Advance Notice Required Before Invoking the Missing-Witness Inference in Closing Argument

1. Introduction

Rivas v. Ciecko arises from two events separated by fifteen months: (1) a July 2, 2020 automobile accident in Kensington, New Hampshire, and (2) the plaintiff Christine Rivas’s October 9, 2021 fall down exterior stairs at a party after consuming alcohol, resulting in a fractured leg. Rivas sued Nadia Ciecko for negligence, seeking damages for the accident and contending that accident-related neurological injury (including syncope) caused the later fall.

The case presented a layered causation dispute: whether the auto accident caused a traumatic brain injury and related symptoms (migraines, vestibular dysfunction, syncope), and whether those alleged symptoms substantially contributed to the later fall. The defense contested the brain-injury theory and advanced an alternative causal contributor—intoxication—supported by toxicology evidence.

On appeal, the Supreme Court addressed (i) the admissibility and scope of toxicology expert testimony concerning blood alcohol concentration (BAC), (ii) the permissible scope of cross-examination of an opposing expert under New Hampshire Rule of Evidence 611(b), and (iii) the propriety of “missing witness” commentary in closing argument—most notably announcing a new procedural requirement: advance notice to the court and opposing counsel before arguing that an uncalled witness would have been adverse.

2. Summary of the Opinion

• Expert toxicology testimony affirmed: The trial court sustainably admitted the defense toxicologist’s BAC calculations and testimony about impairment and increased fall risk; the evidence was relevant to causation and comparative fault and was sufficiently reliable under Rule 702 and RSA 516:29-a.
• Cross-examination limitation reversed: The trial court unsustainably restricted the plaintiff’s cross-examination of the defense neurologist on whether whiplash aggravated migraines. New Hampshire’s Rule 611(b) permits cross on “any matter relevant to any issue,” and a court must make an individualized “interests of justice” assessment rather than applying a perceived “same-scope-for-both-sides” constraint.
• Missing-witness closing argument reversed and new rule announced: Because defense counsel argued adverse inferences from multiple uncalled witnesses without advance notice—depriving the court of meaningful discretion and the plaintiff of an opportunity to rebut the inference—the trial court’s refusal to strike or give a curative instruction was prejudicial error. The Court held that a party intending to argue that an opponent’s failure to call a witness suggests adverse testimony must notify the court and opposing party in advance.
• Remedy: Retrial ordered on (a) damages arising from the automobile accident, and (b) liability and damages for the October 9, 2021 fall.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Negligence, causation, and “substantial factor”

• Estate of Joshua T. v. State, 150 N.H. 405 (2003) and Bronson v. The Hitchcock Clinic, 140 N.H. 798 (1996)
  These cases supply the negligence and causation framework the Court used to evaluate relevance. The Court relied on Estate of Joshua T. for the proposition that legal cause requires the negligent conduct to be “a substantial factor” and need not be the sole cause; a defendant’s conduct must “cause or contribute to cause the harm.” That standard made the plaintiff’s intoxication evidence relevant even if syncope was also alleged—because competing causal contributors remain material under a substantial-factor model.

B. Expert admissibility: Daubert/RSA 516:29-a gatekeeping and deference on review

• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Baker Valley Lumber v. Ingersoll- Rand, 148 N.H. 609 (2002); Moscicki v. Leno, 173 N.H. 121 (2020); Stachulski v. Apple New England, LLC, 171 N.H. 158 (2018)
  The Court’s reliability analysis follows New Hampshire’s codified Daubert approach under RSA 516:29-a. Citing Moscicki, the Court emphasized the gatekeeping role is to ensure reliable and relevant evidence, “not flawless evidence,” and that weaknesses should generally be explored via the adversary process.
• Baxter v. Temple, 157 N.H. 280 (2008); Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662 (2006)
  These cases anchor the “unsustainable exercise of discretion” review standard for expert rulings: the appellant must show the decision was “clearly untenable or unreasonable” and prejudicial.
• State v. Lavoie, 152 N.H. 542 (2005)
  This was the key methodological comparator for the BAC extrapolation. The Court treated Lavoie as establishing that back-calculating BAC using elapsed time and an average burn-off rate can be sufficiently reliable. That precedent substantially undercut the plaintiff’s reliability challenge to the toxicologist’s BAC estimate.

C. Cross-examination scope and the “law of the case” misstep

• Saunders v. Town of Kingston, 160 N.H. 560 (2010)
  The Court used Saunders to correct the trial court’s “law of the case” reference: the doctrine concerns questions decided on appeal and generally limits re-litigation on subsequent appeals in the same case. With no prior appeal, it did not justify restricting cross-examination.
• State v. Kornbrekke, 156 N.H. 821 (2008)
  Cited for the general principle that trial courts have broad discretion over cross-examination, reviewed for unsustainable exercise of discretion. Importantly, that discretion is bounded by the governing rule—here, New Hampshire Rule of Evidence 611(b).
• Noel v. Lapointe, 86 N.H. 162 (1933)
  Quoted to reinforce New Hampshire’s historically broad cross-examination latitude—cross may reach “any matter which tends to discredit the opposing party’s claim.” This history informs the Court’s interpretation that New Hampshire’s Rule 611(b) permits open-ended cross absent an “interests of justice” limitation.

