a civil case, “[a]n adverse inference instruction is a

powerful tool in a jury trial” that “when not warranted, creates

a substantial danger of unfair prejudice.” Morris v. Union Pac.

R.R., 373 F.3d 896, 900, 903 (8th Cir. 2004). Thus, courts have

recognized that in civil cases, as in criminal cases, an adverse

inference charge can have a decisive impact upon a jury’s

determination.

In Wild, supra, the Appellate Division noted that our

courts have not construed Clawans to “always compel[] the giving

of [the adverse inference] charge when a possible witness does

not appear, even upon request and even if the rules laid down in

Clawans . . . are complied with.” 91 N.J. Super. at 414.

There, the panel reversed a trial court’s decision to give a

Clawans charge after the plaintiffs, who alleged dental

malpractice against the defendant, failed to call certain of

their treating dentists “whose names appeared in the case.” Id.

at 413, 418-19 (internal quotation marks omitted). The panel

25

noted that “there was ample reason for plaintiffs’ attorney to

conclude that the testimony of [the dentists] . . . was

unnecessary and not worth the fees they would necessarily charge

for testifying,” and acknowledged “that it would have been an

imposition upon these [dentists] to disrupt their practices for

the little that they could contribute by way of testimony.” Id.

at 418; see also ASHI-GTO Assocs. v. Irvington Pediatrics, P.A.,

414 N.J. Super. 351, 361 (App. Div.) (affirming trial court’s

denial of request for adverse inference charge regarding fact

witness, who was “equally available to both sides”), certif.

denied, 205 N.J. 96 (2010); Anderson v. Somberg, 158 N.J. Super.

384, 394-95 (App. Div.) (affirming trial court’s denial of

request for adverse inference charge regarding proposed

metallurgical expert witness because, among other things, party

requesting charge failed to demonstrate that expert witness “was

not equally available” to be called to testify), certif. denied,

77 N.J. 509 (1978); Hill v. Newman, 126 N.J. Super. 557, 564

(App. Div. 1973) (affirming trial court’s denial of defendant’s

request for adverse inference charge regarding fact witness and

noting that “[t]he trial judge emphasized [the witness’s]

availability to all parties in denying [the] defendant’s

request”), certif. denied, 64 N.J. 508 (1974).

Nothing in the Court’s decision in Hill, supra, limits the

four-part test set forth in that case to criminal trials. 199

26

N.J. at 561-62. In civil cases as well as criminal trials, the

adverse inference charge should only be given if the party

seeking it gives appropriate notice to the court and counsel,

and the trial court, after carefully considering the four

factors identified in Hill, determines that it is warranted.

Ibid.4 When the court’s findings with respect to those factors

do not support an adverse inference charge, the jury is free to

independently draw an inference from the absence of an important

4

In the instant case, the trial court substantially followed a

section of the Model Jury Charge (Civil) 1.18, “Witness --

Failure of a Party to Produce; Adverse Inference” (Revised Aug.

2011) [Hereinafter “Model Civil Charge 1.18”], entitled

“Alternative A.” This portion of Model Civil Charge 1.18

instructs the jury to determine whether an adverse inference

should be drawn, based upon the following factors: (1) whether

the witness is one “whom the plaintiff/defendant would naturally

be expected to produce;” (2) whether “there has been a

satisfactory explanation for [the witness’s] non-production;”

(3) whether the witness “is equally available to both parties;”

and (4) whether the witness’s “testimony would be comparatively

unimportant, cumulative in nature or inferior to that which you

already have before you.” In contrast to Model Jury Charge

(Criminal), “Witness -- Failure of the Defendant to Produce”

(June 14, 2010), and Model Jury Charge (Criminal), “Witness --

Failure of the State to Produce” (June 14, 2010), Model Civil

Charge 1.18 does not direct the trial court to conduct the

inquiry required by Hill before giving a Clawans charge.

Moreover, Model Civil Charge 1.18 directs the jury -- not the

trial court -- to determine why a particular witness did not

appear at trial. Such an inquiry inappropriately compels an

attorney for a party seeking to avoid an adverse inference

charge to explain to a jury his or her efforts to locate or

communicate with a witness, and invites counsel to argue before

the jury as to whether a witness is available to testify on

behalf of either side. We urge the Model Civil Jury Charge

Committee to review Model Civil Charge 1.18 to ensure that it

complies with Hill, and that it does not allocate to the jury

determinations that are properly conducted by the trial judge.

