JB v BAILEY

This decision arose from a medical negligence Action for injuries sustained by the Plaintiff, JB, during birth. Although the Defendant admitted negligence and liability for certain injuries, the parties disputed whether the negligence caused JB’s alleged long-term neurodevelopmental impairments.

During Trial, the Defendant argued that the Court should draw an adverse inference from the Plaintiffs’ failure to call several of JB’s treating physicians. Justice Dilts considered Rule 8.15, which permits a party to provide notice that it does not intend to call a witness to avoid a potential adverse inference. Dilts J. noted that the Plaintiffs had not invoked Rule 8.15 but held that the Rule does not require an adverse inference where notice is not given. The Court emphasized that whether to draw an adverse inference remains a discretionary determination based on the circumstances, including the materiality of the witness’s evidence and whether the witness is within a party’s control.

Applying those principles, Justice Dilts declined to draw an adverse inference, finding that the Plaintiffs had produced the relevant medical records and extensive expert evidence, and that the treating physicians were not shown to be unavailable to the Defendant.