Appeal from the Superior Court of the District of Columbia (CA 9373-97) (Hon. Leonard Braman, Trial Judge)
Before Ruiz and Glickman, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
The trial court in this medical malpractice case instructed the jury that it could draw an adverse inference from a party's unexplained failure to call a witness if the witness was peculiarly available to that party and could have provided relevant testimony. This court has warned of the dangers of such "missing witness" instructions and discouraged trial courts from giving them too freely. We have cautioned that a missing witness instruction may be given only when certain stringent conditions are met. We recognize, however, that in some cases the instruction serves a legitimate purpose and is justified. This is such a case. On the unusual facts before us, we hold that the trial court did not err in giving a missing witness instruction, and we affirm the judgment on appeal.
On February 1, 1996, fourteen-year-old John Chinkhota slipped on an icy sidewalk. He fell with his legs spread-eagle and began to experience pain in his groin area. The pain subsided that night, enabling Chinkhota to sleep, but it returned the following day. That afternoon, Marieta Harper, Chinkhota's mother, took him to his pediatrician, Dr. Marilyn McPherson-Corder (Dr. Corder). Dr. Corder examined Chinkhota, found no sign of any serious problem, and concluded that Chinkhota had only sustained a minor "muscular strain."
Around 10:00 a.m. the following morning, a Saturday, Chinkhota awoke in pain, which he described as being in his genital area. The pain increased as the morning wore on and became more intense than Chinkhota previously had experienced. Ms. Harper telephoned Dr. Corder's office. The office was closed. An on-call physician (not Dr. Corder) returned the call around 11:45 a.m. and advised Ms. Harper to take Chinkhota to the Children's Hospital emergency room to be seen. Not appreciating that there was any urgency in the situation, Ms. Harper drove her other son to the mall before she took Chinkhota to the hospital emergency room. They arrived at the emergency room in the early afternoon, between 1:30 and 2:00 p.m. By this time Chinkhota's pain had worsened and he needed a cane to walk. Hospital doctors discovered that his right testicle had become abnormally twisted, or "torsed," an extremely painful condition in which the blood supply to the testicle via the spermatic cord is cut off and prompt treatment is required to prevent gangrene and loss of the testicle. In Chinkhota's case too much time had passed to save the testicle, and it had to be removed surgically that evening.
Ms. Harper commenced the present "next friend" action on Chinkhota's behalf in December 1997. (Chinkhota was substituted as the named plaintiff after he attained the age of majority.) The complaint charged that Chinkhota suffered the loss of his testicle as a result of Dr. Corder's professional negligence in two main respects. First, the complaint alleged that Dr. Corder was negligent in failing to discern the serious risk of testicular torsion and in not referring Chinkhota immediately to a urologist. Second, the complaint alleged that Dr. Corder was negligent in failing to warn Chinkhota and his mother of the potential risk of testicle loss or damage and the corresponding imperative need, in the event Chinkhota experienced increased pain in his groin area, to seek emergency treatment without delay.
Reflecting these two theories of negligence, the most important factual disputes at trial concerned what Dr. Corder did when she examined Chinkhota and what Dr. Corder told him and his mother after her examination. Dr. Corder testified that she performed a thorough physical examination that lasted at least ten to fifteen minutes, in the course of which she considered and ruled out the possibility of testicular torsion. Dr. Corder said that she took a complete history from Chinkhota and specifically asked him about trauma in his groin area and any pain he was experiencing ("he denied having any pain"); that she observed Chinkhota walk normally and without evident distress; that she checked his testicles and did not find tenderness or swelling; and that she also checked his groin area generally and rotated his hip. Dr. Corder further testified that after she finished her examination, she instructed both Chinkhota and Ms. Harper to monitor any pain he felt and to call her office or go to the emergency room if the pain worsened. *fn1
Chinkhota testified that Dr. Corder conducted a rushed, cursory and minimal examination that lasted perhaps five minutes. His mother, who was not present with him in the examining room and so did not observe what was done, agreed that Dr. Corder's examination was brief. Both Chinkhota and Ms. Harper testified that his pain noticeably prevented him from walking normally. Nonetheless, Chinkhota stated, Dr. Corder did not take a thorough history from him, did not ask him about trauma to his groin area, and did not ask him directly about the pain he was then experiencing. According to Chinkhota, Dr. Corder inquired only whether it hurt when she pressed down on him (which it did not). Chinkhota stated that his testicles were swollen but that Dr. Corder did not ask about the swelling. Nor, Chinkhota said, did she check his groin area or rotate his hip as she described. *fn2
Chinkhota and his mother also contradicted Dr. Corder's testimony about the post-examination instructions she furnished. Chinkhota testified that Dr. Corder told him only that "if the pain gets worse or if I feel pain to tell my mother," and said nothing about going to the emergency room or calling the doctor. Moreover, Chinkhota testified, he did not hear Dr. Corder give any instructions to his mother. Ms. Harper likewise denied that Dr. Corder said anything to her about monitoring the pain or about what to do if the pain recurred or worsened. On the contrary, Ms. Harper testified that Dr. Corder told her only that her son was "fine," that she had "checked him out and he's okay."
Dr. Corder testified that she examined Chinkhota in the presence of a student intern from Howard University who was rotating through her office as part of his training to be a physician's assistant. Dr. Corder failed to identify this student intern or call him to testify, however, and Chinkhota requested the trial court to give a "missing witness" instruction. Over Dr. Corder's objection, the court granted that request and instructed the jury that if a party failed to call a witness who could have given relevant testimony and who was peculiarly available to that party, the jury could infer that the witness's testimony would have been unfavorable to the party, unless the absence of the witness was satisfactorily explained.
