Partner Daniel Stewart was recently quoted in the New York Law Journal entitled “Split Personal Injury Trials Not a Hard Rule, Court Says in Upending Years-Old ‘Presumption’”. The article discussed a recent a unanimous appellate panel decision in the Second Department, which made clear that trial courts have discretion in determining whether a trial should be unified or bifurcated, and that there should not be a presumption of a bifurcated trial, with one trial for liability and one for damages. The Second Department includes Kings, Queens, Staten Island (Richmond), Nassau, Suffolk, Dutchess, Orange, Putnam, Rockland, and Westchester Counties, so this decision could have far-reaching consequences. At the very least, it seems likely there will be an increase in motions from the plaintiffs’ bar in an effort to get their clients’ injuries in front of the jury sooner. Unfortunately this will likely result in increased litigation expenses. There is also the potential for increased values in cases with even questionable liability, purely from the threat that jurors may ignore weaknesses in plaintiff’s case and focus on the injuries instead.
In regards to the decision, Daniel Stewart was quoted as saying “I don’t know that it will necessarily open the floodgates [for more unified trials], because the Second Department is still saying that if you want a unified trial, you’ve got to establish that damages are inextricably intertwined with liability”—a high standard, he said.
Still, “I would say generally,” more unified trials, if that happens, is better for plaintiffs, in part because of “the sympathy factor—juries, when they hear about this kind of stuff”—injuries and suffering—“it is difficult for them to keep sympathies out if it.”
Stewart, a partner at Fleischner Potash, also said that “for my 23 years now [as a litigator], it’s just been understood that in Brooklyn and Queens and Long Island, you get a bifurcated trial, and in Manhattan and the Bronx [in the First Department] you get a unified trial.”
To the extent the decision emboldens the plaintiffs’ bar to seek unification more often, Fleischner Potash is well-prepared to handle the threat. We’ll remain aggressive in defending damages, highlighting inconsistencies in records that raise questions about plaintiff’s credibility, forcing counsel to think twice about unifying their case. We will also continue to keep our carrier clients well-informed and alerted for the occasional case where unification could be advantageous for the defense.
The article was written by Jason Grant, and appeared in the New York Law Journal on September 19, 2019. A link to the article can be found below: