When assessing damages at the trial stage, courts generally do now allow cumulative testimony, that neither contradicts nor adds to that of other witnesses. If such testimony is precluded at the trial stage, but the Appellate Division finds that the testimony is likely to have been more probative than cumulative, the court will remand the case for a new trial on damages.

In Segota v Tishman Const Corp of New York, the plaintiff, a 44- year-old carpenter, fell 14 feet from a wall while working at the World Trade Center Site. Plaintiff was awarded summary judgment on a claim under Labor Law §240(1). Plaintiff suffered a traumatic disruption to the Lisfranc joints, and required surgery.

At trial, plaintiff testified and produced vocational and economic experts who opined that his injuries would have an effect on his ability to work and future earning potential. The court denied the plaintiff’s request to allow his wife and his coworker who witnessed the accident, and could testify concerning the type of carpentry work plaintiff ordinarily did before the accident. The court stated this testimony was cumulative, because the plaintiff already testified to these matters. The jury awarded plaintiff 50,000 for past pain and suffering and 250,000 for past lost earning, but did not award any money for future pain and suffering.

Plaintiff moved to set aside the verdict, arguing his damages were grossly inadequate and that the jury’s decision to not award the plaintiff future earnings, was a direct result of the court denying the plaintiff’s request to have his wife and coworker testify on his behalf.

The Appellate Court agreed, and ordered a new trial on damages because the testimony of the wife an coworker was probative, not cumulative, because the coworker can testify about the plaintiff’s continuing pain and how it would affect him at work. The court found that the wife’s testimony was not likely to be cumulative because she has a unique perspective on her husband’s condition before and after the accident, and could assist the jury in understanding how her husband is affected by his disability.

This ruling was certainly frustrating to the defendant, considering their damages evaluation would not have considered the wife or co-worker’s testimony.  A new trial allowing such testimony will certainly add to the emotional impact of plaintiff’s claim, thereby providing plaintiff with additional settlement leverage in advance of the new trial.  Thanks to Jason Kosek for his contribution.  Please email Brian Gibbons with any questions.