Adverse Inference Example Cases In Pennsylvania
In holding that an attorney may not ask the jury to draw an adverse inference concerning the opposing party's failure to call a witness that was equally available to both parties, the Court examined the decisions in Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972) and Augustine by Augustine v. Delgado, 332 Pa. Super. 194, 481 A.2d 319 (Pa. Super. 1984).
In Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972), the Court found that the court of common pleas erred in instructing the jury that because the plaintiff did not call his doctors to testify, the jury could conclude that the doctors' testimonies would be unfavorable to the plaintiff.
In Augustine v. Delgado, 332 Pa. Super. 194, 481 A.2d 319 (Pa. Super. 1984), the Superior Court found that it was proper for the defense to argue that an adverse inference could be drawn from the plaintiff's failure to call two pediatric neurologists. Rather than examining whether the physicians were particularly available to plaintiffs, the Superior Court in Augustine focused on whether counsel's closing argument was appropriate.
In Bennett v. Sakel, 555 Pa. 560, 725 A.2d 1195 (1996), the plaintiff brought an action against the defendant for injuries she sustained in a two-car automobile accident. During the defendant's closing argument, counsel suggested to the jury that it should draw an adverse inference against the plaintiff because she failed to call the investigating police officer and two of her physicians.
In Bennett, the Supreme Court held that the Superior Court's interpretation of Bentivoglio was too narrow inasmuch as it is the "inference itself" that is prohibited, whether it comes from opposing counsel or the court in its instructions. Bennett, 555 Pa. at 563, 725 A.2d at 1196.