John L.A. Lyddane and Barbara D. Goldberg
John L.A. Lyddane and Barbara D. Goldberg ()

The tradition of permitting the fact finder to draw a strong inference against the party who fails to call a presumably friendly witness has deep roots in New York trial practice. Over 100 years ago, the Court of Appeals held that

In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favorable to the party.1

As if further confirmation of this principle were needed, in 2003, the Court of Appeals held in People v. Savinon2 that

When a party truthfully presents a version of events, a fact finder would expect that party’s friend or ally (if knowledgeable) to confirm it.

The principle is analogous to that presented in an admission by conduct, and the instruction can potentially dispel any strategic advantage a party may seek by not calling a particular witness. It is useful for the defense attorneys in medical malpractice trials to be familiar with the scope and practical application of these decisions which are the basis for Pattern Jury Instruction 1:75 regarding the failure to produce a witness. The charge permits the jury to draw the strongest inference that the opposing evidence permits against the party who fails to call the witness on the point involved.

Applicability of the Charge

Although the “missing witness charge” is frequently discussed and requested in cases where a party’s examining physician is not produced at trial, the principle has a much broader application given the myriad factual issues presented by a medical malpractice case. The only limitations on its applicability involve the materiality of the witness’ knowledge, whether the party has control over the witness, and the witness’ availability. The record must reflect that a particular uncalled witness is knowledgeable about a material issue and would be expected to testify favorably to the opposing party. That alone brings the presumption into play unless the opposing party can show that the witness is not available or is not under that party’s control.3 Materiality, availability, and control each merit a closer look.

Material Evidence

In order to obtain the benefit of the missing witness presumption, a party must demonstrate that its adversary had a relationship with an identified witness who was knowledgeable about a material issue, and because of that relationship, would be expected to provide testimony favorable to the adversary.4 The burden then shifts to the adversary to rebut the presumption by showing that the witness is not “available” or under its “control.”5 The adversary is of course free to revisit the materiality issue at that point, but the burden of proof is clearly shared on whether the charge is appropriate.

The degree to which a point is contested bears on whether the testimony of a missing witness is seen as material. A case in point is People v. Gonzalez,6 where the Court of Appeals overturned a robbery conviction which had been sustained by the Appellate Division.7 The reversal was based solely on the trial court’s failure to give a missing witness charge as to the complainant’s common law husband. The complainant was robbed in the vestibule of her apartment building, and the husband had recognized the defendant fleeing the scene. The husband was not called to testify, and logically his testimony would have mirrored that of the complainant, who likewise recognized the defendant as someone she had seen around the neighborhood. Nevertheless, the court found materiality because the prosecution’s case rested entirely upon the complainant’s testimony and identification of the defendant.

Even where a witness is called and questioned by the adversary, a presumption may arise if the witness is not questioned about a material issue which the witness is in a position to address. In Kane v. Rochester Railway,8 the Appellate Division, Fourth Department, affirmed a decision setting aside a verdict in favor of the plaintiff in a medical malpractice case. The plaintiff had actually called his physician but had not questioned him on the results of X-rays he had taken of one of the two claimed injuries.

Defense counsel requested an instruction to the effect that the jury had the right to assume that the doctor’s testimony on the X-rays, if given, would not have been favorable to the plaintiff’s case. The appellate court held that the request to charge pertained to a material question of fact, i.e., the seriousness of the injuries sustained, and defense counsel was not obligated to cure the situation by taking the risk of answers from an adverse witness in an area not addressed on direct examination.

Perhaps the broadest statement of what is material testimony from a treating physician in this respect is found in the 1920 decision of the Appellate Division, First Department, in Perlman v. Shanck,9 holding that

If there were anything improbable in the plaintiff’s testimony which might have been corroborated by the testimony of the physician, perhaps the jury might have been warranted in inferring that the physician would not have corroborated the plaintiff with respect to such testimony, but I think that is the utmost extent to which they would be warranted in indulging in inferences in such circumstances.

Material but Cumulative?