D. Closing argument objections and missing-witness doctrine limits

• Broderick v. Watts, 136 N.H. 153 (1992)
  Used to confirm preservation: civil closing-argument objections must be made “during or immediately after” the argument; the plaintiff’s immediate post-closing objection sufficed.
• Murray v. Developmental Servs. of Sullivan County, 149 N.H. 264 (2003)
  Provides the standard of review for refusal to give a curative instruction—again, unsustainable exercise of discretion with prejudice.
• Kerr v. Allard, 130 N.H. 247 (1987) and Abel v. Yoken, 104 N.H. 119 (1962)
  These are central to the missing-witness analysis. Kerr recognizes the doctrine but stresses judicial discretion and the propriety of “test[ing] the soundness” of the inference before allowing argument. Abel cautions that missing-witness argument is “not to be commended” due to its tendency to divert the jury into collateral disputes over credibility and good faith.
• Beardsell v. School, 89 N.H. 459 (1938); Brito v. Company, 79 N.H. 163 (1919)
  Cited as examples where the Court sustained missing-witness commentary when the record supported availability and relevance—illustrating that New Hampshire does not ban the inference, but treats it as conditionally permissible and risky.
• Graves v. United States, 150 U.S. 118 (1893)
  Invoked as the classic statement of the common-law presumption: failure to produce an available, relevant witness permits an inference the testimony would be unfavorable.
• Robert H. Steir Jr., Revisiting the Missing Witness Inference — Quieting the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137 (1985)
  Not binding authority, but cited to situate the doctrine and its criticisms. It reinforces the Court’s concern that the inference invites speculation—supporting the opinion’s procedural safeguard (advance notice) as a way to control abuse.

E. Issues avoided on remand

• Motorsports Holdings v. Town of Tamworth, 160 N.H. 95 (2010)
  Cited for the principle that appellate courts may decline to decide an evidentiary issue unlikely to recur on remand.

3.2 Legal Reasoning

A. Why BAC evidence and toxicology opinions were admissible

The Court treated intoxication evidence as directly relevant because the plaintiff sought to link the auto accident to the subsequent fall; therefore, causation for the fall was contested. Under Estate of Joshua T. v. State, the plaintiff had to prove the defendant’s negligence was a “substantial factor” in causing the fall, even if not the only factor. That opened the door to alternative causal contributors such as alcohol impairment, and also to comparative fault under RSA 507:7-d.

On reliability, the Court accepted the toxicologist’s extrapolation methodology as consistent with State v. Lavoie, and emphasized the Daubert/RSA 516:29-a gatekeeping philosophy from Moscicki v. Leno: the law demands reliability, not perfection. The Court also rejected the plaintiff’s “correlation is not causation” framing because the toxicologist offered a mechanistic link (BAC → impairment of judgment/perception/psychomotor skills → materially increased fall risk), not a bare coincidence.

B. Scope of cross-examination under N.H. R. Ev. 611(b): individualized “interests of justice,” not reciprocity

The most doctrinally important evidentiary point (apart from missing witnesses) is the Court’s insistence on a correct understanding of New Hampshire Rule of Evidence 611(b). Unlike the federal rule, New Hampshire’s rule expressly allows cross-examination “on any matter relevant to any issue in the case,” with judicial discretion to limit it “in the interests of justice” for matters not covered on direct.

The trial court’s restriction of the plaintiff’s cross of Dr. Alexander appears to have been based on a perceived need to mirror an earlier ruling about cross of Dr. Myers—what the court called “the law of the case.” The Supreme Court rejected both rationales:

• “Law of the case”: under Saunders v. Town of Kingston, it did not apply absent an appellate decision.
• Fairness-as-symmetry: Rule 611(b) requires a witness-by-witness, circumstance-specific “interests of justice” inquiry, not an automatic “same limits for both sides” rule.

Prejudice was concrete: the jury heard an implication that even the defense neurologist (and treating physician) saw no link between the accident and worsened migraines, when the defense neurologist had testified in deposition that it was “probably correct” that the whiplash aggravated migraines. The restriction prevented correcting a misleading impression central to damages and credibility, and enabled a closing argument that the migraines claim “flow[ed]” from traumatic brain injury—despite the defense expert’s whiplash-aggravation concession.

C. The missing-witness rule: the Court adds a procedural safeguard (advance notice)

New Hampshire recognizes the missing-witness inference (e.g., Kerr v. Allard; Abel v. Yoken) but has long warned of its hazards—chiefly, jury speculation and diversion into collateral credibility disputes. The doctrinal theme in the earlier cases is not “always allow” or “never allow,” but “allow only when the inference is sound and the trial judge meaningfully exercises discretion.”

