Download Missing Witnesses/Cumulative Evidence: The Court of Appeals Speaks (PDF)

by Evan Yagerman '08
Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C.

Abstract: Defendant’s counsel who decides not to call independent medical examination doctors who examined plaintiff claiming their opinions are cumulative because of evidence adduced from plaintiff and plaintiff’s experts on cross-examination does so at their own peril.

The Court of Appeals recently visited the issue of what constitutes cumulative evidence and the propriety of a missing witness charge in the case of DeVito v. Feliciano, 84 A.D.3d 645, 924 N.Y.S.2d 330, 2011 N.Y. App. Div. (Court of Appeals, November 26, 2013). Plaintiff brought a personal injury case claiming that she sustained a serious injury while a passenger in her daughter’s car, which was rear-ended by defendant’s vehicle. She alleged that as a result of the collision, she suffered serious injuries as defined in The New York State Insurance Law §5102(d), specifically fractures of her nose and back. Plaintiff was taken by ambulance to a hospital complaining of back pain and the emergency room discharge record recorded negative notations with respect to head trauma, facial trauma, ear, nose and throat problems. Moreover, the emergency room record stated that she walked with a steady gait. There were no x-rays of plaintiff’s nose or back taken at that time. She went to a personal care physician who referred her to an ear, nose and throat doctor who again referred her for a CT-scan of her nose that showed a non-displaced fracture of the nose. Thereafter, a few months after the occurrence, she went to a hospital complaining of back pain and an MRI revealed a compression fracture of the T12 vertebrae. Plaintiff alleged that the nasal fracture and the T12 fracture met the serious injury threshold under §5102(d) of the Insurance Law.

Plaintiff was examined by three physicians, a neurologist, an orthopedist, and an ear nose and throat specialist. Defendant also retained a radiologist to review film.

During the course of the damages trial, medical records from two hospitals were admitted into evidence. One of the records was a hospitalization prior to the motor vehicle accident which noted that plaintiff had fallen and sustained a minor concussion and fracture of the left wrist. Moreover, plaintiff and her daughter testified at trial and they did not mention the prior fall. Further, plaintiff’s treating ear, nose and throat expert and orthopedist testified respectively that the diagnostic films demonstrated that plaintiff suffered a nasal fracture and a T12 compression vertebrae fracture and that the mechanism of the fracture was the automobile accident. However, on cross-examination, their testimony was undercut by concessions that they did not know that plaintiff had fallen and suffered a fractured wrist the year before the accident. Although he did not retract his causation opinions, plaintiff’s radiologist believed that the compression fracture was less likely to have occurred at the prior fall as opposed to the motor vehicle accident. Moreover, plaintiff’s radiologist testified that plaintiff suffered a fractured nose and a T12 compression fracture superimposed on arthritic changes and that both fractures were the result of the motor vehicle accident. Plaintiff’s orthopedist acknowledged that plaintiff was not a good historian and conceded that based on records it appeared that plaintiff had not suffered an injury to her nose on date of the accident (on review of the hospital record) but found no inconsistency between plaintiff’s steady gait at the hospital a few hours after the accident and an allegation that she suffered a T12 fracture in the accident. Defendant read into the record a portion of plaintiff’s ear, nose and throat specialist’s deposition testimony, that he could not say with certainty that plaintiff’s nasal fracture had been caused by the accident.

Plaintiff requested a missing witness charge under PJI 1:75 after defense counsel decided not to call any of the four expert physicians. The Trial Court denied plaintiff request for a “missing witness charge,” holding the evidence would have been cumulative of the testimony given by plaintiff’s treating doctors. The Trial Court allowed plaintiff’s counsel to comment upon the absence of defendant’s physicians during summation. The Appellate Division affirmed holding, the plaintiff failed to satisfy the conditions for giving a missing witness charge.

The Court of Appeals reversed holding:

“When a missing witness charge is requested in a civil case, the uncalled witnesses’ testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. It may not be considered cumulative simply because it would repeat or be consistent with an opposing party’s evidence.”

The Court of Appeals tracked the pre-condition for giving a missing witness charge under PJI 1:75. The pre-conditions for the charge are as follows:

  1. The witness’ knowledge is material to the trial;
  2. The witness is expected to give non-cumulative testimony;
  3. he witness is under the control of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and
  4. The witness is available to that party. See, People v. Savinon, 100 N.Y.2d 198 (2003) et al.

The Court of Appeals acknowledged that defendants did not deny that the expert witnesses’ knowledge was material and that said witnesses could have been made available to the jury. Rather the defendants argued that the uncalled witnesses would have been cumulative of plaintiff’s treating physician and plaintiff’s radiology expert. The Court of Appeals rejected defendant’s argument premised under the Second Department case of Getlin v. St. Vincent’s Hospital & Medical Center of New York, 117 A.D.2d 707 (2nd Dept., 1986), wherein the Appellate Division held that a trial court properly refused to give a PJI 1:75 charge because the uncalled defendant’s witnesses’ testimony would have been merely cumulative of the testimony of plaintiff’s treating physician and experts. Rather, the Court of Appeals adopted the Third Department analysis under Leahy v. Allen, 221 A.D.2d 88 (3rd Dept., 1996) wherein the Third Department held that one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party. The Court of Appeals reasoned “if the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiff’s assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to evoke such a charge.”

Moreover, the Court of Appeals reasoned that the Trial Court error in failing to give the missing witness charge was not harmless. Although plaintiff’s counsel commented at length on the non-appearance of defense witnesses, same did not have the same force and effect of a court charge which a jury would certainly pay attention to.

The lesson to be learned from DeVito is basing a trial tactic not to call one’s expert claiming cumulative evidence will not work as an uncalled witnesses’ testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness.


Evan Yagerman is an associate at Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C. His practice focuses on Construction Accidents, General Liability and Premise, Property and Security Liability.