2026 N.H. 2, Rivas v. Ciecko

brief and orally), for the defendant. Friedman Feeney Getman PLLC, of Concord (David Betancourt on the

(Michael H. Darling on the brief and orally), for the plaintiff. Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth

Citation: Rivas v. Ciecko, 2026 N.H. 2 Case No. 2024 - 0429 Rockingham

THE SUPREME COURT OF NEW HAMPSHIRE

https://www.courts.nh.gov/our - courts/supreme - court release. The direct address of the court’s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their may be reported by email at the following address: reporter@courts.state.nh.us. order that corrections may be made before the opinion goes to press. Errors Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in are requested to notify the Reporter, Supreme Court of New Hampshire, One as formal revision before publication in the New Hampshire Reports. Readers NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

suffered a brain injury. Dr. Michael Whitekus, a toxicologist, testified that he records and the video of the accident and concluded that the plaintiff had not Alexander, a neurologist, testified that he had reviewed the plaintiff ’ s medical See RSA 507:7 - d ( p. 2 2010). The defendant called two expert s at trial. Dr. Michael also asserted that the plaintiff’s damages were barred by her comparative fault. 2021 fall was caused by injuries from the automobile accident. The defendant 2, 2020 accident and contested the plaintiff’s allegation that the October 9, [¶5] The defendant denied liability for any injury resulting from the July

lose consciousness, fall, and fracture her leg. the October 9, p. 2 2021 birthday party she experienced syncope, causing her to of syncope, her “physiologic response to the alcoho l . . . was different,” and at that because of the brain injury the plaintiff was more susceptible to episodes migraines, sleep disruption, and vestibular dysfunction. Warinner testified induced consequences,” which included the exacerbation of the plaintiff’s From this, Warinner concluded that the plaintiff had suffered “brain trauma records, had met with the plaintiff, and had r eviewed the video of the accident. interior of the skull. He stated that he had reviewed the plaintiff’s medical exerted by a whiplash can cause a concussion because the brain can strike the injury to her neck. Dr. Peter Wari n ner, a neurologist, testified that the forces that the plaintiff had suffered a whiplash - type injury resulting in permanent [¶4] The plaintiff called two expert witnesses. Dr. Bruce Myers opined

October 9, p. 2 2021, which caused her to fall and break her leg. the injuries sustained in the accident and to have had a fainting spell on (in this instance manifesting as light - headedness and fainting) attributable to and memory deficits.” The plaintiff also claimed to have experienced syncope and that her “ongoing symptoms include migraine headaches, light sensitivity, accident she suffered “multiple injuries, including a traumatic brain injur y,” raised on appeal, the plaintiff claimed that as a result of the automobile A jury trial was held over the course of five days. As relevant to the issues [¶3] On October 26, 2021, the plaintiff sued the defendant for negligence.

stairs and fractured her leg. she consumed several alcoholic drinks and later fell down a set of exterior October 9, p. 2 2021, the plaintiff attended her sister - in - law’s birthday party, where defendant’s vehicle captured video of the accident. Over a year later, on 2020. The plaintiff sustained injuries as a result. A camera mounted in the involved in a n automobile accident in Kensington on the afternoon of July 2, [¶2] The jury could have found the following facts. The parties were

defendant’s liability for the fall. We affirm in part, reverse in part, and remand. of stairs. On appeal, the plaintiff seeks a retrial both on damages and on the or substantially contribut e to causing the plaintiff’s subsequent fall down a set p. 3 3

was “a cause” of her fall. impacts such a BAC has on a person. He also opined that the plaintiff’s BAC determined the plaintiff’s BAC at the time of the fall and what physiological been a cause” of the fall. Accordingly, a t trial, Whitekus explained how he Whitekus could testify that the plaintiff’s alcohol consumption “could have consumption was the cause of the fall. Instead, the trial court ruled that trial court precluded him from testifying that the plaintiff’s alcohol fall and the relationship between alcohol consumption and fall injuries, the While Whitekus was permitted to testify to the plaintiff’s BAC a t the time of the calculating BAC and the likelihood of falls at certain BAC levels were reliable. with the plaintiff’s BAC. The court also ruled that Whitekus’ s methods for such a BAC on the human body, and the increased risk of falling associated qualified to testify to the plaintiff’s BAC at the time of her fall, the effects of testimony. The trial court denied the motion, finding that Whitekus was [¶8] The plaintiff filed a motion in limine to exclude Whitekus’ s

