Opinion
145220
08-09-2019
Donna N. Wells and JAMES A. WELLS, Plaintiffs, v. County of St. Lawrence and MATTHEW D. BELL, Defendants.
Williams & Rudderow, PLLC (Michelle Rudderow, Esq., of counsel), attorney for Plaintiffs; Hancock Estabrook, LLP (Mark J. Schulte, Esq., of counsel), attorney for Defendant, St. Lawrence County; Law Office of J. William Savage (J. William Savage, Esq.), attorney for Defendant, Matthew D. Bell.
Williams & Rudderow, PLLC (Michelle Rudderow, Esq., of counsel), attorney for Plaintiffs; Hancock Estabrook, LLP (Mark J. Schulte, Esq., of counsel), attorney for Defendant, St. Lawrence County; Law Office of J. William Savage (J. William Savage, Esq.), attorney for Defendant, Matthew D. Bell.
On March 19, 2014, a motor vehicle accident took place at the intersection of two St. Lawrence County ("County") roads between: (1) an automobile operated by Plaintiff Donna N. Wells ("Donna"), in which Plaintiff James A. Wells ("James") was a front seat passenger; and, (2) a second vehicle owned and operated by Defendant Matthew D. Bell ("Bell"). Bell allegedly failed to stop or yield at a stop sign at the intersection; drove into the intersection of County Routes 14 and 31; and, struck the driver's side door of Wells' vehicle at a high rate of speed. See Verified Complaint at ¶¶ 5-10. On June 9, 2014, Plaintiffs served a Notice of Claim on the County. Id. at ¶ 4. The County conducted a hearing under General Municipal Law § 50-h of both Plaintiffs on November 5, 2014. Id. On February 27, 2015, Plaintiffs commenced this personal injury action against the County and Bell, alleging both Donna and James sustained serious injuries [see Insurance Law § 5102 [d]) in the accident as a result of the negligence and wrongful conduct of both Defendants. Defendants served their answers in March, 2015.
In their Note of Issue filed January 28, 2019, Plaintiffs claimed a trial preference under NY C.P.L.R. 3403(a) (4). The Note of Issue states: "Plaintiff James Wells is over 70 years of age and in deteriorating health." The Note of Issue demanded a non-jury trial of all issues. On January 28, 2019 (Bell) and February 8, 2019 (County), Defendants filed separate demands for jury trial of all issues. In recognition of the statutory preference, on February 14, 2019, the Court issued an Order Setting Day Certain for Jury Trial commencing September 23, 2019. In subsequent conversations between the Court and counsel, all counsel assured the Court that the full trial of this action — both liability and damages — would be completed in two weeks (on or before October 4, 2019). Further, after counsel for the County by letter dated February 20, 2019, requested that this trial be adjourned because he had been previously ordered by the Court of Claims to commence a trial on September 23, 2019, this Court contacted the assigned Court of Claims Judge (Milano, J.), who graciously agreed to re-schedule the Court of Claims trial so as to accommodate the needed jury trial preference in this action.
By Notice of Motion served May 24, 2019, Defendant County moved for summary judgment on the issue of liability, which this Court denied on July 17, 2019, by decision on the stenographic record. On or about July 23, 2019, the County moved by Order to Show Cause for an order: (1) bifurcating the trial between liability and damages; and (2) for damages to be tried thereafter, with a second jury. Plaintiffs oppose the County's motion. For the reasons set forth below, and in the exercise of its discretion, the Court denies the County's motion in its entirety.
Plaintiffs' counsel has been directed to submit to the Court a proposed Order to this effect, with the stenographic transcript attached.
By letter to the Court dated August 1, 2019, Bell's counsel informed the Court that Bell "takes no position" on the bifurcation motion.
