Theresa Devito, Appellant,v.Dennis Feliciano et al., Respondents.BriefN.Y.October 15, 2013Bronx County Clerk’s Index No. 18057/06 Court of Appeals STATE OF NEW YORK THERESA DEVITO, Plaintiff-Appellant, against DENNIS FELICIANO and PARAGON CABLE MANHATTAN, Defendants-Respondents. >> >> To Be Argued By: Brian J. Isaac Time Requested: 30 Minutes BRIEF FOR PLAINTIFF-APPELLANT PHILIP J. RIZZUTO, P.C. Attorneys for Plaintiff-Appellant By: POLLACK, POLLACK, ISAAC & DE CICCO Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Date Completed: January 21, 2013 Of Counsel: Brian J. Isaac i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ 1 JURISDICTION AND TIMELINESS .................................. 2 STATEMENT OF THE CASE ........................................ 2 QUESTION PRESENTED ........................................... 7 DISCUSSION ................................................... 8 POINT I THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S REQUEST TO GIVE A MISSING WITNESS CHARGE BASED ON DEFENDANTS’ FAILURE TO CALL AT TRIAL THE TWO IME PHYSICIANS THEY RETAINED TO TESTIFY, SINCE LACK OF PROXIMATE CAUSE WAS THE DEFENDANTS’ ONLY SUBSTANTIVE DEFENSE, AND PLAINTIFF’S EXPERTS TESTIFIED THAT THE ACCIDENT WAS A CAUSE OF THE INJURIES; THE JURY SHOULD HAVE BEEN ADVISED THAT IT COULD DRAW AN INFERENCE AGAINST DEFENDANTS BASED ON THIS MISSION; THE TESTIMONY OF DEFENDANTS’ PHYSICIANS WOULD NOT HAVE BEEN CUMULATIVE BECAUSE IN THAT EVENT PLAINTIFF WOULD BE ENTITLED TO A DIRECTED VERDICT ON THE ISSUE OF CAUSATION .............. 8 CONCLUSION .................................................. 20 ii TABLE OF AUTHORITIES Federal Cases Graves v. US, 150 US 118 [1893]................................ 9 State Cases Amatulli v. Delhi Constr., 77 NY2d 525 [1991]................. 18 Argentina v. Emory Worldwide, 93 NY2d 554 [1999].............. 14 Arroyo v. NYC, 171 AD2d 541 [1st Dept. 1991] .................. 11 Baker v. Shepard, 265 AD2d 873 [3d Dept. 2000]................ 13 Barnett v. Cannizzano, 3 AD2d 745 [2d Dept. 1957]............. 17 Bartolone v. Jeckovich, 103 AD2d 632 [4th Dept. 1984] .......... 3 Benware v. Benware Creamery, 16 NY2d 966 [1965]................ 3 Brooks v. Judlaw, 39 AD3d 447 [2d Dept. 2007], revsd. in part, 11 NY3d 204 [2008] .......................... 14 Brueckner v. Simpson, 206 AD2d 448 [2d Dept. 1994]............ 11 Calderon v. Irani, 296 AD2d 778 [3d Dept. 2002]............... 13 Chandler v. Flynn, 111 AD2d 300 [2d Dept. 1985], app. dismd., 67 NY2d 647 [1986] ............................. 12 Coleman v. NYCTA, 37 NY2d 137 [1975].......................... 17 Crowder v. Welles & Welles, 11 AD3d 360 [1st Dept. 2004] ....... 9 Der Ohanessian v. Elliot, 233 NY 326 [1922]................... 13 Diaz v. Downtown Hospital, 99 NY2d 542 [2002]................. 18 DiSanza v. NYC, 11 NY3d 766 [2008]............................ 18 Div-Com v. Zeronda, 136 AD2d 844 [3d Dept. 1988].............. 11 Dowling v. Hastings, 211 NY 199 [1914]......................... 9 Edwards v. MABSTOA, 252 AD2d 410 [1st Dept. 1998] ......... 10, 15 Farrell v. La Barbera, 181 AD2d 715 [2d Dept. 1992]........... 10 iii Feneck v. First Union RE, 266 AD2d 916 [4th Dept. 1999] ....... 12 Ferguson v. Hubbell, 97 NY 507 [1884]......................... 17 Forte v. Albany, 279 NY 416 [1939]............................ 14 Garricks v. NYC, 1 NY3d 22 [2003].............................. 1 Getlin v. St. Vincents, 117 AD2d 707 [2d Dept. 1986]...... 12, 16 Ghize v. Kinney Drugs, 177 AD2d 784 [3d Dept. 1991] ..................................... 11, 14, 16 Green v. Downs, 27 NY2d 205 [1970]............................ 18 Grey v. United Leasing, 91 AD2d 922 [1st Dept. 1983], lv. den., 55 NY2d 608 [1982] ................................ 15 Hanlon v. Campisi, 49 AD3d 603 [2d Dept. 2008]................ 15 Hayden v. NY R. Co., 233 NY 34 [1922]......................... 11 Hull v. Littauer, 162 NY 569 [1900]........................... 13 Jerry v. Borden, 45 AD2d 344 [2d Dept. 1974].................. 15 Kalfus v. Margolies, 88 AD2d 528 [1st Dept. 1982] ............. 13 Kazales v. Minto Leasing, 61 AD2d 1039 [2d Dept. 1978]........ 16 Kelly v. Burroughs, 102 NY 93 [1886].......................... 13 Kronenberg v. Morris, 174 AD2d 610 [2d Dept. 1991]............. 9 Kuci v. MABSTOA, 88 NY2d 923 [1996]............................ 1 Laffin v. Ryan, 4 AD2d 21 [3d Dept. 1957]..................... 14 Lauro v. NYC, 67 AD3d 744 [2d Dept. 2009]..................... 15 Leahey v. Allen, 221 AD2d 88 [3d Dept. 1996].................. 16 Levande v. Dines, 153 AD2d 671 [2d Dept. 1989]................ 11 Lipp v. Saks, 129 AD2d 681 [2d Dept. 1987].................... 12 Lomar v. Meeker, 25 NY 361 [1862]............................. 13 Marinaro v. Radolinski, 23 AD3d 1079 [4th Dept. 2005] ......... 16 iv Marine Midland Bank v. Russo, 50 NY2d 31 [1980]................ 1 Mashley v. Kerr, 47 NY2d 892 [1979]........................... 11 Matott v. Ward, 48 NY2d 455 [1979]............................. 5 McCahill v. NY Transp., 201 NY 221 [1911]...................... 3 Miller v. National Cabinet, 8 NY2d 277 [1960]................. 17 Nassau Co. v. Denise J., 87 NY2d 73 [1995]..................... 9 Noce v. Kaufman, 2 NY2d 347 [1957]............................. 9 People v. Gonzalez, 68 NY2d 424 [1986]............. 9, 10, 12, 14 People v. Hovey, 92 NY 554 [1883].............................. 9 People v. Kitcheng, 78 NY2d 532 [1991].................... 10, 12 People v. Macana, 84 NY2d 173 [1991]....................... 9, 12 People v. Savinon, 100 NY2d 192 [2003]..................... 9, 14 People v. Valerius, 31 NY2d 51 [1972].......................... 9 Perl v. Meher, 18 NY3d 208 [2011]............................. 10 Petru v. Hertz Corp., 33 AD2d 755 [1st Dept. 1969] ........ 18, 19 Pommells v. Perez, 4 NY3d 566 [2005].......................... 10 Prescott v. LeBlanc, 247 AD2d 802 [3d Dept. 1998]............. 12 Redmond v. Chin, 297 AD2d 368 [2d Dept. 2002]................. 11 Rice v. NYNACS, 34 AD2d 388 [4th Dept. 1970] .................. 14 Romano v. Stanley, 90 NY2d 444 [1991]......................... 18 Sanchez v. NYC, 97 AD3d 501 [1st Dept. 2012] .................. 13 Siegfried v. Siegfried, 123 AD2d 621 [2d Dept. 1986].......... 15 St. Andrassy v. Mooney, 262 NY 368 [1933]..................... 13 Tobin v. Steisel, 64 NY2d 254 [1985]........................... 3 Toure v. Avis, 98 NY2d 345 [2002]............................. 10 v Trainor v. Oasis Rollerworld, 151 AD2d 323 [1st Dept. 1989]............................................. 11 Vollmer v. Automobile Fire Ins., 207 AD 67 [3d Dept. 1923] ............................................. 11 Williams v. NYC, 71 AD3d 1135 [2d Dept. 2010]................. 13 Wilson v. Bodian, 130 AD2d 221 [2d Dept. 1987]................ 12 Woodson v. NYCHA, 10 NY2d 30 [1961]........................... 13 Zeeck v. Melina Taxi, 177 AD2d 692 [2d Dept. 1991]............ 11 State Statutes CPLR §3122-a................................................... 4 Insurance Law §5102....................................... 10, 12 Insurance Law §5104....................................... 10, 12 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------X THERESA DEVITO, Plaintiff-Appellant, NY County Index No. 18057/06 -against- APPELLANT’S BRIEF DENNIS FELICIANO and PARAGON CABLE MANHATTAN, Defendants-Respondents. ---------------------------------------X PRELIMINARY STATEMENT This brief is submitted by plaintiff-appellant Theresa DeVito (the “plaintiff”) in support of the appeal she took by leave of this Court (728) 1 from the order of the Appellate Division, First Department dated May 26, 2011 (730-31) which affirmed the judgment in favor of the defendants-respondents Dennis Feliciano and Paragon Cable Manhattan (“Paragon”) (“defendant[s]”) rendered after a jury verdict (49-79). This Court granted leave to appeal to consider the issue of whether the trial court’s failure to give a missing witness charge constituted harmful error,2 depriving the jury of key information 1 Numerical references in parenthesis are to the pages of the record on appeal. 2 Error is harmful where it “could have affected the outcome of the trial” (Garricks v. NYC, 1 NY3d 22, 27 [2003]; Kuci v. MABSTOA, 88 NY2d 923 [1996]). The exclusion of evidence, which might have affected the verdict, is not subject to harmless error analysis (Marine Midland Bank v. Russo, 50 NY2d 31, 43 [1980]). 