dissenting.
A common situation in jury trials, both civil and criminal, is the problem of the so-called “invited response” or “invited reply.” It occurs when one party, in closing argument, resorts to an improper argument that, if left unaddressed, could mislead the jury or otherwise encourage the jury to base its verdict on an impermissible consideration. The other party fails to object and, to counter the provoking argument, resorts to improper argument in response. If the party who provoked the exchanges loses and appeals, it often falls to the appellate court to determine in such a circumstance whether the “invited response” was error and, if so, whether the error was prejudicial and warrants a new trial.
*494In this classic “invited response” situation, the majority holds that the fact that one party engages in improper argument does not mean that the opposing party may do the same in response. Thus, if the “invited response” is improper in substance, and if there is a timely objection to it, the trial court must sustain the objection. I agree with that portion of the majority’s holding, which is consistent with this court’s precedents and with the better rule endorsed in other jurisdictions.
The majority takes a serious misstep in further holding, however, that the provoking argument is irrelevant in determining whether the error warrants reversal. To the contrary, the substance of the provoking argument is context for accurately evaluating the likelihood that the jury’s verdict was influenced by an impermissible consideration. As I will discuss, plaintiffs in this case invited the jury to draw an unfavorable inference against the defense that the evidence in the record did not support. In response, defendant, too, improperly went beyond the evidence in the record. Considered in context, however, defendant’s argument merely offset the improper inference that plaintiffs had invited the jury to draw. The only “prejudice” to plaintiffs was that they may have been deprived of the benefit of their own improper argument. Consistent with our precedents, the considered rule adopted by other courts, and our constitutional obligation to affirm in the absence of prejudice, plaintiffs are not entitled to a reversal and a new trial in this case. For that reason, I dissent.
I begin by recapping the pertinent facts. In this medical negligence case, the defense in opening statements to the jury briefly summarized the expected testimony of three experts it intended to call in support of its case, including that of a nurse manager of the oncology unit at Oregon Health and Science University. On the day that the nurse expert was to testify, she was in the courtroom throughout the afternoon. The defense did not call her that day due to scheduling issues, however. Because the nurse expert was leaving town the next day on a prescheduled vacation, the defense did not call her on either of the two remaining days of trial. By the time the parties presented closing arguments to the jury, defense counsel had explained to plaintiffs’ counsel *495(as well as to the trial court) why the nurse expert had not testified. Despite his awareness of that explanation, plaintiffs’ counsel during closing argument told the jury that “there’s a reason” why plaintiffs had not called a nurse witness, that it was probably because the defense could not find one that would testify in its favor, and that the jury should so conclude.
Defense counsel did not object. In her closing argument, after arguing in detail and at length about the significance of the testimony of each side’s experts, defense counsel noted that she wanted to “mention” something in response to plaintiffs’ counsel’s argument about defendant’s failure to call an oncology nurse. Defense counsel reminded the jury that, in opening statements, she had indicated that she was going to call a nurse expert with 20 years of experience. Plaintiffs’ counsel did not formally object at that point, but did voice concern to the trial court about where counsel might be headed with her argument. The trial court indicated that it would let defense counsel continue “in the same vein” in which plaintiffs’ counsel had addressed the argument. Defense counsel continued by explaining why the nurse expert did not testify. Plaintiffs’ counsel interrupted, objecting (more than once) that defense counsel was relying on facts not in evidence. The trial court, after discussing the matter in chambers with counsel, overruled the objection. Defense counsel completed her explanation to the jury, briefly reminding it that defendant’s nurse expert had been in the courtroom, describing the scheduling conflict that caused defense counsel not to call the nurse expert, and stating that the nurse expert otherwise would have “testified in our case and supported our case.”
In plaintiffs rebuttal argument, plaintiffs’ counsel replied to defense counsel’s response. Counsel asserted, without objection, that the defense had “every opportunity” to put that nurse expert on the stand and explained how the defense could have deposed or otherwise perpetuated the nurse expert’s testimony. Plaintiffs’ counsel concluded by again urging the jury to draw an inference against the defense from its failure to call a nurse witness. After deliberating, the jury returned a verdict for the defense.