In Rivas, defense counsel’s closing argument highlighted numerous uncalled witnesses (treating neurologist, ER doctor, primary care doctor, mental health counselors, party attendees, family/friends), explicitly urging the jury to infer adverse content: “Presumably, if they were going to help, they’d be here.” The Supreme Court found the process defective because counsel did not alert the court and opposing counsel beforehand. That omission:

• Denied the plaintiff the chance to offer benign explanations for non-production (e.g., unavailability, cumulative testimony, cost, strategic narrowing, privilege/relationship dynamics).
• Prevented the judge from “conveniently test[ing] the soundness” of the inference as contemplated by Kerr.
• Heightened the risk—highlighted in Abel—that the jury’s attention would be diverted from the evidentiary record to speculation about an “empty chair.”

The Court therefore announced a new requirement:

On prejudice, the Court emphasized the plaintiff’s credibility as a central battleground and noted the closing argument explicitly connected missing witnesses to whether the plaintiff “earned your trust.” Without a curative instruction, the jury was left to speculate about what absent witnesses would have said and to treat absence as evidence of untruthfulness—precisely the misuse New Hampshire precedent warns against.

3.3 Impact

A. Trial practice: a new notice obligation for missing-witness closings

The opinion’s clearest prospective effect is procedural. After Rivas, counsel in New Hampshire civil trials should expect that “missing witness” themes in closing—at least when framed as “they didn’t call X because X would hurt them”—require advance notice to:

• enable a ruling outside the jury’s presence,
• allow an opponent to rebut the inference’s premises (availability, control, relevance, cumulative nature, equal availability), and
• permit tailored limits (e.g., allowing comment on absence but barring adverse-intent insinuations).

The decision will likely formalize pre-closing conferences and spur motions in limine about permissible “empty chair” rhetoric, particularly in credibility-heavy personal injury cases.

B. Evidence law: reaffirmation of New Hampshire’s broader cross-examination model

The cross-examination holding reinforces that New Hampshire is not a “scope of direct” jurisdiction by default. Parties should anticipate that expert cross can range broadly across relevant issues unless the judge makes a specific “interests of justice” limitation. The Court also rejects an implicit “reciprocity” theory (if one side was limited, the other must be limited), signaling that fairness is achieved through correct application of Rule 611(b), not by mechanically matching constraints.

C. Expert causation framing: “a cause” versus “the cause”

Although the trial court attempted to preclude testimony that alcohol was “the cause,” the expert’s “a cause” testimony survived. In practice, Rivas supports admitting contributing-cause opinions where the expert connects physiological impairment to increased accident risk and the testimony is tethered to reliable methodology. Litigants should expect courts to scrutinize phrasing but to focus on whether the expert offers a grounded causal mechanism rather than mere statistical association.

4. Complex Concepts Simplified

• “Substantial factor” causation: A defendant can be liable even if other things also contributed to the injury; the plaintiff must show the defendant’s negligence was an important contributing cause, not necessarily the only cause.
• Comparative fault (RSA 507:7-d): If the plaintiff’s own negligence contributed to the harm (e.g., intoxication increasing fall risk), damages may be reduced or barred depending on fault allocation.
• Daubert / RSA 516:29-a reliability screening: Before the jury hears expert opinions, the judge must ensure the methods are reliable enough to be helpful. The standard is reliability, not perfection; flaws typically go to weight, not admissibility.
• Unsustainable exercise of discretion: On appeal, many trial decisions are upheld unless they were clearly unreasonable and harmful to the complaining party.
• Open-ended cross-examination (N.H. R. Ev. 611(b)): In New Hampshire, cross-examination can generally cover any relevant issue, not just what was asked on direct, unless the judge limits it “in the interests of justice.”
• Missing-witness inference: Sometimes a jury may infer that an available witness not called by a party would have testified unfavorably to that party. Because this can invite speculation, Rivas now requires advance notice before counsel argues that inference in closing.

5. Conclusion

Rivas v. Ciecko is both a corrective and a lawmaking decision. Correctively, it (1) enforces New Hampshire’s open-ended cross-examination rule and rejects “symmetry” as a substitute for Rule 611(b)’s individualized analysis, and (2) polices the prejudicial effects of credibility-focused, evidence-light closing rhetoric. Lawmakingly, it establishes a new procedural safeguard for the missing-witness doctrine: advance notice to the court and opposing counsel before arguing that an uncalled witness would have harmed the opponent.

The decision preserves broad admissibility of reliable expert risk-and-impairment testimony (including BAC extrapolation) while tightening the procedural controls around “empty chair” advocacy. Going forward, New Hampshire trial practice should reflect a clearer division between permissible argument from the evidentiary record and adverse-inference argument that must be vetted in advance to prevent jury speculation and unfair credibility attacks.