The presumption only arises where the evidence available from the uncalled witness is both material and non-cumulative.10 Again, the matters in controversy tend to determine what is both material and non-cumulative. Courts have varied in determining what is cumulative, but the determination is based upon an assessment of the relevant facts and the degree of controversy.

In Diorio v. Scala,11 the appellate court sustained a refusal to give the charge where the four physicians who treated the plaintiff in the three years after her accident were not called, but two physicians who treated her thereafter were produced. The defendant was unable to demonstrate to either the trial or the appellate court that the earlier treating doctors’ testimony would not have been cumulative based on the record, despite a sharp conflict on the cause of the plaintiff’s need for spine surgery.

The apparent absence of true controversy has led some trial courts to impermissibly expand the definition of what is cumulative in this context. Usually in the effort to send the case to the jury without inordinate delay, the trial courts have sometimes found that the testimony of the defendant’s examining physicians would be cumulative because of the lack of controversy in the prior testimony on the cause and extent of the plaintiff’s injuries. Most recently, in November 2013, the Court of Appeals, in DeVito v. Feliciano,12 reversed both the trial court and the First Department, pointing out that the testimony of four physicians who performed physical examinations for the defense would not have been cumulative with respect to the other witnesses who had testified for the opposing party. Although it is conceivable that the degree of conflict on an issue could be so attenuated that the testimony of opposing experts could truly be cumulative, the record must support that determination where the request for the missing witness charge is not granted.

Under a Party’s Control

A current employee of a party is obviously under the employer’s control,13 and a stranger to both parties is under neither party’s control.14 However, most medical malpractice cases involve situations falling between these two extremes. Although control and availability are related concepts, control is the “favorability” component which concerns the relationship between the party and the witness.15 Spousal relationships,16 former girlfriend status,17 and past friendships18 have been found sufficient to establish control on the part of a party or prosecutor through a complaining witness. As expected, retained experts and examining physicians have also been found to be under the control of the party who retained them.19

More difficult are cases where the employment relationship,20 physician-patient relationship,21 or friendship22 has ended. Even where a retained examining physician had seen the patient 13 years before trial and could not be located, the availability of the charge was in question.23 In all four of these examples the ultimate decision was that the charge was not appropriate.

Available to the Party

Unlike control, the “favorability” issue, “availability” refers to the adversary’s ability to produce the witness.24 The acceptability of hearsay evidence varies widely on this point, but if the witness can be shown to be dead, ill, incapacitated, or otherwise unavailable, the charge will not be given. The Court of Appeals has stated that it is the preferred practice to have the witness appear before the court to discuss his or her own reasons for not testifying.25

A witness who refuses to testify on Fifth Amendment grounds may be found unavailable even when present before the court.26 The same is true of an accomplice, charged or not charged, who can be expected to invoke the privilege.27 However, where defense counsel had recently spoken with the witness (but not served a subpoena) his explanation that the witness was an undocumented alien who was afraid of deportation was unavailing.28

The Charge in Practice

The resolution of cases on their individual merits is the ideal, and the appellate courts show a strong preference for having treating physicians testify on the material issues where they have relevant knowledge, rather than leaving the proof to hired experts whose knowledge on point is not as direct or substantial as that of the treating doctors.29 Some attorneys nevertheless prefer to try their cases based upon the testimony of reliable and cooperative “expert” witnesses, and that is understandable.

Where defense counsel seeks to obtain the knowledge of the plaintiff’s treating physician, that doctor’s records may or may not be legible or representative of the doctor’s knowledge on the point in issue. Where the issues are not fully addressed in the doctor’s records, counsel is permitted to discuss the evidence with the witness after obtaining an Arons authorization.30 While the Arons interview process is designed to make evidence available equally to the physician defendant and the plaintiff patient, some patients and their attorneys seek to discourage treating physicians from disclosing evidence that would allow a fair appraisal of the claims.

The tactics seen in this area include delaying the response to the request for Arons authorizations until the court will abide no further delay, limiting the authorizations to arbitrary time periods less than the duration of the litigation, and limiting authorizations to a particular attorney who is generally not the defendant’s trial counsel. In extreme cases attorneys are writing to the treating physicians and even having the patient do so to discourage them from having any discussions with defense counsel, or placing intimidating and poorly described limitations on the Arons interview.

