When it is time for trial, plaintiffs always look for an advantage. This can mean when a case is weak on liability or when liability will be difficult to prove, letting a jury know about the severity of plaintiff’s injuries can be a tactical advantage so the jurors will skip over liability and their sympathy for the injured plaintiff may rule the day. The courts often require that liability and damages be tried separately or bifurcated, and in some jurisdictions, it is encouraged and is the norm. The reason is because if a case is decided first on liability and the jury finds in favor of the defendant, there is no reason to have a second trial on damages. This can save judicial resources, jurors’ time as well as the cost of the parties having their expert doctors come to court and testify, which can be substantial. While the plaintiff would always like the jury to hear about the injuries as part of their case, defendants prefer the jury does not hear about extensive injuries which can allow sympathy to enter their deliberations.
In a recent case, GCKB partner Brian McElhenny successfully opposed plaintiff’s request for a single trial on liability and damages. The plaintiff was injured when she was involved in a high-speed crash between her vehicle and another vehicle that the Nassau County police were pursuing. The plaintiff claimed to have no memory of the events leading up to the accident or the accident itself. The plaintiff moved for an order for a unified trial on the grounds that she was unable to recall the events leading up to and at the time of the accident therefore entitling her to a lower burden of proof under the Noseworthy doctrine. Under the Noseworthy doctrine, where the plaintiff cannot recall what happened, the plaintiff can be entitled to a lower burden of proof, but medical proof is required. We represented a municipality, and we opposed the motion arguing that the Noseworthy doctrine would not apply because the municipality had no eyewitnesses to the actual collision which put the plaintiff on equal footing with the municipal defendants as to the knowledge of the accident.
In support of the motion, plaintiff produced medical records that stated that the plaintiff was walking at a daze at the scene and that she had no recollection of the accident or the events leading up to it. Plaintiff also submitted medical records that reflected that the plaintiff claimed she lost consciousness during the accident. We argued that plaintiff remembered the details of driving toward her home that night and the events immediately before impacts were not in dispute. We contended that the plaintiff did not claim or argue that the injuries had any bearing on the liability dispute. Since medical evidence was not necessary to prove or disprove how the accident happened, the motion for a unified trial should be denied. We also argued that because the municipal defendants did not have any eyewitnesses to the collision, the plaintiff’s memory loss did not put her at a disadvantage sufficient to invoke the Noseworthy doctrine. We cited cases where the courts acknowledged that when the parties are on equal footing with respect to the knowledge of the accident, the Noseworthy doctrine does not apply. We also noted that the police would be able to testify concerning the events regarding the pursuit.
The Court denied the motion finding:
“Notwithstanding the possible necessity for a Noseworthy charge at the liability phase of the trial, the Court must consider the potential prejudice to the Municipal Defendants at a unified trial. This is particularly important given that Plaintiffs admit that the nature of (her) injuries is not intertwined with how the accident happened. Rather, as set forth herein, Plaintiff basis for arguing in favor of a unified trial is related to the potential need for a Noseworthy charge.”
Our seasoned trial attorneys, like Brian McElhenny, carefully analyze the facts to make sure that plaintiff’s theories are supported by the law and make sure their client’s interests are always protected. Let Gerber Ciano Kelly Brady’s outstanding team of trial attorneys do that for you.
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