Trial Court should have conducted unified, not bifurcated, trial; Second Department clarifies alignment with uniform rule and other departments

Manuel Castro, et al. v. Malia Realty, LLC, et al., 177 AD3d 58, 2019 NY Slip Op 06466 (2nd Dep't September 11, 2019)

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Bifurcation of trial, separating issues of liability and damages, is encouraged where it appears that it may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action. That is the rule in the trial courts of the State of New York, but until recently litigants in the busy courts of the Second Department might have understandably believed otherwise. A recent decision of the Appellate Division, Second Department attempts to rectify this situation.

In Castro v. Malia Realty, LLC, 177 A.D.3d 58, 109 N.Y.S.3d 314 (2nd Dep't 2019), the Court reversed a lower court's order bifurcating the trial in a personal injury action, holding that "a unified trial should have been conducted but was not, due to the Supreme Court's perception that Second Department precedent is strictly and inflexibly in favor of bifurcation." Id. at 60.

The trial in question involved claims under Labor Law sections 200, 240(1), and 241(6), and for common law negligence. Plaintiff Manuel Castro alleged that he had been injured at a construction site when the scaffold he was working on collapsed. He allegedly sustained brain, head, shoulder and spine injuries as a result of the accident. He commenced an action in Supreme Court, Queens County.

Castro moved for a unified trial on the issues of liability and damages, contending it was necessary to refute defendants' defenses to the Labor Law section 240(1) cause of action. In earlier motions for summary judgment the Defendants had argued that Castro had not in fact fallen from a scaffold and sustained a head injury but had only injured his neck and back when lifting wooden planks. They had supported the argument with medical records that indicated Castro's accident occurred when he was lifting wood. Defendant's counsel intended to bolster this evidence at trial with testimony of treating physicians, during the liability portion, to the effect that Castro had indicated to them that he had been injured when lifting a plank or moving a scaffold. The Supreme Court denied the motion for a unified trial, holding that a bifurcated trial was "required under the [S]econd [D]epartment rules." It cautioned that plaintiff could cross-examine the treating physicians as to whether the injuries were consistent with a fall, but not in too much detail. The bifurcated trial went forward, and the liability portion resulted in a verdict finding that Castro did not fall from a scaffold, ending the 240(1) cause of action.

Was it an error to bifurcate the trial? The Judges of the Second Department unanimously said it was. The appeal provided the Second Department with the opportunity to review the development and application of its bifurcation rule adopted in 1979. That rule created a strong presumption in favor of the bifurcation of liability and damages phases of trial. All negligence actions for personal injury would have bifurcated trials, with the issue of liability tried first. The trial judge had authority, in the exercise of discretion, to order a single trial, but only under exceptional circumstances, upon showing of good cause, and for reasons stated on the record. Later, in 1986, a different uniform rule was adopted applying to all courts throughout the state. The new rule provided that "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 clarification or simplification of issues and a fair and more expeditious resolution of the action." (22 NYCRR 202.42[a]).

However, where the new uniform rule led, the Second Department did not necessarily follow. Twenty years of Second Department jurisprudence maintained in practice some form of a presumption in favor of bifurcation. Trial courts still had discretion over whether to bifurcate, and the Second Department refrained from overturning the trial courts' decisions in this area, in some cases even suggesting limitations on when unified trials would be permitted and placing burdens upon the party opposing bifurcation. "There is little doubt", the Court wrote, "but that the Bench and the Bar in the Second Department perceive that our precedent is, in contrast to the approach of other departments, inflexibly, or nearly inflexibly, in favor of bifurcation." Id. at 65.

That's now the past. The Court held that, "[w]e 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. Never mind that the uniform rule does not use the word "discretion"; going forward, the courts have discretion in this area and must use it: "[N]either 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.

So then how did the lower court err? If bifurcation of trial is encouraged by uniform rule, and the lower court, upon motion, had ordered a bifurcated trial with certain allowances "in the interest of justice", hadn't the court necessarily exercised discretion?

Actually, no. At least the lower court sounded as if it had not exercised discretion. It had denied the plaintiff's motion for unified trial on the basis that bifurcation was "required under [S]econd [D]epartment rules." That went too far, even if it was in line with the perceptions of the full Bench and the Bar in the Second Department for more than twenty years. "The court's determination was predicated upon its perception that a bifurcated trial was strictly required by Second Department." Id. at 66.

Yet, the error was not simply a misstatement of Second Department rules. The decision to bifurcate the trial led to the exclusion of evidence on liability that effectively deprived the plaintiff of a fair trial. The Court found that, "[e]vidence relating to Castro's brain injuries, which would not have occurred from lifting wooden planks, was probative in determining how the incident occurred. Thus, the nature of the injuries had an important bearing on the issue of liability." Id. at 66. Indeed, plaintiff's treating physicians were permitted to testify that his injuries were consistent with a fall, though they were not permitted to testify regarding diagnostic testing of Castro's brain. Defendants presented testimony of other treating physicians that Castro's injuries were consistent with lifting planks, and that he had not complained of a head or brain injury, though on cross-examination there was testimony that injuries were consistent with a fall. The lower court refused to permit plaintiff's treating neurologist to explain on either direct or redirect examination certain diagnostic test results and how those results supported the expert's opinion that Castro sustained injuries as the result of a fall. All this evidence was in addition to Castro's own testimony that he fell approximately seven feet from a scaffold which shifted when no one was around.

So again, where was the error? With treating physicians testifying this way and that as to whether injuries were consistent with a fall, the Castro Jury surely heard ample evidence on liability. Not quite, found the Second Department: "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 limitation on the scope of the medical evidence that could be elicited by the plaintiffs deprived them of a fair trial." Castro, p. 66.

One might think that excluding evidence of the nature and extent of plaintiff's injuries from trial on liability is what a bifurcated trial is all about. What's more, if the distinction between causation and a "history consistent with a fall from a scaffold or lifting wooden planks" seems extremely fine, that's because it probably is. Plaintiff's trial included some of the latter, but none of the former, and the Court says that wasn't fair.

Perhaps the Second Department is ultimately calling attention to this subtlety, and not to problems with exercise of discretion. That is to say, if bifurcation of a trial leads to inclusion of medical testimony to prove liability issues -indeed, evidence from plaintiff's own treating physicians, the trial is, in some respects, effectively unified. If that's the case, then why not dispense with the formality of a bifurcated trial, and all the evidentiary ramifications, and just order a unified trial? Courts should choose bifurcation or unification, but they should be consistent and firm. Bifurcate, or unify, but don't do both. This may be what the Second Department is telling courts when it instructs them to use their discretion.

If you have any questions about the Castro decision, or about trials of personal injury actions, contact Glenn A. Jacobson or Steven DiSiervi.

Practice Areas

Construction Law
General Liability
Premises Liability