A. Whitekus Expert Testimony

We address each argument in turn. answer from her deposition; and (5) denied her motion to set aside the verdict. at trial; (4) precluded the plaintiff from introducing a follow - up question and counsel’s reference in her closing argument to the absence of several witnesses Alexander; ( p. 3 3) declined to strike or give a curative instruction regarding defense admitted Whitekus ’ s testimony; (2) limited the plaintiff’s cross - examination of [¶7] The plaintiff argues on appeal that the trial court erred when it: (1)

motion. This appeal followed. regarding the absence of certain witness es at trial. The trial court denied the rulings and that defense counsel had made an improper argument in closing aside the verdict, arguing that the trial court had erred in certain evidentiary contributing factor to the plaintiff’s later fall. The plaintiff filed a motion to set injuries from the automobile accident, however, were not a substantial and awarded the plaintiff $28,119.46 in damages. The jury found that the [¶6] The jury found the defendant at fault for the automobile accident

fall. individua l and opined that alcohol impairment was “a cause” of the plaintiff’s plaintiff’s BAC i s ten times more likely to fall and be injured than is a sober “obviously intoxicated.” Whitekus also testified that an individual with the consistent with the notation in the medical records that the plaintiff was her fall was between 0.122 and 0.152 percent, which he observed was he opined that the plaintiff’s blood alcohol concentration (BAC) at the time of following the fall. B ased upon the results of a blood draw taken at the hospital, had reviewed the plaintiff’s medical records from her emergency room visit p. 4 4

the reliability of expert opinions. RSA 516:29 - a enumerates several factors courts must consider when assessing Rand, 1 p. 4 48 N.H. 609, 614 (2002). Mosci c ki v. Leno, 173 N.H. 121, 124 (2020). (1993),” which were adopted by this court in Baker Valley Lumber v. Ingersoll - Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 - 9 5 portions of which codify principles outlined by the United States Supreme reliability of expert testimony, the trial court must apply RS A 516:29 - a, Apple New England, LLC, 171 N.H. 158, 16 3 (2018). “To determine the expert testimony must rise to a threshold level of reliability. Stachulski v. 702 authorizes the trial court to admit expert testimony. To be admissible, alcohol consumption wa s a cause of the fall. New Hampshire Rule of Evidence to the relationship between alcohol consumption and fall injuries, and that that Whitekus could reliably testify to the plaintiff’s BAC at the time of the fall, [¶12] We now consider whether the trial court erred when it concluded

d. causation and to the defendant’s defense of comparative fault. See RSA 507:7 judgment, perception, and psychomotor skills w ere relevant both to the issue of and Whitekus’ s testimony regarding the impact of that BAC on a person’s cause of the fall, namely that the plaintiff was intoxicated. The plaintiff’s BAC In response, the defendant presented evidence of an alternative contributing party as a result of neurological injuries sustained in the automobile accident. sought to establish causation by presenting evidence that she fainted at the was a substantial factor in bringing about the fall. I d. At trial, the plaintiff therefore bore the burden of proving that the defendant’s negligent conduct injuries she sustained fifteen months later when she fell. The plaintiff for the injuries she sustained as a result of the car accident but also for the [¶11] The plaintiff claimed that the defendant was responsible not only

harm.” Id. must prove that the defendant’s conduct caused or contributed to cause the negligent con duct need not be the sole cause of the injury,” but “a plaintiff bringing about the harm.” Estate of Joshua T., 150 N.H. at p. 4 408. “[T]he plaintiff to establish that the negligent conduct was a substantial factor in The Hitchcock Clinic, 140 N.H. 798, 801 (1996). Legal cause “requires a both the cause - in - fact and the legal cause of the injury. Id.; see Bronson v. of Joshua T. v. State, 150 N.H. 405, 407 (2003). The cause element includes plaintiff, breached that duty, and the breach caused the claimed injury. Estate negligence, a plaintiff must establish that the defendant owed a duty to the [¶10] The plaintiff sued the defendant for negligence. T o prove actionable

because the testimony was unreliable. We disagree. elevated BAC could be a causally contributing factor in an incident and admitted, both because Whitekus was not qualified to opine on how a person’s opinion that the elevated BAC was a cause of the fall should not have been [¶9] The plaintiff argue s that her BAC was irrelevant and that Whitekus ’ s p. 5 5

