The Oregon Supreme Court has ordered a new trial in a case where defense counsel’s closing argument included a discussion of the testimony of an expert who never testified at trial. The majority and dissenting opinions collect law from across the country on this issue and provide a gold mine of information for lawyers facing a similar issue.
You read that correctly. In Cler v. Providence Health System -Oregon, SC S056715 (Ore. SC 12/30/10), plaintiff’s counsel remarked in closing argument that defense counsel did not call any independent nurse as an expert witness in support of its case. In return, and over plaintiff’s counsel’s objection, defense counsel said this (among other things):
[The defense oncology nurse expert] was here [on the firth day of trial] prepared to testify in the afternoon. She sat in the courtroom all afternoon, and she didn’t get on because [plaintiffs’ counsel] was calling Mr. Cler in the afternoon. She had to leave on the following day. She got on a plane. She was scheduled to go on vacation. That’s why you didn’t hear from [her]. She was prepared to be here. She sat in the courtroom all that afternoon, and again, she was prepared to testify and would have testified in our case and supported our case." [Footnotes in opinion omitted.]
The Oregon Supreme Court noted the following problems with this argument:
In closing argument in this case, over plaintiffs’ counsel’s objection, defense counsel made four statements of fact that were not testified to by any witness or otherwise admitted into evidence: (1) an oncology nurse manager with 20 years of experience had been prepared to testify on defendant’s behalf; (2) the nurse expert had been waiting in the courtroom to testify on the afternoon of the fifth day of trial; (3) the reason that the nurse expert did not testify was because plaintiffs’ counsel called a witness that afternoon and the nurse expert had to go on vacation the following day; and (4) if the nurse expert had testified, she would have "supported [defendant’s] case." Defense counsel had no basis in the record to offer those statements to the jury in her closing argument.
Not surprisingly, defense counsel blamed plaintiff’s counsel, saying that plaintiff’s counsel started the problem by arguing that the defense had no expert. The Court disposed on that argument as follows:
In calling attention to defendant’s failure to call a nurse expert, plaintiffs’ counsel invoked the missing witness inference. In general terms, that inference provides that, "[w]hen it would be natural under the circumstances for a party to call a particular witness * * * and the party fails to do so, tradition has allowed the adversary to use this failure as the basis for invoking an adverse inference." 2 McCormick on Evidence § 264, at 220 (6th ed 2006). In Bohle v. Matson Navigation Co., 243 Or 196, 198, 412 P2d 367 (1966), the court approved generally the use of that inference, holding that the plaintiff’s counsel in a personal injury case should have been allowed to comment in closing argument on the failure of the defendant to call a doctor who had examined the plaintiff at defendant’s request because "it is a natural inference that he would have been called if his testimony would help the defendant’s case." Id. The invocation of the missing witness inference by plaintiff’s counsel was consistent with the holding in Bohle. As the trial court acknowledged, plaintiff’s counsel’s comments "addressed the evidence" in the trial record.
If a party believes that an opponent has invoked the missing witness inference improperly, the party is not without recourse. The party may timely object, and, if necessary, move to strike or request a curative jury instruction. If evidence in the record provides an alternative explanation for a party’s failure to call a witness, that party properly may comment thereon. Trial, 88 CJS 360 § 313 ("It is proper for counsel to account for the absence of a desired witness where such absence would be a proper subject for comment by his or her opponent, where the explanation is based on evidence in the record, but not otherwise." (emphasis added; footnote omitted)). But a party may not pursue the course of action that defendant chose in this case: A party may not deprive the court of the opportunity to rule on the propriety of an opponent’s statement by remaining silent during the opponent’s closing argument, and then resorting to self-help by presenting argument based on facts not in evidence. Here, defense counsel failed to object to plaintiffs’ counsel’s use of the missing witness inference in closing argument. Defense counsel never placed the propriety of plaintiffs’ counsel’s statements at issue at trial and that issue is not properly assigned as error on review.
The Court concluded that the error required a new trial, saying
The assertion that a nurse expert would have supported defendant’s position was material to the central issue in the case: whether defendant’s nurse complied with the applicable standard of care for oncology nurses. Because defense counsel’s assertion that the nurse expert "would have supported" defendant’s case was not based on evidence in the record, the court’s ruling deprived plaintiffs’ counsel of the opportunity to cross-examine that factual assertion or otherwise rebut defense counsel’s factual claim. In light of those circumstances, we conclude that the trial court’s failure to sustain plaintiffs’ objections to defense counsel’s comments substantially affected plaintiffs’ rights.
Three judges dissented, although they agreed that defense counsel committed error by making the argument. The following excerpt summarizes their position on whether or not the error should have resulted in a new trial:
Here, plaintiffs, who made the initial provoking argument, not defendant, ask this court to dislodge the jury’s verdict and remand this case for a new trial. In keeping with our constitutional obligation, if plaintiffs are to have that remedy, they must identify prejudice by demonstrating that defendant’s closing argument may have caused the jury to base its verdict on an impermissible consideration, rather than on the evidence. Or Const, Art VII (Amended), § 3 (the court must affirm a judgment on appeal, "notwithstanding any error committed during the trial," if the judgment "was such as should have been rendered in the case").
This record does not support such a conclusion. Even considered in isolation, defense counsel’s argument lacked substance. Defense counsel explained that the defense had been prepared to call an experienced nurse oncologist, that it did not do so due to witness scheduling problems, and that the nurse expert would have testified and "supported [defendant’s] case." The only fact among those that had not already been stated during counsel’s opening statements to the jury was the fact that the nurse did not testify due to scheduling reasons. And it required no leap of faith or logic for the jury to have concluded, from the fact that the defense intended to call a nurse expert, which the jury knew, and from the fact that she was in the courtroom throughout the afternoon on which she was scheduled to testify, which the jury likely observed, that the testimony of that expert would support the defense case in some way. Defense counsel’s closing argument related nothing more. In particular, defense counsel relayed nothing of the actual substance of the testimony that the nurse expert had been expected to give.
But in all events, considered in context, the statements did no more than correct the misrepresentation that plaintiffs’ counsel created. That is, defense counsel’s statements neutralized the misleading inference that plaintiffs’ counsel expressly invited the jury to draw — that the defense could not find a nurse expert who "would say that this was okay care." When defense counsel responded to that argument, she did not ask the jury to draw any affirmative conclusion. Rather, defense counsel expressly referred to plaintiffs’ argument, and explained the circumstances. In context, the only point of the argument — and no other point was made — was to have the jury not indulge the inference that plaintiffs had invited. As is often true of invited responses, the net effect of that argument was merely to counter plaintiffs’ own argument and to encourage the jury not to base its verdict on the missing witness inference.
The dissent does a nice job collecting cases on "improper invited response."
Read the opinion here.