PLAINTIFF IN THIS MED MAL ACTION SHOULD NOT HAVE BEEN PRECLUDED FROM PRESENTING EVIDENCE DECEDENT SHOULD HAVE BEEN GIVEN A BLOOD TRANSFUSION ON THE GROUND THE ISSUE WAS NOT PLED AND PLAINTIFF’S REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WHEN THE DEFENSE INDICATED IT WAS NOT GOING TO CALL THREE DEFENDANTS SHOULD HAVE BEEN GRANTED; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial in this medical malpractice action after a defense verdict, determined plaintiff’s should not have been precluded from presenting evidence that decedent should have received a blood transfusion in the emergency room on the ground the issue had not been pled and the judge should have given the missing witness jury instruction after the defense indicated it was not going call three defendants:

… [P]laintiff from the outset alleged that the ED [emergency department] defendants failed to act upon complaints, signs, symptoms, and diagnostic testing, and such allegations were neither new nor would have been a surprise to the ED defendants because they had responded during summary judgment motion practice to the allegation that they should have acted upon the drop in hemoglobin and hematocrit levels. …

… [T]he court abused its discretion in failing to give a missing witness charge for defendants Patel, Chan, and Alexander. A trier of fact in a civil proceeding may draw the strongest inference that the opposing evidence permits against a party who fails to testify … . This type of instruction, which is commonly referred to as a missing witness charge, “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” … . In seeking use of this charge, “[t]he burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call [the witness] to testify” … . Once the foregoing is established, the burden shifts to the party opposing the charge “to account for the witness'[s] absence or otherwise demonstrate that the charge would not be appropriate” … . The opposing party’s burden can be met by demonstrating, inter alia, that “the testimony would be cumulative to other evidence” … . Heinrich v Serens, 2025 NY Slip Op 04318, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into when the court should give the missing witness jury instruction. Here in the med mal case the defense notification that it was not going to call three defendants as witnesses justified plaintiff’s request for the instruction. Under the facts, the request should have been granted.​