At the time of trial, a decision must be made in certain cases as to whether an application should be made for the trial to be bifurcated, such that liability is tried first and, if the plaintiff prevails, then a trial on damages will follow, or to seek a unified trial whereby all aspects are tried in front of a single jury at one time. When a personal injury case is tried, a plaintiff will want a jury to fully understand that defendants' negligence has caused grievous harm, whereas defendants will prefer to remove sympathy factors in contesting liability and determining fault.

For years, trial lawyers have generally assumed that most cases in the Second Department will be bifurcated. Hopefully, its recent decision in Castro v. Malia Realty, 177 A.D. 3d 58 (2d Dept. 2019) will clarify and correct this assumption.

There are statutes and court rules governing the exercise of discretion by the trial court. CPLR §603 addresses bifurcation and provides:

§603. Severance and separate trials

In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others.

This section coupled with CPLR §4011 demonstrates the broad discretion of the trial judge in determining the manner in which a case should be tried. CPLR §4011 provides that the court may "determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial."

The bifurcation of trials is explicitly addressed in the Uniform Rules at 22 NYCRR 202.42 which encourages, but does not mandate, the severing of the trials on liability and damages:

(a) Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.

(b) Where a bifurcated trial is ordered, the issues of liability and damages shall be severed and the issue of liability shall be tried first, unless the court orders otherwise.

This uniform rule which was enacted in 1986 superseded the far more stringent and now repealed Second Department Rule 22 NYCRR 699.14. It provided that in personal injury actions, liability and damages "shall be severed," although under "exceptional circumstances" the trial judge could direct a unified trial. However, this defunct rule has had lingering effects in the Second Department.

However, in its recent decision, Castro v. Malia Realty, 177 A.D.3d 58 (2d Dept. 2019), the Second Department has corrected the misconception by the trial courts and the Bar that in the Second Department "exceptional circumstances" are required for a unified trial. Castro makes clear that the Second Department, like its sister departments, adheres to Uniform Rule 22 NYCRR 202.42, the flexible statewide uniform rule which entrusts the trial court with substantial discretion in making this decision.

Cases Favoring Bifurcation

There are a number of factors considered by the courts in determining whether an application for a unified or bifurcated trial should be granted. The most significant factor, but not the only consideration, is whether the nature of the injuries has a bearing on the issue of liability. That is clearly the paramount factor in medical malpractice and wrongful death cases where the injuries and liability are generally impossible to sever.

There are cases which clearly favor bifurcation. For example, in Jackson v. Montefiore Med. Ctr., 109 A.D.3d 762 (1st Dept. 2013), plaintiff was knocked over when defendant ran into her while she was standing by her desk. The court found that bifurcation was warranted, as the questions of liability and damages were distinct and severable issues and plaintiff's injuries were not probative in determining how the accident occurred. In Berman v. County of Suffolk, 26 A.D.3d 307 (2d Dept. 2006), the court denied defendants' motion for a unified trial where they failed to show a need to introduce evidence of the alleged injuries in order to establish that they were non negligent in the happening of a rear-end collision.

In Patino v. County of Nassau, 124 A.D.3d 738 (2d Dept. 2015), the court was concerned that there would be undue prejudice to defendant if the full degree of injuries was revealed to the jury in a unified trial. Further, plaintiff failed to demonstrate that his expert, who was not a medical doctor, would have to testify at both phases, which would be an expense, or that a unified trial would otherwise result in increased judicial efficiency. The court held that bifurcation avoided the risk of prejudice to defendant and the engendering of sympathy for the plaintiff. The court noted that even where a trial is bifurcated, some evidence of injuries could be admitted in the trial court's discretion to establish liability during the liability phase of the trial, as long as the evidence was probative of liability and accompanied by appropriate limiting instructions.

Cases Favoring Unified Trial

There are many ways proof of injuries may be intertwined with liability so as to compel a unified trial. In Carpenter v. County of Essex, 67 A.D.3d 1106 (3d Dept. 2009), an application for bifurcation was denied in a motor vehicle accident action where one person died and one passenger sustained head injuries for which he sought a lesser burden of proof in the liability phase because of memory loss. He needed to introduce medical proof that the loss was genuine. The same medical expert testifying to these circumstances in the liability phase would have had to testify again at the damages phase.

Further, plaintiffs sought damages for preimpact terror, which required the testimony of both fact witnesses and a reconstruction expert on both liability and damages. In addition, defendant raised a seat belt defense requiring the same and additional witnesses and experts. The court found that it would be improvident to separate the issues of liability from damages.

In Zbock v. Gietz, 162 A.D.3d 1636 (4th Dept. 2018), a wrongful death action, plaintiff's claim for damages for decedent's preimpact terror was a significant factor in the denial of defendant's application for bifurcation. The Fourth Department determined that proof of decedent's injuries would overlap with the proof regarding liability such that the two issues were intertwined. So too, in Johnstone-Mann v. Stout, 63 A.D.3d 1713 (4th Dept. 2009), an application for a unified trial was granted where evidence of the injuries and resulting amnesia sustained by plaintiff were necessary to allow a jury to consider whether she should be held to a lesser degree of proof on the issue of liability.

In some cases, the nature and seriousness of the injuries may be relevant to the issue of force and thus require a unified trial. In Jacobs v. Broidy, 88 A.D.2d 904 (2d Dept. 1982), the severity of plaintiff's injury was relevant to the issue of liability to assist the jury in determining the force of the blow to plaintiff's mouth, and whether defendant's conduct was reasonable under the circumstances. It was reversible error for the trial court to exclude all evidence of plaintiff's injuries.

