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Testimony Which Could Have Added Relevant Evidence About the Nature of Plaintiff’s Work (Pre-Injury) and the Effects of the Injuries Should Not Have been Excluded as “Cumulative”

The First Department determined the plaintiff in a Labor Law 240 (1) action was entitled to a new trial because the trial judge should not have excluded the testimony of a co-worker and plaintiff’s wife as “cumulative:” The court explained:

“… [A] new trial on damages is necessitated, because we disagree with the court’s preclusion of testimony by plaintiff’s wife and coworker. Testimony is properly precluded as cumulative when it would neither contradict nor add to that of other witnesses … . Here, the testimony of plaintiff’s wife and his coworker would have added to the testimony of other witnesses. First, the coworker saw plaintiff fall, and his testimony as to the impact to plaintiff’s foot could have been highly probative of plaintiff’s claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff’s position that as a result of his injury he could no longer perform that kind of work. To be sure, plaintiff testified about his job duties, but the coworker’s status as a disinterested witness would have given his testimony added value to the jury … . Nor was the proffered testimony of plaintiff’s wife likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband’s condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.” Segota v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06764, 1st Dept 9-15-15

 

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