New York has long adhered to the “missing witness” rule which comes into play when a party fails to call an available witness in support of his case and such witness would be expected to provide relevant non-cumulative evidence.1 Such failure permits pursuant to the rule the jury upon a proper charge or the trial court in a bench trial to infer that the testimony of the witness if produced would be unfavorable to that party, provided the jury or trial court finds the proffered explanation for the failure is not a reasonable one.2
For over two centuries this common law rule has been applied by the courts almost reflexively. Originally invoked where the witness was a party or non-party lay witness,3 the rule is now routinely invoked where the absent witness is a treating physician, i.e., a physician providing treatment to an injured person, or examining physician, i.e., a physician performing what is generally referred to as an IME (Independent Medical Examination) on an injured person.4 Rarely did invocation of the rule to such physicians involve a probing analysis as to whether it is appropriate to invoke the rule or how the elements for the invocation of the rule are to be applied and considered when a physician is involved. Until now.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
