Dukes v. Rotem

OPINION OF THE COURT Kassal, J. We are called upon to decide whether a missing witness charge is appropriate when plaintiffs counsel in a personal injury case fails to call the treating physician who treated plaintiff most recently, for the greatest period of time, and who changed her treatment. This is a personal injury action in which plaintiff Annest Dukes claims that she suffers from permanent, chronic back pain as a result of an automobile accident in which she was a passenger.* On appeal, defendants concede liability and the — 37 — only issue is whether defendants are entitled to a new trial on the issue of damages. We conclude that the trial court erred in refusing to give a missing witness charge (PJI 1:75) with respect to plaintiff’s former treating physician, Dr. Memoli, and that a new trial is therefore required on the issue of damages. The medical evidence may be summarized as follows. Plaintiff testified that her ankle, neck and back bothered her as a result of the automobile accident on April 22, 1986. The next morning, her family physician, Dr. Hainey, prescribed painkillers and instructed plaintiff to stay in bed. After a three-month period in which plaintiff saw Dr. Hainey approximately once a week, plaintiff continued to experience pain in her back and was referred by Dr. Hainey to Dr. Arthur Gray, an orthopedic specialist in Dr. Hainey’s office. Dr. Gray was the sole treating physician plaintiff called as a witness. He treated plaintiff for her back problem from July 1986 until late 1987 and saw her once in October 1990. During the period in which plaintiff was a regular patient, treatment consisted of bed rest, physical therapy, pain medication, and the wearing of a corset. In October 1990, Dr. Gray diagnosed plaintiff as having a chronic low back sprain. In late 1987, plaintiff gave up her position at Metropolitan Life Insurance Company and moved from Bronx County to Hopewell Junction. Plaintiff testified that she remained under the care of another orthopedic specialist, Dr. Memoli, from the spring of 1988 until August 1990. The dissent’s factual statement that plaintiff saw Dr. Memoli some 9 or 10 times through mid-1990 is based on plaintiff’s testimony to that effect. However, it is important to note that the records of plaintiff’s witness, Dr. Harvey Goldberg, indicate that plaintiff saw Dr. Memoli from July 1987 until July 1990 at a frequency of once per month. Since plaintiff has acknowledged that she saw Dr. Memoli from the spring of 1988 to August 1990, it is most likely that she saw Dr. Memoli at least 24 times. Like Dr. Gray, Dr. Memoli prescribed pain medication, bed rest and physical therapy. However, he suggested that plaintiff discontinue wearing the corset. Although Dr. Gray testified that he believed that plaintiff had started on low back exercises during his treatment, plaintiff testified that Dr. Memoli was the first doctor to suggest exercises and that she did these exercises at home every day. Asked whether she benefited from these exercises, plaintiff testified that her attacks were less frequent. — 38 — Except for a single consultation with Dr. Gray in October 1990, Dr. Memoli was plaintiffs final treating physician before trial and the one who treated her almost twice as much as Dr. Gray. Dr. Memoli was not called as a witness. While she was still under Dr. Memoli’s care, in April 1990, plaintiff went to the emergency room at St. Francis Hospital due to an unusual episode of excruciating back pain. The doctor there prescribed medication and suggested that she see a neurologist. The hospital record was introduced into evidence. Two doctors examined plaintiff in connection with this litigation. Based upon his review of plaintiffs history and medical reports, as well as his examination of plaintiff in August 1990, plaintiffs expert witness, Dr. Harvey Goldberg, concluded that plaintiff suffered from chronic low back pain. Dr. Melvin Adler, a Board-certified orthopedic surgeon, was the only witness called by the defense. Dr. Adler had examined plaintiff in February 1988 on behalf of the defendants. Based upon his examination of plaintiff and her records, he concluded that her orthopedic condition was normal and that she did not suffer from a chronic back condition. At a precharge conference, defendants requested a missing witness charge with respect to plaintiffs failure to call Doctors Hainey and Memoli. The trial court found that "Dr. Hainey’s testimony is simply cumulative of Dr. Gray’s”. With respect to Dr. Memoli, plaintiff’s counsel informed the court that she had written about 9 or 10 letters to Dr. Memoli which were not answered. She offered 6 letters into evidence commencing August 16, 1989, while plaintiff was still under Dr. Memoli’s care, and ending December 11, 1990. She claimed that she could not call Dr. Memoli to testify because she had not received his reports. In response to the court’s inquiry whether Dr. Memoli’s testimony would be cumulative, defense counsel responded, "I think there was testimony that Dr. Memoli had suggested a different course of treatment than the other doctors did.” The court denied the request for a missing witness charge without any comment. The trial court properly refused defendants’ request for a missing witness charge with respect to Dr. Hainey. As Appellate Term aptly noted, the information which Dr. Hainey could have imparted was already in evidence through Dr. Gray’s testimony (Diorio v Scala, 183 AD2d 1065, 1067). Furthermore, as a nonresident of this State, Dr. Hainey was — 39 — unavailable as a matter of law since he was beyond the jurisdiction of the court (Zeeck v Melina Taxi Co., 177 AD2d 692, 694, citing Sarac v Bertash, 148 AD2d 436, 437; 1 NY PJI2d 69). However, the trial court erred by refusing to give a missing witness charge as to Dr. Memoli. "[I]t is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable, not under his control, or that the witness’s testimony would be cumulative” (Dayanim v Unis, 171 AD2d 579, 580, citing Moore v Johnson, 147 AD2d 621). The dissent suggests that Dayanim v Unis (supra) is