Background
Juana Encarnacion alleged that she was injured when her foot became trapped in a hole on a sidewalk adjacent to St. Barnabas Hospital’s property in the Bronx, causing her to fall. She claimed the accident caused a cervical herniation requiring surgical fusion, along with knee and lumbar injuries she contended would require future surgery. The case proceeded to a jury trial in Supreme Court, Bronx County.
At trial, Encarnacion proffered the expert testimony of Dr. Ali Guy, a physiatrist who had seen her only a few times—starting more than six years after the accident and after her cervical fusion surgery had already been performed. She did not call Dr. Jason Gallina, the orthopedic surgeon who actually performed the cervical fusion and who had allegedly recommended the future lumbar surgery. Instead, Dr. Guy was permitted to read into evidence a letter from Dr. Gallina opining that Encarnacion’s injuries were causally related to the fall. The jury returned a verdict in Encarnacion’s favor. St. Barnabas moved for a judgment notwithstanding the verdict or a new trial; the trial court denied the motion.
The Court’s Holding
The Appellate Division reversed and ordered a new trial, finding that the trial court should have given the jury a missing witness charge regarding Dr. Gallina. Under well-settled New York law, a missing witness charge is required when a party fails to call a treating physician unless the party can show the witness is unavailable, not under the party’s control, or that the testimony would be cumulative. Encarnacion made no showing that Dr. Gallina was unavailable or outside her control, and his testimony would not have been cumulative.
The court identified several reasons why Dr. Gallina’s testimony was critical and non-cumulative. Dr. Guy was a physiatrist, not the surgeon; he had not treated Encarnacion until after the surgery was complete and had no direct knowledge of what Dr. Gallina observed during the procedure. A key disputed issue was whether Encarnacion had a herniated cervical disc (caused by the accident) or a pre-existing degenerative condition. Encarnacion’s counsel argued, through Dr. Guy’s testimony, that Dr. Gallina had seen the herniation during surgery—but Dr. Gallina, the person who actually made that surgical observation, was never called. Worse, Dr. Guy was permitted to read Dr. Gallina’s causation letter into evidence, effectively securing the hearsay testimony of the absent surgeon without subjecting him to cross-examination. That arrangement, the court held, made the failure to give the missing witness charge reversible error.
Key Takeaways
- A party who fails to call its treating surgeon as a witness at trial—without showing unavailability, lack of control, or cumulative testimony—is subject to a missing witness charge; the charge cannot be avoided simply by having another expert paraphrase the surgeon’s opinions.
- Permitting a testifying expert to read a non-testifying treating physician’s causation letter into evidence, without calling that physician, amounts to improper hearsay use of an absent witness’s testimony and reinforces the basis for a missing witness charge.
- The distinction between a physiatrist and the operating surgeon matters: testimony about intraoperative findings cannot be treated as cumulative if the testifying expert was not present in the operating room.
Why It Matters
This decision is important for New York personal injury trial practice, particularly in cases involving surgical treatment where the plaintiff’s damages theory depends heavily on what was found or done during surgery. Defense counsel who believe a plaintiff is strategically withholding a treating surgeon should move for a missing witness charge—and make that motion before the case is submitted to the jury, not after. Plaintiffs’ counsel, conversely, should recognize that sending in a later-treating physiatrist to relay a surgeon’s findings, while leaving the surgeon out of the courtroom, creates significant exposure to a missing witness instruction that can undo an otherwise successful verdict.
The case also serves as a reminder that the missing witness doctrine in New York is not a technicality—it is a direct evidentiary inference that the jury may draw. An inference that a key treating physician’s testimony would have been unfavorable to the party that controlled and withheld him can be devastating at retrial. Plaintiffs in the Bronx and throughout the First Department should plan their witness lists carefully to ensure that treating physicians whose observations are central to the damages case are either called to testify or their absence adequately explained.