*496As plaintiffs successfully argued to the Court of Appeals, and argue again to this court, defense counsel, in explaining why the nurse expert did not testify, impermissibly referred to facts that were not in evidence. See generally Huber v. Miller, 41 Or 103, 115, 68 P 400 (1902) (a party in closing argument may not make “statements of facts outside the range of evidence” or “assume a fact as though proven when no such inference can be reasonably drawn from the evidence”). In particular, defense counsel described the scheduling problems that caused her not to call the nurse expert who, in opening statements, she had said she would call. She also told the jury that the nurse expert would have testified in support of the defendant’s case. No “evidence” in the record established those “facts.”1 When the trial court allowed defense counsel to argue over plaintiffs’ timely objections on that ground, the trial court erred. See generally State v. Blodgett, 50 Or 329, 342, 92 P 820 (1907) (if one party argues facts not in evidence and not otherwise admissible, trial court must sustain objection to that argument, rather than leave the other side to refute the assertions in reply).
Plaintiffs’ argument, however, was equally improper. In closing argument, after expressing incredulity at defendant’s failure to call a nurse expert, counsel told the jury that “there’s a reason” why defendant did not do so, and it was “probably because they couldn’t get a nurse expert who would say that this was okay care.” After defense counsel explained the scheduling issue that arose, plaintiffs’ counsel in rebuttal advised the jury of ways in which the defense could have perpetuated the witness’s testimony, and urged the jury again to draw an unfavorable inference against the defense from its failure to call a nurse expert. Plaintiffs’ counsel advanced those arguments knowing that the defense had a nurse *497expert that it intended to call and aware of defense counsel’s reasons for not calling her.2
In making that argument, plaintiffs invoked a so-called “missing witness” inference — e.g., “[w]hen it would be natural under the circumstances for a party to call a particular witness, or to take the stand as a witness in a civil case * * * and the party fails to do so, tradition has allowed the adversary to use this failure as the basis for invoking an adverse inference.” 2 McCormick on Evidence § 264, 220 (6th ed 2006). For present purposes, it is not necessary to explore the intricacies of the inference and when it is properly invoked.3 It suffices to observe that the inference does not arise from “the bare fact that a particular person is not produced as a witness.” John Henry Wigmore, 2 Evidence § 286, 199 (Chadbourn rev 1979); see also Tenny v. Mulvaney, 8 Or 513, 521-22 (1880) (mere fact that witness was not called was not sufficient to support inference that witness’s testimony would have been unfavorable to defendants). Rather, it is proper only when the particular circumstances of a case support it, such as when it would be natural for a party to call a particular witness, and the party, without explanation, has failed to do so. See generally Bohle v. Matson Navigation Co., 243 Or 196, 198-99, 412 P2d 367 (1966) (stating general rule). Among the limitations on the inference is the requirement that the witness in fact be within the power of the party to produce, both legally and practically. State v. Hatcher, 29 Or 309, 317-18, 44 P 584 (1896) (party cannot urge adverse inference from failure to call a witness where record did not *498show that witness was within the power of the party to produce); see generally Wigmore, 2 Evidence § 286 at 200-02 (stating limitation and citing representative cases). If, for example, a person is disqualified as a witness or could not be called due to illness or some other practical circumstance, the inference is not permissible. Id. (citing representative cases).4
In the circumstances of this case, plaintiffs’ resort to the missing witness inference was not proper argument. Plaintiffs’ counsel invited the jury to draw an inference that he had no basis to believe was true (i.e., that no nurse expert was prepared to testify in favor of defendant), and had ample reason to believe was not true, given defense counsel’s explanation in advance of closing arguments that her nurse expert did not testify due to scheduling issues. No authority approves of the missing witness inference when the party seeking the inference has been previously informed — as plaintiffs’ counsel had been here — that the defense had not called the witness due to scheduling issues.5 Analogous cases, instead, uniformly hold that the inference is not permissible in such a circumstance. See, e.g., Bender v. Adelson, 187 NJ 411, 433-46, 901 A2d 907 (2006) (where plaintiff knew that defendants had two independent expert witnesses who were precluded from testifying for procedural reasons, permitting missing witness inference was error because it *499“implied an untruth” and played on jury’s ignorance of actual reason why witnesses did not appear; error required new trial).6
By urging the missing witness inference when it was not a permissible one, plaintiffs themselves invited the jury to rely on a “fact” — i.e., the inferred fact that defense counsel could not find any nurse expert to testify in its favor — that was not established by evidence in the record. That is the essential problem with a missing witness inference in circumstances that do not adequately support it. See generally Hatcher, 29 Or at 315-16 (counsel’s impermissible reliance on missing witness inference resulted in arguing facts to jury that were not in evidence); Tenny, 8 Or at 521 (same).