physiological impairment making a fall ten times more likely. There was in the range of the plaintiff’s at the time of her fall would experience field and the results of the plaintiff’s blood draw, that an individual with a BAC of Whitekus’s testimony. Rather, he testified, based on the literature in his no causal link between them — prov es little, that is not a fair characterization that mere correlatio n — i.e., the coincidence of two or more facts or events with fell, it could only have been because she had been drinking.” While we agree was more likely to fall given her elevated BAC does not mean that “when she that “[c] orrelation does not establish causation,” and that evidence that she that Whit e kus’ s opinion “relied entirely on an improper correlation argument,” cause” of her injuries was untenable or unreasonable. The plaintiff asserts permitt ing Whitekus to opine that the plaintiff’s alcohol consumption was “a [¶16] The plaintiff has also not shown that the trial court ’s ruling

impairment becomes more severe. he cited that reflect th e commonsense proposition that as BAC increase s likewise reliable. His testimony was supported by numerous scientific studies the plaintiff on a person’s judgment, perception, a nd psychomotor skills was Whitekus’ s testimony regarding the impact of a BAC in the range calculated for alcohol in the stomach that would not yet be absorbed (quotation omitted)). the ti m e elapsed, the average “social drinker” burn - off rate and the amount of (finding reliable a calculation of BAC at the time of the accident that considered determined to be reliable. See State v. Lavoie, 1 p. 5 52 N.H. 542, 546 (2005) methodology is substantially similar to the methodology that we have alcohol metabolism rate. As the trial court noted in its order, Whitekus’s estimate of the number and strength of drinks consumed, and the average emergency room after the fall, the time that elapsed after the fall, the plaintiff ’ s plaintiff’s BAC at the time of the fall based on a blood draw conducted at the [¶15] The plaintiff has not made this showing. Whitekus determined the

Dartmouth - Hitchcock Clinic, 1 p. 5 54 N.H. 662, 665 (2006) (quotation omitted). untenable or unreasonable to the prejudice of [her] case.” Milliken v. the plaintiff, as the appealing party, must show that the ruling was “clearly 280, 286 (2008). To show that the trial court’s decision was not sustainable, our unsustainable exercise of discretion standard. Baxter v. Temple, 157 N.H. [¶14] We review the trial court’s determination of expert reliability under

complexities or satisfactorily weigh its inadequacies.” Id. than ex cluded from jurors’ scrutiny for fear that they will not grasp its upon reliable grounds, it should be tested by the adversary process, rather not flawless evidence.” Id. at 12 p. 5 5. “[A]s long as an expert’s . . . testimony rests is to ensure that a fact - finder is presented with reliable and relevant evidence, testimony.” Id. at 124 - 25. “The overall purpose of Rule 702 and RSA 51 p. 6 6:29 - a finder to determine the weight and credibility to be afforded an expert’s gatekeeper, “ensuring a methodology’s reliability before permitting the fact - [¶13] When considering these factors, the trial court functions as a 6

colloquially. It is unclear from the record whether the trial court used the phrase “law of the case” formally or 1

in the automobile accident. Because the plaintiff was prevented from plaintiff’s migraines had been worsened by the whiplash injury she sustained [¶21] In his deposition testimony, Alexander had acknowledged that the

part, “[t] hat’s the law of the case.” 1 exami nation of Alexander. The trial court sustained the objection, stating, in had testified to on direct, it should do the same with respect to the cross defendant’s cross - examination of the plaintiff’s expert, Dr. Myers, to mat ters he direct. The defendant asserted that because the trial court had limited the defendant objected on the ground that the question was beyond the scope of whether t he migraines were caused by her whiplash injury, however, the something other than a brain injury. When the plaintiff sought to elicit symptoms the plaintiff experienced after the accident were attributable to [¶20] He then testified without objection on cross - examination that the

physician saw no relationship between the migraine s and the accident. the plaintiff’s migraines, but he implied on direct that the plaintiff’s treating not asked on direct for his opinion as to whether the accident had an y effect o n Alexander, testified that the plaintiff had not suffered a brain injury. He was plaintiff’s preexisting migraines. The defendant’s expert neurologist, Dr. automobile accident caused a traumatic brain injury that worsened the neurologist, Dr. Warriner, supported this theory. He testified that the exacerbation of her preexisting migraines. The testimony of her expert [¶19] The plaintiff claimed that the automobile accident caused an

B. Alexande r Cross - Examination

exclude his testimony. exercise of discretion in denying the plaintiff’s motion in limine seeking to substitute a mere correlation for proof of causation, we affirm the trial court’s [¶18] Because Whitekus’s opinions were relevant and reliable and did not

to “establish causation.” Warinner, shared. Whitekus’ s opinion did not, therefore, rely upon correlation alcohol was a factor in the fall, an opinion the plaintiff’s expert witness, would not be able to render such an opinion. He did testify, however, t hat consumption was the cause of the fall. Whitekus himself testified that he contrary, the trial court precluded Whitekus from opining that the alcohol plaintiff fell, “it could only have been because she had been drinking.” To the [¶17] Nor did Whitekus testify, as the defendant argues, that when the

impairment and fall. therefore ample evidence of a causal link between the plaintiff’s BAC and her p. 7 7

interests of justice” to limit the scope of cross - examination of a particular must make a n individualized determination regarding whether it serves “the opposing party’s claim”). Accordingly, pursuant to Rule 611(b), a trial court examination extends ordinarily to any matter which tends to discredit the Lapointe, 86 N.H. 162, 16 p. 7 7 (1933) (“[t]he latitude permissible in cross matters not testified to on direct examination.” N.H. R. Ev. 611(b); s ee Noel v. interests of justice,” the judge “limit[s] cross - examination with respect to that is, “on any matter relevant to any issue in the case,” unless “[i] n the continues t he common law practice of allowing open - ended cross - examination, credibility, see Fed. R. Ev id. 611(b), New Hampshire Rule of Evidence 611(b) subject matter of the direct examination and matters affecting the witness’s counterpart, which generally limits the scope of cross - examination to the holding would undermine the purpose of Rule 611(b). Unlike its federal must similarly limit the scope of cross - examination of another witness, that examination of one witness to the subject matter of the direct examination it [¶24] Were we to hold that when a trial court limits the scope of cross -

examination.” N.H. R. Ev. 611(b). cross - examination with respect to matters not testified to on direct the case, including credibility. In the interests of justice, the judge may limit that “[a] witness may be cross - examined on any matter relevant to any issue in Rule of Evidence 6 11 (b) provides, regarding the scope of cross - examination, unreasonable to the prejudice of his or her case. Id. at 824. New Hampshire trial court ruling must demonstrate that it was clearly untenable or 821, 823 - 24 (2008). To prevail under this standard, the party challenging the absent an unsustainable exercise of discretion. State v. Kornbrekke, 156 N.H. examination and the admissibility of evidence, and we will affirm its ruling [¶23] A trial court has broad discretion to determine the scope of cross -

ruling, the doctrine did not apply. (emphasis added). There having been no appeal at the time of the trial court’s Saunders v. Town of Kingston, 160 N.H. 560, 566 (2010) (quotation omitted) not ordinarily reexamined in the same case upon a subsequent appeal.” of the case doctrine provides that “[q]uestions once decided on appeal. . . are matters that he had testified to on direct, it erred as a matter of law. The law it was bound by “the law of the case” to limit cross - examination of Alexander to [¶22] As a preliminary matter, to the extent that the trial court ruled that

examination of Alexander. was true, the trial court erred when it limited t he scope of her cross opinion that the accident exacerbated the migraines when in fact the opposite could have understood from this testimony that Alexander disputed Warriner’s something other than a brain injury. The plaintiff argues that because the jury the migraines and the accident and that the migraines were caused by implication that the plaintiff’s treating physician saw no relationship between questioning Alexander on this point, however, the jury heard only Alexander’s p. 8 8

the accident without a finding that the plaintiff had a traumatic brain injury, that the jury could not find that the plaintiff ’ s migraines were exacerbated by plaintiff’s cross - examination of Alexander enabled defense counsel to argue the auto accident. B asically, everything flows from that fact.” Restricting the dependent on you finding that [the plaintiff] had a traumatic brain injury from migraines got worse just because of the auto accident. The claim here is very Defense counsel argued in closing, moreover, that “the claim here isn’t that her migraines were made worse by the accident when that was not the case. credibility and led the jury to believe that there was a dispute over whether the the plaintiff’s case is self - evident, given that it undermined the plaintiff’s misimpression was an unsustainable exercise of discretion. The prejudice to and the automobile accident. Preventing the plaintiff from correcting that not believe that there was any relationship between the plaintiff’s migraines created the impression that both he and the plaintiff’s treating physician did unreasonable and that it prejudiced the plaintiff. Alexander’s testimony that the trial court’s ruling limiting cross - examination of Alexander was clearly [¶26] Based upon our review of the record, we agree with the plaintiff

