The History of the Missing-Witness Rule
As the origin for the modern-day civil rule, Graves was an imperfect beginning. In Graves, a murder conviction was overturned because the trial court allowed an adverse inference against the defendant for failure to call his wife, who had allegedly been at the scene of the murder. The Court held that while such an inference was permissible, the wife was not competent to testify against her husband because of the spousal privilege. The missing-witness rule as established in Graves is a broad version of the rule that remains largely intact today: If one party has a witness within its control and the witness has material evidence, failure to produce the witness and provide the evidence "creates the presumption that the testimony, if produced, would be unfavorable." Graves, 150 U.S. at 121.
Courts and legal scholars alike have noted that the missing-witness rule developed at a time before the discovery and trial mechanisms of the Federal Rules of Evidence and the Federal Rules of Civil Procedure were put into place. Before the adoption of these systems, the missing-witness rule "supplied a necessary incentive for the parties to present a full picture of the facts." Robert H. Stier Jr., "Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair," 44 Md. L. Rev. 137, 141 (1985).The rule was influenced by both the best evidence rule and spoliation doctrine, both of which are rough models for the missing-witness rule not only because it is hard to know whether the missing witness's testimony would in fact be the best evidence but also because the bad-faith inference implicit in the spoliation doctrine is a heavy-handed remedy for simple failure to produce evidence. See Stier, supra, at 144.
The Modern Missing-Witness Rule
Most courts that still apply the missing-witness rule will grant an adverse inference when four factors are satisfied: (1) the witness is available to testify on behalf of or under control of the party; (2) the witness is unavailable in a practical sense to the opposing party; (3) the testimony of the witness would be relevant and noncumulative; and (4) no reasonable excuse for failure to produce the witness has been shown.
Where courts apply the rule to expert witnesses in addition to fact witnesses, they differ greatly on how they analyze the control factor. For example, in Illinois state courts, expert witnesses are always considered to be controlled by the party who retained them unless they are abandoned before trial. Taylor v. Kohli, 162 Ill.2d 91, 97 (1994) (expert only leaves control of hiring party once she has been abandoned before trial). However, as early as 1990, the Fifth Circuit declared that under the Federal Rules, "witnesses are not 'controlled' by either party." Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1048 (1990) (while the Herbert decision dealt with a medical expert, the statement appears to apply to all witnesses).
In an April 2013 New Jersey appellate decision, Washington v. Perez, the court noted that "panels of this court have disagreed about the application of the inference when the missing witness is an expert." 430 N.J. Super. 121, 129 (N.J. Super. Ct. App. Div. 2013). Even noting the disagreement, the court went on to assume, although clearly with doubt, that the inference may apply when a party declines to call an expert to testify. Unsurprisingly, however, the court overturned a jury verdict after finding the trial judge had erroneously given the adverse inference instruction against the defendants for failure to call their medical expert. The court focused on the two most common deciding factors: (1) control of the witness and (2) the materiality (or cumulativeness) of the "missing expert's" testimony. Finding that the plaintiff's counsel, who was seeking the inference against the defendant, was equally entitled to call the defendant's medical expert and that the expert's testimony was "merely corroborative," the court concluded "the determination to give the instruction was, at best, a close call [and] the proper exercise of discretion should have been to deny plaintiff's request." Id. at 131.
The focus of many courts on the control factor as either requiring the inference or forbidding it goes to origins of the rule. The historical missing-witness rule attempted to prohibit concealment of evidence and encourage presentation of all relevant evidence. In the absence of the discovery mechanisms in place today, it makes sense that if you control the evidence, you can conceal it and should be held responsible for the failure to present it. The difficulty in applying this rule to expert witnesses, however, is the unfairness that can arise when the "missing" expert has been deposed by and is equally available to the other party, whether through compulsory process (as in Hebert) or through the presentation of deposition testimony at trial if the expert is immune to compulsory service.
Indeed, as the Fifth Circuit stringently pointed out in its complete dismissal of the missing-witness rule, "[i]t is not difficult to demonstrate how the evidentiary scheme created by the Federal Rules of Evidence, as complemented by the Federal Rules of Civil Procedure, renders the uncalled-witness rule an anachronism." Herbert, 911 F.2d at 1048. The Herbert court goes on to discuss the many ways in which the Federal Rules of Evidence and the Federal Rules of Civil Procedure prohibit or correct what the missing-witness rule was intended to prohibit—the concealment of or failure to present relevant evidence: Don't know the identity of witnesses identified with your opponent? Federal Rule of Civil Procedure 26(b)(1) can help you out. Want to call a hostile witness who is unwilling to testify? No worries, the compulsory process afforded under Federal Rule of Civil Procedure 45(e) is on your side.
Although the Fifth Circuit was clear in its almost outright disdain for the missing-witness rule—"there is no justification for perpetuating the uncalled-witness rule in civil cases"—the court forced by precedent to apply the rule to the case before it. Id.
Taking a similar position to that of the Fifth Circuit, the Eleventh Circuit questioned the application of the "missing witness charge in a diversity suit . . . under the Federal Rules of Evidence" but was likewise forced to apply the rule and uphold an adverse inference against a defendant whose missing employee witness possessed material information about an elevator malfunction. Jones v. Otis Elevator Co., 861 F.2d 655, 659 n.4 (11th Cir. 1988). While the Eleventh Circuit was discussing a fact witness and based its doubt on the idea that under the Federal Rules of Evidence, "a party is no longer required to vouch for the credibility of a witness," it nonetheless appeared to question whether any witness, fact or expert, is under any party's control: "[W]e question the wisdom of permitting the missing witness charge when the potential witness is within the subpoena power of both parties and physically available to be called." Id.