27

witness. The trial court, however, maintains its neutrality

with respect to that inference.

B.

In this case, the witnesses whose absence prompted the

Clawans charge were not fact witnesses, as were the witnesses

disputed in Clawans and Hill, but were experts retained by a

party. This Court has not previously analyzed the adverse

inference charge in the expert witness setting.5

As the Appellate Division noted in the instant case, prior

Appellate Division panels have reached divergent results

regarding the propriety of a Clawans charge as applied to expert

witnesses. See Washington, supra, 430 N.J. Super. at 129-30

(declining to reach the issue “in light of the parties’ failure

to brief it”); see also Bradford v. Kupper Assocs., 283 N.J.

Super. 556, 580 (App. Div. 1995) (holding that “[p]laintiffs

could have subpoenaed the potential defense witnesses” and that

“the failure of a party to call an expert who was earlier

deposed does not normally justify an adverse inference charge”)

5

Neither of the two prior cases decided by the Court involving

adverse inference issues in the expert setting directly raised

the issue that is now before the Court. See Bender v. Adelson,

187 N.J. 411, 435 (2006) (holding that trial court should not

have permitted plaintiff’s counsel to argue that jury should

draw adverse inference because of absence of defendants’ expert

witnesses, given trial court’s entry of order barring defendants

from calling witnesses at trial); Biruk v. Wilson, 50 N.J. 253,

261 (1967) (reviewing trial court’s application of adverse

inference charge to fact witness, but not its application of

charge to expert witnesses).

28

(internal quotation marks omitted), certif. denied, 144 N.J. 586

(1996); Genovese v. N.J. Transit Rail Operations, Inc., 234 N.J.

Super. 375, 382 (App. Div.) (holding that party is ordinarily

entitled to benefit of adverse inference “if an expert witness

is not produced at trial and the R. 4:14-9(e) deposition is not

offered”), certif. denied, 118 N.J. 195 (1989); McQuaid v.

Burlington Cnty. Mem’l Hosp., 212 N.J. Super. 472, 476 (App.

Div. 1986) (stating that “[e]ven were [the expert] not equally

available to both parties, the failure of a party to call an

expert witness does not normally justify an adverse inference

charge”); Anderson, supra, 158 N.J. Super. at 395 (same);

Parentini v. S. Klein Dep’t Stores, Inc., 94 N.J. Super. 452,

457-58 (App. Div.) (holding that trial court’s decision to give

adverse inference charge regarding expert witness did not

constitute plain error, although “[t]here was no basis for an

assumption that [the expert’s] testimony would have been

favorable or unfavorable to anyone”), certif. denied, 49 N.J.

371 (1967). In short, no definitive rule has developed in our

case law regarding the use of adverse-inference charges when

expert witnesses who are designated by a party are not called to

testify at trial.

There are significant distinctions between the testimony of

expert witnesses and the testimony of fact witnesses, which are

pertinent to the adverse-inference charge. First, the content

29

of an expert witness’s testimony is unlikely to be a mystery to

the parties and their counsel when a case proceeds to trial.

Expert witnesses in civil cases are subject to disclosure and

discovery rules that do not apply to fact witnesses. Pursuant

to Rule 4:10-2(d)(1), the identity of an expert witness whom a

party “expects to call at trial,” is discoverable through

interrogatories. R. 4:10-2(d)(1). Interrogatories served upon

a party pursuant to Rule 4:10-2(d)(1) “may also require, as

provided in [Rule] 4:17-4(a), the furnishing of a copy of that

person’s report.” R. 4:10-2(d)(1). “If an interrogatory

requires a copy of the report of an expert witness or treating

or examining physician as set forth in [Rule] 4:10-2(d)(1),” the

proffered report must state the expert’s “opinions and the basis

therefor,” identify “the facts and data considered in forming

the opinions,” set forth the expert’s qualifications, including

a list of publications for the preceding ten years, and disclose

“whether compensation has been or is to be paid for the report

and testimony and, if so, the terms of the compensation.” R.

4:17-4(e). The expert witness may be deposed “as to the opinion

stated” in his or her report, with the party conducting the

deposition responsible for the payment of “a reasonable fee for

the appearance.” R. 4:10-2(d)(2).

