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  • Bill Greenberg

Potential Constitutional Implications of “Bifurcation” in Personal Injury Cases?

You are a plaintiff’s personal injury practitioner. You are in Queens Supreme Court, or possibly in Westchester or Kings County. It’s 3:30 in the afternoon and the jury has just been directed by the court in a fairly typical traffic accident case to deliberate on liability—because your client’s case has been “bifurcated” and the jury must first return a verdict in your client’s favor on the liability issue before you can proceed to damages.

Of course, from your jury’s perspective, this fairly common situation does pose a considerable personal decision. On the one hand, if your jury reaches a verdict finding no responsibility or liability on the part of the defendant in your case, each juror can then return to his or her normal personal lives, businesses, childcare responsibilities, etc.. However, if your jury finds the defendant liable, then each juror knows he or she can expect a whole new trial proceeding – which encompasses counsels’ opening statements, a brand new court’s initial charge, the introduction of further evidence likely now to complex and intricate expert medical testimony, as well as closing arguments, court’s instructions, and a whole new deliberative process in which you as a juror will now be obligated to participate. And, since each of your jurors cannot possibly know how long this second damages trial will take, each juror will likely envisage that the “damages phase” of the litigation might take even longer than the liability trail –considering the continual interruptions during the liability trial each juror has already experienced for the court’s other matters, trial counsels’ verbose arguments on evidentiary matters, as well as witness delay.

In short, each juror also knows that if they find for the defendant on liability, their jury service ends and they go home.

With a liability finding, each juror knows they can return to their normal everyday lives—lives which could include important, immediate personal responsibilities, critical business and financial decisions and/or serious childcare issues. Likewise, every one of your jurors also knows that a liability finding in favor or your plaintiff client brings with it their required participation in further, possibly elaborate, and complex judicial proceedings.

In these circumstances, does your jury have a personal stake in the outcome of the liability portion of the trial? Can your jury be fair and impartial as to the contentions of the parties when a very real concrete impact on their lives necessarily rests upon their decision and verdict? And, if your jury does have a personal stake in the outcome of the liability trial, making it more personally beneficial to them to find it for the defendant, has your plaintiff client—in the event of a defendant’s verdict on liability—been deprived of his or her constitutional right to a fair and impartial jury?

A recent decision in a court proceeding in the Supreme Court Westchester County suggests that the answers to these questions are that – absent consent on the part of the plaintiff – the generally accepted practice in the Second Department of presumptively trying all personal injury case as “bifurcated” – may pose an unconstitutional infringement upon the plaintiff’s right to a fair trial. See Morilus v. Nocco, Westchester Supreme Court, Index 64065/2015 (West. Sup. Ct. Trial Assignment Part 2017).

Well known to all personal injury trial practitioners is that trials of personal injury cases in the Second Department are presumptively “bifurcated”—the issue of liability tried first, and, only if a jury finds liability on the part of the defendant in the first trial, do the proceedings continue with a second full trial to determine the nature and extend of plaintiff’s injuries. But, does this general presumption withstand scrutiny either from a constitutional or legislative perspective?

This presumption of bifurcation in the Second Department was at one time legislatively mandated. In 1979, the Second Department enacted §699 which stated affirmatively:

  • “[i]n all negligence actions to recover damages for personal injury, the issues of liability and damages shall be severed and the issue of liability shall be tried first. In exceptional circumstances, for reasons to be stated in the record, where, in the discretion of the judge presiding over the calendar part, good cause exists as to why such as a severance should not be granted; he may order a single trial on the issues of liability and damages.”

In short, in 1979 the Second Department required that personal injury cases tried bifurcated unless that presumption was somehow shown as inappropriate – generally where plaintiff’s injuries had a direct evidentiary bearing upon the defendant’s alleged liability. And, that was the unvarying practice in the Second Department for seven years between 1979 and 1986. However, in 1986, §699 was expressly repealed and replaced by §202.42.(a) which states:

  • “[j]udges 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 a clarification or simplification of issues and a fair and more expeditious resolution of the action.

Yet, only in the Second Department (where §699 has been repealed since 1986) has there continued the regular day-to-day practice of proceeding ab initio with bifurcated trials in every personal injury case. No other Judicial Department in the State of New York follows this practice. Notwithstanding that all Judicial Departments in New York State, including the Second Department, are governed by 22 NYCRR § 202.42, only the Second Department continues with a presumption that can only be justified by a practice consistent with the ruling of proscribed §699.

Resolving disputes with the jury is neither expeditious nor economical. In fact, it can only be seen as an administrative burden upon governmental services. No doubt, it requires a significant budget to support juror lists, panels, and administrative personnel. It requires physical space in governmental buildings for juror deliberations and voir dire proceedings, etc. And, the jury system delays and retards judicial outcomes and determinations; sometimes decisions that could be reached in days may take weeks, or even longer. It is no wonder that governmental authorities would be attracted to any superficial policy or idea that could somehow curtail the inefficient and expensive procedures inherent in the jury process.

But, the New York State Constitution at Article 1 Section 2 guarantees as “inviolate forever” the right to a jury trial in all civil cases, unless waived. That constitutional guarantee seems perhaps somewhat inconsistent even with §202.42.

It is certainly understood that no juror selected to hear or determine the facts of any civil controversy may have any personal interest or bias in the outcome of the case. In fact, it is universally accepted that revelation by any potential juror of such personal interest or bias during voir dire automatically requires that that prospective juror be deemed ineligible. Yet, in every “bifurcated” case, by virtue of the nature of bifurcation, every juror would seem necessarily to have such personal interest, bias, or stake in the outcome. If the juror reaches a verdict in favor of the defendant on the issue of liability, jury service ends; the jury is free to return to his home, back to his or her regular, and possibly critical, business, financial concerns, and other personal activities.

If such a jury practice necessarily causes and creates inherent bias or personal interest on the part of every juror, it can certainly be questioned whether such practice passes constitutional muster. At this point, one case in the lower court has addressed this issue. Morilus, Id. Likely, other judges both in the Second Department, as well as in the other judicial departments within the State, may in the future seriously assess whether to “bifurcate” a personal injury trial does infringe upon the personal injury plaintiff’s constitutional rights.


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