inapplicable to the facts at hand because a missing witness charge is only warranted for the failure to call any treating physician and plaintiff did call one of her treating physicians (Dr. Gray). This is a misguided interpretation of our holding in Dayanim. The fact that other treating physicians testify is irrelevant. If the plaintiff fails to sustain her burden with respect to any of her treating physicians, whose testimony would be material and not cumulative, the missing witness charge is warranted. In this case, plaintiff failed to sustain her burden with respect to Dr. Memoli. First, Dr. Memoli was in a position to give substantial, and not merely cumulative, evidence. Dr. Memoli’s testimony would have been substantial since he was plaintiff’s exclusive treating physician for a period of approximately three years immediately prior to trial. Although plaintiff called another treating physician, Dr. Gray, his treatment preceded Dr. Memoli’s and was of a much shorter duration. The dissent points out that three physicians, including Dr. Gray, examined plaintiff on single occasions from early 1988 through mid-1990. Their testimony is no substitute for Dr. Memoli’s since damages were calculated based upon plaintiff’s complaint that her back pain was persistent. Dr. Memoli was uniquely in a position to describe plaintiff’s condition and treatment over the most critical course of time. Since plaintiff sought compensation for her pain and suffering and loss of earnings from the time of the accident, Dr. Memoli’s testimony could have greatly influenced the jury’s assessment of damages. Furthermore, by establishing that Dr. Memoli had prescribed a different course of treatment than her previous physicians, defendants made an unrebutted prima facie show — 40 — ing that Dr. Memoli’s testimony would not be cumulative (see, Miller v Kimber, 181 AD2d 1014). Dr. Memoli was the only physician who could testify regarding the change in plaintiffs treatment, the reasons therefor, and its medical consequences. Accordingly, the trial court erred in concluding that Dr. Memoli’s testimony would be cumulative. Plaintiff also failed to show that Dr. Memoli was either unavailable or not under her control. "Availability” of a witness refers to the party’s ability to produce the witness; "control” refers not to physical availability but to the relationship between the witness and the parties (People v Gonzalez, 68 NY2d 424, 428-430). A missing witness charge is appropriate where a party had the physical ability to locate and produce a witness and there was a legal or factual relationship between the party and the witness which made it "natural to expect the party to have called the witness to testify in his favor” (supra, at 429). Plaintiff did not sustain her burden to prove unavailability or lack of control simply by informing the court that Dr. Memoli failed to respond to her letters requesting his medical records. Plaintiff argues that because Dr. Memoli failed to respond to her letters, she was unable to obtain his medical records, and therefore, unable to serve these upon defendants. As a sanction for plaintiffs knowing failure to comply with the medical exchange rules, Dr. Memoli would have been precluded from testifying (22 NYCRR 202.17 [h]). The application of 22 NYCRR 202.17 (h) to the facts at hand is simply unrelated to defendant’s entitlement to the missing witness charge because preclusion of Dr. Memoli’s testimony neither proves his unavailability nor plaintiffs lack of control. If that were to control herein, then the whole underlying basis for a missing witness charge would be eviscerated. In any case, despite plaintiffs claim that Dr. Memoli was unavailable to testify because he did not respond to her letters, in the absence of evidence that plaintiff could not obtain Dr. Memoli’s medical records and testimony by means of a subpoena (CPLR 2302), unavailability was not established. Furthermore, the fact that Dr. Memoli did not respond to plaintiffs letters, without more, does not demonstrate, as the Appellate Term majority concluded, that Dr. Memoli was not under plaintiffs control (see, Chandler v Flynn, 111 AD2d 300, appeal dismissed 67 NY2d 647). There is no evidence in the record that plaintiff discontinued her treatment with Dr. Memoli to see another physician, and since he was plaintiffs — 41 — last treating physician, it could naturally be inferred that he was " 'of good will’ ” to her (supra, at 301). Moreover, the dates of the letters introduced into evidence indicate that plaintiff was still under Dr. Memoli’s care when plaintiff’s counsel wrote to him and plaintiff proffered no explanation for Dr. Memoli’s failure to respond to her letters while she was still being treated by him. Therefore, it cannot be presumed that there were circumstances creating the type of hostility or ill will which would justify plaintiff’s failure to call him (supra, at 302). It may be that Dr. Memoli failed to respond to plaintiff’s letters because he was too busy or perhaps plaintiff failed to pay her medical bills. Neither of these circumstances, however, would demonstrate a lack of control. Finally, defendants’ burden to " 'promptly’ ” notify the court that a knowledgeable witness had not been called was satisfied by their timely request for a missing witness charge at the precharge conference (Trainor v Oasis Roller World, 151 AD2d 323, 325). In light of our finding that a new trial is required on the issue of damages, we do not reach defendants’ contention that the jury’s award for pain and suffering was excessive. Order, Appellate Term, First Department (Riccobono, J. P., and Miller, J.; McCooe, J., dissenting in part), entered June 26, 1992, which affirmed the judgment of the Civil Court, Bronx County (Stanley Green, J.), entered July 15, 1991, in favor of plaintiffs in the aggregate sum of $339,000, reversed, on the law, and the matter is remitted for a new trial on the issue of damages, without costs. Footnotes [*] Plaintiffs husband, Nathanial Dukes, who was deceased at the time of trial, received an award of $25,000 for loss of consortium.