The article, "Split Personal Injury Trials Not A Rule, Upending 'Presumption in favor of Bifurcation," in the  Sept. 20 edition of the New York Law Journal distorts the import of Presiding Justice Alan D. Scheinkman's decision for the Second Department in Castro v. Malia Realty LLC, handed down on September 11, 2019.

The article also has an uncustomary plaintiffs' bar slant misleading the bench and bar. The Castro decision does not upend the 'presumption' as the title of the article suggests. The opening sentence of the article, "In a written opinion that could have major implications for personal injury trials throughout the Second Department for years to come," sets the stage in misdirecting the reader.

Justice Scheinkman discusses 22 NYCRR 202.42, a court rule that encourages trial judges to consider bifurcating issues of liability and damages in personal injury actions when doing so "may assist in clarification or simplification of issues and a fair and more expeditious resolution of the action."

In Castro, doctors' testified to support the mechanism of injury to prove a labor law violation, and the testimony of the doctors was relevant to liability (did plaintiff pull out his back lifting wood or did he fall from a scaffold as claimed). The rule allows the judge to exercise discretion and order a unified trial in the Second Department, where trials in personal injury cases, absent a ruling to the contrary, are bifurcated.

The problem in the Castro case was the trial judge did not exercise any discretion in denying the motion for a unified trial. The judge seemingly thought there was an inflexible rule in favor of bifurcation in the Second Department and that he lacked the authority to unify the trial. It was the lack of exercise of discretion that resulted in the reversal.

The decision changes nothing except the perception of a party who did not know any better that one may ask the court to unify a trial in the Second Department when the facts warrant unification. The decision does no more than bring to the attention of the bar and bench that judges have the discretion in each judicial department to consider whether or not a case should be bifurcated. The tone of the article lends support to the plaintiffs' bar to argue in favor of unified trials when, ironically, the rule actually encourages judges to consider bifurcating trials, not unifying them.

Olivia M. Gross is a senior partner at Newman Myers Kreines Gross Harris.