Authored and researched by Tim Capowski with assistance from former colleague(s).
A burgeoning litigation backlog, exacerbated by COVID, requires the Bench and Bar to become more efficient in valuing personal injury actions, especially in the realm of non-pecuniary (pain and suffering) damages reviewed under CPLR 5501(c). The first step in this process involves eliminating a number of common misconceptions that have been repeated over and over in damages litigation for the past two decades. Through repetition, these errors have achieved a measure of traction they do not remotely deserve.
The largest impediment to accurately valuing cases arises from the myth that the Appellate Division is endorsing larger and larger awards, thereby signaling an abandonment of anything but lip-service to CPLR 5501(c). There is no such trend. And the absence of a trend is consistent with historically-low economic inflation since the turn of the century.
In reality, the adherents of this narrative fundamentally misconstrue CPLR 5501(c) jurisprudence by relying on outlier decisions, federal opinions, lower court decisions, and opinions that employ the wrong standard of review, all as camouflage for their wholesale embrace of litigation tactics designed to drive up compensatory awards and escape or undermine CPLR 5501(c).
At base, the Legislature specifically enacted CPLR 5501(c) as a tort reform measure to promote stability and fairness in the tort system, avoid sudden shocks, and prevent the upward spiral of verdicts. The very idea that the courts should endorse a rise in non-pecuniary awards, rather than strict adherence to the existing CPLR 5501(c) framework, in the face of the economic devastation wreaked by COVID-19 on New York’s municipalities, businesses and citizens,[i] is abhorrent to common sense, rationality and fairness to all New Yorkers.
The So-Called Game-Changer Decisions Are Actually Outlier, Standalone Decisions, And Are Provably Not Relevant or Controlling Pain and Suffering Damages Precedent
Whether utilized in settlement negotiations or in an effort to justify an excessive verdict, plaintiffs are understandably keen to always depict the sustainable range as far higher and far more elastic than it actually is. Plaintiffs invariably justify their demands and patently improper verdicts through references to outlier decisions. Wrongful death claims perfectly encapsulate this trend.
Because of the huge outlier pain and suffering awards permitted in In re 91st St. Crane Collapse Litig., 154 A.D.3d 139 (1st Dept. 2017), this decision is cited by plaintiffs in virtually every wrongful death case as indicative of either the First Department quadrupling the prior sustainable range for short duration pain and suffering awards in death cases, or of the First Department generally signaling that, going forward, it will disregard New York’s tort reforms embodied in CPLR 5501(c). Both uses of this decision are sorely misplaced.[ii] [iii]
The Crane Collapse decision specifically and repeatedly describes itself—not as a harbinger of increased pain and suffering awards in death cases or even generally—but as a standalone outlier not guided by (or susceptible to) comparison, and which involves a significant punitive component. The First Department took great pains to explain this: “[T]here are also no cases that are similar in facts or present such a confluence of facts: catastrophic injuries leading to death, and egregious, wanton disregard for potential loss of life and property.” **** “[W]e again acknowledge that the inconceivable pain and suffering endured by [plaintiff”] warrants a variance from the cited awards.”
In addition to self-describing its decision as one in “variance” from existing CPLR 5501(c) precedent, the First Department specifically included references to the defendant Lomma’s conduct (“reprehensible,” “egregious, wanton disregard for potential loss of life” spanning a lengthy time period) as a factor in its pain and suffering analysis. Since pain and suffering damages are designed for compensatory, not punitive purposes, this also renders the awards in Crane Collapse significantly distinguishable as anomalies or outliers.[iv]
The truth is, Crane Collapse and other $3 million and higher wrongful death decisions that stray from the traditional sustainable range,[v] are outliers that each included significant punitive and exacerbating factors. [vi] Like Crane Collapse, each involved a notorious, highly-publicized litigation involving significant overarching punitive considerations that generated a standalone pain and suffering award well out of line with the court’s precedent, but which was tailored and limited to the special facts and circumstances of the case.
For example, in 2003, the First Department approved a $3 million award (that had been reduced by the trial court from $4.5 million) in what it termed an “unusual case” where a hostage used as a human shield was killed in a highly-publicized shootout between a bank robber and police that entailed troubling questions concerning the NYPD’s training, tactics, and discipline. The First Department affirmed an award of $3 million for pain and suffering to the estate of the decedent whose leg was “split in half” with blood coming from her groin and chest, as she remained alive for an hour. Lubecki v. City of New York, 304 A.D.2d 224 (1st Dept.2003).
Likewise, in Launders v. Steinberg, 39 A.D.3d 57 (1st Dept. 2007), aff’d. and modified on other grds. 9 N.Y.3d 930 (2007), the First Department affirmed a $5 million pain and suffering award to the estate of a horrifically and chronically abused infant who underwent eight to ten hours of pain and suffering before succumbing to her injuries from the latest brutal beating from her drug-addled father. Because of the ghastly nature of the defendant’s criminal conduct, the court justified its departure from precedent on the basis that the case was “without precedential analog” (id. at 59).
