NELSY DELGADO JUAREZ v. KATHRYN GIBLIN (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants in this negligence case appeal from a judgment against them issued after a jury trial, arguing that the judge erroneously gave a missing witness instruction.

Background. The plaintiff ² in this medical malpractice case, then a thirteen year old girl, presented to the emergency room (ER) at Massachusetts General Hospital on March 31, 2014. She had suffered at least two tonic-clonic seizures ³ in the past several weeks. After her initial assessment in the ER, she was referred to the pediatric neurology department for consultation.

There, she was treated by Dr. Kathryn Giblin, a resident a the time who primarily practiced adult neurology, but was on rotation in pediatric neurology. Dr. Giblin conducted a physical examination of the plaintiff and then prescribed an antiseizure medication, Lamictal, in the amount of twenty-five milligrams every other day. The medication caused a crippling case of Stevens-Johnson syndrome, a severe complication involving an overwhelming immune response that impacts the body's mucous membranes, causing them to slough off. It is rare, with a total incidence of about 5.3 in one million individuals. Stopping the Lamictal has no immediate impact on the disease, as the immune response continues even after the drug has been withdrawn.

Due to Stevens-Johnson syndrome, the child's eyes swelled shut, while her hands, mouth, face, and body were covered with painful, growing blisters that merged into massive lesions, which eventually scabbed and fell off. She was unable to eat, so was fed through a feeding tube. Even after she was released, she required round-the-clock monitoring for six months, as she recovered from her devastating skin and mucous membrane injuries. She missed an entire year of school. At the time of trial, she suffered from scars, permanently impaired vision, and, although she was twenty-four years old, she could not have a period because her passageways were blocked.

Dr. Giblin testified that she had no memory of her visit with the plaintiff that occurred about eleven years before trial. Her attending physician was Dr. Florian Eichler. The plaintiff alleged negligence by Dr. Giblin in prescribing an improper dose of Lamictal.

Dr. Giblin's prescribed dosage was based on the age band into which the plaintiff fell in the Food and Drug Administration (FDA) guidelines: the twelve year old and above band recommended an initial dosage of twenty-five milligrams every other day. The defendants’ expert testified this dosage met the standard of care. The plaintiff's expert testified that that dosage was not consistent with the standard of care in this case, because the child was short and extremely underweight for her age, weighing only sixty pounds. The plaintiff's expert testified that the proper initial dose was four milligrams, not twenty-five milligrams, every other day.

Throughout the trial, the defense was essentially twofold: first, that the twenty-five milligrams dosage comported with the standard of care, and second, that in any event, Dr. Eichler approved the prescription. Dr. Giblin's contemporaneous clinical treatment note indicated she spoke with Dr. Eichler before prescribing the drug.

In opening statement, defense counsel told the jury that Dr. Eichler formulated the dosing plan with Dr. Giblin, agreed with Dr. Giblin that the patient should receive Lamictal, and as the attending physician, was “the final decision maker” on the appropriate dose. Defense counsel said that Dr. Eichler followed the FDA guidelines for dosing Lamictal based on the plaintiff's age, and that Dr. Eichler approved the dosage. Dr. Giblin testified that the one who prescribed the Lamictal “would actually be the attending [physician] doing so.”

Prior to trial, the plaintiff actually sought to exclude the testimony of Dr. Eichler, because in deposition testimony he stated that he had no memory of ever being involved in the care of the plaintiff. The defendants objected and insisted that Eichler was critical to the defense. The judge permitted the defense to call Eichler to give custom and practice testimony about his routine procedures and roles, but not about the date of the prescription because he had no memory of it.

Not only did Dr. Giblin testify that, based on her clinical note and custom and practice, Dr. Eichler had approved the prescription, but also the defendants put on an expert witness, who explained the role of an attending physician in supervising a resident and provided an expert opinion that Dr. Eichler would have approved the dosage. The expert testified that, in a teaching hospital like his or Massachusetts General Hospital, “the final responsibility” for a medical decision “lies with the attending.” The expert stated that that practice was followed when he did a rotation at Massachusetts General Hospital. The defendants did not, however, call Dr. Eichler to the stand.

Because of Eichler's centrality to the case, the judge decided to give a missing witness instruction.⁴ Indeed, the judge explained during the charge conference, inter alia, “Eichler is an elephant in the room here ․ We heard his name more than anyone else's in this case, so –- and the jury isn't going to go —- going to leave the courtroom without any instruction from me as to what to do with that.”

In her closing, the plaintiff argued that an inference should be drawn against Dr. Giblin because of the failure to call Dr. Eichler.

The jury, apparently agreeing that the twenty-five milligrams dosage did not meet the standard of care, found Giblin negligent. Judgment entered for the plaintiff.

Discussion. The defendants challenge the judge's decision in providing the jury with a missing witness instruction. See Mass. G. Evid. § 1111(b) (2026).