In short, our rules afford to a civil litigant broad

discovery of the expert witnesses whom an adversary expects to

30

call to testify at trial. In contrast to the testimony of a

fact witness, the opinion of an expert witness is rarely a

surprise to opposing counsel in a civil trial.

Second, an expert is unlikely to be in exclusive possession

of factual evidence that would justify an adverse inference

charge. Depending upon the nature of the case and the strategy

of the party, an expert may base his or her conclusions entirely

on facts developed by others, or conduct his or her own

investigation in accordance with the court rules. See, e.g., R.

4:18-1(a) (authorizing inspection of documents and tangible

things, and “entry upon designated land or other property . . .

for the purpose of inspection and measuring, surveying,

photographing, testing, or sampling the property or any

designated object or operation thereon”); R. 4:19 (providing for

physical and mental examinations by expert witnesses “in an

action in which a claim is asserted by a party for personal

injuries or in which the mental or physical condition of a party

is in controversy”). When a physical examination is conducted

pursuant to Rule 4:19, or a party voluntarily submits to a

physical examination by an opposing expert, Rule 4:10-2(d)(1)

provides for discovery regarding the expert “whether or not [the

expert is] expected to testify.”

Thus, although an expert may develop factual information

and present it at trial, any facts or data that support the

31

expert’s opinion must be disclosed in his or her report. R.

4:17-4(e). Rarely will an expert be in a position to reveal

previously undisclosed factual information, for the first time,

on the stand at trial. Given the broad expert disclosures

compelled by our rules, it is the unusual setting in which a

party’s decision not to call an expert witness will be prompted

by the party’s fear that the expert will reveal unfavorable

facts that would otherwise not be disclosed. Clawans, supra, 38

N.J. at 170-71.

Third, notwithstanding the detailed requirements that

govern the development of expert witness testimony and mandate

expert discovery, our court rules do not compel a litigant who

has disclosed the name and opinion of a particular expert to

call that expert to testify at trial. There are, of course,

categories of cases in which the testimony of at least one

expert is necessary to withstand a motion for summary judgment

and to meet the party’s burden of proof.6 Subject to that

6

See, e.g., Rosenberg v. Cahill, 99 N.J. 318, 327 (1985)

(stating that under circumstances of case, “competent expert

testimony” was necessary “to establish the applicable duty of

care with respect to the proper chiropractic practices”);

Schueler v. Strelinger, 43 N.J. 330, 345-46 (1964) (reversing

finding of negligence against defendant doctor and holding that

“evidence of a deviation from accepted medical standards must be

provided by competent and qualified physicians”); Dare v.

Freefall Adventures, Inc., 349 N.J. Super. 205, 215-16 (App.

Div.) (affirming grant of summary judgment to defendant skydiver

and holding that “expert testimony was necessary to establish

what standard of care applied”), certif. denied, 174 N.J. 43

32

constraint, however, our rules do not preclude a party from

choosing among multiple experts identified before trial, or

foregoing the presentation of expert testimony entirely.

Fourth, in contrast to the fact witness setting, there are

many strategic and practical reasons that may prompt a party who

has retained an expert witness to decide not to present the

expert’s testimony at trial. Expert witnesses are almost always

compensated for their time; a party may decide against calling a

particular expert at trial to save resources. A litigant may

retain and identify multiple expert witnesses in the same field

of expertise, reserving until trial the selection of the one

best suited for the case. A plaintiff might settle his or her

dispute with one defendant while proceeding to trial against

another, and abandon plans to call an expert whose testimony

focused upon the defendant who has settled. An expert’s

testimony may no longer be relevant because a previously

contested issue has been resolved. An expert may prove to be

unavailable when and where the case proceeds to trial.

(2002); Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J.

Super. 320, 327, 341-42 (App. Div. 2000) (holding that

plaintiffs’ failure to proffer expert testimony in support of

defective design claim against manufacturer of train car

emergency unlock mechanism warranted grant of summary judgment

in favor of defendant manufacturers); Giantonnio v. Taccard, 291

N.J. Super. 31, 43-44 (App. Div. 1996) (holding that expert

testimony was necessary to establish standard of care in safe

conduct of funeral procession).

33

There are, in short, many explanations for a party’s

decision not to call a particular expert that may have nothing

to do with a party’s fear that the expert will reveal

prejudicial information. See Anderson, supra, 158 N.J. Super.

at 395 (holding that in absence of evidence that missing expert

had superior knowledge, defendant’s application for Clawans

charge “constituted an inappropriate endeavor to have the jury

draw an adverse inference against [its codefendant] simply

because he chose not to use at trial a witness he had earlier

identified as a potential expert witness”).