Despite the fact that Lubecki, Launders, and Crane Collapse, have each been routinely cited as CPLR 5501(c) precedent by plaintiffs since their issuance (in 2003, 2007 and 2017 respectively) in every subsequent New York wrongful death case, none have been cited in support of a single pain and suffering award by any New York appellate court, further confirming that each is a unique or outlier compensatory award with punitive underpinnings.[vii]
Actually, consistent with this analysis, Lubecki was cited by the Appellate Division a grand total of once to support a pain and suffering award: in Crane Collapse. And Launders has only been cited on the issue of damages for review of a punitive damages award, not a compensatory award. See Guariglia v. Price Chopper Operating Co., Inc., 38 A.D.3d 1043, 1044 (3d Dept. 2007).
While more appropriately a subject worthy of its own future article, it should be noted that our research has not uncovered any appellate decisions where the courts have allowed a punitive element to influence the pain and suffering award outside of a context where the tortfeasor to be punished was the only defendant to which the award applied. It does not appear that the courts would allow a punitive-based compensatory award in a situation where it would be borne in part by passively-negligent co-tortfeasors, as this would be, quite obviously, unfair and inequitable.
However, by this same logic, the appellate courts should always seek to carefully caveat such awards[viii]—just as the First Department did in Crane Collapse and Launders—to prevent their subsequent misuse by the Bench and Bar as new record-setting compensatory precedent. Otherwise, such decisions—once accorded status as general CPLR 5501(c) precedent—tend to punish all future defendants and New Yorkers, while contributing to the upward spiral of compensatory awards that CPLR 5501(c) was enacted to prevent. From a pragmatic standpoint, such caveats make the entire valuation process far more efficient for courts and litigant
Federal Court Decisions Applying CPLR 5501(c) Are Irrelevant to State Court Analysis
Another tactic favored by plaintiffs involves relying on federal court decisions as evidence that the sustainable range for claims has shifted upwards. Use of the U.S. Court of Appeals for the Second Circuit’s unpublished decision in Saladino v. Am. Airlines, Inc., 2013 U.S. App. LEXIS 5349 (2d Cir. 2013), is a paradigmatic example of this approach. Because it involves an unprecedented $15 million pain and suffering award approved on appeal by the Second Circuit, and is several million higher than the highest-ever sustained award for paralysis injuries in New York, plaintiffs in paralysis and other catastrophic injury cases frequently rely on Saladino to justify wholly unsupportable settlement demands and verdicts. The $aw in this approach is two-fold.
First, the caption of the Saladino decision specifically states that it is an unpublished decision and “Summary Order,” hence it is specifically designated as non-precedential.[ix] In fact, the decision contains an unambiguous warning in its header to consult the very rule confirming this: “Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.” It borders on frivolous for plaintiffs to continue relying on Saladino under these circumstances.
Second, the Seventh Amendment precludes federal appellate courts, unlike New York State appellate courts, from applying CPLR 5501(c)’s plenary standard of review. See Gasperini v. Ctr. for Humanities, 518 U.S. 415, 438 (1996). Instead, federal appellate courts, like the Second Circuit, are limited to reviewing the district court’s application of CPLR 5501(c) for an abuse of discretion. Id. Plainly, New York State appellate courts should not (and do not) follow decisions that do not actually apply CPLR 5501(c) in the manner intended by the Legislature.
Unsurprisingly, in the seven years since its issuance, the unpublished Saladino opinion has never been cited by any New York State appellate court, and certainly not for CPLR 5501(c) review.
Lower Court Decisions and Jury Verdicts Are Irrelevant to the CPLR 5501(c) Analysis
Plaintiffs also frequently cite to trial court decisions and jury verdicts for pain and suffering in support of their argument that the sustainable ranges are drifting upwards. Three examples illustrate this phenomenon. All- too-often plaintiffs in catastrophic injury cases cite to Tenuto v Lederle Labs., 27 Misc. 3d 506 (Sup.Ct., Richmond Co. 2010), Savillo v. Greenpoint, 2011 N.Y. Slip Op. 31950 (Sup.Ct., N.Y. Co. 2011), and Flynn v. GMAC, 179 Misc. 2d 555 (Sup.Ct., N.Y. Co. 1998). Each involve a runaway verdict approved by a trial court on post-trial motion.
The fallacy in this approach lies in the assumption that jury verdicts, or verdicts approved at the trial court level, constitute meaningful precedent for CPLR 5501(c) analysis. Simply stated, they do not. As the Appellate Division has emphasized, “analysis of appealed verdicts using CPLR 5501(c) is not optional but a legislative mandate.” Donlon v. City of New York, 284 A.D.2d 13, 16 (1st Dept. 2001) (emphasis added). The rationale of deference to jury verdicts cannot trump the courts’ CPLR 5501(c)-mandated review, as “[n]o jury can determine the issue of material deviation and we cannot, consistent with CPLR 5501(c), attempt to use the rationale of deference to a jury verdict in resolving that issue when we are supposed to compare analogous verdicts.” Id.; see also Morsette v. “The Final Call,” 309 A.D.2d 249, 256 (1st Dept. 2003) (“In order for us to determine whether the award in this matter ‘deviates materially from what would be reasonable compensation,’ we are required to review awards approved in similar cases.”)
