New trial ordered due to physician unavailability

Last reviewed: September 2026

An unavailable medical expert does not automatically entitle a party to a new trial. In Normandin v Bell, the Third Department reversed because the record supported a brief continuance to finish material testimony, without a lack of diligence by the plaintiffs or a request made merely for delay.

Historical note: Normandin v Bell, 162 AD3d 1156 (3d Dept, June 7, 2018) ordered a new trial on that specific record. Jason’s broader prediction in the original note is preserved as commentary below. Read it with the current extensions and adjournments guide, not as an automatic-reversal rule.

What interrupted the expert’s testimony

The plaintiffs brought a medical malpractice action in Saratoga County. Their expert was due to testify on December 1, 2016. Travel and weather problems delayed his arrival. When he reached court, he did not have his original file.

The court directed that the file be brought to the courthouse. Counsel explained that the expert had patient appointments on December 2 and December 5 and could return on December 6. The expert completed direct examination on December 1, but the file still had not arrived.

When the expert did not appear the next day, the court refused a continuance and struck the testimony. It then dismissed the complaint for failure to establish a prima facie case without the expert proof. The Third Department reversed and remitted for a new trial.

The missing file is a fact of this proceeding. The opinion does not establish the broader assertion formerly on this page that every treating doctor throughout the Third Department must bring an original file under a particular local rule. Preparation for a current trial requires checking the actual directions and applicable rules for that court.

Why a short continuance mattered

The appellate analysis focused on the material testimony, the absence of a supported finding of inadequate diligence, the brief delay requested and the time already allotted for trial. A request to return on an identified date gives the court something concrete to evaluate.

The distinction matters when reading Jason’s reaction. His point was that a scheduling problem of this kind should not decide the case. The holding was narrower: refusing the requested continuance was an abuse of discretion in the circumstances before the court.

Jason’s original June 2018 observation

This is the original commentary, not a guarantee that a later case with an unavailable physician will be retried:

In the real world of law, this type of circumstance always calls for a re-trial.  I would say that even in NF provided you get the availability dates of the doctor, this will work also.

Separate the three preparation problems

A witness’s attendance, the materials needed for testimony and the time needed to finish examination are connected, but each needs its own preparation. Asking whether the doctor can attend on Thursday may leave Friday cross-examination unresolved.

Attendance. Confirm the full expected period of testimony, including the possibility that another witness runs late. Ask about travel arrangements and appointments that could conflict with a continuation. Keep a dated record of those communications.

Materials. Identify which records the witness must review and which documents the court has directed the witness to bring. Check who has the originals, who has copies and how the material will reach court. A witness’s assumption about what is needed should not substitute for reading the relevant directions.

Completion. Identify a realistic date for finishing if the schedule changes. If counsel requests a brief continuance, explain what can be completed during that time and why the proposed return date is reliable.

Those are practical preparation points, not additional statutory requirements announced in Normandin. They help counsel avoid having an attendance problem become an evidentiary problem without a clear explanation of either.

What a continuance application should explain

The request should identify the testimony still needed, why it is material and why the witness cannot complete it on the scheduled date. Explain the efforts already made to prevent the interruption. Distinguish facts known before trial from developments that could not reasonably be addressed earlier.

Then state the relief requested. An application to continue on a confirmed date is easier to evaluate than a request to stop the trial until a witness’s schedule improves. Address what the proposed delay means for the jury, the other witnesses and the adversary. If the court has already allocated a longer trial period, explain how the proposed continuation fits within it.

Make the requested relief and the ruling clear in the record. If testimony is threatened with being struck, identify the practical consequence for the claim or defense rather than assuming the judge will infer it. Avoid overstating the witness’s availability or the contents of records counsel has not checked.

The court may still deny the request. An organized explanation supplies the facts for the discretionary decision; it does not remove discretion.

How this note fits with the no-fault cases

The procedural comparison is useful even though Normandin was a malpractice action. The underlying claims and evidentiary burdens should not be treated as interchangeable.

In Middle Village Chiropractic, the no-fault defense did not show diligent efforts to secure expert attendance. In Brooklyn Chiropractic, counsel explained a specific scheduling restriction and the notice needed to overcome it. Those records produced different results.

Use the cases to identify facts worth documenting: prior notice, concrete availability, efforts to arrange attendance and the importance of the missing evidence. Do not convert the result in one action into a general rule that every physician conflict requires accommodation.

The V.S. Medical funeral note concerns a different question again: whether the requesting party had an opportunity to prove compliance with a condition attached to the adjournment. Sometimes the dispute is about proving the excuse, rather than the length of the requested delay.

A new trial is not a finding of malpractice

The reversal means that the appellate court sent the case back to the trial court for a new trial on the issue of whether defendant committed malpractice and whether plaintiffs were entitled to recover. It did not mean that the appellate court found that defendant committed malpractice or that plaintiffs were entitled to recover. The procedural disposition is separate from the ultimate merits when using this case in a motion or in explaining it to a client.

For someone whose case was dismissed after a witness problem, the relevant materials include the orders, trial transcript, witness scheduling history and judgment. Whether to seek post-trial relief or an appeal requires a separate review of that record and the applicable deadlines. The firm’s medical malpractice practice and contact page are available for discussing an injury matter; this historical note cannot resolve a current deadline.

Connect to the Encyclopedia

Start with the CPLR 2004 extensions and adjournments hub for the distinction between extra time to perform an act and trial-calendar relief.

• Brooklyn Chiropractic: a known Monday scheduling conflict
• Middle Village: expert importance did not replace proof of diligence
• V.S. Medical: testimony to establish the adjournment excuse
• Mallards Dairy: a late affidavit is a separate motion-practice problem
• Counsel Financial: what happened after a second adjournment request