Practice point: The Appellate Division found that the trial court deprived the defendant of a fair trial by issuing a supplemental jury instruction pursuant to Noseworthy v. City of New York (298 NY 76). The Noseworthy doctrine
had no application to the facts of this case because the infant's
inability to testify about the events surrounding his birth was not the
result of memory loss stemming from the defendant's alleged negligence. In addition, Noseworthy does not apply because the defendant's knowledge as to the cause of the infant's
injuries was no greater than the mother's, and the mother testified extensively about the circumstances surrounding
her labor and delivery, and testified about the infant's injuries.
Student note: Properly applied, a Noseworthy instruction relaxes the plaintiff's burden of proof.
Case: Nunez v. New York City Health & Hosps. Corp. (Elmhurst Hosp. Ctr.), NY Slip Op 06350 (2d Dept. 2013).
Here is the decision.
Tuesday's issue: Duty to mitigate.
