CPLR §§602 and 603 provide very general guidance as to the consolidation and severance of medical malpractice claims for trial. The matter is largely discretionary with the trial court, but that discretion is reviewable and consolidation of cases with common questions of law or fact is favored. Consistency of the outcome of related claims is a stated goal, as is judicial economy. It is only where the proponent of separate trials has established that a substantial right of a party is prejudiced by a consolidated trial that separate trials are obtainable. To help assess the manner in which the trial court is likely to respond to a motion for either severance or consolidation, we can examine several themes in the decisions.

The desire of a party to have a separate trial is not the type of "substantial right" which the law seeks to protect. Vigo v. Marship, 26 N.Y.2d 157 (1970). The Court of Appeals in Vigo found common questions of fact and law, but held that the proponent of separate trials had not sustained the burden of establishing that a joint trial would prejudice a substantial right.

Most often, the substantial right that supports a severance motion involves delay in the resolution of one or more claims. The trial court is confronted with calendar issues involving multiple parties and claims, some of which may be ready for trial while others are not. Common issues of law and fact are present, but the court is called upon to decide whether the resolution of one set of claims should wait until all claims are ready to be resolved. Where the plaintiff was prepared to proceed with jury selection against the physician defendant, but the defendant hospital declared bankruptcy, a stay of proceedings threatened a substantial delay if the claims remained consolidated. The courts in Moy v. St. Vincent's Hospital, 92 A.D.3d 651 (2d Dept. 2012) and Kharmah v. Metropolitan Chiropractic, 288 A.D.2d 94 (1st Dept. 2001) solved the problem by severing the case as to the facility and allowing the trial to proceed against the physician with measures to protect that defendant's Article 16 rights.

Where the case of an injured 86-year-old patient was ready for trial and the spouse of the plaintiff (who had a loss of services claim) passed away, the death of that party would ordinarily have stayed all aspects of the action pursuant to CPLR 1015. On the death of a party, the court was divested of jurisdiction and the estate of the spouse was unrepresented by counsel. However, this did not prevent the trial court from severing the loss of services claim, allowing the primary claim to proceed to trial, and the Appellate Division affirmed that decision. Carauana v. Padmanabha, 77 A.D.3d 1307 (4th Dept. 2010).

The potential delay in the disposition of claims is merely one factor that the court will consider, although it is an important one. The anticipated delay must be shown to be lengthy and prejudicial to justify severance when weighed against the concerns about economical use of the court's time and the consistency of claim outcome. Williams v. Mascitti, 71 A.D.2d 813 (4th Dept. 1979). However, the length and expense of a more complicated trial, involving as many as 10 individual cases, seems not to be an issue. Harby v. Seaboyer, 82 A.D.2d 992 (3d Dept. 1981).

The diverse claims that arise from situations with common questions of law and fact are generally not an obstacle to a consolidated trial. In a case where there were three contract claims and one negligence claim before the court, a joint trial was ordered and the decision withstood appeal. Moore v. Parks, 29 A.D.2d 912 (4th Dept. 1968). Likewise, when a complex product liability claim was raised together with a malpractice case involving the management of a pregnancy, the trial court's severance of the claims was reversed on appeal with reliance on the oft-stated goals of judicial economy and consistency of outcome among claims. Zupich v. Flushing Hospital, 156 A.D.2d 677 (2d Dept. 1989). Where the plaintiff moves to sever a third-party action that is arguably not ready for trial, the courts have made it clear that in the presence of common questions of law and fact, a joint trial of the belated third-party action would still be favored absent a showing that a single trial would prejudice a substantial right. Quiroz v. Beitia, 68 A.D.3d 957 (2d Dept. 2009); Cramer v. Benedictine Hospital, 301 A.D.2d 924 (3d Dept. 2003).

The presence of evidence admissible against one party but not another did not prevent a consolidated trial in Zili v. City of New York, 105 A.D.3d 949 (2d Dept. 2013), where it was determined that the evidence could be admitted against one party with an instruction to the jury that it was not to be considered as to the codefendant. Even where the evidence against the hospital was potentially prejudicial to the defendant physician, the rather unique decision to try the case once with separate juries was approved in Talavera v. Arbit, 18 A.D.3d 738 (2d Dept. 2005).

