Heinrich v. Serens: Clarifying Missing‑Witness Burdens and the Scope of Pleaded Negligence in Multi‑Provider Medical Malpractice Trials

Introduction

In Heinrich v. Serens (2025 NY Slip Op 04318), the Appellate Division, Fourth Department, issued a significant opinion addressing two recurring—and often outcome-determinative—trial issues in New York medical malpractice litigation: (1) when a specific theory of negligence (here, a failure to transfuse blood in the emergency department) is deemed preserved within broader pleadings and bills of particulars; and (2) how courts must allocate burdens and assess “cumulativeness” when a party seeks a missing‑witness charge against uncalled treating physicians who were directly involved in the decedent’s care.

The plaintiff, Kenneth Heinrich, sued individually and as administrator of the estate of his son, David Alan Heinrich, asserting medical malpractice and wrongful death claims against several medical providers. A jury returned a defense verdict and the Supreme Court (Onondaga County) entered three judgments dismissing the amended complaint as to different sets of defendants:

• Appeal No. 1: Emergency department defendants Kelley A. Serens, N.P., and Lauren Pipas, M.D.
• Appeal No. 2: Defendants Mariam Alexander, M.D., Amy Patel, M.D., Vivian Chan, M.D., and Michael Kosters, M.D.
• Appeal No. 3: Defendant Lynn Marie Cleary, M.D. (supervising attending)

The Fourth Department reversed in each appeal and granted new trials, rejecting the plaintiff’s “weight of the evidence” challenge but finding two critical abuses of discretion during trial: (a) the improper in limine preclusion of plaintiff’s ED blood‑transfusion theory as supposedly “new,” and (b) the erroneous denial of a missing‑witness charge regarding uncalled treating physicians Patel, Chan, and Alexander, compounded by a curative instruction that told the jury to disregard plaintiff’s summation on that point.

Summary of the Judgment

The Fourth Department unanimously reversed the judgments and ordered new trials. The Court:

• Rejected the argument that the jury’s favorable verdict for the defendants was against the weight of the evidence, emphasizing deference to the jury on credibility and conflicting expert testimony.
• Held that the trial court abused its discretion by precluding the plaintiff from presenting a negligence theory that the ED defendants should have considered or administered a blood transfusion. The Court concluded that this theory was encompassed within plaintiff’s bills of particulars and was squarely addressed by the ED defendants in summary judgment practice—negating any claim of surprise.
• Held that the trial court abused its discretion by denying a missing‑witness charge as to uncalled treating defendants Patel, Chan, and Alexander. The court misallocated the burden by requiring the plaintiff to prove non‑cumulativeness; instead, after the plaintiff’s prima facie showing, the burden shifted to defendants to establish cumulativeness or another valid reason to avoid the charge. On this record, the uncalled treaters’ testimony was not cumulative and their absence warranted the charge.
• Found the missing‑witness error not harmless as to the defendants in appeals 2 and 3, especially because the trial court further instructed the jury to disregard plaintiff’s summation comments about the uncalled doctors and stated defendants had no obligation to call witnesses.