2 the issue of medical causation, such that the order must be reversed. JURISDICTION AND TIMELINESS Plaintiff timely appealed from the underlying judgment (9- 39); plaintiff then timely moved for leave to appeal in the Appellate Division (729); the application was denied, but the order was not served with notice of entry. Plaintiff timely moved for leave to appeal in this Court, which granted the application (728). The Appellate Division’s order finally resolves the action by affirming a judgment entered after a jury verdict in favor of defendant. The brief and record have been timely filed with this Court. Accordingly, all jurisdictional prerequisites have been met, and this Court should consider this appeal on the merits in accordance with its order of October 18, 2012. STATEMENT OF THE CASE This action arises out of a motor vehicle accident that occurred on February 13, 2006 while plaintiff was in the front passenger seat of her daughter’s vehicle. While the vehicle was stopped, the vehicle driven by Mr. Feliciano struck its rear, with an impact that caused plaintiff to rock back and forth in her seat and strike her nose on the sun visor, injuring her back, nose and wrist (70-76). Plaintiff was taken to Columbia Presbyterian Hospital complaining of pain to her back wrist, 3 nose and head. She treated with her family physician, Dr. Klyde, who referred her to Dr. Kracker, an ENT specialist, for her nose, head and back pain (78-83). Dr. Kracker informed her that she suffered a fractured nose and sent her for X-rays (85); a CAT scan was positive for fracture (341). Plaintiff returned home but had problems breathing and walking and was in pain. She went to the Emergency Room at Portsmouth Hospital and was examined by Dr. Naiditch, a radiologist (86). Diagnostic films revealed a compression fracture of the T12 vertebra (172, 347-48). Plaintiff also underwent physical therapy with Dr. Bianconi (87). Dr. Naidich and Sylvester Lango MD, an orthopedic surgeon, testified at trial. Dr. Lango saw plaintiff on June 11 and June 27, 2008 (159), and opined with a reasonable degree of medical certainty that plaintiff sustained a T12 fracture as a result of the motor vehicle accident (178). Her spine showed degeneration due to age (she was 78 at the time of the accident), but this fracture was consistent with the injury; the injury was trauma induced, and her spine would suffer more damage because it was brittle at her age (177-81). 3 Dr. Lango recommended that plaintiff speak to her primary care physician about undergoing 3 Of course, defendant must take the plaintiff as he finds her, so that where an accident precipitates the development of a latent condition or aggravates a pre-existing condition, it is deemed a cause of that injury (Tobin v. Steisel, 64 NY2d 254, 259 [1985]; Benware v. Benware Creamery, 16 NY2d 966 [1965]; McCahill v. NY Transp., 201 NY 221 [1911]; Bartolone v. Jeckovich, 103 AD2d 632 [4th Dept. 1984]). 4 surgery, but she was not fit to undergo it, so conservative treatment was used (201-02). This, of course, established the permanency of her thoracic spine injury (187-88). Dr. Lango noted that compression fractures are extremely painful, and the pain worsens even after the fracture heals (181-84); plaintiff would require a home health aide at a cost of $50,000 per year, would have to see a doctor 1-2 times a month at $100 per visit, and would require prescription medications costing $500-1000 per year (181-85). Dr. Naidich reviewed radiological films of the nose and back which revealed a fractured nose and a T12 compression fracture superimposed upon arthritic changes (341-48). The fractures were traumatically induced (349-52); the arthritic changes were not a substantial factor in causing them, though they would have softened plaintiff’s bones and made her more vulnerable to injury. The accident was a proximate cause of the fractures (352-53). We note that subsequent to opening statements, defense counsel moved to preclude plaintiff from introducing into evidence medical records from six treating physicians claiming he had never received authorizations or copies of the records, and that he received a CPLR §3122-a notice of intention shortly before trial (51-53). The trial court ruled that the diagnostic films taken by Dr. Wolls, a radiologist, were independently 5 admissible because they were part of the hospital record, but the remaining reports were inadmissible (54-55). The court also excluded medical records from Dr. Klyde, Kracker, Varghese, Becker, Sanders and Logan due to the improper certification with no jurat or sworn statement, and the lack of authentication via proper affidavits (55-57, 151-55, 578).4 Defendants designated two physicians to conduct IMEs; at trial they declined to call either physician to testify during the damage phase of the trial. Plaintiff then requested a missing witness charge (570), but the trial court denied the application, finding that the testimony would have been cumulative to that of plaintiff’s treating expert (570-71). This, we submit, was illogical, since the defense contended that the fractures were not caused by the accident, and the testimony would not be cumulative unless defendants conceded proximate causation, in which a verdict for the plaintiff would 4 Defendant read portions of the deposition testimony of Dr. Ashautosh Kracker MD into the record; plaintiff’s counsel then read other portions of the deposition (521-70). Defendant wished to point out that Dr. Kracker, examining plaintiff about a month after her accident, could not state of a certainty that the nasal fracture was caused by same, and that there was no evidence of trauma in the hospital records. However, the physician did ultimately state that plaintiff clearly had a non-displaced nasal fracture which would not ordinarily occur spontaneously, and that the history made it more probable that it was caused by the accident; moreover, plaintiff’s complaint of back pain also led to that conclusion. He also pointed to improper omissions in the medical records. His initial inability to draw a definite conclusion on causation lost its effect in light of the testimony as a whole, which we believe supported causation. See, Matott v. Ward, 48 NY2d 455 [1979]. 6 be mandatory. 5 Plaintiff excepted to the ruling, arguing that the charge must be given since defendant had indicated that he would call his IME physicians, and a negative inference should be permitted based on the charge. The trial court, however, maintained that a defendant could decide not to call an IME physician without any consequences if he believed plaintiff’s expert testimony was favorable to the defense or impeached (572). On this record, that conclusion would hardly be appropriate. The jury returned a verdict in defendant’s favor, finding that the accident was not a substantial factor in causing plaintiff’s nasal fracture or the T12 compression fracture (715). Plaintiff appealed, and the Appellate Division affirmed in a short opinion, finding without extended explanation that the verdict was based upon a fair interpretation of the evidence, that credibility issues were presented with respect to the testimony, that the trial court did not err in excluding medical records for technical reasons or in declining to give a missing witness charge (730-31). This Court has granted plaintiff leave to appeal. 5 Plaintiff’s counsel made this clear in the record (870-78). 7 QUESTION PRESENTED 1. Where plaintiff secures a liability verdict, and the only substantive issue at inquest is whether the defendant’s negligence caused the plaintiff’s injuries, and plaintiff’s experts testify as to causation, and defendant fails to call its retained medical witnesses, does a trial court err in declining to give a missing witness charge? This question, we submit, must be answered in the affirmative. 