The significant question that this case presents, therefore, is not whether a party may argue facts or inferences that lack evidentiary support in the record. It is undisputed that, as a general proposition, a party may not. The significant question is, instead, whether it is relevant to the analysis that the party was provoked to do so to respond to an improper argument made by the opposing side.
On that point, the numerous courts in other jurisdictions that have wrestled with the “invited response” problem uniformly consider the provoking improper argument relevant. They differ only on the question: Relevant to what? One line of authority holds that the provoking argument is relevant to determine whether the “invited reply” is error at all or, if error, whether the provoking party is estopped to raise the error on appeal.7 The other line of authority rejects the *500proposition that a provoking improper argument justifies or precludes appellate review of an improper argument in response; those courts, however, consider the provoking argument a highly relevant consideration in determining whether a reversal is warranted. As the United States Supreme Court has explained in the lead case taking that approach, the invited response doctrine does not give a party “license to make otherwise improper arguments” in response to an improper argument; it does, however, inform whether the “ ‘invited response,’ taken in context, unfairly prejudiced” the opposing side. United States v. Young, 470 US 1, 12, 105 S Ct 1038, 84 L Ed 2d 1 (1985). The provoking argument is important context for that evaluation, because it informs whether the response merely offset the misleading nature of the provoking argument, thus producing “no net effect on the jury’s deliberations.” United States v. Mazzone, 782 F2d 757, 763 (7th Cir), cert den, 479 US 838 (1986). In other words, to assess whether the jury was “led astray,” the substance of the invited response must be evaluated in the context of the “opening salvo.” Young, 470 US at 12; see also Darden v. Wainwright, 477 US 168, 182, 106 S Ct 2464, 91 L Ed 2d 144 (1986) (invited response doctrine does not “excuse improper comments,” but instead seeks to accurately assess “their effect on the trial as a whole”).
Although this court has not discussed or examined the invited response situation in any depth, our precedents are in general accord with that latter approach. The cases on point hold that the fact that one party advances an improper argument to the jury does not excuse or otherwise make it proper for the opposing party to respond in kind. See, e.g., Walker v. Penner, 190 Or 542, 553, 227 P2d 316 (1951) (“ ‘[T]he mere fact that counsel for one party has injected improper matter into the case does not license opposing counsel to commit a similar wrong’L]”) (quoting Trial, 64 C J § 300, 281); State v. Blodgett, 50 Or 329, 92 P 820 (1907) (same). But this court also has been unwilling to reverse such an error, *501even with timely objection, unless the objecting party was prejudiced, which depends on “the issue involved and the state of the evidence.” Blodgett, 50 Or at 344; see also Kuehl v. Hamilton, 136 Or 240, 248, 297 P 1043 (1931) (reversal not warranted where closing argument that placed facts not in evidence before jury did not materially prejudice the objecting party).