CONTENTIONS OF THE PARTIES
Both the County and Plaintiffs acknowledge that the decision as to whether to bifurcate is within this Court's sound discretion. Undated Affirmation of Mark J. Schulte, Esq. ("Schulte aff."), at ¶ 3; see Affirmation of Michelle Rudderow in Opposition dated July 30, 2019 ("Rudderow aff."), at ¶ 3. In support of its motion to bifurcate, the County argues that proof of both liability and damages proof will be extensive, and "there is a fair likelihood that a unified trial will extend into a third week." Schulte aff. at ¶ 12. Counsel for the County states that three (3) party and fifteen (15) non-party witnesses have been deposed, and that resolution of liability issues may require testimony from "two, and perhaps, three expert engineers [ ]." Id. at ¶ 11. The County argues bifurcation is appropriate both because Plaintiffs' injuries are not "inextricably intertwined" with issues of liability, and bifurcation "is in the best interests of all the parties and would promote judicial economy." Id. at ¶¶ 3, 13.
As to damages, both Donna and James allege they sustained the "serious injury" of fracture, as well as other injuries. Id. at ¶¶ 5-6. The County acknowledges that Donna's claimed injuries include "chronic [left] arm infection resulting from the 2014 accident," and that her medical treatment is ongoing. Id. at ¶ 9. In arguing that damages be tried later to a separate jury, the County asserts that "[i]t is an open question as to whether the County will be required to exercise renewed medical discovery rights [ ] in advance of trial." Id. at ¶ 8 (emphasis added). The County's motion acknowledges that "[e]xactly how these circumstances [ongoing medical treatment and possible need for further discovery] will translate in terms of the complexity of proof and time consumed by the damages portion of the trial is unclear." Id. at ¶ 10 (emphasis added). Movant does not state that any trial time will be needed for the County to present its damages proof, and, indeed, does not indicate that it intends to offer any such proof.
Finally, the County argues that bifurcation — with damages to be tried later before a second jury — "would provide the parties with a critical opportunity to consider a settlement guided by the jury's apportionment determination," and the "time afforded by impaneling a second jury would allow the County Attorney to address this issue [settlement] with the Legislature", thereby, perhaps, averting a damages trial. Id. at ¶ 16. Nowhere does counsel for the County state that the County Attorney has brought the issue of settlement before the Legislature at any time: (1) after Plaintiffs' served their notice of claim in June, 2014; (2) after Plaintiffs' § 50-h hearing was conducted in November, 2014; (3) after this lawsuit was commenced in February 2015; (4) after Plaintiffs filed the Note of Issue in January, 2019; (5) after the Court issued its Order for Jury Trial in February, 2019; or, (6) after the Court denied the County's motion for summary judgment on July 17, 2019.
In opposing the County's motion, Plaintiffs first state that because there is a high likelihood of a liability verdict against Bell, trial of this case necessarily will include damages. Rudderow aff. ¶¶ 6-9. As to such proof, Plaintiffs assert — without dispute — that "the damages portion of this case is a fraction of the liability phase," and "will take a few days, only, at most." Id. at ¶ 15. Counsel for Plaintiffs acknowledges that Donna "is still treating and has osteomyelitis, which may result in additional treatment at any given moment." Id. at ¶ 14. Plaintiffs, however, argue that, "[j]ust like in any other case where a Plaintiff has not reached maximum medical improvement, the issue of ongoing medical treatment is an unavoidable reality." Id.
Plaintiffs' counsel has indicated to the Court that Donna's injuries might require surgical amputation.
Plaintiffs also argue that, if granted, bifurcation "will destroy" James' rights, as an individual over 70, to a trial preference. See id. at ¶¶ 10-13 (citing C.P.L.R. 3403 [a] [4]). "[G]iven [James] advanced age and deteriorating health, [he] is entitled to see his litigation through [to] its conclusion and, if he is successful, [ ] enjoy whatever award at verdict he may receive." Rudderow aff. at ¶ 19. Finally, Plaintiffs assert that, in the event the Court orders bifurcation, damages should be tried immediately following a liability verdict, to the same jury. Id.
DISCUSSION
The Court may order the trial of any claim or issue prior to the trial of the others [C.P.L.R. § 603], and may determine the sequence in which issues are to be tried [C.P.L.R. §4011]. Rule 202.42 [ 22 N.Y.C.R.R. § 202.42] specifically addresses bifurcation. Captioned "Bifurcated Trials," this rule provides, in pertinent part:
(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 [1] a clarification or simplification of issues and [2] a fair and more expeditious resolution of the action. ....