Given the holdings in Washington v. Perez, Herbert, and Jones, it may be that many courts would be faced with a similar decision and be forced into rote application of a rule that is simply out of place in today's trials. And when confronted with application of the rule to an expert witness, many may resort, as both the Fifth Circuit and the Washington courts did, to finding that an opposing expert is simply not a person "'peculiarly within the power [of defendant] to produce." Herbert,911 F.2d at 1049 (quoting Graves, 150 U.S. at 121).
In this regard, it will be important to keep in mind how courts apply the control factor as well as its importance in both the history of the rule and the current analysis. To the extent you have made your expert available for deposition and the opposing party can admit those portions of the testimony it wishes, especially where the expert is not subject to compulsory process, you may be able to avoid the adverse inference altogether because the witness is therefore "available" to be called by the other side.
While most state courts applying the rule have the control factor as one factor in the adverse inference analysis, some appear to be applying the rule reflexively to experts. The Tennessee court of appeals, relying on a Sixth Circuit holding, upheld a trial court's refusal to apply the rule because the expert's testimony would have been cumulative but took time to point out "that the trial court premised its decision on an erroneous belief that the missing-witness rule does not apply to experts, when, in fact, it does indeed apply to experts." Dickey v. McCord, 63 S.W.3d 714, 722 (2001) (emphasis added) (citing Scripps-Howard Broad. Co., Inc. v. Regency Elecs., Inc., 765 F.2d 146, 146 (6th Cir. 1985)); see also City of Rapid City v. Brown, 252 N.W.2d 323, 325 (S.D. 1977) (applying rule to appraisal expert but disallowing inference because testimony for cumulativeness); Cler v. Providence Health System-Oregon, 245 P.3d 642, 689 (Or. 2010) (applying rule and allowing inference for defendant's failure to call nursing expert mentioned in opening statement); Hays v. Viscome, 122 Cal. App. 2d 135, 142 (Cal. Ct. App. 1953) (finding it an abuse of the trial court's discretion to refuse to grant the adverse inference for defendant's failure to call named medical expert).
Indeed, some state courts even have missing-witness adverse inference pattern jury instructions that include reference to expert witnesses. See, e.g., N.Y. Pattern Jury Instr.—Civil 1:75 (3d ed.); Ill. Pattern Jury Instr.—Civ. 5.01; Dougherty v. Royal Zenith Corp., Civ. No. 88-8666, 1991 WL 151913, at *9 (E.D. Pa. 1991) (citing Pennsylvania Suggested Standard Jury Instructions (Civil) 5.06)).
Of note is the level of disagreement within many jurisdictions. In addition to admitting the dissension in the opinion, as the Washington v. Perez court did, some courts simply have discordant precedent. For example, even though the Sixth Circuit has stated clearly "[w]e agree with the Fifth Circuit that the 'missing witness' or 'uncalled witness' rule is inapplicable in federal court," it later in time noted that "[f]ederal courts follow the 'missing witness' rule. . . ." Compare Allstate Ins. Co. v. Shuler, 53 F.3d 331 (6th Cir. 1995) (holding trial court was correct to refuse to issue a missing-witness instruction), with Roberge v. Hannah Marine Corp., 124 F.3d 199 (6th Cir. 1997) (holding counsel's reference to a missing class of possible witnesses as proper under the missing-witness rule); see also Manuel v. Traditional Sporting Goods, Inc., Civ. No. 5:09-cv-406, 20111 WL 6258305, at *2 (E.D. Ky. Dec. 14, 2011)(finding Allstate's reliance on Herbert to be out of step with another Sixth Circuit case, United States v. Blakemore, 489 F.2d 193, 195 (6th Cir. 1973)). Notably, however, Blakemore did not deal with application of the rule to expert witnesses.)
Additionally, even where the circuit court has disagreed with the utility and viability of the rule, lower district courts continue to cite those cases for the rule and apply it accordingly. See, e.g., St. Cyr v. Flying J Inc., Civ. No. 13-J-33, 2007 WL 2850521, *3–4 (M.D. Fla. Sept. 27, 2007) (using the Eleventh Circuit's decision in Jones to apply missing-witness rule); Chiles v. Stephens, Civ. A. 87-1942, 1994 WL 150733 (E.D. La. Apr. 8, 1994) ("The missing witness rule was not abrogated by Herbert and the argument of counsel was" proper.)
While there is strong language available for those who wish to argue the missing-witness rule is dead in federal courts, it is clear that courts continue to apply the rule. If you find yourself in a situation where you will not be calling an expert you have listed as a witness and particularly if you have mentioned the expert in argument to the jury, the better argument to avoid application of the rule will be to focus on the availability of the witness to the other side. Especially for those in the defense position who do not bear the burden of proof, it may be important to point out to the court that if the other side wishes to have the testimony, they can have it, and your client should not bear the heavy hand of an adverse inference.
Keywords: litigation, commercial, business, adverse inference, best evidence rule, cumulativeness, Federal Rule of Civil Procedure 26(b)(1)