8 DISCUSSION POINT I THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S REQUEST TO GIVE A MISSING WITNESS CHARGE BASED ON DEFENDANTS’ FAILURE TO CALL AT TRIAL THE TWO IME PHYSICIANS THEY RETAINED TO TESTIFY, SINCE LACK OF PROXIMATE CAUSE WAS THE DEFENDANTS’ ONLY SUBSTANTIVE DEFENSE, AND PLAINTIFF’S EXPERTS TESTIFIED THAT THE ACCIDENT WAS A CAUSE OF THE INJURIES; THE JURY SHOULD HAVE BEEN ADVISED THAT IT COULD DRAW AN INFERENCE AGAINST DEFENDANTS BASED ON THIS MISSION; THE TESTIMONY OF DEFENDANTS’ PHYSICIANS WOULD NOT HAVE BEEN CUMULATIVE BECAUSE IN THAT EVENT PLAINTIFF WOULD BE ENTITLED TO A DIRECTED VERDICT ON THE ISSUE OF CAUSATION PJI 1:75, entitled “General Instruction – Evidence – Failure to Produce Witness – In General”, provides in part: A party is not required to call any particular person as a witness. However, the failure to call a certain person as a witness may be the basis for an inference against the party not calling the witness...If you find that this explanation is reasonable, then you should not consider the failure to call AB in evaluating the evidence. If, however, you find [the explanation is not a reasonable one, no explanation has been offered] you may, although you are not required to, conclude that the testimony of AB would not support [the plaintiff’s/ defendant’s] position on the question...and would not contradict the evidence offered by [the plaintiff/ defendant] on this question, and you may, although you are not required to, draw the strongest inference against the [plaintiff/defendant] on that question, that opposing evidence permits. The missing witness charge, then, allows a jury to draw an unfavorable inference from a party’s failure to call a witness who would normally be expected to support that party’s version of the events. The charge rests on “the common sense notion that the non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant 9 permits the inference that its tenor is unfavorable to his cause” (People v. Savinon, 100 NY2d 192 [2003]; People v. Gonzalez, 68 NY2d 424 [1986]; see also, People v. Valerius, 31 NY2d 51 [1972]). The preconditions for the charge are: that the witness’s knowledge be material to the trial; that the witness be expected to give non-cumulative testimony favorable to the party against whom the charge is sought; and that the witness be available to the party (People v. Macana, 84 NY2d 173, 179-80 [1991]). The issue has been extensively commented on in criminal cases (Graves v. US, 150 US 118, 121 [1893]; People v. Hovey, 92 NY 554, 559 [1883]). This Court, too, has held that a trier of fact may draw the strongest inference that the opposing evidence permits against a party in a civil case (Nassau Co. v. Denise J., 87 NY2d 73 [1995]; see also, Crowder v. Welles & Welles, 11 AD3d 360 [1st Dept. 2004]), though it has been held error to charge the jury that it is required to do so (Kronenberg v. Morris, 174 AD2d 610 [2d Dept. 1991]). In this regard, we note the longstanding rule that “Where one party knowing the truth of a matter in controversy and having the evidence in his possession omits to speak, every inference against him warranted by the evidence may be considered” (Noce v. Kaufman, 2 NY2d 347, 353 [1957]; Dowling v. Hastings, 211 NY 199, 202 [1914]; see generally, Crowder v. 10 Wells & Wells, 11 AD3d 360-1 [1st Dept. 2004]; Edwards v. MABSTOA, 252 AD2d 410, 413 [1st Dept. 1998]; Farrell v. La Barbera, 181 AD2d 715-6 [2d Dept. 1992]). The party seeking the charge has the burden to notify the court as soon as practicable and to establish that there is an uncalled witness believed to have knowledge on a material issue who can be expected to testify favorably to the opposing party, but the party has not called the witness (People v. Kitcheng, 78 NY2d 532 [1991]). Early notification will allow the court to properly exercise its discretion, and enables the party to adjust its trial strategy to avoid the charge (People v. Gonzalez, supra).6 In this case, we believe it is clear that the preconditions for issuing the charge were met. The jury decided only damages, and the defendants’ only substantive defense was that the fractures, which established serious injury under Insurance Law §§5102 and 5104 (Perl v. Meher, 18 NY3d 208 [2011]; Pommells v. Perez, 4 NY3d 566 [2005]; Toure v. Avis, 98 NY2d 345 [2002]) were not caused by the accident; plaintiff’s experts testified unequivocally to the contrary, while defendants declined to call their experts. Thus the testimony was material. 