The Supreme Court in Washington v. Perez clarified application of the adverse inference charge as applied to a party’s failure to call an expert. In that case, the defense had named two experts who provided opinions as to the extent of the plaintiff’s alleged injuries. However, for reasons not elaborated upon by defense counsel, neither of whom were called to testify at the time of trial. The plaintiff’s attorney sought and the judge agreed to issue an adverse inference charge. Moreover, in closing plaintiff’s counsel alluded to some nefarious concealment on the part of the defense in their failure to call the experts. The Supreme Court reversed the trial court finding error in issuing the adverse inference charge to the jury, explaining that, in regards to experts, the charge is appropriate in only the rarest of circumstances.
