Bender v. Adelson

Justice RIVERA-SOTO,

concurring in part and dissenting in part.

In this appeal in a medical malpractice case, the majority first explains that, “[a]pplying an abuse of discretion standard to the *438 trial court’s decision to bar defendants’ requested amendments to their interrogatory answers and deny a further discovery extension[,] we find that defendants failed to show ‘due diligence,’ Rule 4:17-7, or ‘exceptional circumstances,’ Rule 4:24-l(c).” Ante, 187 N.J. 428 , 901 A.2d 917 (2006) (citations omitted). The majority then concludes that there is “no reason to upset the trial court’s exercise of discretion.” Ante, 187 N.J. 428 , 901 A.2d 917 (2006). Because the discovery quandary in which defendants found themselves was entirely of their own making, I concur. However, to the extent the majority concludes that “counsel’s comment asking the jury to draw an adverse inference from defendants’ failure to call any independent cardiologists necessitates a new trial,” ante, 187 N.J. 433 , 901 A.2d 919 (2006), I respectfully dissent.

According to the majority, plaintiffs rhetorical question in summation asking “[wjhere are the outside independent experts in cardiology” was error because it “implied an untruth.” Ante, 187 N.J. 433 -36, 901 A.2d 919 -22 (2006). That “untruth” is that defendants did have experts in cardiology who were barred from testifying. That bar was entirely of defendants’ own making: those expert witnesses were barred because defendants unreasonably and without justification delayed providing their expert reports in discovery, a point on which both the majority and I agree. However, the majority and I disagree on whether plaintiff was entitled to focus on defendants’ failure of proof resulting from the proper exclusion of defendants’ proposed experts. In the majority’s view, counsel in summation must hew to some metaphysical standard of truth, regardless of the state of the record before the fact finder. That standard ignores, and does grave violence to, the basic tenets of our adversary system.

We have repeatedly stressed that the latitude counsel is allowed in summation necessarily is circumscribed by the evidence admitted in the case. We have made clear that “[t]he scope of ... summation argument must not exceed the ‘four corners of the evidence’ ” and that “[t]he ‘four comers’ include the evidence and all reasonable inferences drawn therefrom.” State v. Loftin, 146 *439 N.J. 295, 347 , 680 A.2d 677 (1996) (citations omitted). We have also made patent that “[a] trial court must exclude from summation those arguments that the evidence does not reasonably support.” State v. Reddish, 181 N.J. 553, 629 , 859 A.2d 1173 (2004) (citation omitted). There is a salutary reason for this rule: by limiting the universe of what can be discussed in summation to the evidence properly before the tribunal, the propriety of a summation can be readily gauged and litigants are on fair notice of what is fair game and what is prohibited. Thus, the boundaries of proper summation are, and must remain, the evidence properly placed before the fact finder. Any rule that seeks to define the scope of summation differently is both practically unworkable and theoretically unsound.

Yet, that is the very exception the majority crafts. According to the majority, plaintiff was barred from exploiting in summation a procedural advantage even the majority concedes was fairly fought and won. Instead, the majority takes back with one hand what it gives with the other, denying defendants the opportunity to present independent cardiology experts because their disclosure was untimely but prohibiting plaintiff from commenting on their absence.

If our adversary system is to function well, and function well it must, it cannot be as arbitrary as the majority would have it. The rule, to date, has been straightforward: litigants are entitled to argue in summation based on the evidence properly presented to the fact finder, together with all reasonable inferences therefrom. That leeway must perforce include the ability to argue the absence of proofs by a party. That, in a nutshell, is all plaintiff did here: she argued the self-evident fact that defendants did not present any independent cardiologists when, in truth and in fact, defendants did not present any independent cardiologists.

The problem with the majority’s reasoning does not end with its impractieality. It is also theoretically unsound. In this case, the majority condemns a summation comment concerning a party’s failure of proof because that failure itself was caused by the *440 party’s failure to abide by the discovery rules and several court orders. What comes next? If a party is unable to present an expert witness because the party is unable to pay for one, is the adversary barred from arguing a failure of proof? Under the majority’s construct, the adversary would know that the failure of proof was occasioned by insufficient funds, and not the unavailability of an expert. Yet, to remain logically consistent, the majority would have to bar any comment in summation in this example also. That is going too far.

Because the summation by plaintiffs counsel was, in my view, entirely proper based on the evidence before the fact finder, I would affirm the judgment of the Appellate Division in all respects and I would reinstate the judgment in favor of plaintiff.

I respectfully dissent.

For reversal and reinstatement—Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE—6.

For concurrence in part/dissent in part—Justice RIVERA-SOTO—1.