It is well into the trial of a medical malpractice case that the discussion turns to attorney comment or jury instruction on witnesses who have not testified. Up until that point, the jury has been told to limit its consideration to the evidence which has been vetted by the court and allowed to enter the record and remain there. The question becomes what the jury may be told regarding testimony which has neither been vetted nor heard.

Section 1:75 of the Pattern Jury Instructions suggests by its very existence that the jury's attention should be drawn to what we commonly refer to as the “missing witness.” The very title of that section, which includes “Failure to Produce Witness,” has a pejorative tone. Why should the decision of counsel not to call a particular witness be termed a “failure” to do so when the determination of whose testimony is required is such a complex and subjective judgment?

Background

The absence of a presumably favorable witness is discussed at some length in Graves v. United States, 14 S. Ct 40 (1893), together with its roots in New York law before that date. In explaining the absence of justification for perpetuating the rule in civil cases, one U.S. Court of Appeals traced the rule's lineage in English law as far back as 1722. Herbert v. Wal-Mart Stores, 911 F 1044 (5th Cir. 1990). That court made the point that with the intervening decline in responsibility of a party for its witnesses and the availability of discovery, the uncalled-witness rule is an anachronism.

The Pattern Jury Instruction

The uncalled-witness rule has long been invoked in both criminal and civil cases in New York, but the effort to establish objective standards for its application has not produced consistent results. The most clearly established prerequisite for the charge is that it must be requested prior to the close of the evidence to allow for adjustments to trial strategy, yet this requirement was virtually ignored by the Court of Appeals in its decision of People v. Gonzalez, 68 N.Y.2d 424 (1986), a criminal case in which the other prerequisites were discussed at length.

PJI §1:75 provides that with respect to a witness who has not testified, the jury may infer that the testimony of the identified witness on a specified issue would not support the position of the logical proponent. The jury may then draw the strongest inference against that party on that issue that the opposing evidence permits. In addition to being outdated, the instruction could be seen as both unnecessary and counterproductive. Unnecessary because the jury may always draw the strongest inference that the opposing evidence permits. Counterproductive because it invites speculation as to the content of evidence which has not been offered or vetted, much less received in evidence.

Application of the Standards

Case law makes it clear that the trial court must assure that the criteria exist for either comment or instruction on the uncalled witness. The witness must be found by the trial court to be:

(1) In possession of material knowledge on the issue which is not cumulative;

(2) Under the control of the party against whom the charge or right to comment is sought; and

(3) Available to that party.

DeVito v. Feliciano, 22 N.Y.3d 159 (2013). Once these criteria are established on the record to the satisfaction of the trial court, it becomes the burden of the party with the uncalled witness to provide the trier of fact with a reasonable excuse for not calling the witness. Treuhaft v. Bender, 193 App. Div. 666 (2d Dept. 1920).

Certainly the boundaries among the four criteria are not fixed and the issue will be thoroughly argued out of the presence of the jury prior to summations. However, isolating the reasonableness of the decision not to call the witness as an issue for the jury invites argument beyond the bounds of the evidence, and speculation on the part of the jury. PJI §1:75 does not permit the argument that the testimony of the uncalled witness would have been adverse to the party, or what that testimony would have been, only that it would not have been supportive of the party's position on the identified issue. Accordingly, the trial court needs to accept its important role limiting comment or instruction on the uncalled witness.

Practical Problems for the Defense Attorney

In the malpractice case involving a surgical complication, it is increasingly common that the surgeons, anesthesia personnel, and other members of the operating room team are legally related or even co-employees. When a lawsuit is brought it may be years after the fact before the actual claims which will be tried are defined by expert witness responses. Because of the laxity of pleading requirements and the ease of amending claims, it may be a decade after the procedure, and perhaps during the trial itself, when the importance of a witness is first recognized.

At the time of surgery, not all of the occupants of the operating room are present for the entire procedure and those who are present may be unaware that there has been a complication. Members of the team who are aware of the complication may not become aware of the legal proceedings until they have time to forget what they observed or confuse it with the recollection of other surgical cases. Even when the claims advanced by the plaintiff at trial suggest that trained professionals, present at the event in issue, would be possessed with material and non-cumulative knowledge, the experience of defense counsel and risk managers would suggest that this is the exception rather than the rule.

Almost invariably, the “missing witness” issue arises during the trial at a point where court and counsel are occupied with a considerable amount of work beyond what is done in the courtroom. At what point does the defense attorney have the opportunity to locate and interview the members of the operating team who have not been parties to the litigation? Trial by ambush has long been disfavored, and trial courts frown upon tactics whereby one litigant seeks to disadvantage an adversary by interjecting new issues at trial.

Aside from the logistical concerns, the criteria used to determine that there was a “failure” to call a “missing” witness do not comport with the complexity of highly technical cases which turn on details of professional judgment. Many witnesses to medical treatment do not have the opportunity to observe what is important, the full ability to appreciate what they have seen, or the capacity to retain that information separately from that received in many surrounding treatment situations.

It also seems overly simplistic to conclude that employers have “control” over others in complex medical procedures. Professionals are bound by the standards applied to their respective licenses, subspecialties and contracted roles in the treatment of patients. They do not answer to a single authority. Anyone who has ever employed other professionals recognizes that “control” in that context is largely illusory. Although it is commonly assumed that all of the operating room personnel are supervised by the chief surgeon involved, that is almost never the case. Determining the extent to which participants in a surgical procedure were under the “control” of a defendant could itself require a trial.

There are many reasons for defense counsel not to call a particular witness, and no two attorneys will make the same judgments. The notion that an uncalled witness would have testified in a particular manner can be dispelled by any experienced trial lawyer. Witnesses have their own qualities and those are not immutable. The fact that a witness can refuse to testify on the day of trial without explanation, give testimony which careful preparation did not anticipate, or present more forcefully or weakly than anticipated, are factors which dissuade many attorneys from taking cases to trial. By the same token, determining whether testimony will be cumulative may require the trial attorney to correctly anticipate the testimony of two or more witnesses.

The reason a witness does not testify may derive from uncertainty, nervousness, guilt, lack of sophistication, fear of the unknown, secrets they fear will be exposed, past behavior they choose not to discuss in public, dislike of other litigants and numerous other factors unrelated to their allegiance. These factors are often not fully appreciated by the witness or revealed to the attorney, who is then unable to demonstrate the true explanation for the non-appearance of the witness.

Conclusion

Until it is discarded as anachronistic, the “uncalled witness” charge, as well as counsel commentary, should be limited to circumstances in which the applicability is clear. Where used, the language should be stripped of the pejorative references to “missing” witnesses and “failure” to produce them. The trial court should assure that the litigants' issues are resolved on competent evidence in the absence of speculation as to what the evidence might have been.

John L.A. Lyddane is a partner and the chair of the medical malpractice defense group at Dorf & Nelson.