This point was underscored in Paek v. City of New York, 28 A.D.3d 207 (1st Dept. 2006), in which the plaintiff sought to justify a grossly excessive verdict by citing to an equally excessive verdict approved in a lower court decision, while emphasizing the sanctity of a jury verdict. The Appellate Division’s rejection of plaintiff’s argument is unequivocal (id. at 209): “Of course, that is not the standard of appellate review. An award is excessive if it deviates materially from what would be reasonable compensation (see CPLR 5501[c]). The standard for that determination is set by judicial precedent, not juries.”
Indeed, the Appellate Division explicitly rejected the dissent’s reliance on Flynn, supra, to support a grossly excessive pain and suffering award: “The jury award [in Flynn] is hardly an exemplar for us on appellate review.” Paek, 28 A.D.3d at 209. Of course, as the court implicitly recognized, Flynn, just like Tenuto and Savillo, settled prior to appellate review for a significantly lower amount in recognition that the jury’s award would not remotely withstand appellate review under CPLR 5501(c).
Decisions Reviewed Under Shocks the Conscience Standards Are Irrelevant and Inapplicable
Finally, plaintiffs often ground their unreasonable settlement demands and verdicts in damages awards reviewed under inapplicable standards. This includes New York state court cases brought under federal statutes (e.g., Federal Employers Liability Act [“FELA”]), and out-of-state decisions, both of which employ a “shocks the judicial conscience” standard for the review of damages awards. In other words, they are reviewed under the standard that the New York State Legislature rejected and abandoned as too deferential in enacting CPLR 5501(c).
Along these lines, we have repeatedly encountered plaintiffs who cite to Cruz v. LIRR, 22 A.D.3d 451 (2d Dept. 2005), a FELA case, because it involves a significantly larger award than permissible under existing CPLR 5501(c) precedent. Despite that we have repeatedly explained the inapplicability of this altogether different review standard, plaintiffs persist in citing this decision and ignoring the distinction in cases controlled by CPLR 5501(c). Unsurprisingly, Cruz has not been cited or discussed in a single CPLR 5501(c) decision since it was handed down in 2005, notwithstanding the fact that plaintiffs repeatedly cite to it in catastrophic injury cases.
The same applies for reliance on out-of-state decisions involving excessive awards for pain and suffering. As the eminent Justice Ruth Bader Ginsburg observed, “[W]hen New York substantive law governs a claim for relief, New York law and decisions guide the allowable damages.” Gasperini, 518 U.S. at 437. Unsurprisingly, our research unearthed zero New York State appellate court decisions contradicting Justice Ginsburg and instead relying on out-of-state damages awards for CPLR 5501(c) review.
Conclusion
Frankly, all that a plaintiff establishes by persistent mistaken reliance on the above cases and concepts is that they are fully aware that their position on damages is unsupported by existing, applicable damages precedent. It is our hope that the elimination of these misconceptions from parties’ arguments and submissions will assist the Bench and Bar toward greater consistency and efficiency in valuing personal injury actions in the realm of non-pecuniary damages reviewed under CPLR 5501(c). This, in turn, will lead to greater fairness, more and quicker settlements, less recourse to overburdened courts, and less litigation backlog and delays.
ENDNOTES:
[i] See “‘We’re at War’: New York City Faces a Financial Abyss” (NYT Sept. 28, 2020).
https://www.nytimes.com/2020/09/28/nyregion/nyc-budget-coronavirus.html?smid=fb- nytimes&smtyp=cur&fbclid=IwAR2vk8BBJz03x1JtjRvZdK6_pTQIuDij9f7- M0VXd6pC5bBMdsai39TLeWI&fbclid=IwAR3dxREVGbHXgmwmVtIXPE8q9lKZI45GB3qdUUUk74viRw4oe1589Cpj (https://www.nytimes.com/2020/09/28/nyregion/nyc-budget-coronavirus.html?smid=fb- nytimes&smtyp=cur&fbclid=IwAR2vk8BBJz03x1JtjRvZdK6_pTQIuDij9f7- M0VXd6pC5bBMdsai39TLeWI&fbclid=IwAR3dxREVGbHXgmwmVtIXPE8q9lKZI45GB3qdUUUk74viRw4oe1589Cpj
[ii] The huge awards for pain and suffering are also a product of the erroneous doubling of line item recovery for pain and suffering by separating out pre-impact terror—a component of pain and suffering—as an independent category of recovery. The First Department approved, after remittiturs, awards of $8 million and $9.5 million for pain and suffering respectively to the two decedents ($2.5 million for pre-impact terror and $5.5 million for pain and suffering, and $2 million for pre-impact terror and $7.5 million for pain and suffering). We addressed this facet of Crane Collapse in our research article published in the NYLJ on Sept. 21, 2020.