“[W]hether to give a missing witness instruction is a decision that must be made on a case-by-case basis, in the discretion of the trial judge. That decision will be overturned on appeal only if it was ‘manifestly unreasonable.’ ” Commonwealth v. Thomas, 429 Mass. 146, 151 (1999), quoting Commonwealth v. Graves, 35 Mass. App. Ct. 76, 86 (1993). “Whether an inference can be drawn from the failure to call witnesses necessarily depends ․ upon the posture of the particular case and the state of the evidence.” Commonwealth v. Anderson, 411 Mass. 279, 282 (1991), quoting Commonwealth v. O'Rourke, 311 Mass. 213, 222 (1942). See Commonwealth v. Fredette, 396 Mass. 455, 465 (1985) (“In both civil and criminal cases we have permitted, when justified, comment on a party's failure to call witnesses”); Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 419 (1998).

When assessing the propriety of a missing witness instruction,

“the judge is to consider four factors: (1) whether the case against the defendant is strong and whether, faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a ‘plausible reason’ for not producing the witness.”

Commonwealth v. Rollins, 441 Mass. 114, 118 (2004), quoting Commonwealth v. Alves, 50 Mass. App. Ct. 796, 802 (2001).

The defendants focus on the fourth factor, ultimately arguing that, as a matter of law, as long as there is a “plausible” reason for failure to call the witness, the instruction cannot be given. In this, they rely on Brownlie, 44 Mass. App. Ct. at 420 (“Upon a careful examination of the record, we conclude that the judge was never provided with a plausible explanation as to why Watanabe was unable to appear at trial. Thus, the judge did not abuse his discretion by giving the missing witness instruction”).

The defendants also argue that whether a reason is plausible must be reviewed de novo as a question of law. The plaintiff argues rather that the judge's determination should be reviewed for abuse of discretion.

But we need not and do not decide these two legal issues because they are ultimately irrelevant. Even if the defendants were correct that a plausible reason for failure to call a witness barred use of a missing witness instruction, and that we review plausibility as a legal question, there would still be no error in giving the instruction here, because the judge did not err in concluding that the defendants offered no plausible reason for their failure to call Dr. Eichler.

During the defense case, after defense counsel indicated that he had two more witnesses but did not mention Dr. Eichler, the judge said that the plaintiff “may or may not ask for a missing witness instruction with respect to Dr. Eichler if Dr. Eichler does not testify and ․ if a request is made, I'll have to evaluate ․ whether it's appropriate or not, and if it's requested, I'll obviously be asking ․ both parties for their positions.” Then, at the charge conference, the judge noted that Dr. Giblin had testified that Dr. Eichler agreed with her recommendation about dosage, and defense counsel said he expected to use that in closing.

When asked what possible logical reason there was for not calling Eichler, defense counsel replied, “Your Honor, for the same reason that we don't call a lot of witnesses, for the same reason I didn't call Dr. Kearns [another potential witness], Your Honor. I made the judgment that I didn't want to call him, I didn't need him, and I don't have to call him.”

This statement provided no reason at all but merely asserted that counsel did not need a reason not to call Dr. Eichler. There had, however, been a previous discussion about whether Dr. Kearns's testimony would be duplicative, so defense counsel's response might at most be read (as the defendants read it) to mean that Dr. Eichler's testimony would have been cumulative.

But we do not find it plausible that the defense decided Dr. Eichler's testimony would have been cumulative. Dr. Eichler's testimony about his own practice and procedure is certainly not cumulative of either Dr. Giblin's testimony of what happened based on her description of practice and procedure and her clinical note, or the expert's testimony about the ordinary practice at teaching hospitals, like Massachusetts General Hospital, and at Massachusetts General Hospital when he did his rotation there.

The defendants also argue that, even if the record established all the prerequisites for a missing witness instruction, the instruction was still improper, because it invited the jury to speculate and enabled the plaintiff to make an improper argument during closing that Dr. Eichler “would have been here” if he approved the dosage. The defendant further asserts that the missing witness instruction rule “should only permit instructions and argument as to a general inference concerning the potentially adverse effect of the theoretical testimony of the missing witness, rather than specific inferences relating to fact issues in a given case.” We decline, however, to adopt this novel proposed limitation for which they cite no authority and otherwise see no error in the plaintiff's closing.

We therefore see no abuse of discretion or error of law in the judge's decision to give the missing witness instruction.

Judgment affirmed.

FOOTNOTES

2.   When the complaint was filed, the plaintiff, Nelsy Delgado Juarez, was a minor, and her mother was also a plaintiff. Delgado Juarez was substituted as the sole plaintiff prior to trial.

3.   These seizures presented as sudden movement and then non-responsive stiffness, which can last for extended periods of time.

4.   There was no objection to the wording of the instruction, which was as follows:“Now, we heard both of the attorneys comment during closing on the fact that a certain witness did not testify at this trial. You may infer that such a witness, had he been called, would have given testimony unfavorable to the party that did not call him if you find that certain things are true.“These things are, first, that the party knew of the witness.“Second, that witness was friendly to, or at least not hostile to, that party.“Third, that the witness could be expected to give testimony that is important and not duplicative.“And fourth, that there is no explanation for not calling the witness.“Now, even if you find these things to be true, you are not required to infer that the witness would have given unfavorable testimony, but you may infer that. It is up to you whether you draw such an inference, it is up to you as to whom the inference would be drawn against, and it is also up to you as to how much weight, if any, you give the inference.”