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Defense Fails to Produce Their Medical Doctor at Trial. We Ask for a Missing Witness Charge. What Does That Really Mean?

In every trial in New York involving car accident trial, medical malpractice trial or wrongful death trial, there are specific witnesses that we need to bring in in order to prove that we are more likely right than wrong.

What happens though if we fail to bring in a critical witness to testify?

What happens if the defense fails to bring in a necessary witness as part of their claim? 

Let me give you a perfect example...

Let's say this is a medical malpractice trial and during the course of the pretrial litigation, the defense had my client examined by a doctor of their choosing. In defense circles this is known as an “independent medical exam.” The reality is that there is nothing independent about this defense examination. It is done at the behest of the defense attorney. The doctor who examines the injured victim is being paid by the defense. In all likelihood, the doctor that who was chosen examines litigants often for this law firm or the insurance company.

Following the defense medical examination of my client, the doctor is required to submit a written report to the defense attorney who then shares it with us.

These reports typically detail the examination that was performed and then explain why our client's injuries are not as severe as we claim them to be.

At trial when the defense puts on their witnesses, what happens if they fail to bring in this defense doctor who examined my client?

Well, at the end of the trial I have an opportunity to ask the judge for a specific legal instruction that he gives to the jury before they go back and start deliberating known as a 'missing witness charge'.

What is a Missing Witness Charge?

This is legal instruction by the judge telling the jury that since the defense has failed to bring in a necessary witness, that the jury can now infer that this witness would have been harmful to the defense's position.

Let's look at it another way.

The reason why the defense hires a doctor to examine my client is to dispute the severity of her injuries.

If the doctor truly believes that my client's injuries are exaggerated or overblown, then you would expect the defense attorney to bring this doctor into court to explain in detail his physical examination and his reasons why he believes my client is not telling the truth or exaggerating.

Does the Defense Doctor Agree With You?

On the other hand, if the doctor conducts his medical examination and confirms that our client is significantly injured and suffers from permanent disability, then what does it mean if the defense attorney does not bring in this doctor to testify?

Assuming the defense does not have a good valid reason for this doctor not coming in and testifying, and if the judge tells the jury that they can infer that this witness would have been damaging to the defense's case, they can now come to the conclusion that this witness would have been harmful to the defense and likely would've confirmed our client's injuries.

Likewise, if we had a medical doctor who was treating our client that we did not bring in to testify, if we could not give the court a valid reason why this doctor was unable to appear in court, then the judge would likely give the jury in missing witness charge against us. That means, again, that the jury would be allowed to infer that this witness would have been harmful to our case and that is why we did not choose to have them come into court and testify.

When would a judge give this specific missing witness instruction to the jury?

Before the judge makes a decision about whether or not to give the specific legal instruction about a witness that was not produced at trial, the judge will want to know from the attorney who had control over this witness why the doctor is not in court testifying.

  • Was it because the doctor was deathly ill?
  • Was it because he had patients and could not move their appointments?
  • Was it because he was out of the country?

There could be many different reasons to explain why the doctor was unavailable.

Only if the judge determines that the attorney's reason and explanation was either not believable or not valid will the judge agree to give a missing witness charge to the jury during his legal instructions.

What is a charge conference?

You should also know that at the end of the trial, after both sides have rnotified the court that they have no other witnesses or evidence to produce, the attorneys will then meet with the judge in private in his chambers for a conference to discuss the legal instructions that the judge will give to the jury after the lawyers have made their closing remarks.

This is known legally as a “charge conference.”

During the trial, attorneys are required to submit to the court legal instructions that they believe the judge should give to the jury. Naturally, there will be differences of opinions and conflicting legal instructions submitted by both plaintiff's attorney and the defense attorney. The judge and the judge's law clerk will review these instructions prior to this charge conference.

During this conference the judge will then outline the instructions that he is going to give to the jury and then ask for legal argument from each attorney about why he should or should not give a contested legal instruction.

Based upon legal argument, the judge will then make a ruling and let the attorneys know whether he will or will not give the jury a specific requested legal instruction.

At the end of this charge conference the attorneys will have an opportunity to make all of their objections on the record.

That means that the judge will bring in the court reporter and will indicate on the record that the charge conference has just been held and the judge will be going ahead and giving the jury specific legal instructions. The attorneys will then have an opportunity to put on the record their reasons why they believe that the judge is incorrect about specific instructions he refused to provide to the jury.

Why is this done?

It is done to protect the attorneys so that if one of them loses and they now appeal the case, one of the key issues that is always reviewed is what legal instructions were given to the jury at the end of the case.

If an attorney fails to raise an objection during this conference and now appeals it after losing the trial, the appellate court will likely determine that the attorney waived his right to bring up this issue on appeal. That's why it's critical to voice an objection during this charge conference and to put that objection on the record.

In addition, another important reason for this charge conference is so that the judge can inform the attorneys what legal instructions he's going to give. This way  the attorneys, during their closing remarks, can comment on some of those instructions that the jury will hear very shortly.

What can the attorneys say about the judge's legal instructions to the jury?

You might think that the attorneys can go into detail about the instructions the judge is going to give to the jury. However, that is not permitted. Instead the attorneys can touch upon a critical instruction the judge will give to highlight it and remind the jury of what they need to focus on.

Here's a great example...

When I know that the judge is going to give a missing witness charge to the jury because the defense refused to bring in the doctor who examined my client, I will now discuss this during my closing remarks.

I might say something like this...

“Ladies and gentlemen, the defense was given a full and fair opportunity to have my client examined during the course of this lawsuit.

They did that.

By a doctor of their own choosing.

A qualified doctor.

A board-certified doctor.

Someone who they trusted.

Someone who they have used before many times.

This doctor did in fact examine my client.

The doctor generated a written report.

Yet where was the doctor?

Why didn't the defense bring in this doctor to testify?

You would think that if this doctor had damaging testimony to show that my client's injuries were not severe or disabling as she claims, you would fully expect the defense attorney to bring this doctor into court and testify against us, wouldn't you?

Yet where is this doctor?

Is he missing?

Did the defense send out a search party?

In a little while the judge is going to give you a legal instruction that talks about what you can infer because the defense has not brought in this doctor to testify. In your own minds you should be asking yourself why didn't they bring this doctor in? Certainly if they had damaging information against our case they would have brought this doctor in. You'd expect that, right?”

A little sarcasm goes a long way here...

You will likely note some sarcasm in some of those comments.

The whole point is to show to the jury that this doctor should have been brought in by the defense attorney. Yet for reasons that remain unexplained they failed to do so. So what conclusions can you reach based upon the fact that the doctor examined my client for the sole purposes of litigation to evaluate my client's injuries.

To learn more about this missing witness charge, I invite you watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer