A recent First Department decision is a useful reminder for defense counsel and carriers about the leverage a missing witness charge can carry at trial. 

In Encarnacion v St. Barnabas Hospital, decided June 9, 2026, the plaintiff alleged that she tripped in a sidewalk hole next to the hospital and sustained a cervical herniation requiring fusion surgery, along with knee and lumbar injuries said to need future surgery. A Bronx County jury returned a verdict in her favor. The hospital moved to set the verdict aside, the trial court denied the motion, and the First Department unanimously reversed and ordered a new trial. The dispositive issue was proof of causation, and who the plaintiff chose to put on the stand. The orthopedic surgeon who performed the cervical fusion and allegedly recommended the future lumbar surgery, Dr. Gallina, never testified. Instead, the plaintiff relied on a physiatrist who saw her only a few times, more than six years after the accident, and only after the fusion had already been performed. The plaintiff offered no showing that the surgeon was unavailable or outside her control. 

The Court held that the trial court should have given a missing witness charge. The rule is well settled: the charge is warranted when a party fails to call a treating physician, unless that party shows the witness is unavailable, not under its control, or that the testimony would be cumulative. The plaintiff made none of those showings, and the surgeon's testimony plainly was not cumulative of the physiatrist's. A central dispute was whether the plaintiff had a traumatic herniation or a degenerative condition, and the plaintiff argued, through the physiatrist, that the surgeon saw the herniation during surgery. If he had seen it, he could have said so. The Court also flagged a related problem. Over objection, the physiatrist was allowed to read a letter from the surgeon opining that the injuries were causally related to the fall. That placed the surgeon's causation opinion before the jury as hearsay, without ever exposing him to cross-examination. 

Practical takeaways: 

• When a plaintiff withholds the treating surgeon whose findings drive causation, make a timely and specific request for a missing witness charge, and build a clean record on availability and control.
• Object early when a substitute witness tries to read a non-testifying treating physician's report or letter into evidence. That is an attempt at a back door to causation testimony.
• For claims professionals, recognize the exposure created when a plaintiff tries to prove a traumatic injury without the surgeon who actually operated. That gap is real trial and appellate risk, and it should inform valuation and negotiating posture. The decision does not break new ground; it merely reinforces long-standing law. But it is a timely illustration of how a defense record on the missing witness rule can undo a plaintiff's verdict.