RE: GEORGE THE BARTENDER AND A CASE OF ADVERSE INFERENCE OR STONEWALLING! IMPEACHMENT! ELECTIONS! OH MY!1

FROM THE LOBBY BAR AT THE HYATT:

The legal community had been abuzz the last few weeks with the drama that unfolded in our nation’s capital. Senators sat in the capitol trying to stay awake on water rations and pizza breaks. The patrons of the Lobby Bar were keeping Kim, the Hyatt’s breathtakingly beautiful waitress, fleet-footed in delivering George’s new cocktail du jour: The Stonewaller – a modern take on the Stonewall cocktail – a mix of whisky, simple syrup, and club soda, with the judicious addition of Angostura Bitters to reflect the prevailing mood of the nation.

As I walked the room, I spotted my dear friend and mentor, Mr. Joe Truce, holding court in a booth with infamous applicant’s attorney, Ron Summers. In front of them a tablet was propped up and they appeared to be enthralled by something on it. Joe was sipping his drink of choice, a Beefeater’s martini, straight up with two olives.2 Ron was downing with delight what appeared to be his third Stonewaller based on the empty glasses arrayed before him. I signaled Kim to send a martini my way, and approached the two litigators.

As I joined the table, I soon discovered what they were viewing on the tablet – a video stream of the impeachment proceedings that had concluded last month. Being the esteemed litigators that they are they were still dissecting and analyzing the case. Ron was just concluding what appeared to be a lengthy and passionate argument, “If he can stonewall Congress during impeachment proceedings, there is no way I’m letting my client provide that kind of information to an insurance company! Try and make me!”

As it turned out, Ron’s client had recently testified at her deposition that her best friend was on the phone with her during an alleged verbally abusive encounter with her supervisor (the basis for her current stress claim). The applicant was certain her friend had heard everything, although she was unable to remember the supervisor’s exact words in detail herself. The defense attorney had made a demand on the spot for identification of this witness and Ron had refused, citing his client’s “absolute immunity” from disclosing the name – a legal theory of first impression to the workers’ compensation community.

Joe began to explain that while the United States Senate has often been referred to as the “greatest deliberative body in the world,” it is in fact not a court of law. He pointed out that central to the impeachment proceedings was the lack of agreement on even the basic standard of proof, with different factions arguing the gamut of “beyond a reasonable doubt” to “[each Senator’s] own standard in his own conscience, as advised by reflection.” Equally murky was the lack of agreement on evidence and witnesses to be allowed in the hearings, something regular courts in the land handle much differently. Interrupting Joe’s discourse with a laugh, Ron ordered another Stonewaller, smiled broadly, and responded that if it worked for the President, it should work for his client!

Just then on the video stream, a question was submitted to the House managers and read aloud by the Chief Justice of the Supreme Court, “Here, one party, the President, has prevented witnesses within his control from testifying or providing documents. Do the House managers believe Senators should apply the missing witness rule here, and if so, what adverse inferences should we draw about this testimony and documents.”

The House manager responded, “Should you draw an adverse inference? You’re darned right you should.”

The looks of confusion on the President’s defense table were mirrored by Ron, whose smile had receded behind his glass. “Missing witness rule? Adverse inference? What are they talking about?” he asked aloud. It was Joe’s turn to smile, as he finished off his last gin-soaked olive, and reached toward his briefcase. From it he produced with a flourish a dusty copy of the United States Supreme Court’s decision in Graves v. United States, 150 U.S. 118.3

The Graves case involved a criminal murder prosecution in 1889, wherein the defendant Mr. Graves and his wife were identified by witnesses as having camped near the site where a body was discovered. At trial, Mrs. Graves was absent from the courtroom, although she was known to be nearby. Over the objection of the defense, the prosecutor commented on her absence, noting to the jury that the defendant’s wife ought to have been sitting by the side of her husband, so that witnesses for the government could see her, and identify her as the woman who was said to have been seen with him at the location of the murder.

Mr. Graves was convicted at trial, and appealed the decision to the Supreme Court, arguing inter alia that the lower court erred in allowing the prosecutor’s comments, as the jury would likely draw an adverse inference from his wife’s absence, namely, that her failure to attend and testify was due to the damage it would cause to her husband’s case.

The Supreme Court expounded what is now commonly referred to as the “missing witness rule”:

The rule, even in criminal cases, is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.