In assessing the likelihood that the jury’s verdict was influenced by an impermissible consideration, this court has considered the substance of the provoking improper argument, as well as that of the responding argument. See, eg., McKay v. Pacific Bldg. Materials Co., 156 Or 578, 591-92, 68 P2d 127 (1937) (not reversible error for plaintiff to improperly refer to defendant’s ability to obtain insurance where argument was in response to misleading suggestion by defense that it could not obtain insurance, when in fact defendant could do so and had done so); Storla v. S. P. & S. Trans. Co., 140 Or 365, 369-70, 12 P2d 1009 (1932) (where defense in closing argument urged jury that verdict would cause defendant “a lot of harm” and “hard days of toil” knowing that defendant was indemnified by insurance, court declined to reverse based on responsive argument that verdict would not cost defendant “one cent”).8 And this court has endorsed the general observation that “ ‘improper language used in argument is not ground for reversal, where such language was provoked by the remarks of counsel for the adverse party’ ” unless “ ‘it appears quite plainly that the verdict was influenced thereby.’ ” Walker, 190 Or at 553-54 (quoting Trial, 64 CJ § 300, 281). That observation is consistent with the usual experience of courts reviewing invited responses for prejudice, which is that, when the response is not out of proportion to the provocation, the two arguments will often counter one another in a way that does not prejudicially influence the jury’s deliberations. See Young, 470 US at 12 (observing that *502most intermediate courts, in reviewing an invited response in the context of the argument that provoked it, find no prejudice justifying reversal as long as the responsive argument is a reasonable reply to the provocation).9
In this case, the majority takes a very different approach, one that no other jurisdiction or authority appears to endorse. The majority treats plaintiffs’ own improper provoking argument as irrelevant to the prejudice analysis by deeming it not in issue given defense counsel’s failure to object to it. 349 Or at 490. That, however, is an inadequate answer. The failure to object to an improper argument does not make the argument itself proper. See generally Kuehl, 136 Or at 249 (trial courts, consistently with their traditional power to properly oversee the arguments of counsel, should intervene to stop arguments based on facts not in the record, despite the lack of objection); Zimmerle v. Childers, 67 Or 465, 474, 136 P 349 (1913) (same).10 The failure to object means only that, if the verdict is against the nonobjecting party, that party generally may not rely on the error as a ground for reversal on appeal, unless the error qualifies as “plain error.” State v. Montez, 309 Or 564, 601-02, 789 P2d 1352 (1990) (declining to consider claim of error in closing argument where defendant did not object and issue was not plain error).
Here, plaintiffs, who made the initial provoking argument, not defendant, ask this court to dislodge the jury’s verdict and remand this case for a new trial. In keeping with our constitutional obligation, if plaintiffs are to have that remedy, they must identify prejudice by demonstrating that defendant’s closing argument may have caused the jury to base its verdict on an impermissible consideration, rather than on the evidence. Or Const, Art VII (Amended), § 3 (the court must affirm a judgment on appeal, “notwithstanding *503any error committed during the trial,” if the judgment “was such as should have been rendered in the case”).
This record does not support such a conclusion. Even considered in isolation, defense counsel’s argument lacked substance. Defense counsel explained that the defense had been prepared to call an experienced nurse oncologist, that it did not do so due to witness scheduling problems, and that the nurse expert would have testified and “supported [defendant’s] case.” The only fact among those that had not already been stated during counsel’s opening statements to the jury was the fact that the nurse did not testify due to scheduling reasons. And it required no leap of faith or logic for the jury to have concluded, from the fact that the defense intended to call a nurse expert, which the jury knew, and from the fact that she was in the courtroom throughout the afternoon on which she was scheduled to testify, which the jury likely observed, that the testimony of that expert would support the defense case in some way. Defense counsel’s closing argument related nothing more. In particular, defense counsel relayed nothing of the actual substance of the testimony that the nurse expert had been expected to give.