See https://www.law.com/newyorklawjournal/2020/09/28/when-a-pattern-jury-instruction-contrary-to-new- york-law-arrogates-the-law/ (https://www.law.com/newyorklawjournal/2020/09/28/when-a-pattern-jury- instruction-contrary-to-new-york-law-arrogates-the-law/)
[iii] Additional examples of such outliers include Stewart v. New York City Transit Auth., 82 A.D.3d 438, 440-41 (1st Dept. 2011) and Kromah v. 2265 Davidson Realty LLC, 169 A.D.3d 539 (1st Dept. 2019). Each was portrayed as indicative of a seismic shift in sustainable award jurisprudence when, in reality, the underlying briefs and records confirm that they were not indicative of anything other than an outlier award approved to a plaintiff with a longstanding, permanent, debilitating and uncontested chronic excruciating pain condition barely managed with high-dose narcotics.
[iv]The case was an outlier in virtually every conceivable respect as the trial in Crane Collapse was the longest in New York County history and spanned between 11-12 months. It included weeks of testimony directed at the multiple acts of egregious and outrageous behavior of the defendant crane owner over an extended period that unnecessarily endangered, not only the project’s construction workers, but the general public as well. See Crane Collapse, supra at 144-148.
[v] See, e.g., Oates v. NYCTA, 138 A.D.3d 470 (1st Dept. 2016) ($300,000); Santana v. De Jesus, 110 A.D.3d 561 (1st Dept. 2013) (remittitur to $375,000); Sanchez v. City of New York, 97 A.D.3d 501 (1st Dept. 2012) (additur to $400,000); Filipinas v. Action Auto Leasing, 48 A.D.3d 333 (1st Dept. 2008) (sustaining remittitur to $350,000); Simon v. Granite Bldg. 2, LLC, 170 A.D.3d 1228 (2d Dept. 2019) (affirming $500,000); Vatalaro v. County of Suffolk, 163 A.D.3d 891 (2d Dept. 2018) ($1.25 million); Espinal v. Vargas, 101 A.D.3d 1072 (2d Dept. 2012) ($250,000); Dowd v. New York Tr. Auth., 78 A.D.3d 884 (2d Dept. 2010) (remittitur to $1.2 million).
[vi]This logic applies equally to awards involving asbestos and similar exposure injuries that carry an inherent punitive component, and will be the subject of a future article. Suffice it to say, exposure cases are inapplicable to the greater CPLR 5501(c) canon due to the specific nature and cause of such injuries.
[vii] Because it was decided in 2003, Lubecki is usually cited more recently in combination with the usual vague “inflationary” argument that, as pointed out, flies in the face of the historically low rate of economic inflation since the turn of the century.
[viii] As we will discuss in detail in a subsequent article, one way to accomplish this would be to emulate the federal court tactic of issuing non-precedential “Summary Orders” (see endnote ix). This would allow the Appellate Division flexibility in addressing particularly egregious fact patterns without creating unnecessary confusion or upward spiral in CPLR 5501(c) valuation for future litigants and courts. See also CPLR 5522(b).
[ix] The Second Circuit has “specifically cautioned against the reliance on non-precedential summary orders in ‘clearly established analyses.’” Matusick v. Erie County Water Auth., 757 F.3d 31, 61 (2d Cir. 2014) (internal citation omitted). It further held that “[n]on-precedential decisions, by their very definition, do not make law.” Id. See also 2d Cir. Local R. 32.1.1(a).
In part one of this article, we addressed the species of summation misconduct that we classify under the umbrella of “How Dare They Defend?” (HDTD) attacks. Drawing on our team’s decades-long and continuously-updated familiarity with outsized or nuclear verdicts that are inevitably reduced pursuant to CPLR 5501(c), we showed that these verdicts are routinely—in fact, almost exclusively—procured through HDTD abuse on summation. In other words, these tactics, once widely-recognized as unacceptable, have not only entered the mainstream, but are playing a central role in driving damages awards upward.
We then catalogued the various forms of HDTD attacks and called on the judiciary to take a more active role in identifying and policing these tactics (or, rather, re-take its formerly more active role in doing so).
In this second part, we expand this analysis, addressing both exactly why HDTD attacks are improper and what the judiciary and defendants can do to address it. In discussing remedies available to defense counsel, we in no way retreat from our position, set out in part one, that ultimately only the judiciary can police HDTD attacks and summation abuse more generally.
HDTD Attacks: Irrelevant and Expensive
In brief, HDTD attacks of the kind we catalog in part one are improper both because they have nothing to do with the issues of the case, or determining compensatory damages, and because they lead to increased burdens on litigants, the courts, and the public.
To see their irrelevance, it is useful to begin with the definition of compensatory nonpecuniary pain and suffering damages, followed by a refresher course on permissible civil summation comment.
