Timothy Capowski (left), John Watkins (middle), and Jonathan Shaub (right)

Ahead to the Past (Part II of III): The Evolution of New Rules of Engagement in the Age of Social Inflation and Nuclear Verdicts: Currently Existing Tools for the New York Bench and Bar To Repair the Broken System for Determining Just Compensation

In part one of this article, we addressed the species of summation misconduct that we classify under the umbrella of "How Dare They Defend?" (HDTD) attacks. Drawing on our team's decades-long and continuously-updated familiarity with outsized or nuclear verdicts that are inevitably reduced pursuant to CPLR 5501(c), we showed that these verdicts are routinely—in fact, almost exclusively—procured through HDTD abuse on summation. In other words, these tactics, once widely-recognized as unacceptable, have not only entered the mainstream, but are playing a central role in driving damages awards upward.

We then catalogued the various forms of HDTD attacks and called on the judiciary to take a more active role in identifying and policing these tactics (or, rather, re-take its formerly more active role in doing so).

In this second part, we expand this analysis, addressing both exactly why HDTD attacks are improper and what the judiciary and defendants can do to address it. In discussing remedies available to defense counsel, we in no way retreat from our position, set out in part one, that ultimately only the judiciary can police HDTD attacks and summation abuse more generally.

HDTD Attacks: Irrelevant And Expensive

In brief, HDTD attacks of the kind we catalog in part one are improper both because they have nothing to do with the issues of the case, or determining compensatory damages, and because they lead to increased burdens on litigants, the courts, and the public.

To see their irrelevance, it is useful to begin with the definition of compensatory non-pecuniary pain and suffering damages, followed by a refresher course on permissible civil summation comment.

"We begin with the familiar proposition that an award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer (see, Sharapata v. Town of Islip, 56 NY2d 332, 335; Prosser and Keeton, Torts, at 7 [5th ed]). The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred (1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions §§ 1.00, 1.02). To be sure, placing the burden of compensation on the negligent party also serves as a deterrent, but purely punitive damages—that is, those which have no compensatory purpose—are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence (see, Sharapata v. Town of Islip, supra, at 335; Prosser and Keeton, Torts, at 9-10 [5th ed]; 1 Minzer, op. cit., § 1.03).

Damages for nonpecuniary losses are, of course, among those that can be awarded as compensation to the victim. This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages. An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on "the legal fiction that money damages can compensate for a victim's injury" (Howard v. Lecher, 42 NY2d 109, 111). We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created (see, Skelton v. Collins, 115 CLR 94, 130, 39 ALJR 480, 495 [Austl H C]).

Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive."

McDougald v. Garber, 73 N.Y.2d 246, 253-54 (1989).

In other words, any argument in favor of damages that strays from compensatory purposes is improper. By definition, HDTD attacks, designed to gin up anger at the defendant, do not seek to prove the measure of plaintiff's harm, but to stoke outrage at defendants' supposed wrongdoing or callousness. They are punitive in nature and therefore improper. Many varieties, particularly "vouching", where counsel acts as an unsworn witness to some point of contention, or comments decrying defendant's "motivations" for defending itself, are also not even comments on the evidence, and thus are outside the bounds of counsel's wide latitude to address the evidence.

Additionally, they result in increased costs. HDTD attacks, as our research shows, are behind most, if not all, excessive and nuclear verdicts. These verdicts are inevitably not paid, rather, they are the subject of additional legal practice, either in the form of a post-trial motion or an appeal seeking remittitur under the auspices of CPLR 5501(c) (or a settlement based on the threat or pendency thereof). However, the typical result of successfully invoking CPLR 5501(c) is a remittitur to the high end of the sustainable range.

As we have discussed at greater length in prior articles[i], over time, as nuclear verdicts are awarded for moderate injuries, and then reduced to the high end of the sustainable range, the sustainable range moves up. This is inevitable because more serious injuries will occur, and will, logically, merit larger awards than the moderate injuries that received the former sustainable maximum. This damages inflation is not simply absorbed by large defendants and insurance carriers—it is passed on to the public through increased prices and premiums.

In other words, nuclear verdicts harm litigants and courts because they necessitate burdensome and time-consuming additional litigation and appeals, and they harm the public because they lead to cost inflation that the public ultimately pays. The resulting vicious cycle is, of course, expressly contrary to the Legislature's purpose in enacting CPLR 5501(c).

