dissenting:
This case was tried twice with a plaintiffs verdict each time. The verdict in the first trial was larger than the verdict in the second trial and plaintiff understandably seeks reinstatement of the first verdict. Two trials were held because, after the first trial, the trial judge granted the defense motion for a new trial, concluding that he had incorrectly barred testimony of two defense witnesses bearing on the issue of liability. The majority holds that the trial judge abused discretion in ordering the new trial on that ground. I disagree and, therefore, respectfully dissent.
Before turning to the substantive issue on which we are divided, I will also note my disagreement with the majority on the applicable standard of review. The majority correctly observes that this court, should apply an abuse of discretion standard; but, as the majority points out, “greater scrutiny” is called for by a reviewing court where the trial court has granted a new trial motion, as occurred here, than in those circumstances where the trial court has denied such a motion. See Lyons v. Barrazotto, 667 A.2d 314, 324 (D.C.1995). That heightened standard is the one the majority applied in this case.
The “greater scrutiny” requirement, however, is ordinarily imposed only where the grant of a new trial is grounded in the trial court’s finding that the verdict is against the weight of the evidence. We have said that “[wjhere the court grants a new trial because the verdict is against the clear weight of the evidence, we will scrutinize to assure that the trial court did not simply accept one version of the facts over another.” Id. at 324-25. On the other hand, we have also said that when the grant of a new trial is based on legal error, as was the case here, “the appellate court should be more inclined to affirm the grant than when the trial court simply weighed the evidence differently than the jury.” Id. at 325 n. 15 (internal brackets and quotation marks omitted).1 Therefore, in reviewing the trial court’s exercise of discretion in this case, the applicable standard would appear to be one falling between the two outer limits discussed above, ie., we should more closely examine the trial court’s action than we would when applying the narrow standard for reviews of the denial of a new trial motion, but the standard would be less rigorous than the “greater scrutiny” required when the judge takes the verdict away from the jury. Thus, I would apply a standard of review less demanding than does the majority-
The above discussion is essentially academic in this ease, however, because, even applying the majority’s standard of review, I would hold that the trial judge did not abuse his discretion when he concluded that he had committed harmful error by rejecting the proffered testimony. I will not repeat the facts that have been set out in considerable detail, together with lengthy quotations from some of the witnesses’ testimony, in the majority opinion. I do want to emphasize, however, the specific grounds asserted by the plaintiff on the issue of liability. The basis for liability is summarized in the order of the trial court, granting the new trial motion, where the trial court describes the testimony of the two expert witnesses called by the plaintiff:
*641Dr. Paladino testified that Dr. Levin breached the standard of care when he: (1) injected Ms. Hummer rapidly and harshly; (2) pushed Ms. Hummer back in the chair after she lunged forward; (3) removed the spent carpule and immediately injected her again without waiting for the first anesthetic to take effect; and (4) changed the carpule with the needle still in Ms. Hummer’s mouth_
Dr. Schiff similarly stated that Dr. Levin breached the standard of care when he: (1) rapidly penetrated the tissue; (2) did not respond to Ms. Hummer’s reaction, ie., he did not withdraw the needle after Ms. Hummer experienced pain; and (3) changed the carpule while the needle remained in the tissue....
Thus, according to the patient’s experts, the dentist violated the standard of care in the manner in which he injected the patient while she was sitting in the dentist chair. On the question of whether anyone other than the patient or the dentist was present at that time, the patient’s testimony was unequivocal: a female dental assistant was there during the entire incident, supporting the dentist. On that day, three different people, named Gabri, Strong, and Mothersole, were employed by the dentists as dental assistants, but no one remembers who was present that day, and none of the dental assistants remembered this visit of this patient.2 The dentist testified that when dental assistants are present they must watch him because they hand him instruments. He also stated that a dental assistant would not turn her back to prepare trays, take phone calls, or make entries on the patients’ charts. Finally, the patient specifically recalled that the dental assistant, who was present, handed the dentist a “capsule” while the injection was being given.3
Because a dental assistant was providing support to the dentist, according to the patient, then either Gabri, Strong, or Mother-sole must have been present. Therefore, the dentist sought to demonstrate that each dental assistant would have recalled an incident such as this one, if it had occurred as the patient said it did, in an effort to convince the jury that it did not in fact occur. To that end, the dentist’s attorney posited a hypothetical to Gabri asking that she assume the facts as recited by the patient, and as summarized in the testimony of the plaintiffs expert witnesses noted above, which concluded with this question: “Would you remember such an event if it occurred?” 4 Over objection, Gabri responded that she would have remembered such an incident, but did not recall it happening. The trial court, however, later denied the defense the opportunity to make an identical inquiry of the other two dental assistants, Strong and Mothersole. Counsel proffered that if asked, both witnesses would have responded in the same way Gabri did. It was this ruling that the trial judge held was erroneous when he granted the motion for a new trial.