“We begin with the familiar proposition that an award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer (see, Sharapata v. Town of Islip, 56 NY2d 332, 335; Prosser and Keeton, Torts, at 7 [5th ed]). The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred (1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions §§ 1.00, 1.02). To be sure, placing the burden of compensation on the negligent party also serves as a deterrent, but purely punitive damages—that is, those which have no compensatory purpose—are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence (see, Sharapata v. Town of Islip, supra, at 335; Prosser and Keeton, Torts, at 9-10 [5th ed]; 1 Minzer, op. cit., § 1.03).
Damages for nonpecuniary losses are, of course, among those that can be awarded as compensation to the victim. This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages. An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on “the legal fiction that money damages can compensate for a victim’s injury” (Howard v. Lecher, 42 NY2d 109, 111). We accept this fiction, knowing that although money will neither ease the pain nor restore the victim’s abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created (see, Skelton v. Collins, 115 CLR 94, 130, 39 ALJR 480, 495 [Austl H C]).
Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive.”
McDougald v. Garber, 73 N.Y.2d 246, 253-54 (1989).
In other words, any argument in favor of damages that strays from compensatory purposes is improper. By definition, HDTD attacks, designed to gin up anger at the defendant, do not seek to prove the measure of plaintiff’s harm, but to stoke outrage at defendants’ supposed wrongdoing or callousness. They are punitive in nature and therefore improper. Many varieties, particularly “vouching”, where counsel acts as an unsworn witness to some point of contention, or comments decrying defendant’s “motivations” for defending itself, are also not even comments on the evidence, and thus are outside the bounds of counsel’s wide latitude to address the evidence.
Additionally, they result in increased costs. HDTD attacks, as our research shows, are behind most, if not all, excessive and nuclear verdicts. These verdicts are inevitably not paid, rather, they are the subject of additional legal practice, either in the form of a post-trial motion or an appeal seeking remittitur under the auspices of CPLR 5501(c) (or a settlement based on the threat or pendency thereof). However, the typical result of successfully invoking CPLR 5501(c) is a remittitur to the high end of the sustainable range.
As we have discussed at greater length in prior articles[i], over time, as nuclear verdicts are awarded for moderate injuries, and then reduced to the high end of the sustainable range, the sustainable range moves up. This is inevitable because more serious injuries will occur, and will, logically, merit larger awards than the moderate injuries that received the former sustainable maximum. This damages inflation is not simply absorbed by large defendants and insurance carriers—it is passed on to the public through increased prices and premiums.
In other words, nuclear verdicts harm litigants and courts because they necessitate burdensome and time-consuming additional litigation and appeals, and they harm the public because they lead to cost inflation that the public ultimately pays. The resulting vicious cycle is, of course, expressly contrary to the Legislature’s purpose in enacting CPLR 5501(c).
Guarding Against HDTD Attacks
The first step to correcting the surge in nuclear and excessive verdicts caused by HDTD abuse is, as we suggested in part one, acknowledgement that we have a problem. As long as the defense bar—and more importantly, the judiciary—sees HDTD attacks as merely tough competition, no solution is possible. Only recognition that these tactics have no place in the courtroom will do. Nevertheless, we run through the best tools available to both defense counsel and the courts to address HDTD and similar abuses.
Tools Available to Defense Counsel
While the judiciary must ultimately police abusive courtroom behavior, defense counsel must nevertheless be willing to fight back. We recommend an approach we call “before, during, and after.”
Before: our office recommends placing a pre-emptive objection to summation abuse on the record, supported, if practical, with a mid-trial submission highlighting case law (such as what we provided in part one of this article) relevant to any anticipated HDTD attacks. The purpose of these pre-emptive strikes is not primarily to get a ruling—New York judges tend to be reluctant to rule on abusive conduct before it occurs—but to underscore the law on these issues in the Court’s mind so that mid-summation objections are more likely to be granted, and to crystallize the appellate record on legal arguments that such attacks are objectionable. It also places your adversary in a predicament when they later seek to justify or downplay the remarks they made despite having been specifically alerted to case law forbidding them.
During: defense counsel must overcome their innate reluctance to object in the middle of plaintiffs’ summations (and vice versa). The majority of courts and counsel have an exaggerated sense of what constitutes good manners during summation, at least when it comes to objections, and this shared sense has created a reluctance to object to HDTD attacks and a judicial reluctance to sustain those objections. Some courts have even gone so far as to instruct counsel against objecting during an adversary’s summation altogether. However, the First Department has instructed:
[W]e find it necessary to remind the trial bench at large that although it has broad discretion in conducting trials, blanket prohibitions such as given in this case, directing counsel that “there is to be no objecting in the middle of summations,” are inappropriate. Indeed, common courtesy requires a lawyer to allow opposing counsel an unfettered opportunity to argue his or her case to the jury. However, it is axiomatic that where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of opposing counsel, inter alia, to object specifically, to point out the language deemed objectionable, and to request the court to rule on the objection, admonish counsel to desist from such improper remarks, and direct the jury at the appropriate time to disregard such improper statements (see Dimon v. New York Cent. & Hudson Riv. R.R. Co., 173 NY 356 [1903]; 8 Carmody-Wait 2d, NY Prac § 56:300; Siegel, NY Prac (4th ed) § 397, at 669 [4th ed]).