(e)In the event of a plaintiff's verdict on the issue of liability [ ], the damage phase of the trial shall be conducted immediately thereafter before the same judge and jury, unless the judge presiding over the trial, for reasons stated in the record, finds such procedures to be impracticable.
Id.
As stated succinctly by the Third Department: "Bifurcation of the trial of a personal injury action is appropriate where the questions of liability and damages are discrete and such procedure will result in a shorter, simpler, less expensive trial. Conversely, bifurcation is not appropriate where the nature of the injuries has an important bearing on the question of liability." Mason v. Moore, 226 AD2d 993, 994 (3d Dep't 1996) (citations omitted). Where the nature of plaintiff's injuries have "an important bearing on the question of liability, [ ] bifurcation [is] inappropriate because the liability and damages issues are entwined." Carpenter v. County of Essex, 67 AD3d 1106, 1107 (3d Dep't 2009) (internal quotation marks and citations omitted). Liability and damages should be tried together when "the nature of the injuries has an important bearing on the question of liability such as when the injuries are inextricably intertwined with the question of liability [or] where the injuries themselves are probative in determining how the incident occurred." Barron v. Terry, 268 AD2d 760, 762 (3d Dep't 2000) (internal quotation marks and citations omitted).
"[T]he decision to order a bifurcated trial rests within the sound discretion of the trial court." Landsman v. Village of Hancock, 296 AD2d 728,731 (3d Dep't 2002) (quoting Fetterman v. Evans, 204 AD2d 888, 889 [3d Dep't 1994]), appeal dismissed, 99 NY3d 529 (2002). "[A]s the trial court is in the best position to evaluate whether a defense verdict was likely so as to obviate the necessity of a second trial, its determination on bifurcation rests within its sound discretion and is afforded great deference." Fu v. County of Washington, 163 AD3d 1388, 1388-89 (3d Dep't 2018) (internal quotation marks and citations omitted); see Johnson v. Hudson River Const. Co., 13 AD3d 864, 865 (3d Dep't 2004) (affirming denial of bifurcation because Supreme Court "reasonably concluded that bifurcation would not result in a more expeditious resolution of the action").
The Court denies the County's motion for five reasons. First, James is entitled to a statutory preference. "[I]n any action upon the application of a party who has reached the age of seventy years," C.P.L.R. 3403 (a) (4) entitles that party to a trial preference. "The purpose of [this paragraph] is to recognize the few years the plaintiff has remaining and to offer some measure of financial comfort during those years." David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, C.P.L.R. C3403:5; see Milton Point Realty Co. v. Haas, 91 AD2d 678, 678 (2d Dep't 1982) (citing 1970 Practice Commentary). It is "mandatory" that the Court grant a trial preference to a plaintiff who has reached the age of seventy. Tytel v. Battery Beer Distribs., 194 AD2d 330, 330 (1st Dep't 1993). A party age seventy or older is "automatically entitled to a special trial preference." Borenstein v. City of New York, 248 AD2d 425, 425 (2d Dep't 1998). Bifurcation runs afoul of James' statutory preference, and should be denied for that reason alone.
Second, whether or not the County is successful in obtaining a defense verdict on the question of its liability, there is little doubt that a verdict will be rendered in favor of Plaintiffs and against Bell. Thus, bifurcation will not eliminate the need for a damages trial, at least as to Bell. See Carpenter, 67 AD3d at 1108 (bifurcation properly denied where "[t]here is little question but that the [ ] action will not result in a complete defense verdict after the liability phase of trial"). Accordingly, bifurcation will not result in a "shorter, simpler, [or] less expensive trial." Mason, 226 AD2d at 994.
Third, counsel for the County (as well as for Plaintiffs and Bell) has repeatedly stated to this Court that the entire trial — liability and damages — will last no more than two weeks. It is only after losing its motion for summary judgment in July 2019 that the County belatedly — two months before trial — moved to bifurcate on the ground that trial may extend into a third week. Because Plaintiffs' Note of Issue specified a non-jury trial, it is Defendants' demands for a jury that placed the County in its current position. Because the County insisted on a jury trial, and did not seek bifurcation when it filed its Jury Demand in February 2019 [or at any time during the more than five (5) years this action has been pending], counsel has created the situation about which it now complains. The Court expects counsel to try this case in accordance with their prior representations that trial will last no more than two weeks.
