Supreme Court, Suffolk County, March 2, 2023

Scahill Law Group, P.C., Bethpage (Anthony Graziani of counsel), and Coffey, Modica O'Meara LLP, White Plains (Christopher Ross Theobalt of counsel), for defendants.

Hausman & Pendzick, Harrison (Jay Hausman and Elizabeth Pendzick of counsel), for plaintiffs.

Upon e-filed documents 131-135 read and considered on what defendants caption as a motion in limine for an order prohibiting plaintiffs' counsel from making improper remarks during voir dire, openings, trial, and summation of the damages-only trial, it is hereby ordered that the motion be, and hereby is, denied.

In this Labor Law action, plaintiffs allege that plaintiff Navindra Harnaraine fell while using a ladder to remove a camera in the service area of nonparty Honda of New Rochelle who was then Navindra Harnaraine's employer. In previous motion practice before the then assigned justice, plaintiffs successfully moved for summary judgment against New Rochelle Realty, LLC. This is an action to recover damages that plaintiff sustained from a fall that is within the ambit of Labor Law § 240 (NY St Cts Elec Filing [NYSCEF] Doc No. 81, short form{**78 Misc 3d at 954} order). The order granting plaintiffs summary judgment determined as a matter of law that Navindra Harnaraine was engaged in an enumerated activity under Labor Law § 240 and that "the ladder collapsed" (NYSCEF Doc No. 81, short form order at 4).

The action has been assigned to this court to conduct a damages-only trial in respect of New Rochelle Realty, LLC. At the defendant's request, this court supervised jury selection (CPLR 4107; Brooks v City of Mount Vernon, 280 AD2d 631 [2d Dept 2001]). Jury selection began on Monday, February 27, 2023, and immediately prior to the venire being brought to the courtroom, counsel and the court conferred for at least 90 minutes to resolve the action (22 [*2]NYCRR 202.33 [b]). During the conference, and in preparation for voir dire, this court learned that certain of plaintiffs' witnesses are physicians and/or other experts who have committed to appear on specific days during the trial.

Only after that pre-voir dire settlement conference ended did defendant^[FN*] file this motion in limine for a ruling or order that plaintiffs' counsel may not do certain things during voir dire, opening statements, and witness examinations. Plaintiffs objected to the late motion filing that left plaintiffs to file opposition while also focusing on jury selection. At that stage of the oral argument, this court ruled on consent that each of the parties must follow the law.

I. Voir Dire

The parties agreed to select six jurors and three alternates. The parties agreed on the jury selection process which concluded after the supreme court summoned over 70 persons over the course of three days. Many prospective jurors were excused on the parties' consent because those jurors would face hardship were they required to serve on what is likely to be a two to three week trial. Not only were those jurors excused on consent, but also all other excused jurors were excused either on consent for cause or by peremptory challenge, the propriety of which the opposing party did not contest. After all jurors{**78 Misc 3d at 955} and alternates were selected, each of the parties agreed that it had no objection to the jury selection process. In other words, defendant has agreed that plaintiffs', the court's, and, for that matter, defendant's conduct was proper during voir dire.

Whether the application in respect of voir dire was "once live, [it has] become moot by . . . change in circumstances" (Kennedy v Suffolk County, 211 AD3d 926, 928 [2d Dept 2022]). The changes are that at no time did defendant object to anything plaintiffs did during jury selection and defendant acknowledged that plaintiffs' conduct during jury selection was proper. Therefore, so much of the pretrial motion that seeks relief in respect of voir dire is moot (id.).

II. Opening Statements and Witness Examinations

In respect of opening statements, witness examinations, and closing arguments, defendant identifies eight sorts of behaviors or arguments. Defendant posits that "the most common improper comments and themes that plaintiff counsel introduce into personal injury trials" are:[*3]

"(1) invocation of the 'golden rule';

"(2) 'send a message' attacks;

"(3) 'failure to take responsibility' attacks and 'HDTD' (aka 'how-dare-they defend') attacks on Defendant; references to nebulous 'safety rules,' the jury's ostensible role as the 'conscience of the community,' and/or allusions to the risk of an accident similar to plaintiff's occurring in the future or to the jurors or their loved ones;

"(4) 'hired gun' or 'dream team' attacks on Defendant's damages experts;

"(5) 'anti-corporate animus' attacks, or wealth or insurance-based attacks, postulating regarding Defendant's state of mind or motivations, including casting aspersions at Defendant for seeking a 'discount' or that Defendant's position seeks to 'cheap out' on plaintiff's recovery, or personal expressions of counsel's personal emotional response or 'disgust,' or that a defense is 'insulting' or that the jury should be 'insulted' or 'disgusted' or 'angered' or 'saddened' by the Defendant or its defenses;

"(6) personal 'vouching' for facts, testimony or witness credibility, 'info-questions,' and speaking objections;{**78 Misc 3d at 956}

"(7) improper 'unit of time' or mathematical guides for fixing damages for pain and suffering;

"(8) ad hominem attacks on opposing counsel" (NYSCEF Doc No. 131, defendant's pretrial mot in limine at 2-3 [use of singular possessive, "plaintiff's," in original] [hereafter, pretrial mot]).