Binder v. Miller, 39 A.D.3d 387, 387 (1st Dep’t 2007) (emphasis added). This advice should be heeded, and HDTD attacks should be met with immediate objection.
After: to bluntly address an issue we routinely encounter as appellate and monitoring counsel, defense counsel should not hesitate to move for a mistrial following HDTD attacks, and to do so in a timely fashion. That means making the motion outside the presence of the jury, but before the verdict is returned. Courts do maintain the power to grant a new trial in the interest of justice even where no motion for a mistrial was made, but this requires a greater showing, and should not be relied on in the first instance. Courts are all too happy to conclude that waiting until the verdict is returned waives the objection. See, e.g., Califano v. City of New York, 212 AD2d 146, 152-53 (1st Dept. 1995).
Tools Available To The Courts
This “before, during, and after” approach provides defense counsel’s best chance to curb summation abuse or, failing that, to provide the necessary record for successful appellate review. This approach will be futile, however, without cooperation from the judiciary. Many courts will ignore a “before” submission, refuse to sua sponte curb improper comments, and refuse to sustain “during” objections. In fact, judges have been known to reprimand counsel for interrupting their adversary (despite Binder). Further, even where objections are sustained, the practice of continual objection, like the practice of constantly running to the teacher at recess, risks conveying fear and weakness to the jury; what is genuinely required is an admonishment by the Court that cows counsel from making further HDTD attacks.
Indeed, the inescapable conclusion is that the trial courts must take the reins where called for, and police their courtrooms against improper summations. Trial courts have, and have always had, four principal tools for this, all of which are presently underused.
First, as just discussed and as noted by the First Department in Binder, the courts can admonish counsel for inappropriate summation tactics, on the record and in front of the jury, with or without an objection.
Second is the mistrial. Courts, overburdened as they are, seem reluctant to use this remedy, perhaps thinking it will only add to the unfair burden already carried by our court system. The opposite is true. Rather, by imposing a genuine cost on summation misconduct, the courts would see less and less of it. This, combined with a policing of the sustainable range of damages under CPLR 5501(c), would make litigants require less access to jury trials to resolve their claims and instead accord with New York’s strong (and necessary) public policy favoring settlement. By giving greater and more definitive guidance on the parameters of summation and sustainable pain and suffering awards, the courts reduce their case load and waste of valuable resources.
Third and fourth are the twin tools of additur and remittitur. This requires some unpacking. Courts are apt to view summation misconduct as a binary choice: either the improper tactic rose to the level that a mistrial is required, or it did not. This binary approach actually ties the courts’ hands, in that it denies them the use of the unique discretion granted by CPLR 5501(c). No other state has what New York has: a one-of-a-kind damages review statute born in 1986 as a rejection of the former “shocks the conscience” standard prevalent in most U.S. state courts, and as a compromise to the tort-reform proposals of the Jones Commission for a $250,000 hard cap on pain and suffering awards.[ii]
Under CPLR § 5501(c), the Appellate Division and trial courts are required to engage in a process of case comparison to ensure that an award under review falls in the range of what the appellate courts have determined to constitute “reasonable compensation” for the claimed injury. Keeping in mind that the reasonableness of an award for pain and suffering constitutes a “legal fiction”,[iii] in the 34 years since its enactment, the Appellate Division has reviewed and approved awards in a range between $0 and $10 million, reserving the $10 million cap or ceiling for the most catastrophic cases.[iv] It should go without saying that strict continued adherence to this unique statutory scheme is imperative if New York State is to weather the financial peril that confronts it,[v] and that confronted it even prior to the arrival of COVID-19.[vi]
The ordinary function of CPLR 5501(c), on a clean trial record, is to allow the courts, when confronted by an excessive or inadequate jury verdict, to order a remittitur to the high end or an additur to the low end of that sustainable range. Siegel’s New York Practice § 407, “Additur and Remittitur” (Third Ed.), p. 658. As explained by the eminent Professor Siegel, “The figure set by the court, and the one to which the party is required to stipulate or face a new trial, represents the minimum (in the case of additur) or the maximum (in the case of remittitur) found by the court to be permissible on the facts.” Id.
This rule derives entirely from the “light most favorable” to the prevailing party standard of review. It is based on the assumptions of, again, a clean trial record, and that the jury wholeheartedly accepted the prevailing party’s evidence but simply awarded more or less than the Appellate Division has determined to be sustainable within the established range of reasonable compensation.
