Tuesday, September 22, 2015

Preclusion of testimony as cumulative.

Practice point:  In this worksite injury case, the Appellate Division found that the testimony of plaintiff's wife and his coworker should not have been precluded, as it would have added to the testimony of other witnesses.  The coworker saw plaintiff fall, and his testimony as to the impact to plaintiff's foot could have been highly probative of plaintiff's claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff's position that as a result of his injury he could no longer perform that kind of work. Plaintiff testified about his job duties, but the coworker's status as a disinterested witness would have given his testimony added value to the jury.

The proffered testimony of plaintiff's wife was not likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband's condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.

Student note:  Testimony is properly precluded as cumulative when it would neither contradict nor add to the testimony of other witnesses.

Case:  Segota v. Tishman Constr. Corp. of N.Y., NY Slip Op 06764 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Motions to dismiss for failure to state a claim.