Guarding Against HDTD Attacks

The first step to correcting the surge in nuclear and excessive verdicts caused by HDTD abuse is, as we suggested in part one, acknowledgement that we have a problem. As long as the defense bar—and more importantly, the judiciary—sees HDTD attacks as merely tough competition, no solution is possible. Only recognition that these tactics have no place in the courtroom will do. Nevertheless, we run through the best tools available to both defense counsel and the courts to address HDTD and similar abuses.

Tools Available To Defense Counsel

While the judiciary must ultimately police abusive courtroom behavior, defense counsel must nevertheless be willing to fight back. We recommend an approach we call "before, during, and after."

Before: our office recommends placing a pre-emptive objection to summation abuse on the record, supported, if practical, with a mid-trial submission highlighting case law (such as what we provided in part one of this article) relevant to any anticipated HDTD attacks. The purpose of these pre-emptive strikes is not primarily to get a ruling—New York judges tend to be reluctant to rule on abusive conduct before it occurs—but to underscore the law on these issues in the Court's mind so that mid-summation objections are more likely to be granted, and to crystallize the appellate record on legal arguments that such attacks are objectionable. It also places your adversary in a predicament when they later seek to justify or downplay the remarks they made despite having been specifically alerted to case law forbidding them.

During: defense counsel must overcome their innate reluctance to object in the middle of plaintiffs' summations (and vice versa). The majority of courts and counsel have an exaggerated sense of what constitutes good manners during summation, at least when it comes to objections, and this shared sense has created a reluctance to object to HDTD attacks and a judicial reluctance to sustain those objections. Some courts have even gone so far as to instruct counsel against objecting during an adversary's summation altogether. However, the First Department has instructed:

            [W]e find it necessary to remind the trial bench at large that although it has broad discretion in conducting trials, blanket prohibitions such as given in this case, directing counsel that "there is to be no objecting in the middle of summations," are inappropriate. Indeed, common courtesy requires a lawyer to allow opposing counsel an unfettered opportunity to argue his or her case to the jury. However, it is axiomatic that where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of opposing counsel, inter alia, to object specifically, to point out the language deemed objectionable, and to request the court to rule on the objection, admonish counsel to desist from such improper remarks, and direct the jury at the appropriate time to disregard such improper statements (see Dimon v. New York Cent. & Hudson Riv. R.R. Co., 173 NY 356 [1903]; 8 Carmody-Wait 2d, NY Prac § 56:300; Siegel, NY Prac (4th ed) § 397, at 669 [4th ed]).

            Binder v. Miller, 39 A.D.3d 387, 387 (1st Dep't 2007) (emphasis added). This advice should be heeded, and HDTD attacks should be met with immediate objection.

After: to bluntly address an issue we routinely encounter as appellate and monitoring counsel, defense counsel should not hesitate to move for a mistrial following HDTD attacks, and to do so in a timely fashion. That means making the motion outside the presence of the jury, but before the verdict is returned. Courts do maintain the power to grant a new trial in the interest of justice even where no motion for a mistrial was made, but this requires a greater showing, and should not be relied on in the first instance. Courts are all too happy to conclude that waiting until the verdict is returned waives the objection. See, e.g., Califano v. City of New York, 212 AD2d 146, 152-53 (1st Dept. 1995).

Tools Available To The Courts

This "before, during, and after" approach provides defense counsel's best chance to curb summation abuse or, failing that, to provide the necessary record for successful appellate review. This approach will be futile, however, without cooperation from the judiciary. Many courts will ignore a "before" submission, refuse to sua sponte curb improper comments, and refuse to sustain "during" objections. In fact, judges have been known to reprimand counsel for interrupting their adversary (despite Binder). Further, even where objections are sustained, the practice of continual objection, like the practice of constantly running to the teacher at recess, risks conveying fear and weakness to the jury; what is genuinely required is an admonishment by the Court that cows counsel from making further HDTD attacks.

Indeed, the inescapable conclusion is that the trial courts must take the reins where called for, and police their courtrooms against improper summations. Trial courts have, and have always had, four principal tools for this, all of which are presently underused.

First, as just discussed and as noted by the First Department in Binder, the courts can admonish counsel for inappropriate summation tactics, on the record and in front of the jury, with or without an objection.

Second is the mistrial. Courts, overburdened as they are, seem reluctant to use this remedy, perhaps thinking it will only add to the unfair burden already carried by our court system. The opposite is true. Rather, by imposing a genuine cost on summation misconduct, the courts would see less and less of it. This, combined with a policing of the sustainable range of damages under CPLR 5501(c), would make litigants require less access to jury trials to resolve their claims and instead accord with New York's strong (and necessary) public policy favoring settlement. By giving greater and more definitive guidance on the parameters of summation and sustainable pain and suffering awards, the courts reduce their case load and waste of valuable resources.