Defendant admits, "[t]he point, of course, is not to accuse opposing counsel of a future crime but to clearly set the boundaries before trial[,] so that all parties can tailor their presentations accordingly" (pretrial mot at 3). Defendant relies on dramatic language about curative instructions being as ineffective as telling a jury not to smell a skunk thrown into the jury box. After establishing these two purposes for the pretrial motion, defendant presents its argument that consists of defendant's statement of its belief of what the law is on each of seven of the eight specific items about which defendant seeks a pretrial order. Defendant offers no law regarding ad hominem attacks.

Plaintiffs oppose the pretrial motion in two separate documents. One document (NYSCEF Doc No. 135, plaintiffs' opp to defendant's pretrial mot) argues that the pretrial motion is unripe for adjudication. The other document, however, attacks on the substance so much of the pretrial motion that seeks to preclude plaintiffs' counsel from mentioning a specific dollar amount of damages in opening statements and witness examinations (NYSCEF Doc No. 134, plaintiffs' opp to defendant's pretrial mot [hereafter, damages amount opp]). Specifically, plaintiffs argue that CPLR 4016 (b) "does not prohibit the mention of a specific dollar amount during voir dire, opening statements, or witness examinations" (NYSCEF Doc No. 134, damages amount opp at 3).

A. Ripeness

"It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, [*4]which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980] [citations omitted]).{**78 Misc 3d at 957}

In the context of declaratory judgments, the Court of Appeals held, "a request . . . is premature [unripe] if the future event is beyond the control of the parties and may never occur" (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 [1977]).

[1] Here, obviously, the future event is well within the plaintiffs' counsel's control, but may never occur. Defendant offers no facts in support of its motion. Instead, defendant cites fewer than 10 cases and a 2009 article to explain a general, rather than case specific, "rising tide of these improper tactics" (pretrial mot at 1). Defendant points to no conduct in which plaintiffs have engaged that provides defendant a good-faith basis to believe that plaintiffs may engage in any of the strategies defendant bemoans. Defendant admits as much, setting forth, "[t]he point, of course, is not to accuse opposing counsel of a future crime but to clearly set the boundaries before trial so that all parties can tailor their presentations accordingly" (pretrial mot at 3). At its core, the pretrial motion is based on defendant's stereotyping of these plaintiffs' counsel as consistent with defendant's argued but unproven view of plaintiff lawyers in general.

Not only does defendant offer no facts about plaintiffs' behavior to move its pretrial motion from the hypothetical, but also defendant offers no facts regarding its own conduct. Defendant offers no facts to support the proposition that defendant's presentation of its defense is prejudiced because of defendant's speculation that plaintiffs' counsel might engage in a behavior that the law forbids.

In fact, given the late filing of defendant's motion, actual facts—instead of the hypothetical presentation about what these plaintiffs might do based upon what others have done—before this court undercut defendant's fear that plaintiffs will misbehave. Not only did defendant not object a single time during the supervised jury selection, but also defendant acknowledged that the jury selection occurred properly. At the end of jury selection, defendant stated it had no objections to the entire process.

Finally, this defendant's pretrial motion asks this court to paint these plaintiffs' attorney with the same brush as the pretrial motion paints the plaintiff bar in general. This court will not so stain any lawyer by assuming, as the pretrial motion urges, that a lawyer will misbehave or has propensity to misbehave. With nothing more than a general attack on some{**78 Misc 3d at 958} plaintiff lawyers' conduct, the pretrial motion is insufficient to ripen defendant's factually unsupported fear into a ripe controversy in which a non-advisory opinion would issue (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 [1977]).

In summary, the lack of facts in the pretrial motion, the actual behavior of counsel, and the perplexing invitation for this court to assume the worst about these plaintiffs' lawyer leaves [*5]the pretrial motion as little more than stereotyping based on defendant's view of plaintiff lawyers in general. Stereotypes do not move the pretrial motion from "may never occur" to a ripe controversy.

This court makes no finding, order, or ruling about whether any of the eight behaviors are proper because, except as set forth below, none of the behaviors are ripe for adjudication. Timely objections during trial are defendant's remedy if plaintiffs misbehave in any way, whether in one of the eight enumerated methods or otherwise.