Analysis

Precedents Cited and How They Shaped the Decision

• Weight of the evidence standard:
  • Monzon v Porter; Clark v Loftus; Ruddock v Happell; McMillian v Burden; Sauter v Calabretta; 2006905 Ontario Inc. v Goodrich Aerospace Can., Ltd.; Regelski v Weber; Peevey v Unity Health Sys. These decisions collectively instruct that a jury verdict will be set aside as against the weight of the evidence only if the evidence so heavily favors the movant that no fair interpretation could support the verdict. Credibility determinations—particularly regarding conflicting experts—are squarely within the jury’s province. Applying those cases, the Court held the defense verdict here could have been reached on a fair interpretation of the evidence and thus stood on evidentiary weight grounds.
• Preclusion of trial theories:
  • Brooks v Blanchard. The Court drew on this Fourth Department precedent to underscore that preclusion based on “surprise” or “new theory” must be carefully policed; where a theory is fairly encompassed by the pleadings and bills of particulars, and the opposing party engaged it during pretrial motion practice, it is error to exclude it at trial. That principle supported reversal for precluding the ED blood‑transfusion theory.
• Missing‑witness charge doctrine:
  • Matter of Nassau County DSS v Denise J.; Matter of Lewis; Matter of Adam K.; Crowder v Wells & Wells Equip., Inc. These civil cases permit the strongest inference against a party who fails to call a witness with material knowledge whose testimony would be expected to favor that party.
  • People v Gonzalez; People v Smith. These leading Court of Appeals decisions articulate the two‑step burden: the proponent must timely identify a knowledgeable, material witness expected to be favorable to the opponent who is not called; then the burden shifts to the opponent to demonstrate unavailability, hostility, or that the testimony would be cumulative. The Fourth Department applied this framework, holding the trial court wrongly forced plaintiff to prove non‑cumulativeness.
  • Wilson v Bodian; Leven v Tallis Dept. Store; Gagnon v St. Clare’s Hosp. These appellate decisions recognize that testimony by treating providers who personally observed the patient and made contemporaneous decisions is not “cumulative” of records or of testimony by experts/supervisors who were not present. Heinrich applies that logic: the uncalled treaters could offer direct observations and reasoning behind their decisions, which is non‑cumulative.
  • Alli v Full Serv. Auto Repair, LLC; Farrell v Labarbera. These cases clarify that reading portions of an uncalled witness’s deposition does not waive the right to a missing‑witness charge. The Fourth Department reaffirmed that principle here.
  • DeVaul v Carvigo Inc.; Goverski v Miller; DeVito v Feliciano. These cases address counsel’s summation comments on missing witnesses and harmless‑error analysis. Heinrich found that counsel’s summation could not cure the denial of the charge, and the additional jury instruction directing the jurors to disregard those comments compounded the prejudice—warranting reversal.

Legal Reasoning

A. Preclusion of the ED Blood‑Transfusion Theory Was an Abuse of Discretion

The plaintiff’s bills of particulars against the ED defendants (Serens and Pipas) alleged failures to act upon complaints, signs, symptoms, and diagnostic testing, including awareness of a substantial drop in hemoglobin and hematocrit without ordering type‑and‑cross. In summary judgment practice, the ED defendants’ own expert opined that the standard of care did not require typing, crossmatching, or considering a transfusion. That engagement shows the defense had fair notice that transfusion was squarely at issue.

Against that backdrop, the trial court granted a defense motion in limine and barred plaintiff from arguing that the ED should have administered a transfusion—on the ground it was a “new” theory. The Fourth Department rejected that characterization. Because the blood‑transfusion theory was naturally encompassed by the pleaded failure to respond to lab deterioration and had been substantively contested by the ED defendants during pretrial motions, preclusion was a misuse of discretion. The error required reversal as to the ED defendants (Appeal No. 1).

B. Denial of a Missing‑Witness Charge Was Legal Error and Not Harmless

When defense counsel disclosed that defendants Patel, Chan, and Alexander would not testify, plaintiff promptly sought a missing‑witness charge. The trial court refused, reasoning that plaintiff did not specify non‑cumulative, material issues the witnesses would cover.

The Fourth Department held that the court placed the burden on the wrong party. Under Gonzalez and Smith, once the proponent shows the uncalled witnesses are knowledgeable, material, expected to be favorable, and under the opponent’s control, the burden shifts to the opponent to show that the testimony would be cumulative or to provide another valid explanation for not calling them. The record demonstrated the uncalled physicians were directly involved in the decedent’s care hours before his death; their eyewitness observations and decision‑making rationales are unique, non‑cumulative evidence not replaced by charts, notes, or the testimony of a later‑reviewing expert or supervising physician who was not present. The Court also emphasized that reading deposition excerpts of the missing witnesses did not waive the plaintiff’s right to the charge.

The error was exacerbated when the trial court instructed the jury that plaintiff’s counsel “improperly commented” on the failure to call those doctors, told the jury defendants were under no obligation to call any witnesses, and directed the jury to disregard counsel’s comments entirely. The appellate court concluded the missing‑witness error was not harmless for the defendants in Appeals 2 and 3, requiring reversal and a new trial.

C. Harmless‑Error Analysis

Applying DeVito v Feliciano, the Court asked whether the evidence so clearly supported the defense verdict that the error did not prejudice a substantial right. It answered no. The uncalled treating physicians’ absence, coupled with the denial of an adverse‑inference instruction and the directive to disregard counsel’s comments on that absence, posed a substantial risk of prejudicing the plaintiff’s case. The missing‑witness doctrine is meant to address precisely this asymmetry: when a party with special access to favorable witnesses chooses not to call them, the jury may infer their testimony would not be favorable.