6 Here, the trial court noted that the issue of the missing witness had arisen “before lunch” (574), and after refusing to give the missing witness charge, it asked defense counsel whether he had “further witnesses”, to which counsel stated, “Based on the Court’s ruling, I do not” (575). Thus the issue was thoroughly discussed, and defense counsel has no valid claim of surprise due to late notification. 11 A party, of course, cannot reasonably be expected to call a witness who is hostile or has an adverse interest (Vollmer v. Automobile Fire Ins., 207 AD 67 [3d Dept. 1923]), or who is not under the party’s control (Div-Com v. Zeronda, 136 AD2d 844 [3d Dept. 1988]), or who is a stranger to the events or transactions involved in the lawsuit (Hayden v. NY R. Co., 233 NY 34 [1922]). A former employee who cannot be located is not considered to be under an entity’s control (Zeeck v. Melina Taxi, 177 AD2d 692 [2d Dept. 1991]; but see, Trainor v. Oasis Rollerworld, 151 AD2d 323 [1st Dept. 1989]). Here, however, defendants plainly intended to call these examining physicians, who examined plaintiff on their behalf, so they are subject to the charge. See, Mashley v. Kerr, 47 NY2d 892 [1979]; Ghize v. Kinney Drugs, 177 AD2d 784 [3d Dept. 1991]. “When a doctor who examines the plaintiff on defendant’s behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant unless he...demonstrates that the testimony would be merely cumulative, the witness was unavailable or not under his control, or that the witness would address matters not in dispute” (Redmond v. Chin, 297 AD2d 368 [2d Dept. 2002], citing Brueckner v. Simpson, 206 AD2d 448 [2d Dept. 1994]; Arroyo v. NYC, 171 AD2d 541, 544 [1st Dept. 1991]; Levande v. Dines, 153 AD2d 671-2 [2d Dept. 1989]). 12 Here, too, the witnesses were definitionally under defendants’ control, and would be expected to give non- cumulative testimony (Wilson v. Bodian, 130 AD2d 221 [2d Dept. 1987]; Chandler v. Flynn, 111 AD2d 300 [2d Dept. 1985], app. dismd., 67 NY2d 647 [1986]; Getlin v. St. Vincents, 117 AD2d 707 [2d Dept. 1986]). This case is unlike Feneck v. First Union RE, 266 AD2d 916 [4th Dept. 1999] or Lipp v. Saks, 129 AD2d 681 [2d Dept. 1987]). To say otherwise would be to admit that defendants would testify that there was a causal connection between the accident and the fractures sufficient to impose liability as a matter of law under Insurance Law §5102 and 5104. Plaintiff met the initial burden, and defendants failed to “account for the witness’s absence or otherwise demonstrate that the charge would not be appropriate”, e.g., the witness lacked knowledge about the issue, the issue is not material or relevant, the testimony would be cumulative, the witness is not available, or that the witness is not under the party’s control (People v. Gonzalez, supra at 428; People v. Kitching, supra at 537; People v. Macona, supra at 177). A jury, of course, is not required to accept even undisputed testimony (Noce v. Kaufman, supra), but it must have a basis to disregard expert testimony or opinion evidence (Prescott v. LeBlanc, 247 AD2d 802 [3d Dept. 1998]). Reasons may include that the opinion does not accord with the facts on 13 which it is based, or that other testimony creates doubt as to its truthfulness. The rejection must be based on conflicting facts (Calderon v. Irani, 296 AD2d 778 [3d Dept. 2002]). Stated otherwise, a jury’s determination not to accept expert testimony or opinion evidence must be supported by other testimony or by cross-examination of the expert (Baker v. Shepard, 265 AD2d 873 [3d Dept. 2000]; Kalfus v. Margolies, 88 AD2d 528 [1st Dept. 1982]). This rule has been upheld by the Second Department (Williams v. NYC, 71 AD3d 1135 [2d Dept. 2010]), the First Department (Sanchez v. NYC, 97 AD3d 501 [1st Dept. 2012]), and above all by this Court (St. Andrassy v. Mooney, 262 NY 368 [1933]; Der Ohanessian v. Elliot, 233 NY 326, 329 [1922]; Hull v. Littauer, 162 NY 569, 572 [1900]). As this Court declared long ago in Woodson v. NYCHA, 10 NY2d 30-3 [1961], a court can withdraw issues from the jury where defendant rests on plaintiff’s case, and the testimony on plaintiff’s behalf “does not give rise to conflicting inferences, is not contradicted by direct evidence, is not opposed to the probabilities, nor in its nature surprising or suspicious.” In such circumstances it can be the “duty” of the “court” or the jury to direct a verdict for the party who submitted the unopposed evidence (Lomar v. Meeker, 25 NY 361 [1862]). That some witnesses had an interest in the outcome does not change the rule (Kelly v. Burroughs, 102 NY 93 [1886]). 