Third and fourth are the twin tools of additur and remittitur. This requires some unpacking. Courts are apt to view summation misconduct as a binary choice: either the improper tactic rose to the level that a mistrial is required, or it did not. This binary approach actually ties the courts' hands, in that it denies them the use of the unique discretion granted by CPLR 5501(c). No other state has what New York has: a one-of-a-kind damages review statute born in 1986 as a rejection of the former "shocks the conscience" standard prevalent in most U.S. state courts, and as a compromise to the tort-reform proposals of the Jones Commission for a $250,000 hard cap on pain and suffering awards.[ii]

Under CPLR § 5501(c), the Appellate Division and trial courts are required to engage in a process of case comparison to ensure that an award under review falls in the range of what the appellate courts have determined to constitute "reasonable compensation" for the claimed injury. Keeping in mind that the reasonableness of an award for pain and suffering constitutes a "legal fiction",[iii] in the 34 years since its enactment, the Appellate Division has reviewed and approved awards in a range between $0 and $10 million, reserving the $10 million cap or ceiling for the most catastrophic cases.[iv] It should go without saying that strict continued adherence to this unique statutory scheme is imperative if New York State is to weather the financial peril that confronts it,[v] and that confronted it even prior to the arrival of COVID-19.[vi]

The ordinary function of CPLR 5501(c), on a clean trial record, is to allow the courts, when confronted by an excessive or inadequate jury verdict, to order a remittitur to the high end or an additur to the low end of that sustainable range. Siegel's New York Practice § 407, "Additur and Remittitur" (Third Ed.), p. 658. As explained by the eminent Professor Siegel, "The figure set by the court, and the one to which the party is required to stipulate or face a new trial, represents the minimum (in the case of additur) or the maximum (in the case of remittitur) found by the court to be permissible on the facts." Id.

This rule derives entirely from the "light most favorable" to the prevailing party standard of review. It is based on the assumptions of, again, a clean trial record, and that the jury wholeheartedly accepted the prevailing party's evidence but simply awarded more or less than the Appellate Division has determined to be sustainable within the established range of reasonable compensation.

But when the trial record is not clean—when it is instead marred by an HDTD attack or other abusive summation tactic—the inadequate or excessive verdict is arguably procured by misconduct. Courts thus have the power to address this misconduct directly, by accounting for its impact in reducing (or adding to) the award. There is no reason they should not do so: the "light most favorable" standard of review need not apply, let alone entail the fiction that the jury heard unacceptable summation tactics but utterly disregarded them in the face of an award inarguably procured by such tactics. Indeed, the "light most favorable" standard is unavailable to a party that prevails through any form of misconduct.[vii]

In such situations, the court should be free to order an additur or remittitur to an amount that still falls within the range of reasonable compensation, but that does not reward summation misconduct or other improprieties designed to divert the jury from their important task of determining fair and just compensation.

In discussion of the foregoing concept with a colleague, she wondered if this could be deemed a punishment of the prevailing party for their counsel's misconduct. The answer is a resounding "no". In point of fact, the opposite is true. The party that achieved the unduly low or unduly high verdict figure through improper means is not being punished in the slightest: the jury's verdict in that instance is a double-fiction derived from impropriety, and the prevailing party has no true claim to the verdict or light most favorable review in the first instance, let alone any hypocritical complaint to being the victim of a punishment. The resulting additur or remittitur to well within the sustainable range of reasonable compensation approved by the Appellate Division is no penalty, but rather a correction of an injustice that has, for too long, been overlooked.[viii]

Conclusion

The HDTD tactics we outlined in part one work. They will remain commonplace as long as the judiciary tolerates them. In part one, we used the analogy of borderline plays in sports—plays that are on the bleeding edge of legality, but seen as fierce competition, not dirty play. Growing awareness of the risks presented by these plays can, and does, lead to rule changes and a new perception—e.g., Scott Stevens's headshot on Eric Lindros or Bernard Pollard's lunge at Tom Brady's knee, both clean, legal plays at the time, would be considered dirty in today's NHL and NFL.