Similar, in Carbocci v. Lake Grove Entertainment, 64 A.D.3d 531 (2d Dept. 2009), plaintiff was entitled to a unified trial where she fell on defendant's ice skating rink and alleged she was negligently or forcibly removed from the ice by defendant despite instructions to not touch her and to call an ambulance. The defendants assert that she stood up on her own and was merely assisted from the ice by defendants' employees. The plaintiffs moved for a unified trial, asserting that evidence with respect to her medical treatment was necessary to prove the injuries were caused by defendants' actions. Although the trial court denied her motion, the appellate court held that a unified trial was proper.

Other Departments

In its recent important decision in Castro v. Malia Realty, 177 A.D.3d 58 (2d Dept. 2019), the Second Department recognized that the other three departments were more relaxed in directing unified trials in accordance with the statewide rule, and made it clear that the Second Department would follow the same standards. The court noted that, for example, the Third Department decision in Johnson v. Hudson Riv. Const. Co., 13 A.D.3d 864 (3d Dept. 2004), which held it was not an abuse of discretion to direct a unified trial in a wrongful death action. If the trial were bifurcated, decedent's spouse would have to endure two trials and it was likely that two separate juries would need to be empaneled due to coordination of expert witnesses.

It further cited the First Department decision in Sommer v. Pierre, 51 A.D.3d 464, 465 (1st Dept. 2008), which held that "fairness and convenience weigh in favor of a unified trial, which will serve to prevent a verdict based on undue sympathy for either party."

'Castro'

In Castro, a construction accident, plaintiff was standing on a scaffold which collapsed. He sustained multiple injuries, including injuries to his brain and head. Immediately prior to trial, the plaintiffs moved for a unified trial, contending that evidence regarding Castro's head and brain injuries was necessary to refute defense contentions made in opposition to the plaintiffs' prior motion for summary judgment under Labor Law §240(1), that plaintiff did not sustain his injuries in a fall from the scaffold. Defendant contended that his injuries resulted from lifting wooden planks. In opposing the plaintiffs' motion for summary judgment, defendants submitted medical records with entries that the accident occurred when plaintiff lifted wood. They stated that testimony from the physicians who took this history would be presented during the liability phase.

The trial court denied the plaintiffs' motion for a unified trial, holding that a bifurcated trial was "required under the [S]econd [D]epartment rules." It held that it would allow plaintiffs to cross-examine the treating physicians as to whether Castro's injuries were consistent with a fall, but further stated that it would not allow the plaintiffs to go "into too much detail." At the ensuing trial on the issue of liability, Castro testified that he was instructed by his foreman to lower some wooden planks down from a scaffold and was required to work on a scaffold platform approximately seven feet above the ground. Plaintiff testified that as he was lowering a wooden plank from a higher platform, the scaffold platform upon which he was standing shifted, and he lost his balance and fell to the ground, losing consciousness. When he regained consciousness, no one was around.

Two of Castro's treating physicians testified that he reported falling from a scaffold and that his injuries were consistent with a fall. Defendants presented testimony from another of his treating physicians that Castro reported sustaining injuries as a result of lifting wooden planks, that his injuries were consistent with lifting wooden planks, and that he did not complain of a head or brain injury. On cross-examination, that treating physician testified that Castro's injuries were consistent with a fall. However, the trial court prohibited the plaintiffs from eliciting testimony from Castro's treating neurologist regarding the results of diagnostic testing of Castro's brain. The result was a defense verdict.

Thus, on appeal, the Second Department bench was compelled to address the decision of the trial court that it was "required" to bifurcate the trial. In so doing, the court held that this was not the correct standard to be applied in the Second Department. It affirmed its adherence to the uniform statewide rule, stating:

There is little doubt but that the bench and the bar in the Second Department perceive that our precedent is, in contrast to the approach of the other departments, inflexibly, or nearly inflexibly, in favor of bifurcation. We stress today that the trial courts in the Second Department have the discretion to determine whether a personal injury trial should be unified or bifurcated in accordance with the standard set forth in the statewide rule.

Id. at 65.

The court held that a unified trial should have been held. Addressing the proper standard to be applied in making the determination, the court held:

The Supreme Court did not exercise its available discretion in denying the plaintiffs' motion for a unified trial. The court's determination was predicated upon its perception that a bifurcated trial was strictly required by the Second Department's "rules." However, neither the statewide rule nor the governing precedent absolutely requires that the trial of a personal injury action be bifurcated. Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases.

Id. at 66

The appellate bench rejected the trial court's attempt to split the baby in half by allowing limited testimony on damages during the bifurcated liability trial. The verdict was set aside and a new unified trial was ordered. The court stated:

Due to the trial court's rulings, the medical testimony at the liability phase of the trial was essentially limited to whether the medical records demonstrated a history consistent with a fall from a scaffold or from lifting wooden planks. Testimony concerning causation and the nature and extent of Castro's injuries was not permitted. Because the issues of liability and Castro's injuries were so intertwined, the court's insistence upon bifurcation and its ensuing limitations on the scope of the medical evidence that could be elicited by the plaintiffs deprived them of a fair trial.

Id. at 66

The Castro decision is significant in dispelling any lingering belief that bifurcated trials are required in the Second Department trial courts and in emphasizing the importance of the exercise of discretion by the trial court in making the determination.

Robert S. Kelner is senior partner at Kelner and Kelner. Gail S. Kelner is an attorney with the firm.