Joe said in laymen’s terms, if you have the sole power to produce a witness or evidence to material events but choose not to, it’s because it would hurt your case. Luckily for Mr. Graves, the court did not apply this rule to his wife’s absence, noting that his spouse could not be called by the prosecution as a witness against him in a criminal matter, and thus no adverse inference should be drawn in these very specific circumstances. However, the rule still stands, and is enshrined in California Evidence Code §413 which states:

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.

Joe reminded us that practitioners in the workers’ compensation field are familiar with the California Labor Code section related to this evidence code, §5708, which states in part:

All hearings and investigations before the appeals board or a workers’ compensation judge are governed by this division and by the rules of practice and procedures adopted by the appeals board. In the conduct thereof they shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division. (emphasis added)

Being a student of history, I chimed in here to point out to Joe and Ron that in 1986 the California Court of Appeals in Postural Therapeutics v. WCAB, 179 Cal. App. 3d 551, addressed a trial judge’s adverse inference of a suppressed medical report in determining payment on a medical provider’s lien for treatment costs under Title 8, California Code of Regulations, Chapter 4.5, Subchapter 2, Workers’ Compensation Appeals Board–Rules of Practice and Procedure, Article 9, §10622, which states in pertinent part:4

Where a willful suppression of a medical or vocational expert report is shown to exist in violation of these rules, it shall be presumed that the findings, conclusions and opinions therein contained would be adverse, if produced. (emphasis added)

In this case the applicant had failed to sign a release to allow the production of a medical report referencing a preexisting history of syphilis. The Workers’ Compensation Judge (WCJ) drew an adverse inference as to that report, but afforded it little weight as to the determination of reasonableness of the treatment provided by the lien claimant. On reconsideration, the Award was rescinded with the Appeals Board noting the adverse inference drawn should have also been against industrial causation, not just the reasonableness of treatment.

The Court of Appeal found that the Appeals Board had applied the correct standard, but did not adequately explain how they weighed the adverse inference against any other evidence supporting industrial causation, necessitating development of the record. Their decision held that although the Appeals Board is not bound by statutory rules of evidence consistent with California Labor Code §5708, a rebuttable presumption was still created that the evidence intentionally suppressed was adverse consistent with the Evidence Code:

… the classifications and policies of the presumptions found in the Evidence Code have been applied to analyze presumptions in the compensation law. Under this analysis, the rule before us appears to create a presumption affecting the burden of proof. This presumption is established to implement some public policy other than the facilitation of the particular action; here, the policy is to discourage the willful suppression of evidence. This type of presumption requires the party against whom it operates to establish the nonexistence of the presumed fact. (emphasis added)

At this point in the conversation, Ron looked crestfallen, realizing that his stonewalling tactic would not work so well outside of Congress, and in fact would likely lead to a devastating adverse inference against his client. Seeing his distress, Joe mercifully closed his briefcase, ordered another round for the table, and we went back to watching the soap opera unfold on the tablet in front of us.

DISCLAIMER:

Aside from George, Kim and myself, all characters of the Lobby Bar are fictional and are a product of my vivid imagination as is the story line. The proceedings and quotes from the 2020 Senate Impeachment Hearings are a matter of public record, and commentary thereon is not intended to promote any particular political views.

However, I would remind loyal Lobby Bar patrons that we operate in a very real legal system, with equally real rules and consequences. The courts and legislatures of the land have made clear their feelings on the willful suppression of evidence, both witnesses and documents, and the adverse effect it can have. Stonewallers beware!

Make mine a double, George.

1 For those new patrons to the Lobby Bar, George the Bartender’s workers’ compensation case involves an injury to his elbow, epicondylitis (tennis elbow), sustained from the repetitive serving of martinis to Joe Truce. If there ever was an admitted industrial injury, this is it!

2 A Beefeater’s martini, straight up, is best served at 38˚ Fahrenheit. Joe would never order a cocktail served with an umbrella, anathema! The exception of course being a Mai Tai, made fresh, served cold on a warm Hawaiian beach.

3 Much like Mary Poppins’s seemingly bottomless carpetbag (of Disney fame) and Hermione Granger’s bottomless handbag (of Harry Potter fame), Joe’s briefcase possesses magical powers, granting the ability to pull out any decision at a moment’s notice. A copy of Graves and Postural Therapeutics cases can be obtained by email request.

4 Of course, per our last edition, the Workers’ Compensation Appeals Board’s Rules of Practice and Procedure have changed as of January 1, 2020. This prevision now falls under 11 CCR §10670(c) Documentary Evidence

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