During closing arguments in a personal injury trial, defence counsel asked the jury to consider why the plaintiff did not call her treating physician or her manager as witnesses.
The plaintiff objected and brought a motion to strike the jury.
The court dismissed the motion to strike the jury but found the comments were an inappropriate invitation to draw an adverse inference.
The court held that an adverse inference was not justified because the witnesses were not in the exclusive control of the plaintiff, given modern discovery rules that provide equal access to medical and employment records.
