CAN PLAINTIFF’S COUNSEL BAR DEFENSE EXPERT AND THEN CRITICIZE DEFENSE IN SUMMATION FOR NOT PRODUCING ONE?

In Bender v.Adelson, New Jersey Supreme Court, A-37, July 19, 2006, a new trial was ordered because plaintiff’s counsel, having successfully barred defendant’s untimely profferred experts, made prejudicial comments in summation about the absence of said medical experts. The finding was that these comments had the capacity to mislead the jury and render a miscarriage of justice.

The defense had planned to offer the testimony of medical experts in both hematology and cardiology.  The Supreme Court found no fault with plaintiff counsel criticizing the absence of a hematology expert because the defense had not sought the introduction of  testimony from a hematologist.  However, with respect to the cardiologists, plaintiff counsel knew, having moved to prevent their testimony, that the defense experts had been barred from testifying.  Defense had been given numerous extensions, but did not proffer until after multiple expirations. Nevertheless, the trial court found that plaintiff counsel’s  disingenuous comment played on the jury’s ignorance of procedural bar to testimony and “implied an untruth”. 

The New Jersey Supreme Court held that the trial court had not abused its discretion by concluding that plaintiff counsel’s comments were so prejudicial that it had led to a “miscarriage of justice”, thereby warranting a new trial.