The fundamental legal principle is not in dispute. In general, the admissibility of this kind of evidence, called “negative evidence,” is “founded on the witness’s failure to hear or see a fact which he would supposedly have heard or seen.” 2 John H. WigmoRE Evidence § 664 (Chadbom Rev.1979 & 1991 Supp.). This principle was long ago adopted in this jurisdiction. See LeCointe v. United States, 7 App.D.C. 16 (1895). The sticking point in this case, and the question that divides the parties and which separates this judge and the majority, is this limitation:
The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.
Wigmore, supra, at 907. The majority concludes that the dentist did not meet this requirement because none of the witnesses could themselves say that they were present *642and in a “position to observe all of the disputed events_” Ante at 639. In reaching that conclusion, the majority relies upon a North Carolina case making it “absolutely mandatory for the witness to demonstrate that he or she was in a position to hear or see....” Leisure Products, Inc. v. Clifton, 44 N.C.App. 233, 260 S.E.2d 803, 806 (1979). In this case, none of the prospective witnesses could meet that test. However, we have never held that the capacity of the witness to observe the events can be established only by the particular witness in question. I see no reason, for example, why that foundation could not be supplied by some other witness or witnesses. And in my view, the testimony of the patient placing a dental assistant in the room participating in the procedure, coupled with the dentist’s testimony that any dental assistant present must watch him because of the necessity that she hand instruments to him (a circumstance that the patient testified occurred here) does just that. Therefore, I cannot say it would have been error for the trial court to have admitted the testimony.
The majority holds that the trial court’s initial ruling excluding the evidence was correct. Ante at 639. While I would hold otherwise, for the reasons stated, I think it is fair to characterize that question as a fairly close one. Given that, it seems to me that the question that needs to be answered is not whether the evidentiary ruling was correct, but rather we should ask: Did the trial judge abuse discretion in granting the new trial motion upon concluding that depriving the defense of this evidence was harmful? It seems to me that the answer to that question must be “no,” for two reasons. First, as stated above, the evidentiary ruling was a close one, and where a trial judge makes factual findings in determining the threshold question of admissibility of evidence, we generally give deference to those findings.5 Second, having admitted the evidence with respect to one of the witnesses, the harm to the defendant was manifest when he was not permitted to ask the same question of the other two witnesses. In these circumstances the jury could only have been left wondering why the dentist did not also elicit the same denial from Strong and Mothersole.
The dentist needed to complete his story by showing that all of the possible witnesses would have remembered the incident if it occurred as the patient claimed it did. The jury was, of course, free to disregard testimony setting out the dentist’s version of events, but he was certainly entitled to present it in its entirety. Because he was not allowed to do so, the jury could well have concluded that the dentist did not present the other two witnesses because they would not testify as Gabri did, a conclusion contrary to reality. From the dentist’s point of view, either all of the witnesses should provide the testimony sought or none of them should testify on that point. Any other result is necessarily prejudicial and a sufficient basis for the grant of a new trial. For all these reasons, I conclude that the trial court did not abuse discretion.in setting aside the verdict, on this ground, after the first trial.
. See Rich v. District of Columbia, 410 A.2d 528, 536 (D.C.1979); Vander Zee v. Karabatsos, 191 U.S.App.D.C. 200, 206, 589 F.2d 723, 729 (1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066 (1979).
. Hie suit was not filed until nearly three years after the incident and the trial occurred more than two years later.
. Hie patient’s testimony on this point is set out in detail in the majority opinion, ante at 638-39 n. 7.
.The complete hypothetical question is set out in the majority opinion, ante at 634-35.
. See, e.g., Laumer v. United States, 409 A.2d 190, 203 (D.C.1979) (in reviewing the trial court’s ruling on the admissibility of a declaration against penal interest, "we will not disturb the trial court’s findings unless they are clearly erroneous”); Watts v. Smith, 226 A.2d 160, 163 (D.C.1967) (same standard when reviewing trial judge’s ruling on admissibility of a spontaneous utterance).