Thus, when the witness whom a party declines to call at

trial is an expert rather than a fact witness, the factors that

may necessitate an adverse inference charge addressing the

absence of a fact witness are unlikely to be germane.

Accordingly, a Clawans charge will rarely be warranted when the

missing witness is not a fact witness, but an expert.7

C.

In determining whether this case presents the exceptional

situation in which the absence of an expert witness warrants a

7

If a Clawans jury instruction is not given with respect to a

witness, counsel should not be permitted to argue to the jury

that it should draw an adverse inference from the absence of the

witness. State v. Hill, 199 N.J. 545, 560-61 (2009); State v.

Driker, 214 N.J. Super. 467, 472 (App. Div. 1987).

34

Clawans charge, the Court is guided by the four-part standard

adopted in Hill, supra, 199 N.J. at 561-62.8

In accordance with Hill, a trial court considering an

adverse inference charge must first determine whether “the

uncalled witness is peculiarly within the control or power of

only the one party,” whether “there is a special relationship

between the party and the witness” and whether “the party has

superior knowledge of the identity of the witness or of the

testimony the witness might be expected to give.” Id. at 561

(internal quotation marks omitted).

In this case, there is no evidence that either Dr. Sharetts

or Dr. Hayken were in defendants’ exclusive control and thus

unavailable to testify for plaintiff. As the Court held in

Fitzgerald v. Stanley Roberts, Inc., “no party to litigation has

‘anything resembling a proprietary right’ to any witness’

evidence.” 186 N.J. 286, 301 (2006) (quoting Cogdell v. Brown,

220 N.J. Super. 330, 334 (Law Div. 1987), certif. denied, 114

N.J. 517 (1989)). There, the Court noted that “[b]y declaring

that an expert witness will be produced at trial and providing

the expert’s identity and opinion to another party, as required

8

In the instant case, the trial court did not require plaintiff

to make a showing with respect to the factors set forth in Hill,

and did not discuss them when it granted plaintiff’s application

for a Clawans charge. On appeal, the Appellate Division applied

the Hill standard to reverse the trial court’s determination.

Washington, supra, 430 N.J. Super. at 130-31.

35

by Rule 4:10-2(d)(1), the original proponent has waived his

claim that the information is privileged.” Id. at 302. Under

Fitzgerald, “access to [a] testifying witness is allowed and the

adversary may produce a willing expert at trial.” Id. at 302.9

Accordingly, if a party decides not to call an expert witness

whose identity and report have been disclosed, and who possesses

factual information relevant to the case, the principle set

forth in Fitzgerald may permit the adversary to call the expert

and present the evidence at trial.

Here, by virtue of the expert witnesses’ reports, plaintiff

was on notice prior to trial of the results of the physical

examinations conducted by the experts, and of their respective

opinions. Following defendants’ pretrial announcement that they

would not call Dr. Hayken to testify, and their notification to

plaintiff during the trial that Dr. Sharetts would not testify

on their behalf, plaintiff was in a position to contact the

experts and seek to present their testimony at trial, but did

9

The rule of Fitzgerald applies only to expert witnesses who are

designated by a party to testify at trial, not to consulting

experts who are not named as trial witnesses. In Fitzgerald,

the Court reaffirmed the rule articulated in Graham, supra, 126

N.J. at 373, but distinguished Graham from the case before it.

In Graham, the Court held that a consulting expert who has not

been designated as a party’s trial expert witness is prohibited

from testifying on behalf of the adversary of the party who

retained him or her, absent “exceptional circumstances” that

would authorize discovery of the consultant’s identity and

opinion under the standard of Rule 4:10-2(d)(3). Ibid. In

Fitzgerald, supra, the Court held that the rule of Graham “has

no applicability to a testifying witness.” 186 N.J. at 301.

36

not do so. Accordingly, the first factor identified in Hill

weighs against the grant of an adverse inference charge.

The second consideration set forth in Hill is whether “the

witness is available to [the party against whom the adverse

inference charge is sought] both practically and physically.”

Hill, supra, 199 N.J. at 561 (internal quotation marks omitted).