But when the trial record is not clean—when it is instead marred by an HDTD attack or other abusive summation tactic—the inadequate or excessive verdict is arguably procured by misconduct. Courts thus have the power to address this misconduct directly, by accounting for its impact in reducing (or adding to) the award. There is no reason they should not do so: the “light most favorable” standard of review need not apply, let alone entail the fiction that the jury heard unacceptable summation tactics but utterly disregarded them in the face of an award inarguably procured by such tactics. Indeed, the “light most favorable” standard is unavailable to a party that prevails through any form of misconduct. [vii]
In such situations, the court should be free to order an additur or remittitur to an amount that still falls within the range of reasonable compensation, but that does not reward summation misconduct or other improprieties designed to divert the jury from their important task of determining fair and just compensation.
In discussion of the foregoing concept with a colleague, she wondered if this could be deemed a punishment of the prevailing party for their counsel’s misconduct. The answer is a resounding “no”. In point of fact, the opposite is true. The party that achieved the unduly low or unduly high verdict figure through improper means is not being punished in the slightest: the jury’s verdict in that instance is a double-fiction derived from impropriety, and the prevailing party has no true claim to the verdict or light most favorable review in the first instance, let alone any hypocritical complaint to being the victim of a punishment. The resulting additur or remittitur to well within the sustainable range of reasonable compensation approved by the Appellate Division is no penalty, but rather a correction of an injustice that has, for too long, been overlooked.[viii]
Conclusion
The HDTD tactics we outlined in part one work. They will remain commonplace as long as the judiciary tolerates them. In part one, we used the analogy of borderline plays in sports— plays that are on the bleeding edge of legality, but seen as fierce competition, not dirty play. Growing awareness of the risks presented by these plays can, and does, lead to rule changes and a new perception—e.g., Scott Stevens’s headshot on Eric Lindros or Bernard Pollard’s lunge at Tom Brady’s knee, both clean, legal plays at the time, would be considered dirty in today’s NHL and NFL.
Initially published in the NYLJ
ENDNOTES:
[i] See Timothy R. Capowski & Jonathan P. Shaub, Improper Summation Anchoring Is Turning the New York Court System on its Head and Contributing to the Demise of New York State, NYLJ (Apr. 28,2020),
https://www.law.com/newyorklawjournal/2020/04/28/improper-summation-anchoring-isturning-the-new-york-court-system-on-its-head-and-contributing-to-the-demise-of-newyork-state/; Timothy R. Capowski & John F. Watkins, CPLR 5501(c) Review In the Age of Summation ‘Anchoring’ Abuse, NYLJ (June 26, 2019), https://www.law.com/newyorklawjournal/2019/06/26/cplr-5501c-review-in-the-age-ofsummation-anchoring-abuse/
[ii] “As stated in Legislative Findings and Declarations accompanying New York’s adoption of the ‘deviates materially’ formulation, the lawmakers found the ‘shock the conscience’ test an insufficient check on damage awards; the legislature therefore installed a standard ‘inviting more careful appellate scrutiny.’ Ch. 266, 1986 N. Y. Laws 470 (McKinney). At the same time, the legislature instructed the Appellate Division, in amended § 5522, to state the reasons for the court’s rulings on the size of verdicts, and the factors the court considered in complying with § 5501(c). In his signing statement, then-Governor Mario Cuomo emphasized that the CPLR amendments were meant to rachet up the review standard: ‘This will assure greater scrutiny of the amount of verdicts and promote greater stability in the tort system and greater fairness for similarly situated defendants throughout the State.’ Memorandum on Approving L. 1986, Ch. 682, 1986 N. Y. Laws, at 3184; see also Newman & Ahmuty, Appellate Review of Punitive Damage Awards, in Insurance, Excess, and Reinsurance Coverage Disputes 1990, p. 409 (B. Ostrager & T. Newman eds. 1990) (review standard prescribed in § 5501(c) ‘was intended to . . . encourage Appellate Division modification of excessive awards’).” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 423-24 (1996) (Ginsburg, J.); see also Donlon v. City of New York, 284 A.D.2d 13-15 (1st Dep’t 2001) (discussing Gov. Cuomo’s Jones Commission and its recommendation of a hard cap of $250,000 on noneconomic damages in personal injury actions against municipal corporations).
[iii] As the New York Court of Appeals has explained, “recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on ‘the legal fiction that money damages can compensate for a victim’s injury’ (Howard v. Lecher, 42 NY2d 109, 111). We accept this fiction, knowing that although money will neither ease the pain nor restore the victim’s abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created (see, Skelton v. Collins, 115 CLR 94, 130, 39 ALJR 480, 495 [Austl H C]). Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive.” McDougald v. Garber, 73 N.Y.2d 246, 254 (1989).
