Dear Insurance Claims Representative or Manager,

A common perception is that defendants want bifurcation—separate trials for liability and damages—in order to keep the plaintiff's injury from the jury, and thereby defuse the potential for a sympathy verdict.   Plaintiffs often want bifurcation as well, primarily to save the cost of doctor witnesses, and hoping to settle if liability is found.  However, bifurcation may not be the best course for a winning defense strategy, when the plaintiff's credibility is important to issues related to the defendant's negligence.

For example, when the plaintiff is exaggerating subjective complaints and there is covert video to prove it; or, falsely claiming that a pre-existing injury is accident-related, and the proof of pre-existence is persuasive, bifurcation may only benefit the plaintiff.   In such cases the plaintiff's lack of credibility regarding injury, will likely impair his or her ability to prevail on negligence/liability.

The bifurcation case law is not as helpful as could be desired in such cases.  The more recent appellate cases, arguably, suggest that bifurcation is only inappropriate when the nature of the injury is probative as to how the accident occurred.  That argument is usually made by plaintiffs, who claim that they need to prove their injury to show that the accident happened the way they claim it did.   However, New York's bifurcation court rule, 22 NYCRR 202.42(a), clearly does require that bifurcation "assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action."  Emphasis on fair, please note.

We succeeded recently in opposing bifurcation in Bachman v Potter, venued in Niagara County Supreme Court (Boniello, J.).  We showed that the husband-wife plaintiffs' credibility, regarding their claim that they had repeatedly told our landlord clients that repairs were needed to a front porch, is THE critical issue on liability.   Therefore, we argued, it would not be fair to prevent the defendants from vigorously cross-examining the plaintiff wife, who claimed she hurt her back when her foot went through a weakened floorboard, regarding her deposition perjury, that she had never treated for back problems before this accident.  She did admit in her EBT to pre-accident chiropractic care, claiming it had been only for headaches.  

In fact, when we got that chiropractor's records, it turned out she had had many visits with chronic LBP complaints, from 1970 to 1998 (our accident date was 7/8/00).  We argued that we needed to be able to cross examine her vigorously as to her perjury—which is, after all, a "bad act" involving moral turpitude, regarding which impeachment of any witness's credibility is proper.   We argued that we also needed to be able to bring in the chiropractor, because a witness can just deny any prior bad act that did not result in a conviction, and the opponent cannot offer independent proof of it.   To prevent such a denial we had to be able to put the chiropractor on the stand, opening up the whole issue of her injury and damages.

Judge Boniello accepted this "fairness" argument and denied bifurcation.  We are planning now to oppose an expected motion to bifurcate in another case, where we have surveillance showing that a plaintiff uses a cane and limps only when he gets near his doctor's office, but not when shopping or washing windows.   That case involves an unwitnessed truck-unloading back strain injury, allegedly resulting from negligent loading of the trailer, and the plaintiff's version of how the truck was loaded is debatable.

Accordingly, it is important to weigh bifurcation decisions most carefully.  Please do not hesitate to contact us with questions regarding such issues, or other questions concerning your insureds' liability for covered claims, or questions of insurance coverage.

Regards,

Laurence D. Behr, Esq.
lbehr@barthbehr.com

Barth Sullivan Behr

"Defending Insurers, Their Insureds, and Municipalities Across Upstate NY Since 1928"

Web site:  www.barthbehr.com
43 Court St., Ste. 600
Buffalo NY 14202
716-856-1300
FAX 716-856-1494