Duverny v. Hercules Medical P.C.

Background

After a telephonic final pretrial conference, the plaintiff moved to exclude testimony from Dr. Charles McGowan about her silence—specifically, her failure to report to him an alleged assault by the individual defendant. The defendants asked the court to allow McGowan to testify on that subject.

Legal standard

The court explained that a factfinder may sometimes draw an adverse inference from a party’s silence when the surrounding circumstances suggest that the silence is probative of an issue in the case. The relevance and probative value of silence depend on whether the circumstances were such that the person would be expected to speak. Silence may also qualify as an adoptive admission of a party opponent, meaning that the silence can be treated as an implied acceptance of an out-of-court statement, but the party offering the evidence must show that failing to speak was so unnatural under the circumstances that it supports the proposed inference.

Analysis

The defendants represented that the plaintiff and McGowan were in a romantic relationship when the alleged assault occurred and that they generally discussed the facts of her employment and the allegations in the case. The court found that this showing was insufficient to establish that the plaintiff’s silence was probative or could be treated as an adoptive admission. The defendants therefore failed to meet the requirements for admitting the testimony under the cited evidence rules.

Ruling

Judge Denise Cote granted the plaintiff’s motion to exclude Dr. McGowan’s testimony regarding the plaintiff’s silence about the alleged assault.