“in the case” because the plaintiff was not making that claim. was not in evidence, and the future cost of treatment of the migraines was not regarding the cost of treatment would confuse the jury because Myers’s report t he transcript reflects that the trial court was concerned that testimony the grounds that the cross - examination exceeded the scope of direct. Rather, and the plaintiff objected. The trial court sustained the objection, but not on inquired about Myers’ s projection of the costs for treatment of the migraines, migraines. At the conclusion of this line of questioning, defense counsel report that he had not been asked about on direct, including the plaintiff’s Defense counsel then questioned Myer s in some detail about portions of his testimony in cross - examination,” and the trial court overruled the objection. counsel argued that she was “allowed to get outside the scope of direct the gr ound that cross - examination exceeded the scope of direct. D efense that went beyond the scope of his direct testimony. The plaintiff objected on examination, defense counsel asked Myers questions about his expert report rulings on the scope of the cross - examination of Myers. During cross record does not support the defendant’s characterization of the trial court’s cross - examine Dr. Alexander to matters outside the scope of direct.” The patently unfair to apply different rules to Plaintiff’s counsel and allow him to trial court had restrict ed cross - examination of Myers, “it would have been [¶25] We are unpersuaded by the defendant’s argument that because the

Myers, the trial court erred. solely based upon its prior ruling limiting the defendant’s cross - examination of Thus, to the extent that it limited the plaintiff’s cross - examination of Alexander circumstances surrounding that witness’ s testimony. N.H. R. Ev. 611(b). witness to the scope of the witness’s direct examination based on the factual p. 9 9

Murray v. Developmental Servs. of Sullivan County, 14 p. 9 9 N.H. 264, 270 (2003). to give a curative instruction for an unsustainable exercise of discretion. See merits of the plaintiff ’ s argument. We review the trial court’s decision declining after such opening or closing” (emphasis added)). We therefore consider the statements made in closing in civil cases must be made “during or immediately Broderick v. Watts, 136 N.H. 153, 167 (1992) (holding that any objections to plaintiff objected immediately after defense counsel finished her closing. See did not object during closing, we disagree because the record reflects that the argues on appeal that the plaintiff did not preserve her objection because she objection and denied the plaintiff’s request. To the extent that the defendant to disregard the comments. Following argument, t he trial court overruled the [¶29] The plaintiff objected and requested that the court instruct the jury

have any witnesses who testified about it.” told you what happened. She wants you to believe her testimony. We don’t night the plaintiff fell, noting, “N one of th em came. None of them came and absence of the plaintiff’s family members and friends who were at the party the they were going to help, they’d be here.” Defense c ounsel also noted the stairs and stated, “we don’t know what they’re going to say. Presumably, if doctors she had seen during the period of time leading up to the fall down the Warinner. Counsel later noted that the plaintiff had not called any of the that “the only one who makes that link” was the plaintiff’s expert witness, burden of proof, that she had a traumatic brain injury from this accident,” and plaintiff “didn’t call any of the people who could establish to you, to meet that primary care doctor, and her mental health counselors and stated that the the plaintiff’s treating neurologist, the emergency room doctor, the plaintiff’s witnesses who might have testified but did not. Counsel noted the absence of [¶28] Throughout her closing argument, defense counsel referred to

C. Defense Counsel’s Reference to Missing Witnesses

unsustainable. Rule of Evidence 611(b), we hold that the trial court’s decision is defendant’s objection and the trial court’s misapplication of New Hampshire created by Alexander’s trial testimony before the trial court sustained the plaintiff’s neck injury aggravated the migraines. In light of the misimpression fact, Alexander testified in his deposition that it was “probably correct” that the since the accident, not that he concurred with Dr. Warinner’s conclusions.” In that, according to [the plaintiff’s] self - reporting, her migraines had worsened deposition testimony makes clear that “Dr. Alexander would only have agreed affected the outcome of the case because, as the defendant puts it, the plaintiff had been permitted to cross - examine Alexander, it would not have [¶27] We do not find persuasive the defendant’s argument that even if the

aggravated the migraines. despite the fact that the defen dant ’s own expert had opined that the whiplash p. 10 10