But in all events, considered in context, the statements did no more than correct the misrepresentation that plaintiffs’ counsel created. That is, defense counsel’s statements neutralized the misleading inference that plaintiffs’ counsel expressly invited the jury to draw — that the defense could not find a nurse expert who “would say that this was okay care.” When defense counsel responded to that argument, she did not ask the jury to draw any affirmative conclusion. Rather, defense counsel expressly referred to plaintiffs’ argument, and explained the circumstances. In context, the only point of the argument — and no other point was made— was to have the jury not indulge the inference that plaintiffs had invited. As is often true of invited responses, the net effect of that argument was merely to counter plaintiffs’ own argument and to encourage the jury not to base its verdict on the missing witness inference.
When, as happened here, an improper invited response principally served to deprive the provoking party of *504the benefit of its misleading argument to the jury, that is not, under our constitution, a basis on which an appellate court may disturb the jury’s verdict and give the party a new trial. Yet, that is the “prejudice” identified by the majority, which finds reversible error in this case because plaintiffs’ effort to have the jury draw the missing witness inference was “weakened substantially” by defendant’s response. 349 Or at 492. The inference was not a permissible one in this case, and the fact that plaintiffs may have been deprived of the benefit of their improper argument is not cognizable “prejudice” and not ground for reversal.11
Finally, the relevant context properly must consider the trial court’s instructions to the jury. Here, the trial court twice instructed the jury that the statements of counsel were not evidence — once at the beginning of the trial and again immediately before closing arguments. The majority is inappropriately dismissive of the value of those instructions. 349 Or at 492. This court generally presumes that a jury adheres to a trial court’s instructions, Wallach v. Allstate Ins. Co., 344 Or 314, 326, 180 P3d 19 (2008), and does so in “invited reply” situations. See, e.g., Walker, 190 Or at 554 (considering court’s instructions as factor in whether improper invited response was reversible error). Such an instruction might not cure a highly prejudicial closing argument, in which counsel extensively argued inflammatory off-the-record facts that under no circumstance would have been admissible during the trial. See, e.g., Blodgett, 50 Or at 344 (reversal for improper argument warranted where argument injected highly inflammatory and prejudicial material that “no one” would “contend for a moment” would have been *505admissible during trial). But this is a far distance from that circumstance.
For those reasons, I respectfully dissent.
Balmer and Kistler, JJ., join in this dissent.Por present purposes, I am willing to presume that a description to the jury of the scheduling problem that arose during the trial is a “fact not in evidence” within the meaning of that familiar doctrine. It is less than clear to me, however, whether that is correct. Juries are often apprised of scheduling issues and other procedural events, if for no other reason than to explain why continuances, protracted recesses, or other changes to the expected trial schedule have become necessary. Explaining such circumstances to a jury is not the kind of information that ordinarily is delivered by sworn testimony. Cf. United States v. Long, 533 F2d 505, 509 (9th Cir 1976) (trial court properly advised jury that informant’s failure to testify was due to court’s procedural ruling).
Although the parties disputed certain facts pertaining to the scheduling issues at trial, the only pertinent fact for purposes of the issue on review, which is not disputed, is that plaintiffs’ counsel had been informed, before closing argument, why defense counsel did not call its nurse expert. In all events, to whatever extent there were factual disputes pertinent to the issue we must decide, they were implicitly resolved against plaintiffs by the trial court.
The rules limiting the availability of the inference do so because it so readily invites abuse by counsel. As one commentator has observed: “Too often the [missing witness] rule is treated as just another weapon available for the duel between the lawyers. Counsel invoke the inference of adverse testimony without any concern for the actual content of the evidence and sometimes even urge an inference known to be false just to gain an advantage.” Robert H. Stier, Jr., Revisiting the Missing Witness Inference — Quieting the Loud Voice from the Empty Chair, 44 Md L Rev 137,155 (1985).