14 Of course, there may be more than one proximate cause of an injury (Argentina v. Emory Worldwide, 93 NY2d 554 [1999]; Forte v. Albany, 279 NY 416, 422 [1939]; PJI 2:71). Thus, it is enough for plaintiff to establish that the accident was a (as opposed to the) proximate cause of the fractures. Control over a witness, for purposes of the adverse inference charge, is based on the relationship between him or her and the party to be charged. See, Gonzalez, supra at 429. Where that relationship makes it “natural to expect the party to have called the witness to testify in his favor”, control has been established (People v. Savinon, supra at 200-1; Prince, Richardson, Evidence, §3-140, p. 90 [11th ed. 1995]). A defendant’s failure to call a doctor who examined the plaintiff on his behalf ordinarily warrants invocation of the charge (Brooks v. Judlaw, 39 AD3d 447 [2d Dept. 2007], revsd. in part, 11 NY3d 204 [2008]; Rice v. NYNACS, 34 AD2d 388 [4th Dept. 1970]; Laffin v. Ryan, 4 AD2d 21 [3d Dept. 1957]). “In our view, Supreme Court committed reversible error in refusing to give a missing witness charge with regard to defendant’s examining physician. Defendant ‘did not attempt to show that the doctor was not under [its] control, and his testimony would not have been cumulative because [defendant] did not present any medical evidence to support [its] contention that...plaintiff’s injuries were minimal” (Ghize v. Kinney 15 Drugs, 177 AD2d 784-5 [3d Dept. 1991], citing Siegfried v. Siegfried, 123 AD2d 621 [2d Dept. 1986]; see generally, Grey v. United Leasing, 91 AD2d 922-3 [1st Dept. 1983], lv. den., 55 NY2d 608 [1982]; Jerry v. Borden, 45 AD2d 344 [2d Dept. 1974]). It is well settled that “When a doctor who examines an injured plaintiff on the defendant’s behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant. The defendant may defeat this inference by demonstrating that the testimony would be merely cumulative, the witness was unavailable or not under the defendant’s control, or the witness would address matters not in dispute” (Lauro v. NYC, 67 AD3d 744 [2d Dept. 2009]; Hanlon v. Campisi, 49 AD3d 603-4 [2d Dept. 2008]). As we have shown, defendant did not make any such showing in this case. And there is no error with regard to timeliness. Plaintiff made the application when it became clear that defendant would not call the two experts it had disclosed and only after the issue had been extensively discussed with the court and opposing counsel (174). Under Gonzalez, that was sufficient to establish a basis for the charge. Additionally, we note that attempts to avoid liability by failing to call one’s own witnesses, where it is clear that one or more defendants were liable have been specifically condemned by the appellate courts. See, Edwards v. MABSTOA, supra at 412 16 (Failure of both motorists to appear and explain the collision “cannot inure to plaintiff’s detriment, as the defense seems to suggest by arguing that plaintiff failed to establish the cause of the accident”); Kazales v. Minto Leasing, 61 AD2d 1039 [2d Dept. 1978]. For all these reasons, the Appellate Division’s decision, stating in conclusory fashion that plaintiff did not satisfy the elements for a missing witness charge, should be reversed. True, some courts have held that the charge is inappropriate based on failure to call a retained medical expert where the testimony is cumulative (Getlin v. St. Vincents, supra). In Leahey v. Allen, 221 AD2d 88 [3d Dept. 1996], however, the Appellate Division rejected the notion that defendant could simply claim the expert’s testimony would be cumulative of plaintiff’s proof, because the expert would not be testifying in favor of the same party, and overruled DeFreece v. Grau as being contrary to Ghize v. Kinney Drugs and the very logic of the missing witness charge itself. The court observed, “If the testimony of a defense physician who examined plaintiff and confirmed the plaintiff’s assertion of serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge.” See generally, Marinaro v. Radolinski, 23 AD3d 1079 [4th Dept. 2005]. 