The simple response to these tactics is to catalog them completely, and document the materiality of the treating physician’s patient contacts to the issues of the case, whether they be outcome expectations, informed consent, causally related injury, patient compliance, culpable conduct, or severity and extent of disability or injury. Plaintiff’s counsel’s efforts to control the witness may not succeed, in which case the treating physician will remain equally available to all parties. In some instances, however, the case will reach trial with defense counsel having been prevented from obtaining the evidence which should have been available from the treating physicians.

The law is clear that at that point, defense counsel must put the court and opposing counsel on notice that the treating physicians are in a position to give material and non-cumulative evidence on the various identified issues in the case, and that plaintiff’s counsel has exerted control over the treating physicians in various identifiable ways, making them unavailable to defense counsel.

As in Kane v. Rochester Railway,31 the trial court could easily adapt the missing witness charge to allow the jury to infer from the behavior of plaintiff and his or her attorney that the testimony of the treating physicians would have contradicted the evidence offered by the plaintiff, and the jury will be permitted to draw the strongest inference against the plaintiff that the opposing evidence permits. There can be no objection to a leveling of the field of play.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg is a partner at the firm and head of its appellate department.


1. Kenyon v. Kenyon, 88 Hun 211, 34 NYS 720.

2. People v. Savinon, 100 NY2d 192, 196 (2003).

3. Wilson v. Bodian, 130 AD2d 221 (2d Dept. 1987).

4. People v. Gonzalez, 68 NY2d 424, 430 (1986); Hess v. Murnane, 306 AD2d 824 (4th Dept. 2003); Eagle Pet Serv. Co. v. Pacific Empls. Ins., 175 AD2d 471, 473 (3d Dept. 1991) lv denied 79 NY2d 753 (1992).

5. Wilson v. Bodian, supra at 234; Mashley v. Kerr, 47 NY2d 892 (1979), Richardson, Evidence §92 (Prince 10th ed)

6. People v. Gonzalez, supra at 430.

7. People v. Gonzalez, 111 AD2d 870 (2d Dept. 1985).

8. Kane v. Rochester Railway, 74 AD 575 (4th Dept. 1902).

9. Perlman v. Shanck, 192 AD 179, 184-185 (1st Dept. 1920).

10. Cornell Pharmacy v. Guzzo, 135 AD2d 1000 (3d Dept. 1987), lv dismissed 71 NY2d 928 (1988).

11. Diorio v. Scala, 183 AD2d 1065 (3d Dept. 1992).

12. Devito v. Feliciano, 22 NY3d 159 (2013).

13. Gagnon v. St. Clare’s Hospital, 58 AD3d 960 (3d Dept. 2009).

14. People v. Gonzalez, supra at 429.

15. People v. Savinon, supra at 200-1

16. People v. Wilson, 64 NY2d 634 (1984).

17. People v. Keen, 94 NY2d 533 (2000).

18. People v. Savinon, supra at 201.

19. Sanders v. Otis Elevator, 232 AD2d 327 (1st Dept. 1996); Wilson v. Bodian, supra at 237.

20. Pope v. 818 Jeffco Corp., 74 AD3d 1163 (2d Dept. 2010).

21. Kasman v. Flushing Hosp. & Med. Ctr., 224 AD2d 590 (2d Dept. 1996).

22. People v. Savinon, supra at 201.

23. Kasman v. Flushing Hospital, supra at 591.

24. People v. Gonzalez, supra at 428.

25. People v. Savinon, supra at 199.

26. People v. Macana, 84 NY2d 173, 177-8 (1994); People v. Thomas, 68 NY2d 194, 197 (1986).

27. People v. DeJesus, 42 NY2d 529, 525 (1977).

28. People v. Savinon, supra at 200.

29. Adam K. v. Iverson, 110 AD3d 168, 180 (2d Dept. 2013).

30. See Arons v. Jutkowitz, 9 NY3d 393 (2007).

31. Kane v. Rochester Railway, supra at 579-580.