NJ Supreme Court Overturns $2.7 Million Auto Negligence Award Citing Numerous Errors.

What Did Plaintiff’s Counsel Do Wrong With Defendant’s Expert?

Lesson learned: requests for admission are not for expert testimony, and they don’t work anyway when not timely served. If you want the testimony of your opponent’s expert, call the expert to testify.

Plaintiff Sofia Torres won a judgment for $2,735,455.08 against Javier Pabon and Suburban Disposal for auto negligence. Then, the NJ Supreme Court ordered a new trial (%!@*!). Two of the five errors cited by the court concerned Plaintiff’s handling of Defendant’s expert witness testimony.

Defendant’s orthopedic expert, Dr. Thomas Helbig, reported that Plaintiff had sustained several fractures in the accident. To make sure the statements came in, Plaintiff served requests for admission, asking Defendant to admit to certain medical opinions from Helbig’s expert report. The requests were untimely, and Defendant chose not to answer.

Surprise, surprise, Defendants did not call Dr. Helbig to testify at trial. So, Plaintiff asked the court 1) to read the admissions to the jury, and 2) for a “Clawans instruction” (an adverse inference charge that Defendants did not call Dr. Helbig because his testimony would be unfavorable). The court allowed both.

The NJ Supreme Court found the lower court’s rulings incorrect. Why? The Court held:

1. The requests for admission were untimely, so Defendants had no duty to respond.

2. Requests for admission are for facts known by a party or the authentication of documents, not for expert testimony of a non-party.

3. Many of the requirements for a Clawans instruction were not met. One was that Defendant did not have particular “control” or “power” over Dr. Helbig and Plaintiff could have called him to testify at trial. The NJ Supreme Court found insufficient grounds for an adverse inference instruction.