The jury returned a general plaintiff's verdict. Finding that Dr. Corder was "negligent in her care and treatment of John Chinkhota" and that her negligence proximately caused him harm, the jury awarded Chinkhota damages in the amount of $200,000. The trial court entered judgment in accordance with the verdict and denied Dr. Corder's post-trial motions. Dr. Corder then took this appeal.
Dr. Corder's principal contention, and the only one that merits extended discussion, is that the trial court abused its discretion in granting Chinkhota's request for a missing witness instruction. We begin our discussion by reviewing the settled principles of law that apply to this contention. We then turn to a careful scrutiny of the pertinent facts in light of those principles. Our inquiry satisfies us that the record in its totality supports the trial court's decision to give a missing witness instruction.
"It has been recognized for almost a century that 'if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.'" Harris v. United States, 602 A.2d 154, 160 (D.C. 1992) (en banc) (quoting Graves v. United States, 150 U.S. 118, 121 (1893)). This is the premise, though we do not speak today in terms of a "presumption," for instructing the jury that it is permitted (but not required) to draw an adverse inference against a party deemed responsible for not calling a missing witness. The inference is not always justified, however, and there are well-recognized dangers in what has been termed the creation of evidence from non-evidence. *fn3 We have emphasized, therefore, that trial courts must exercise caution and restraint in deciding whether to give a missing witness instruction or permit counsel to argue the missing witness inference to the jury. See Thomas, 447 A.2d at 60. At a minimum, "[t]he two criteria that must be present before the jury may be invited to infer that the testimony of an absent witness would have been adverse to a party are (1) that the witness is peculiarly within the power of the party to produce, and (2) that the witness' testimony is likely to elucidate the transaction in issue." Dent v. United States, 404 A.2d 165, 169-170 (D.C. 1979) (emphasis added). Once these two requirements are satisfied, the trial court has discretion to give or refuse a missing witness instruction and to allow or disallow argument by counsel. Id. at 171. "This discretionary decision should be guided by reference to the underlying rationale for the doctrine, by considering whether from all circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one." Thomas, 447 A.2d at 58 (internal quotation marks and citations omitted). *fn4
To satisfy the "peculiar availability" requirement, therecord must show that the party against whom the adverse inference is sought "had the physical ability to locate and produce the witness and there was such a relationship, in legal status or on the facts as claimed by the party as to make it natural to expect the party to have called the witness." Thomas, 447 A.2d at 57 (internal quotation marks and citation omitted). "Thus if a party has made bona fide reasonable efforts to produce the witness without success, no adverse inference will be permitted." Id. "Practical availability is also required." Id. at 58. "The party's ability to produce the witness, or his reasons for doing so, must be stronger than those of the party seeking an inference in his favor. Otherwise, an inference might just as well be drawn against the party who favors a missing witness inference." Id. (emphasis in the original). Ordinarily, therefore, a witness who is amenable to subpoena and is not uncooperative will not be deemed peculiarly available to a party if the opposing party knows or with reasonable diligence should know the witness's identity - for then the witness is available more or less equally to both sides. Cf. Katkish v. District of Columbia, 763 A.2d 703, 707 n.2 (D.C. 2000); Cooper v. United States, 415 A.2d 528, 533 n.11 (D.C. 1980). This point has special force in civil litigation such as the present case, where the parties have effective tools of discovery at their disposal. Except where the identity of the witness is concealed or other serious obstacles are interposed, it is rare that a civil litigant can establish the requisite disparity in witness availability for the missing witness instruction to be given.
To satisfy the "elucidation" requirement, the testimony of the absent witness "must be both material and relevant to a disputed issue, must be non-cumulative, and must constitute an important part of the case of the party against whom the inference is drawn." Stager, 494 A.2d at 1313 (citations omitted). "In evaluating a request for a missing witness instruction, the trial court should consider - from the viewpoint of trial preparation - whether a particular witness would provide testimony which would be superior to that which counsel anticipates from other witnesses as well as testimony which would be non-cumulative and non-duplicative." Cooper, 415 A.2d at 534. "Unless it can be established that the witness in question would provide new or additional evidence or would be manifestly more credible [than other witnesses who testified], we risk considerable unfairness by using the missing witness instruction to create adverse evidence from a party's decision not to call that witness." Id.
With the foregoing principles to guide us, we proceed to examine the record that was made in this case to see if it supports the trial court's decision to give a missing witness instruction.
Soon after she filed her complaint, Ms. Harper propounded an interrogatory to Dr. Corder asking for "the name and address of any person whom you believe has personal knowledge of any facts material to this case." Among the persons Dr. Corder listed in her answer to this interrogatory was "a physician's assistant student who was rotating through my office whose name we are attempting to find." At her subsequent deposition, Dr. Corder testified that she still did not know the name of the student, who was from Howard University, but that she could "possibly be able to identify him" by "pulling up the rotation schedule."
In the two years that passed between her deposition and the start of trial, Dr. Corder did not supply the name of the student intern. Chinkhota listed the "as yet unnamed Physician's Assistant" on the witness list he filed in June of 1999. Chinkhota made no further effort to identify or locate the student, however. The Joint Pre-Trial Statement that the parties filed in February 2000 stated, without explanation, that the plaintiff would be requesting a missing witness instruction. Dr. Corder did not indicate that she would oppose such an instruction. The trial court adopted the Joint Pre-Trial Statement in its pretrial order without mentioning the issue, stating only that it would advise the parties in advance of final arguments of its determinations as to jury instructions.
Trial got under way on May 22, 2000. Chinkhota called Dr. Corder as his first witness. When she was asked how long her examination of Chinkhota lasted, Dr. Corder answered, "At least ten or fifteen minutes," and then she added, "because I also had my student with me, and in that manner, we have to go through the total system." Chinkhota's counsel then sought without success to ascertain the identity of Dr. Corder's student: