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New Jersey Jury Can't Be Instructed about What "Missing" Expert Would Say

A recent decision by the Superior Court of New Jersey, Appellate Division affirmed the principle that the defendant in a personal injury case can pick and choose whatever experts it wants, and the jury can't be led to assume that experts not called would have supported the plaintiff's case.

The case of Washington v. Perez arose out of a bus accident in which the plaintiff, Stephanie Washington, claimed she was injured. She alleged that her injuries were caused by defendant Carlos Perez's negligent operation of a bus owned by the defendant Olympia Trails Bus Company.

The accident happened in New York City on December 20, 2006. At the time, the plaintiff told police she didn't need an ambulance. She declined medical treatment because she said she wasn't in pain. She didn't seek medical treatment until two weeks after the accident, when she saw her family doctor. She continued to work after the accident until she retired in 2009.

During a five-day jury trial, the defense lawyer argued that the plaintiff's injuries were not caused by the December accident but by another accident the plaintiff had been in in 2003.

In the 2003 auto accident, the plaintiff suffered cervical, thoracic, and lumbar injuries and missed 10 weeks of work.

The defendants obtained medical reports on the plaintiff from two experts but did not call these experts at trial.

The plaintiff's lawyer asked that the judge advise the jury that they could infer that the "missing" experts' testimony would have supported the plaintiff, and the judge granted this request.

The jury then found the defendants negligent and awarded the plaintiff $500,000 for her pain and suffering and $242,000 for her economic losses.

The defendants appealed, and the Appellate Division found that the trial judge had erred in instructing the jury that it could draw an adverse inference from the defendants' failure to call the medical experts. The appeals court then ordered a new trial.

If you or a family member has suffered injuries in a vehicle accident, contact a personal injury attorney at the New Jersey Law Offices of Greenberg, Walden & Grossman, LLC.

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