A missing witness charge.

Practice point: Upon a jury verdict in defendants’ favor, plaintiff appealed and the Appellate Divison reversed, on the law, and remanded for a new trial.

Plaintiff claims that she sustained a permanent, consequential limitation of her neck and back as a result of a motor vehicle accident. The accident occurred while she was on a trip with other members of her Jehovah’s Witness congregation. Four years before the motor vehicle accident, plaintiff had injured her back when a bookcase fell on her. In connection with the earlier injury, she saw an orthopedist and a physical therapist.

Plaintiff claims that, at trial, the court erred in giving a missing witness charge. The charge was related to her testimony that, in connection with the earlier accident, she saw an orthopedist who referred her to physical therapy. Plaintiff did not call the orthopedist as a witness, nor did she introduce into evidence any of the medical records generated by him or the physical therapist.

The Appellate Division noted that the record does not reflect when defendants asked for a missing witness charge. This presents the possibility that they did not do so until after plaintiff presented her case. If that were so, plaintiff had no chance to account for the orthopedist’s absence, argue that plaintiff did not have the requisite control over him, or attempt to procure his appearance. The Appellate Division determined that, since there is no indication that defendants promptly notified the court when the need for the charge arose, the charge was improperly given.

Student note: The party seeking a missing witness charge has the burden of promptly notifying the court when the need for the charge arises. The purpose of imposing the burden is, at least in part, to permit the parties to tailor their trial strategy to avoid substantial possibilities of surprise. Once the party requesting the charge meets its initial burden, the party opposing the request can defeat it by demonstrating that the witness was not available or beyond its control, or that the issue about which the witness would have been called to testify is immaterial.

Case: Herman v. Moore, NY Slip Op 09352 (1st Dept. 2015)

Tomorrow’s issue: Constructive notice in a slip and fall action.

http://drdiekman.blogspot.com/2015/12/a-missing-witness-charge.html