The missing witness inference is “always open to explanation” hy the party against whom the inference is invoked. Wigmore, 2 Evidence § 285 at 192. The fact that the inference is usually advanced in closing argument therefore poses problems of fairness and judicial efficiency. As one authority cautions, “[t]he possibility that the inference may be drawn invites waste of time in calling unnecessary witnesses or in presenting evidence to explain why they were not called.” 2 McCormick on Evidence § 264 at 223. The inference also can entail “substantial possibilities of surprise.” Id. Because of those problems, some jurisdictions require the advance permission of the trial court before arguing the inference. See, e.g., Thomas v. United States, 447 A2d 52, 58 (DC 1982) (because of dangers of missing witness argument, which essentially creates evidence from nonevidence, permission of court must be obtained before inference can be suggested to jury; onus is not on the party against whom an inference is made to object after the fact).
Neither do plaintiffs cite any authority to suggest that their argument under these circumstances was proper. They rely principally on Bohle, which merely states the baseline principle that a missing witness inference is proper when the particular circumstances are such that the inference is a natural one to draw. 243 Or at 198-99. Beyond that, plaintiffs merely assert, without elaboration or evident support, that their own closing argument to the jury was “reasonable and well established under Oregon law.”
See also Calvin v. Jewish Hosp. of St. Louis, 746 SW2d 602, 605 (Mo App 1988) (“When a witnesses] testimony is excluded on an attorney’s motion, it is misconduct constituting manifest injustice and thus reversible error if that attorney requests the jury to draw an adverse inference from his opponent’s failure to produce that witness even though the error is not preserved for appellate review.”).
Cases so holding are far too numerous to cite. For representative civil and criminal cases holding that an invited response is not error, see Richmond Condominiums v. Skipworth Plumbing, 245 SW3d 646, 668 (Tex Ct App 2008) (defense counsel’s “invited” closing argument not improper when in response to and confined to the provoking argument of opposing counsel); United States v. Schwartz, 655 F2d 140, 142 (8th Cir 1981) (under “doctrine of fair reply,” government’s reply to defense counsel’s statements in closing “not improper” because defense counsel “open[ed] the door” on the issue). For representative cases holding that the provoking party is estopped to claim error on appeal, see Fredrick v. Dreyer, 257 NW2d 835, 839 (SD 1977) (general rule is that party whose counsel *500pursues improper argument and invites reply is estopped to complain); State v. Hall, 982 SW2d 675, 683-84 (Mo 1998), cert den, 519 US 1083 (1997) (defendant may not provoke reply with own closing argument and then assert error on appeal to prosecution’s comment in response).
This court in Storla arguably followed an estoppel rationale. 140 Or at 370 (party who provoked improper argument could not “with good grace” complain about argument made in response). But the court’s examination of the substance of the two arguments suggests that, in fact, the court reached the claim of error, but deemed the responsive argument, in the context of the argument that provoked it, not prejudicial.
See generally Trial, 75A Am Jur 2d 63-64 § 470 (2007) (“The law indulges a liberal attitude toward comments which are a fair retort or response to the prior argument of opposing counsel. Thus, arguments which are replies in kind or are provoked by arguments of opposing counsel do not amount to reversible error.”).
See also Young, 470 US at 8-10 (trial courts should promptly intervene and deal with improper arguments by counsel “on both sides of the table,” regardless of lack of objection, to ensure fairness of the proceedings and adherence to professional standards of conduct).
Worth noting is that plaintiffs, in all events, got the final word and a last chance to encourage the jury to do what it should not do — draw an unfavorable inference against the defense from the fact that the defense did not have the nurse witness. As already described, plaintiffs’ counsel argued in rebuttal that the defense could have called the nurse witness; he explained — by going beyond the record — ways in which the defense could have perpetuated the nurse witness’s testimony despite the scheduling problems, and he urged the jury a final time to conclude that “there was a reason” why the defense did not call the nurse witness. Plaintiffs were not entitled to that inference, but they got a further chance to urge it to the jury, without objection by the defense, and with the tacit approval of the trial court.