[iv] The ceiling has been exemplified by the consistent appellate remittitur of verdicts down to $10 million for catastrophic paralysis injuries including loss of ambulatory, bowel, urinary and sexual functions, combined with unremitting physical pain and other sequelae. Bissell v. Town of Amherst, 56 A.D.3d 1144, 1147-48 (4th Dept. 2008); Miraglia v. H & L Holding, 36 A.D.3d 456, 457 (1st Dept. 2007); Ruby v. Budget Rent A Car, 23 A.D.3d 257, 258 (1st Dept. 2005); see also Aguilar v. NYCTA, 81 A.D.3d 509, 509 (1st Dept. 2011) (functional paraplegia through amputation of one leg and degloving and loss of function of other leg); Turturro v. City of N.Y., 127 A.D.3d 732, 739 (2d Dept. 2015) (horrific skull crush injuries to 12-year-old boy resulting in catastrophic brain and neurological and orthopedic injuries). To be clear, the Appellate Division has only twice permitted pain and suffering awards in excess of $10 million: a $16 million award in the First Department (involving catastrophic burn injuries over 50% of the 36-year-old plaintiff’s body surface area), and a $12 million award in the Fourth Department (involving a 23-year-old quadriplegic). Setting aside those two outliers, $10 million has served as a CPLR 5501(c) hard cap for pain and suffering for the most catastrophic of injuries over the last three decades. As shown above, even that figure has only been approved (after remittitur) !ve times in total (three times by the First Department and once each by the Second and Fourth).
[v] See Jimmy Vielkind, New York Municipalities Feel the Budget Crunch as Coronavirus Pandemic Squeezes Funding, Wall St. J. (July 6, 2020, 3:42 PM), https://www.wsj.com/articles/new-york-municipalities-feel-budget-crunch-ascoronavirus-pandemic-squeezes-funding-11594027800?st=om0pgaurjvnj0tl&re!ink=article_email_share; Prashant Gopal, NYC Rental Market Pushed to Breaking Point by Tenant Debts, Bloomberg Quint (July 8, 2020, 2:30 PM), https://www.bloombergquint.com/businessweek/coronavirus-moves-nyc-a”ordablehousing-crisis-to-breaking-point; Luis Ferré-Sadurní & Jeffery C. Mays, Outbreak Ravages N.Y. Budget; Governor Calls Aid Deal ‘Terrible’ for State, N.Y. Times (Mar. 26, 2020), https://www.nytimes.com/2020/03/26/nyregion/coronavirus-recession-economyny.html; hawn Tully, New York City’s lockdown is costing $173 million per day. Is it still worth it?, Fortune Media (June 6, 2020, 7:00 AM), https://fortune.com/2020/06/06/newyork-city-nyc-lockdown-cost-economy-coronavirus/; Chelsea Diana, The economic impact of Covid-19 in New York state by the numbers, Albany Bus. R. (June 8, 2020, 6:00 AM), https://www.bizjournals.com/albany/news/2020/06/08/new-york-economic-impact-ofcovid-19.html; J. David Goodman, ‘I Don’t Think the New York That We Left Will Be Back for Some Years’, N.Y. Times (Apr. 20, 2020), https://www.nytimes.com/2020/04/20/nyregion/new-york-economy-coronavirus.html; Jonathan Bowles & Charles Shaviro, A Blow to the Boroughs: Many Industries Hit Hardest by Coronavirus Concentrated Outside Manhattan, Ctr. for an Urban Future (Mar. 2020), https://nycfuture.org/research/a-blow-to-the-boroughs; Margaret Besheer, As New York Looks to Heal From Coronavirus, Its Economy Falls Ill, Voice of Am. (Apr. 16, 2020, 6:35 PM), https://www.voanews.com/covid-19-pandemic/new-york-looks-heal-coronavirus-tseconomy-falls-ill; Robert Pozarycki, ‘No silver bullet’ to solve New York’s $8.7B budget de!cit, 22% unemployment: Stringer, AMNY (May 2020), https://www.amny.com/coronavirus/no-silver-bullet-to-solve-new-yorks-8-7b-budgetde #cit-22-unemployment-stringer/.
[vi] See note i, supra.
[vii] Rangolan v. County of Nassau, 370 F.3d 239, 244-45 (2d Cir. 2004) (remittitur to highest sustainable only appropriate where “the excess [verdict] is not attributable to a discernable error”).
[viii] That it should also serve as a deterrent of the race to the bottom that plagues our civil litigation system, while simultaneously serving the affirmative goal of CPLR 5501(c) to prevent the upward spiral of awards, only further strengthens the case for this relief.
[ix] Cabrera v. Port Authority of New York and New Jersey, 2020 NY Slip Op 03993 (1st Dep’t July 16, 2020) provides recent encouragement in this regard, as the First Department affirmed the grant of a new trial on damages after a jury returned a bloated $16 million pain and suffering verdict for an injury that the First Department has approved awards between six figures up to $2.4 million, where the award was procured by, inter alia, improper anchoring. Plaintiff counsel in Cabrera improperly anchored the jury at $16 million and the jury complied. The First Department held that “in light of the excessive nature of the jury’s award (e.g. Dacaj v New York City Tr. Auth., 170 AD3d 561 [1st Dept 2019]; Williams v. City of New York, 105 AD3d 667 [1st Dept 2013]), the court properly ordered a new trial on damages.” While improper anchoring was not specifically raised in Cabrera, the decision suggests that the Courts are growing somewhat less tolerant of this tactic.