17 The Leahey court, we believe, got it precisely right. In a search for the truth, the jury should hear that a medical expert retained by defendant is an “interested witness” whom defendant elected not to call. See, Coleman v. NYCTA, 37 NY2d 137 [1975]; if he does not testify on the issue on which plaintiff was told he would testify, defendant should not be allowed to hide behind the refusal to present the testimony, thus giving a false picture of the facts. Most jurors have little expertise in medicine or other subjects on which expert witnesses testify; the competing claims of experts involving technical details can be confusing and difficult to reconcile. This is why the jury ordinarily uses its common sense to make credibility determinations at trial. See, Barnett v. Cannizzano, 3 AD2d 745 [2d Dept. 1957]. The Leahey court recognized that testimony withheld gives rise to an inference that the witness’s testimony on a contested issue would be favorable to the adversary. Expert witnesses, of course, are known to be in favor of the cause in which they are enlisted, so that not all their statements have the force of truth (Miller v. National Cabinet, 8 NY2d 277, 283-4 [1960]). Back in 1884, in Ferguson v. Hubbell, 97 NY 507, 514 [1884], this Court noted that their opinions “cannot fail generally to be warped by a desire to promote the cause in which they are enlisted” because experts “may give false opinions without the 18 fear of punishment”, unlike lay witnesses. See more recently, DiSanza v. NYC, 11 NY3d 766 [2008]; Diaz v. Downtown Hospital, 99 NY2d 542 [2002]; Romano v. Stanley, 90 NY2d 444 [1991]; Amatulli v. Delhi Constr., 77 NY2d 525, 533-4, fn. 2 [1991]. Here, defendant did not call some experts and withhold others – it rested on plaintiff’s proof on the sole contested issue in the case. This is something the jury should have been instructed about so as to level the playing field. See, Green v. Downs, 27 NY2d 205 [1970]; Petru v. Hertz Corp., 33 AD2d 755 [1st Dept. 1969]. The experts were withheld on a contested issue, not one that was conceded, and defendant conducted an aggressive cross-examination of plaintiff’s witnesses. Allowing defendant to escape an adverse witness charge by hiding the fact that its experts would testify in favor of the plaintiff is unfair, unjust, unwise, and, most importantly, not congruent with the governing case law. The trial court’s holding that defendant did not have to call its experts because defense counsel cross-examined plaintiff’s experts effectively (570-76) is illogical. The testimony of defendant’s experts in that situation would clearly not be cumulative and would support plaintiff’s position. The purpose of the charge is to inform the lay jury of a material fact that will aid them in making a credibility determination. It is irrational, in our view, to hold that a defendant may 19 retain two medical experts, then, after liability is established, fail to call them to rebut the testimony of plaintiff’s experts that the injuries were caused by the accident, and then escape a missing witness charge. If the charge is not warranted here, it would never be reversible error not to give it. And, as plaintiff’s counsel made clear (id.), if the testimony would have been cumulative, plaintiff would be entitled to a directed verdict on the issue of medical causation. Since the jury found that the fractures were not caused by the subject accident, the error was not harmless. 20 CONCLUSION Based upon the foregoing, it is respectfully submitted that the order of the Appellate Division should be reversed, or a verdict should be directed in plaintiff’s favor on the issue of proximate causation, and the matter should be remitted to the Supreme Court, New York County for an assessment of damages. Respectfully submitted, POLLACK POLLACK ISAAC & DECICCO Appellate Counsel for Plaintiff-appellant By: Brian J. Isaac, Esq. 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Brian J. Isaac, Esq. Of Counsel