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In a recent Court of Appeals case of interest, the Court’s decision touched on the issues of what constitutes a serious injury and when a missing person charge is applicable.  In DeVito v. Feliciano, plaintiff was injured in a motor vehicle accident in 2006, when a van operated by the defendant rear-ended the vehicle in which she was a passenger.  Plaintiff alleged she suffered a serious injury as defined by Insurance Law §5102(d).  In particular, she claimed she suffered fractures of her nose and back.

Following her accident, plaintiff was taken to the hospital where she was treated and released.  No x-rays were taken of plaintiff’s nose or back at that time.  According to plaintiff, she suffered back, head, and nasal pain in the weeks that followed her accident.  She was referred to an ear, nose and throat specialist, who noted the plaintiff exhibited no pain upon palpitation of her nose when examined one month post-accident.  However, a CT scan at that time indicated a non-displaced fracture of her nose.

Approximately two months after her accident, again complained of back pain.  An MRI revealed a compression fracture of the T12 vertebra.  Plaintiff commenced her action later that year alleging that the negligence of the defendants in the ownership and operation of their vehicle caused her to suffer serious injuries, namely, nasal and T12 fractures.

The defendants designated four physicians to examine the plaintiff, a neurologist, an orthopedist, an ENT specialist, and a radiologist.  Medical records indicated that four months prior to her motor vehicle accident, plaintiff had fallen and sustained a minor concussion and a fractured left wrist.  At the trial, both plaintiff and her daughter testified as to her medical condition. Plaintiff volunteered that she had fallen a couple of times since the accident, but did not mention the October 2005 fall that preceded it. Her daughter, meanwhile, was asked specifically about her mother’s October 2005 fall, and denied any knowledge of it.

Plaintiff’s treating physician’s testified on her behalf at trial opining that her injuries, namely, the T12 fracture and nasal fracture were causally related to the subject motor vehicle accident.  However, some of her physician’s noted that the plaintiff was not the best historian of her own medical history, and that their opinions were based on limited information.

The defendants did not call any of the physicians who examined plaintiff on their behalf.  Plaintiff’s counsel requested a missing witness charge under Pattern Jury Instructions (PJI) 1:75.  The lower Court, addressing plaintiff’s counsel, suggested that the defense physicians’ testimony “would be cumulative to what your doctors have already said.” The court denied the request for an uncalled witness charge, but permitted counsel to argue the issue on summation.

Plaintiff’s counsel, in summation, asked the jury to draw a strong negative inference against the defendants from the absence of their physician witnesses.  The jury returned a verdict in defendants’ favor, finding that the motor vehicle accident was not a substantial factor in bringing about plaintiff’s nasal and T-12 fractures.

The Appellate Division affirmed Supreme Court’s judgment dismissing plaintiff’s complaint holding that plaintiff had failed to satisfy the elements that are a prerequisite for receiving a missing witness charge.

The Court of Appeals reversed the decision, holding, that the preconditions for this charge, are as follows: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the 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.  Here, the defendants only argue that the testimony of the uncalled witnesses would have been cumulative of the plaintiff’s physicians.  The Court of Appeals rejected that argument, holding that a person’s testimony can only considered cumulative of another’s when both are testifying in favor of the same party.  Accordingly, the Court of Appeals reversed the Appellate Division’s decision and remanded the case to the lower Court and ordered a new trial

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