Consolidated trials have been approved for three unrelated workers in a common accident, as in Lopez v. Sunrise, 39 Misc.3d 832 (Sup. Kings, 2013), as well as for any number of related and unrelated parties involved in automobile accidents. Where the same plaintiff was involved in successive accidents and the question arose as to which accident(s) caused any injuries, a consolidated trial was the approved means of determination. Dolce v. Jones, 145 A.D.2d 594 (2d Dept. 1988); Thayer v. Collett, 41 A.D.2d 581 (3d Dept. 1973).

Another prominent concern of the courts is securing a fair trial for the defendant, even in the presence of seemingly identical questions of law and fact. Here the defendant benefits from the established principle that one accused of a bad act may not be tried based on evidence of similar bad acts on other occasions. This is the likely explanation for the ruling in such cases as Abbondandolo v. Hitzig, 282 A.D.2d 224 (1st Dept. 2001), in which it was the multiple claims of malpractice by the 65 separate patients that prevented a consolidated trial, rather than the sheer number of claims. The result was the same in Soule v. Norton, 299 A.D.2d 827 (4th Dept. 2002) where eight patients represented by the same attorney were denied a consolidated trial based upon the cumulative prejudice of multiple claims. Six patients who had undergone synthetic hair transplants by the same surgeon in Bender v. Underwood, 93 A.D.2d 747 (1st Dept. 1983) and made almost identical claims of malpractice and lack of informed consent were denied a consolidated trial based upon the potential prejudice to the surgeon of having to defend multiple claims arising from the individual care of the six patients.

The convincing strength of the prejudice argument from propensity evidence is seen in Gittino v. LCA Vision, 301 A.D.2d 847 (3d Dept. 2003) where the same surgeon had operated on individual plaintiffs with the same laser on the same day, yet the severance was granted and that decision was upheld on appeal. Likewise, in DeAngelis v. NYU Medical Center, 292 A.D.2d 237 (1st Dept. 2002), the defendant surgeon had performed the same type of bowel surgery on successive days on two patients who were twin sisters with the same condition. The suit had been brought on behalf of both infant plaintiffs by their mother in her representative capacity with the same attorneys and joint discovery. There had been surgical complications, and there was a claim that information obtained during the course of the procedure on the first patient had not been adequately considered in the decision-making prior to the procedure on her twin sister. Citing a "particular potential for prejudicing defendants" (id. at 238), the decision to hold separate trials was upheld.

The court's rationale in this line of decisions is evident in the recent decision of the Appellate Division, Second Department, in Mullen v. Wishner, 178 A.D.3d 830 (2d Dept. 2019). The record reflected a factually interlocked picture of a physician accused of improper physical contact during an examination of a patient, and a claim against his hospital employer for negligent hiring, supervision, and retention. The claims against both defendants were brought in the same complaint and joint discovery had been completed, but thereafter, the physician's attorney moved for severance and separate trials. Evidence of prior bad conduct unrelated to the plaintiff would have been admissible on the claim against the hospital, but would have been prejudicial to the physician. In upholding Justice Baisley's severance of the claims, the court observed that a consolidated trial was not justified. Reference was made to the Court of Appeals opinion in Mazella v. Beals, 27 N.Y.3d 694 (2016), where it was held that evidence of negligent treatment of other patients, even if relevant, constitutes impermissible propensity evidence. Because such evidence will potentially induce a jury to determine issues based upon the defendant's character, a substantial right of the defendant would be prejudiced by a consolidated trial.

Conclusion

We live in a time when juries are called upon to resolve increasingly complex cases with diverse claims and multiple parties. The courts are alert to the escalating cost of resolving those cases as well as the delays inherent in an overburdened court system. However, rendering justice is the objective and where a consolidated trial threatens the possibility of a just outcome, the courts will exercise discretion and grant the motion to sever.

John L.A. Lyddane is a partner at Dorf & Nelson who has extensive experience in jury trials of technically complicated liability matters, including professional liability cases and construction-related lawsuits.