O'Brien v. Barretta

Goldstein, J.,

concurs in the result, with the following.memorandum: I agree that the liability verdict should not be disturbed and there must be a new trial on damages based upon the trial court’s conduct during the cross-examination of the defendants’ medical expert.

However, in my view the trial court properly denied a missing witness instruction with respect to the surgeon Dr. Frank J. Cammisa, Jr., on the ground that his testimony would have been cumulative. Further, since the defendants were fully aware of the plaintiffs claim for future lost earnings which flowed immediately and directly…