D. Weight‑of‑the‑Evidence Challenge Properly Rejected

The Court carefully separated trial‑management error from evidentiary sufficiency. Citing familiar standards, it affirmed that conflicting expert testimony and credibility disputes belong to the jury. That backdrop is significant on remand: the new trials are warranted not because the plaintiff proved negligence as a matter of weight, but because procedural errors undermined the fairness of the proceedings.

Impact

Heinrich carries immediate implications for New York medical malpractice trials—especially those involving multiple providers and complex emergency department care:

• Pleadings and trial theories:
  • Broad allegations that defendants failed to act upon signs, symptoms, and diagnostic tests can preserve specific intervention theories (e.g., failure to transfuse) where the medical records and lab trends make that intervention reasonably inferable, and especially where the defense addressed the theory in pretrial motions.
  • Motions in limine should not be used to carve out core negligence theories that have been fairly noticed and litigated. Trial courts should be cautious about preclusion where a defendant will not be genuinely surprised.
• Missing‑witness doctrine in med‑mal:
  • Where individually named treating physicians personally observed the patient and made contemporaneous decisions, their testimony is rarely “cumulative” to records, to non‑percipient experts, or to supervising attendings who were not present.
  • Once the proponent satisfies the initial showing, the opponent bears the burden to prove cumulativeness or another valid reason to avoid the charge.
  • Reading deposition excerpts of uncalled witnesses does not waive the right to a missing‑witness instruction.
  • Overbroad curative instructions telling jurors to disregard counsel’s missing‑witness comments can deepen prejudice and necessitate reversal.
• Trial strategy and risk management for defendants:
  • Hospitals and practice groups should anticipate that not calling frontline treating physicians—while relying on records and retrospective expert analysis—invites a missing‑witness charge absent a strong showing of unavailability or true cumulativeness.
  • Supervising physicians’ testimony will generally not substitute for the first‑hand observations of the individuals who actually provided care at the critical times.
• Emergency department litigation:
  • Allegations focused on failure to address abnormal lab values (such as dramatic drops in hemoglobin/hematocrit) can include transfusion‑related theories; labeling such theories “new” at trial is disfavored if the record and motion practice show defendants were on notice.

Complex Concepts Simplified

• Weight of the evidence vs. legal error:
  • Even if a verdict can be supported on a fair reading of the evidence (so it stands on “weight”), a new trial may still be required if the judge made procedural or instructional errors that likely affected the outcome (legal error).
• Missing‑witness charge:
  • A jury instruction letting jurors infer that an uncalled witness with relevant knowledge, who would be expected to favor a party, was not called because their testimony would not actually help that party. The proponent identifies the missing witness; then the opposing party must justify the absence (e.g., unavailable, hostile, testimony would be cumulative).
• Cumulative evidence:
  • Evidence is “cumulative” if it merely repeats what is already in the record without adding new insight. Treating doctors’ first‑hand observations and clinical reasoning are typically not cumulative to medical charts or to experts who did not personally observe the patient.
• Type‑and‑cross and transfusion:
  • “Type and cross” means laboratory work to determine blood type and to check compatibility for a transfusion. Alleging a failure to act on severe lab abnormalities can naturally include a theory that clinicians should have timely typed, crossmatched, and considered a transfusion.
• Harmless error:
  • An error is “harmless” if it clearly did not affect the verdict. If the error likely influenced the jury’s decision, a new trial is required.

Conclusion

Heinrich v. Serens delivers two clear directives for New York trial courts and practitioners. First, courts should not preclude a specific medical negligence theory at trial when the bills of particulars and pretrial proceedings have already put that theory in play—particularly in ED cases involving clear laboratory deterioration, where transfusion is a foreseeable clinical issue. Second, the missing‑witness doctrine retains real force in multi‑provider malpractice actions: once the proponent meets the initial showing, the opponent must carry the burden to prove cumulativeness or another valid excuse; front‑line treaters’ first‑hand testimony is seldom cumulative to records or to non‑percipient experts. Coupled with the admonition that curative instructions cannot erase the prejudice from denying a warranted adverse‑inference charge, Heinrich provides a robust blueprint for ensuring fair trials where multiple providers share responsibility for acute care.

The upshot is not that the plaintiff proved malpractice as a matter of evidentiary weight; rather, it is that the integrity of the fact‑finding process was compromised by trial‑management errors. On remand, the parties will retry the case on a level procedural playing field—one that permits the jury to hear properly framed theories and to draw fair inferences from the absence of key treating witnesses.