Amy Campanelli was in a car accident at a New Jersey intersection. She sued the other driver, Kusum Patel, for negligence. The case went to trial.
There was little dispute that Patel caused the accident. The key issue was whether Campanelli suffered from a permanent injury. Her expert witnesses said she did; the defense expert said she did not.
During closing arguments, Campanelli’s attorney made some disparaging remarks about the defense expert’s credibility because the expert testified almost exclusively for defendants. Patel argued on appeal that those remarks deprived him of a fair trial. The issue before the Appellate Division of the New Jersey Superior Court was how far an attorney can go in attacking an expert witness during a closing argument.
Two expert witnesses supported Campanelli’s claim that she suffered from permanent neck and back injuries. A radiologist, Dr. Natalio Damien, testified that MRIs showed bulging discs in Campanelli’s neck and lower back. An orthopedic physician, Dr. Patrick Collalto, testified that the bulging discs were caused by the accident and that they constituted a permanent injury. His opinion was based in part on EMG results.
The defense called Dr. Robert Bercik, an orthopedic surgeon, as its expert witness. Dr. Bercik testified that the MRIs showed disc desiccation, not bulges, and attributed the condition to a degenerative disease. Dr. Bercik testified that he spent about 20% of his time preparing examination reports for litigation, virtually always for the defense.
Jury trials end with closing arguments, as each lawyer tries to persuade the jury to accept a view of the evidence that is favorable to their side of the case. Both lawyers in Campanelli’s trial devoted a portion of their closing arguments to a discussion of the expert testimony.
Patel’s lawyer acknowledged that Dr. Bercik generally testifies for the defense, but told the jury that it had a chance to assess Dr. Bercik’s credibility based on the testimony he gave. He suggested that Dr. Bercik was not “up here lying to you in order to keep that work.”
Campanelli’s lawyer was less charitable. He asked the jury to conclude that a witness who relies on the “defense industry” for 20% of his income is going to “bend over backwards” to support defendants. He also told the jury that Dr. Bercik is:
- “smooth as silk”
- “a professional testifier”
- “a smoothie”
- “a defense doctor”
- “too smooth”
- “too smart”
Campanelli’s lawyer said Dr. Bercik played “a shell game” and a “show game” and that he was testifying “for the sole purpose of protecting his industry.” The lawyer asked the jury not to “fall into the trap.”
Patel’s lawyer objected. The judge then gave a curative instruction, telling the jury that lawyers are entitled to comment on the evidence and upon the credibility of witnesses, but that Campanelli’s lawyer had “gone far beyond what is acceptable.” The judge instructed the jury to disregard the inappropriate assertion that Dr. Bercik testified to protect the defense industry.
The jury returned a verdict for Campanelli for $336,000. The trial court denied a motion for a new trial, concluding that the lawyer’s remarks probably had no impact on the verdict. Patel appealed to the Appellate Division of the New Jersey Superior Court.
Disparaging Remarks About Expert Witness
Echoing the law as it exists in most jurisdictions, the New Jersey appellate court noted that lawyers are given “broad latitude” in making closing arguments, and may ask the jury to draw conclusions that might be considered illogical or even absurd. Lawyers may not, however, use “disparaging language tending to discredit” a witness. Unless a lawyer’s remarks are outrageous, that rule is honored in its breach more often than it is enforced.
In particular, the court noted that lawyers should not accuse the opposing lawyer of “trying to deceive the jury, or of deliberately distorting the evidence.” But Campanelli directed his comments at the expert witness, not at the defense attorney, and it is not unusual for lawyers to suggest that witnesses are not being truthful. When defense witnesses provide an alibi for a defendant in a criminal case, for example, prosecutors routinely brand them as liars during closing arguments.
The appellate court decided that the fundamental question was whether Patel received a fair trial. The court noted that the trial court instructed the jury to disregard the suggestion that Dr. Bercik was “protecting the defense industry.” It makes life easier for appellate courts to presume that juries follow instructions, despite studies suggesting that they probably don’t. However, it does seem fair to believe that the jurors would have discounted Dr. Bercik’s opinion based on the evidence that he always testifies for the defense, regardless of what Campanelli’s lawyer said about him during closing arguments.
Patel also complained that the comments implied that he had insurance coverage. Patel did have insurance coverage, but a New Jersey law prohibits introducing evidence of insurance coverage in a personal injury trial.
Campanelli’s lawyer referred to Dr. Bercik’s efforts to protect “the defense industry,” not the insurance industry. While the appellate court suggested that the jury might consider “the defense industry” to be a reference to the insurance industry, the court decided that the curative instruction was sufficient to protect Dr. Bercik’s rights.
In the real world, the jury might have disregarded the curative instruction, but in the real world, juries know that drivers have insurance. Trying to keep jurors from knowing that a defendant is insured is futile and even a little silly. In some states, plaintiffs can sue the defendant’s insurance company directly, and nobody outside of the insurance industry believes that adding an insurance company as a defendant affects an insured driver’s ability to receive a fair trial.
The bottom line is that juries usually base verdicts on the evidence, not on what lawyers say during closing arguments. The jury heard that Dr. Bercik routinely testifies for the defense and the jury therefore had reason to discount his testimony. The lesson to be learned is that insurance companies should be cautious about hiring expert witnesses who always testify for insurance companies if they don’t want plaintiffs’ lawyers to challenge their expert witnesses in closing arguments.