Car Accident Victim Granted New Trial Where No Doctors Testified For The Defense

A victim injured in a motor vehicle accident due to the negligence of others should be compensated and allowed to focus on recovery. Unfortunately, insurance companies or defense attorneys may resist a fair settlement and insist on taking the case to court, where physicians from either side will argue about the victim's legitimate injuries.

However, what if a defendant chooses not to call a single medical witness on their behalf, even after having their own physicians examine the victim? The New York Court of Appeals case of Devito v. Felicianodiscussed this situation.

A rear-end collision injures an elderly woman

The victim, a woman in her late 70s, was injured when the car in which she was a passenger was rear-ended by the defendant's car. The victim was taken to the hospital in an ambulance and suffered back, head and nasal pain in the weeks following the accident.

She was later examined by both her primary care physician and an ear, nose and throat specialist who, after a CT scan, determined that the victim suffered from a non-displaced fracture of her nose.

The victim brought a negligence suit against the defendant, and was examined by several other doctors. During the trial, both the victim and her daughter testified to the victim's medical condition. In addition, several of the doctors testified. The defense used portions of the victim's own doctor testimony against her, arguing that, for example, that the ear, nose and throat specialist had discovered no issues with the victim's nose until after the CT scan.

At the close of the case, the defense declined to call any of its own medical witnesses to the stand. The victim's attorney therefore requested that the court provide an instruction to the jury pointing out the defense's "missing witnesses," since the defense's failure to call their own witnesses seemed to imply that their testimony might have helped the victim's case.

The court refused to give this jury instruction, and the jury found in favor of the defendant. The victim appealed, seeking a new trial, based on the fact that the jury did not receive an instruction about the defense's missing witnesses.

No physicians testified for the defendants?

The New York Court of Appeals explained that an "uncalled witness" or missing-witness jury instruction tells the jury that it may draw an adverse inference based on the defense's failure to call witnesses who would normally be expected to support the defense's case. The defense argued that the failure to give this instruction was harmless, since the testimony of the defense's witnesses would have simply added to-or been "cumulative" of-the testimony of the victim's witnesses.

The Court of Appeals rejected this argument, since a witness's testimony is only cumulative when the additional witnesses are testifying in favor of the same party. Here, the missing witnesses were defense witnesses, and so could not be cumulative of the victim's witnesses.

Therefore, the lower court had erred in denying the victim's request for the missing-witness instruction to the jury and the decision against the victim for her personal injuries was reversed. The victim would be granted a new trial to prove she deserved compensation for the accident.

Protecting your interests in court

If you or a loved one are injured in a motor vehicle accident, you should seek out an experienced personal injury attorney who will work diligently to protect your rights throughout any necessary court proceedings and ensure you receive the compensation you deserve.