Before the trial court granted plaintiff’s application for a

Clawans charge, defendants’ counsel never suggested that either

expert witness was unavailable, or sought an adjournment to

accommodate the witnesses’ schedules. It was not until the

argument of a post-trial motion that defendants revealed for the

first time that Dr. Hayken had been unavailable to testify at

trial. Defendants never suggested that their other expert, Dr.

Sharetts, was unavailable to testify, and the record does not

reveal whether he would have appeared at trial if called by

defendants. Thus, it is unclear whether these witnesses were

available to appear at trial. Applied to this case, the second

Hill factor is inconclusive.

The third consideration identified in Hill is whether the

missing witnesses’ testimony would have “elucidate[d] relevant

and critical facts in issue.” Ibid. (internal quotation marks

omitted). In this case, each expert witness examined plaintiff,

each independently developed factual information and opinions

regarding this case, and each disclosed factual information as

37

well as his opinion in his report. Significantly, plaintiff was

also examined by Dr. Rosen, and was available to be examined

again at her counsel’s direction or by court order.

Nonetheless, there was sufficient evidence in the experts’

reports to support a finding that the testimony of Dr. Sharetts

and Dr. Hayken would have elucidated certain relevant facts.

Accordingly, the third factor of Hill weighs to some extent in

favor of an adverse inference charge.

Finally, the Court directed in Hill that trial courts must

consider whether the missing witness’s “testimony appears to be

superior to that already utilized in respect to the fact to be

proven.” Ibid. (internal quotation marks omitted). In the case

of an expert, this factor requires that the court determine

whether the missing witness offers factual information superior

to the evidence available from other sources. See Anderson,

supra, 158 N.J. Super. at 395 (noting lack of evidence in

support of conclusion that expert designated, but not called, by

defendant “had knowledge superior to that of [the codefendant’s

expert] . . . regarding the manufacture and design” of product

at issue). Nothing in the record suggests that the testimony of

Dr. Sharrets or Dr. Hayken would have been superior to the

expert testimony already before the jury. Plaintiff presented

the testimony of her treating physician, who examined and

treated her five times between February 2007 and October 2010,

38

and recommended her course of treatment. We share the Appellate

Division’s view that the defense experts’ evidence was “merely

corroborative or cumulative to plaintiff’s proofs,” and that

this fourth Hill factor “suggests a rejection of the request for

a missing-witness charge.” Washington, supra, 430 N.J. Super.

at 131.

Accordingly, the Court concurs with the Appellate Division

that the trial court erred when it granted plaintiff’s

application for an adverse inference charge pursuant to Clawans.

The four factors identified in Hill do not support a Clawans

charge when applied to the record before the Court. This case

does not present the rare circumstance in which a party’s

decision not to call an expert witness justifies a Clawans

charge. The trial court erred when it granted plaintiff’s

request for an adverse inference charge in this case.

Moreover, that error was not harmless, but reversible. The

trial court’s adverse inference charge strongly suggested to the

jury that defendants did not call their witnesses because they

feared their testimony.10 That error was compounded when

10

If the trial court intended the Clawans charge to serve as a

sanction for defendants’ trial counsel’s representation to the

jury in his opening statement that the evidence would establish

that plaintiff sustained no injuries in her December 20, 2006

accident, it gave no such indication in its brief discussion of

the charge. In any event, an adverse inference charge would not

be an appropriate remedy for a mischaracterization of the

evidence in an opening statement. Given the evidence before the

39

plaintiff’s counsel argued to the jury in summation that

defendants had declined to call Dr. Hayken because they feared

his testimony. We agree with the Appellate Division’s

observation that by virtue of the authority of the trial judge

supporting the adverse inference, “the harm to defendants was

palpable.” Ibid.

Accordingly, the Appellate Division properly reversed the

trial court’s judgment. Defendants are entitled to a new trial.

IV.

The judgment of the Appellate Division is affirmed, and the

case is remanded to the trial court for a new trial in

accordance with this opinion.

jury that plaintiff was injured in the 2006 accident, any claim

to the contrary by defendants’ counsel was subject to effective

rebuttal by plaintiff’s counsel in summation.

40

SUPREME COURT OF NEW JERSEY

NO. A-10 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STEPHANIE WASHINGTON,

Plaintiff-Appellant,

v.

CARLOS A. PEREZ, OLYMPIA

TRAILS and OLYMPIA TRAILS BUS

COMPANY,

Defendants-Respondents.

DECIDED September 10, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST AFFIRM/REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 7

1