argument in light of the specific circumstances of the case. provided with the opportunity to challenge the propriety of the missing - witness This advance notice must be sufficient to ensure that an opposing party is adverse, the party must notify the court and the opposing party in advance. failure to call a certain witness was because the witness’s testimony would be today that a party who intends to argue in closing that the opposing party’s court of the opportunity to exercise its discretion meaningfully. Thus, we hold witness es would have testified unfavorably to her. It also deprived the trial plaintiff’s failure to call the witnesses was for reasons other than fear that the deprived the plaintiff’s counsel of the opportunity to demonstrate that the advance of her intention to comment as she did on the missing witnesses. This [¶32] Defense counsel did not apprise the court or the plaintiff in

N.H. at 249. entirely proper that [the court] do so before allowing the argument.” Kerr, 1 3 0 the proponent of the missing - witness argument seeks to establish, “it is “when a trial judge can conveniently test the soundness of” the inference that “right to comment unfettered by the court’s discretion to forbid it,” and that (quotations omitted). We have also stated that parties ought not be given the questions of the credibility and good faith of a party.” A bel, p. 10 104 N.H. at 124 divert the attention of the jury from the issues presented . . . to collateral “argument of this character is not to be commended because of its tendency to should be vigilant against attempts by counsel to abuse the rule and that [¶31] To limit that risk, however, we have also cautioned that courts

Brito v. Company, 79 N.H. 163, 164 (1919). p. 10 104 N.H. 119, 122 - 2 4 (1962); Beardsell v. School, 89 N.H. 459, 462 - 63 (1938); apparently in the jurisdiction and available to appear. See, e.g., Abel v. Yoken, indicates that the witness could have given relevant testimony and was case to comment on the opponent’s failure to call a witness when the record with no evidentiary basis, we have sustained rulings permitting a party in a (citing cases). Despite the rule’s inherent risk that it invites jury speculation the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 149 n.53 (1985) (1893); R obert H. Steir Jr., Revisiting the Missing Witness Inference — Quieting N.H. 247, 248 - 49 (1987); see also Graves v. United States, 150 U.S. 118, 121 testimony would have been unfavorable to that party. See Kerr v. Allard, 130 could have given relevant testimony, a presumption is created that the that if a party has the ability to produce, but does not produce, a witness who witness rule” or the “missing - witness rule,” which stands for the proposition [¶30] This court has recognized what is often referred to as the “uncalled -

[her] case.” Id. curative instruction was “clearly untenable or unreasonable to the prejudice of Accordingly, we must determine whether the trial court’s decision not to give a p. 11 11

M AC DONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.

2021 fall. the automobile accident and on both liability and damages for the October 9, p. 11 111 (2010). We remand to the trial court for a retrial on damages arising from arise on remand. See Motorsports Holdings v. Town of Tamworth, 160 N.H. 95, up question and answer from her deposition because the issue is unlikely to plaintiff’s argument that she should have been permitted to introduce a follow plaintiff’s motion to set aside the verdict. We also decline to address the reach the plaintiff’s argument that the trial court erred when it denied the have testified but did no t. In light of our rulings on these issues, we do not her closing argument to several witnesses or possible witnesses who might to strike or give a curative instruction regarding defense counsel’s reference in limiting the plaintiff’s cross - examination of Alexander and its ruling declining admitting Whitekus’ s expert testimony. We reverse the trial court’s ruling [¶34] For the foregoing reasons, we affirm the trial court’s ruling

unreasonable to the prejudice of the plaintiff’s case. statements about witnesses who were not called at trial was therefore clearly The trial court’s failure to instruct the jury to disregard defense counsel’s

happened. She didn’t bring her neurologist. her. Remember, she didn’t bring the family members to talk about what [H]as the Plaintiff earned your trust? Because she wants you to trust

plaintiff’s credibility: c ounsel’s closing argument explicitly tied the “missing” witnesses to the substantial part, on the jury ’s finding her testimony credible. Defense her migraines and that a syncope episode caused her to fall depended, in to persuade the jury that injuries from the automobile accident exacerbated much of the plaintiff’s case depended on her credibility. The plaintiff’s ability said had they appeared at trial. Further, as the defendant acknowledges, result, the jury was left to speculate about what these witnesses might have misuse of the missing - witness rule that our decisional law requires. As a plaintiff. The trial court’s ruling deprived the plaintiff of the protection against [¶33] The lack of a curative instruction resulted in prejudice to the