A similar awakening needs to occur, within the judiciary, as to HDTD tactics.[ix] This means more than simply sustaining objections and granting mistrials where appropriate. It requires active vigilance in the courtroom, and a willingness to correct and admonish counsel (both sua sponte and upon objection), in the presence of the jury, for inappropriate attacks. The message that a jury is not to consider an improper HDTD attack – that the attack is outside the bounds of proper litigation – must come primarily from the court itself. Only when the courts, acting as referees, change and enforce the rules will competitive litigators adjust and return to relying primarily on substantive, meritorious summations. The result will be a win for the courts, the state, and the public – indeed, for the practice of law itself. The alternative is to watch the downward spiral continue.

Timothy R. Capowski is senior partner and co-chair and John F. Watkins and Jonathan P. Shaub are partners of the litigation/appellate strategy and advocacy group at Shaub Ahmuty Citrin & Spratt. Kharis Lund, a summer associate at the firm, assisted in the preparation of this article.

ENDNOTES:

[i] See Timothy R. Capowski & Jonathan P. Shaub, Improper Summation Anchoring Is Turning the New York Court System on its Head and Contributing to the Demise of New York State, NYLJ (Apr. 28, 2020), https://www.law.com/newyorklawjournal/2020/04/28/improper-summation-anchoring-is-turning-the-new-york-court-system-on-its-head-and-contributing-to-the-demise-of-new-york-state/; Timothy R. Capowski & John F. Watkins, CPLR 5501(c) Review In the Age of Summation 'Anchoring' Abuse, NYLJ (June 26, 2019), https://www.law.com/newyorklawjournal/2019/06/26/cplr-5501c-review-in-the-age-of-summation-anchoring-abuse/

[ii] "As stated in Legislative Findings and Declarations accompanying New York's adoption of the 'deviates materially' formulation, the lawmakers found the 'shock the conscience' test an insufficient check on damage awards; the legislature therefore installed a standard 'inviting more careful appellate scrutiny.' Ch. 266, 1986 N. Y. Laws 470 (McKinney). At the same time, the legislature instructed the Appellate Division, in amended § 5522, to state the reasons for the court's rulings on the size of verdicts, and the factors the court considered in complying with § 5501(c). In his signing statement, then-Governor Mario Cuomo emphasized that the CPLR amendments were meant to rachet up the review standard: 'This will assure greater scrutiny of the amount of verdicts and promote greater stability in the tort system and greater fairness for similarly situated defendants throughout the State.' Memorandum on Approving L. 1986, Ch. 682, 1986 N. Y. Laws, at 3184; see also Newman & Ahmuty, Appellate Review of Punitive Damage Awards, in Insurance, Excess, and Reinsurance Coverage Disputes 1990, p. 409 (B. Ostrager & T. Newman eds. 1990) (review standard prescribed in § 5501(c) 'was intended to . . . encourage Appellate Division modification of excessive awards')." Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 423-24 (1996) (Ginsburg, J.); see also Donlon v. City of New York, 284 A.D.2d 13-15 (1st Dep't 2001) (discussing Gov. Cuomo's Jones Commission and its recommendation of a hard cap of $250,000 on non-economic damages in personal injury actions against municipal corporations).

[iii] As the New York Court of Appeals has explained, "recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on 'the legal fiction that money damages can compensate for a victim's injury' (Howard v. Lecher, 42 NY2d 109, 111). We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created (see, Skelton v. Collins, 115 CLR 94, 130, 39 ALJR 480, 495 [Austl H C]). Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive." McDougald v. Garber, 73 N.Y.2d 246, 254 (1989).

[iv] The ceiling has been exemplified by the consistent appellate remittitur of verdicts down to $10 million for catastrophic paralysis injuries including loss of ambulatory, bowel, urinary and sexual functions, combined with unremitting physical pain and other sequelae. Bissell v. Town of Amherst, 56 A.D.3d 1144, 1147-48 (4th Dept. 2008); Miraglia v. H & L Holding, 36 A.D.3d 456, 457 (1st Dept. 2007); Ruby v. Budget Rent A Car, 23 A.D.3d 257, 258 (1st Dept. 2005); see also Aguilar v. NYCTA, 81 A.D.3d 509, 509 (1st Dept. 2011) (functional paraplegia through amputation of one leg and degloving and loss of function of other leg); Turturro v. City of N.Y., 127 A.D.3d 732, 739 (2d Dept. 2015) (horrific skull crush injuries to 12-year-old boy resulting in catastrophic brain and neurological and orthopedic injuries). To be clear, the Appellate Division has only twice permitted pain and suffering awards in excess of $10 million: a $16 million award in the First Department (involving catastrophic burn injuries over 50% of the 36-year-old plaintiff's body surface area), and a $12 million award in the Fourth Department (involving a 23-year-old quadriplegic). Setting aside those two outliers, $10 million has served as a CPLR 5501(c) hard cap for pain and suffering for the most catastrophic of injuries over the last three decades. As shown above, even that figure has only been approved (after remittitur) five times in total (three times by the First Department and once each by the Second and Fourth).