As the Court previously advised all counsel, a two-week medical malpractice jury trial commences on October 7, 2019, Court ordered on December 12, 2018.
Fourth, the Court rejects the County's argument that bifurcation here promotes judicial efficiency and spares expense, on the ground that "bifurcation rules recognize that the damages portion of many personal injury cases take[s] more time, money and effort [ ] than the liability portion." Schulte aff. at ¶ 14. Although the County suggests that "complexity of proof" [id. at ¶ 10], may require lengthy proof of damages at trial, it admits it is "unclear" [id.] as to how this might occur. The County does not indicate it will offer any damages proof in its case-in-chief — much less what that proof might be. In contrast, Plaintiffs' counsel avers that damages "is a fraction of the liability portion of this case," and "will take a few days, only, at most." Rudderow aff. at ¶ 15. Plaintiffs have "already expended considerable sums of money preparing for the damages portion of trial," including arranging for consultations, medical record review, life care planning, and economist opinions. Id. at ¶ 17. Given that damages will be but a small part of this trial, and that Plaintiffs have already outlaid substantial amounts to prepare the damages portion of their case, the Court finds the County's arguments unpersuasive. Where, as here, the proof regarding either liability of damages "would not necessarily be lengthy or complex," the party seeking bifurcation — here, the County — has not "demonstrate[d] that bifurcation would assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action." Gittleman v Berrios, 307 AD3d 451, 452 (3d Dep't 2003) (quoting Rule § 202.42 [a]).
Fifth, the Court discerns that the nature of Donna's injuries may, at least inferentially, bear on the issue of the County's liability. Plaintiffs' theory of liability against the County is that it breached its duties in failing to properly review the intersection at issue and install traffic control devices other than, or in addition to, the stop sign which Bell failed to heed. The force of the impact may bear on the question of liability here in that the severity of possible crashes is or may be a factor in determining what traffic control devices a particular road configuration, location, and usage require. According to Plaintiffs, the force of impact here was terrific, as evidenced by Donna's possible future need for surgical amputation of her arm. For this reason, the Court concludes the nature of Donna's injuries "has an important bearing on the question of [the County's] liability" [Carpenter, 67 AD3d at 1107], because "the injuries [to Donna] themselves [may be] probative in determining how the incident occurred" [Barron, 268 AD2d at 762].
Finally, and although not necessary to its determination, the Court briefly addresses the County's request [see Schulte aff. at ¶ 16] that, if bifurcation is granted, damages be tried before a second jury. Rule 202.42 (d) is clear that, unless the Court finds it impracticable, "the damage phase of the trial shall be conducted immediately thereafter before the same judge and jury." Id. (emphases added). The Court sees no impracticability in using a single jury. Further, the Court finds the County's assertion that "[t]he time afforded by impaneling a second jury" [Schulte aff. at ¶ 16] may permit settlement seeks an impermissible use of not only judicial resources, but also potential jurors' time. The County Attorney has already had substantial time to present the details and risks of this action to the County Legislature.
Reduced to its essence, the County's motion assumes that, given the nature of Donna's admittedly severe injuries, the jury cannot be trusted to reach the correct result in a non-bifurcated trial. Such an argument relies on a "stereotypical assumption that [Donna's] disability will prejudice the jury'' [Mason, 226 AD2d at 994], thereby causing it to deviate from its sworn duties to fairly assess the evidence, find the facts, and faithfully apply the law to those facts. The Court squarely rejects this premise. This Court's experience is that juries fully and faithfully follow their instructions — including the instruction that they exclude sympathy [PJI 1:27]. There is no reason to believe the jury would not do likewise at the trial of this action. CONCLUSION
For the foregoing reasons, and in the exercise of its discretion, the Court denies in its entirety the County's motion to bifurcate.
SO ORDERED. DATED: August 9, 2019, at Chambers, Canton, New York. MARY M. FARLEY, J.S.C.