Opinion
1820/02.
Decided July 1, 2005.
After the close of all the testimony in this personal injury action, Plaintiff requested that the court instruct the jury with a missing witness charge because Defendants failed to testify at trial. Defendants objected to such charge, asserting that the defendant in a law suit has no obligation to testify. It is noted that Plaintiff read from one of the Defendant's Examination Before Trial as part of his rebuttal case.
The so-called Missing Witness Charge, number 1:75 of the Pattern Jury Instructions, states, in part, that:
A party is not required to call any particular person as a witness. However, the failure to call a certain person as a witness may be the basis for an inference against the party not calling the witness. . . .
The missing witness charge allows a jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events. People v. Savinon, 100 NY2d 192, 761 N.Y.S. 2d 144 (2003). The same rule and same charge may also apply to a party who has failed to testify. Dowling v. Hastings, 211 NY 199, 105 N.E. 194 (1914).
In Crowder v. Wells Wells Equipment, Inc., 11 AD2d 360, 783 N.Y.S. 2d 552 (1st Dept. 2004), the court held that the defendant's failure to appear to testify required the trial court to give a missing witness charge. That case involved an automobile accident and the court said that the defendant, as the driver of the vehicle in motion, would be knowledgeable about a material issue raised in evidence as to the cause of the accident.
The same rationale would apply to the instant action that arose out of a car accident, in which both Plaintiff and Defendants allege that the other driver caused the accident by failing to observe a red light. One of the Defendants was the driver of the vehicle and the other Defendant was a passenger in the car as well as the car's owner. As witnesses to the incident, both Defendants have material knowledge about the facts in question, and therefore should be called to testify.
The fact that Plaintiff read into the record the deposition testimony of Defendant driver does not constitute a waiver of his right to request a missing witness charge. Farrell v. Labarbera, 181 AD2d 715, 581 N.Y.S. 2d 226 (2nd Dept. 1992). It is well settled that where one party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference against him warranted by the evidence may be considered. Id.
In addition to requesting the missing witness charge for Defendants' failure to appear, Plaintiff also requested that the court instruct the jury with the missing witness charge regarding Defendants' failure to produce three doctors who examined Plaintiff at Defendants' request. During trial Plaintiff called his treating physician who testified as to Plaintiff's medical condition.
It is well established that the failure of a party to call a witness under his control who is shown to be in a position to give material evidence may result in an inference that the testimony of such witness would be unfavorable to such party. Whereas the inference may ordinarily arise where a doctor who examined a plaintiff on the defendant's behalf does not testify, if such testimony would be merely cumulative and would not constitute substantial evidence, the inference may not be drawn. In a similar situation in which a plaintiff produced a treating physician and the defendant failed to call any doctor, the court in Getlin v. St. Vincent's Hospital Medical Center of New York, 117 AD2d 707, 498 N.Y.S. 2d 849 (2nd Dept. 1986), held that there is nothing to indicate that the doctor's testimony would not have been merely cumulative of the testimony of plaintiff's treating physician. Under these circumstances the appellate court said that the trial court should not grant a missing witness charge.
In the case at bar, Plaintiff called his treating physician whose testimony was not rebutted by any defense expert. Had Defendants called the doctors in question, assuming for the moment that the evidence would have impacted Defendants negatively, such testimony would only bolster what Plaintiff's expert stated. It is axiomatic that what is negative for one party is positive for the other. Therefore, under these circumstances, the doctors' testimony would be cumulative.
Courts have generally held that it is proper to deny a missing witness charge when doctors are not called if it appears that the testimony of the non-called physicians would be merely cumulative. Such would be the effect in the instant case.
Based on the foregoing, the court grants Plaintiff's request to give a missing witness charge with respect to Defendants' failure to testify, but denies Plaintiff's request to give a missing witness charge with respect to Defendants' failure to call three examining doctors. Plaintiff is still free to comment on Defendants' failure to call the doctors in his summation. DeVaul v. Carvigo Inc., 138 AD2d 669, 526 N.Y.S. 2d 483 (2nd Dept. 1988).