[v] See Jimmy Vielkind, New York Municipalities Feel the Budget Crunch as Coronavirus Pandemic Squeezes Funding, Wall St. J. (July 6, 2020, 3:42 PM), https://www.wsj.com/articles/new-york-municipalities-feel-budget-crunch-as-coronavirus-pandemic-squeezes-funding-11594027800?st=om0pgaurjvnj0tl&reflink=article_email_share; Prashant Gopal, NYC Rental Market Pushed to Breaking Point by Tenant Debts, Bloomberg Quint (July 8, 2020, 2:30 PM), https://www.bloombergquint.com/businessweek/coronavirus-moves-nyc-affordable-housing-crisis-to-breaking-point; Luis Ferré-Sadurní & Jeffery C. Mays, Outbreak Ravages N.Y. Budget; Governor Calls Aid Deal 'Terrible' for State, N.Y. Times (Mar. 26, 2020), https://www.nytimes.com/2020/03/26/nyregion/coronavirus-recession-economy-ny.html; Shawn Tully, New York City's lockdown is costing $173 million per day. Is it still worth it?, Fortune Media (June 6, 2020, 7:00 AM), https://fortune.com/2020/06/06/new-york-city-nyc-lockdown-cost-economy-coronavirus/; Chelsea Diana, The economic impact of Covid-19 in New York state by the numbers, Albany Bus. R. (June 8, 2020, 6:00 AM), https://www.bizjournals.com/albany/news/2020/06/08/new-york-economic-impact-of-covid-19.html; J. David Goodman, 'I Don't Think the New York That We Left Will Be Back for Some Years', N.Y. Times (Apr. 20, 2020), https://www.nytimes.com/2020/04/20/nyregion/new-york-economy-coronavirus.html; Jonathan Bowles & Charles Shaviro, A Blow to the Boroughs: Many Industries Hit Hardest by Coronavirus Concentrated Outside Manhattan, Ctr. for an Urban Future (Mar. 2020), https://nycfuture.org/research/a-blow-to-the-boroughs; Margaret Besheer, As New York Looks to Heal From Coronavirus, Its Economy Falls Ill, Voice of Am. (Apr. 16, 2020, 6:35 PM), https://www.voanews.com/covid-19-pandemic/new-york-looks-heal-coronavirus-its-economy-falls-ill; Robert Pozarycki, 'No silver bullet' to solve New York's $8.7B budget deficit, 22% unemployment: Stringer, AMNY (May 2020), https://www.amny.com/coronavirus/no-silver-bullet-to-solve-new-yorks-8-7b-budget-deficit-22-unemployment-stringer/.

[vi] See note i, supra.

[vii] Rangolan v. County of Nassau, 370 F.3d 239, 244-45 (2d Cir. 2004) (remittitur to highest sustainable only appropriate where "the excess [verdict] is not attributable to a discernable error").

[viii] That it should also serve as a deterrent of the race to the bottom that plagues our civil litigation system, while simultaneously serving the affirmative goal of CPLR 5501(c) to prevent the upward spiral of awards, only further strengthens the case for this relief.

[ix] Cabrera v. Port Authority of New York and New Jersey, 2020 NY Slip Op 03993 (1st Dep't July 16, 2020) provides recent encouragement in this regard, as the First Department affirmed the grant of a new trial on damages after a jury returned a bloated $16 million pain and suffering verdict for an injury that the First Department has approved awards between six figures up to $2.4 million, where the award was procured by, inter alia, improper anchoring. Plaintiff counsel in Cabrera improperly anchored the jury at $16 million and the jury complied. The First Department held that "in light of the excessive nature of the jury's award (e.g. Dacaj v New York City Tr. Auth., 170 AD3d 561 [1st Dept 2019]; Williams v. City of New York, 105 AD3d 667 [1st Dept 2013]), the court properly ordered a new trial on damages." While improper anchoring was not specifically raised in Cabrera, the decision suggests that the Courts are growing somewhat less tolerant of this tactic.