In June 2007, the Court of Appeals handed down In re Eighth Judicial District Asbestos Litigation, 8 N.Y.3d 717 (2007), in which the plaintiff entered into a high-low agreement with one of two defendants. The agreement was disclosed to the court, but not to the other defendant. The Court established a clear rule designed to ensure fairness in future trials, holding that
whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the nonagreeing defendant(s).
Determinations as to the effect of the agreement at trial, including whether it should be disclosed to the jury, “are matters that lie within the sound discretion of the trial court.”
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