Encarnacion v. St. Barnabas Hospital
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Attorneys and Parties
Brief Summary
Personal injury and premises liability, focused on whether the jury should have received a missing witness charge because the plaintiff did not call her treating orthopedic surgeon to testify about causation and surgery-related injuries.
The trial court denied defendant's posttrial motion for judgment notwithstanding the verdict or, alternatively, to set aside the verdict and order a new trial, or reduce the damages award and order a new trial on damages unless plaintiff stipulated to a reduction, and it ordered a collateral source hearing.
The Appellate Division reversed the order denying the motion insofar as it sought to set aside the verdict and direct a new trial, remitted for further proceedings, and dismissed the separate appeal from the denial of renewal as academic.
The appellate court held that a missing witness charge should have been given as to Dr. Jason Gallina, plaintiff's treating orthopedic surgeon, because plaintiff failed to show he was unavailable, outside her control, or cumulative, and his testimony was central to disputed issues of causation, the existence of a cervical herniation, and the need for future surgery.
Background
Plaintiff alleged that she fell when her foot became trapped in a hole on the sidewalk adjacent to defendant's property. She claimed the accident caused a cervical herniation with radiculopathy requiring cervical fusion surgery and also caused knee and lumbar spine injuries that would require future surgery. At trial, however, plaintiff did not call Dr. Jason Gallina, the orthopedic surgeon who performed the cervical fusion and allegedly recommended future lumbar surgery, nor any other physician who treated her after the fall and participated in her surgery. Instead, she relied on Dr. Ali Guy, a physiatrist who saw her only a few times more than six years after the accident and only after the cervical fusion had already been performed. Dr. Guy also read a letter from Dr. Gallina stating that plaintiff's injuries were causally related to the accident.
Lower Court Decision
After a jury verdict in plaintiff's favor, Supreme Court, Bronx County denied defendant's motion for judgment notwithstanding the verdict or to set aside the verdict and order a new trial. It also denied defendant's alternative request to reduce the damages award and order a new trial on damages unless plaintiff stipulated to a reduction, and it directed a collateral source hearing.
Appellate Division Reversal
The Appellate Division unanimously reversed the June 9, 2023 order on the law, without costs, granted defendant's motion to the extent of setting aside the verdict and directing a new trial, and remitted the matter for further proceedings consistent with its decision. The court held that the jury should have been instructed with a missing witness charge regarding Dr. Gallina. It found that plaintiff did not establish that Dr. Gallina was unavailable or outside her control, and his testimony was not cumulative because he was the treating orthopedic surgeon who actually performed the surgery and allegedly observed the herniated disc. The court also noted that plaintiff improperly obtained the benefit of Dr. Gallina's hearsay opinion through Dr. Guy without calling Dr. Gallina himself. The appeal from the January 3, 2025 order denying renewal was dismissed as academic.
Legal Significance
The decision reinforces the New York rule that a missing witness charge is generally warranted when a party fails to call a treating physician whose testimony would be expected to address material issues, unless that party shows the witness is unavailable, not under the party's control, or merely cumulative. The ruling is especially important where the absent physician personally performed the surgery at issue and has direct knowledge relevant to causation, diagnosis, and future treatment. It also underscores that a party may not avoid live testimony from a key treating doctor while still presenting that doctor's opinions indirectly through hearsay.
When a plaintiff's treating surgeon is central to disputed medical causation and damages issues, failing to call that surgeon can require a missing witness charge and may justify vacating a plaintiff's verdict and ordering a new trial.