B. Mentioning Specific Amounts

In other contexts, the ripeness decision would end the inquiry, especially given that plaintiffs disavowed behaviors defendant lists in defendant's pretrial motion. However, here, by structuring their response into two documents, plaintiffs have provided adequate record basis to conclude that plaintiffs' counsel might mention a specific dollar figure of damages in the opening statement or witness examination. The damages amount opposition (NYSCEF Doc No. 134) zeroes in on the single behavior of mentioning a dollar amount of damages in opening statements or questioning of witnesses and narrowly construes defendant's pretrial motion only to seeking preclusion of "plaintiffs' counsel from 'suggesting any figure for any component of damages during voir dire, opening remarks, and witness examinations' " (NYSCEF Doc No. 134, damages amount opp). Therefore, so much of defendant's motion that seeks a pretrial ruling about whether plaintiffs may mention a specific dollar amount in opening statements or witness examination is ripe for determination. However, too speculative (i.e., unripe) is how plaintiffs might mention a specific dollar amount and/or whether a specific witness examination question is proper.

In respect of opening statements, statutory guidance is found at CPLR 4016 (b). As originally enacted, CPLR 4016 (b) set forth, in part:{**78 Misc 3d at 959}

"(b) In any action to recover damages for personal injuries or wrongful death, the attorney for a party shall be permitted to make reference, during opening statement and/or during closing statement, to a specific dollar amount that the attorney believes to be appropriate compensation for any element of damage that is sought to be recovered in the action." (CPLR 4016, as amended by L 2003, ch 694, § 2 [emphasis supplied].)

In support of this bill, counsel for the Office of Court Administration (OCA) wrote, "Since this measure also contains a proviso that permits counsel to mention what he or she fairly believes is the reasonable amount of damages in the opening statement or closing argument, we believe that it represents an improvement in current practice and we recommend its APPROVAL" (Letter from OCA Counsel Michael Colodner, June 30, 2003, Bill Jacket, L 2003, ch 694 at 8-9). "[I]mprovement in current practice" in OCA's letter clarifies that the proposed rule, including that plaintiff's counsel be permitted to mention a specific monetary amount in opening, establishes a rule that is broader than what the law allows (id.).

The next year, the Legislature, with the Governor's approval, struck the words, "during opening statement and/or," not because their intent was to forbid references to specific dollar [*6]amounts in opening statements but because "[p]rior to the Governor's approval of the bill, the Governor's Counsel expressed concern that allowing specific monetary requests in an opening statement went beyond court decisions in this area" (Senate Introducer's Mem in Support of 2004 NY Senate Bill S6651, enacted as L 2004, ch 372, at 1). Therefore, "[c]ounsel requested enactment of a chapter amendment addressing this issue, which is incorporated in this bill" (id.). In other words, in 2003, the Legislature passed a bill that went beyond what the Governor wanted to sign, and, rather than suffer a veto, the Legislature and Governor agreed to fix the problem in the next year. The 2004 law did that.

The Governor's counsel's position regarding mentions of specific amounts in opening statements is consistent with OCA's position, with both believing that existing law did not expressly authorize mentioning specific dollar amounts in openings. OCA's position goes further and endorses permitting specific dollar amounts to be mentioned in opening statements because that is "an improvement in current practice" (Letter from OCA Counsel Michael Colodner, June 30, 2003, Bill{**78 Misc 3d at 960} Jacket, L 2003, ch 694 at 8-9). Moreover, OCA urged adopting the 2003 specific statutory authorization without the qualification or reservation the Governor held. The Governor wanted to codify a narrow view of existing law. The Governor's view was narrow as evidenced by Governor's counsel having "expressed concern" as opposed to "opined" that "allowing specific monetary requests in an opening statement went beyond court decisions in this area" (Senate Introducer's Mem in Support of 2004 NY Senate Bill S6651, enacted as L 2004, ch 372, at 1). OCA wanted more.

The Governor's counsel's position respects the separation of powers and allows the judiciary to develop the common law without unnecessary interference from other branches of government. OCA is a judicial branch creation, so its assessment that personal injury practice is improved even if the statute exceeds existing decisional law is a position consistent with the separation of powers.

Thus, the most defendant-favorable interpretation of CPLR 4016 (b) is that it does not affirmatively or expressly permit mentioning specific dollar amounts in openings. Defendant's implicit argument that what CPLR 4016 (b) does not permit is prohibited has no force when CPLR 4016 (b)'s history is examined. Moreover, when CPLR 4016 (b)'s history is read in conjunction with the simultaneously enacted amendment to CPLR 3017 (c) (amended by L 2003, ch 694, § 1), the only conclusion to reach is that, subject to all the other rules of law, a party (including a defendant) may make and implement the strategic decision to mention a specific dollar amount of damages in an opening statement.

The general rule was (and remains) that the pleadings must contain a dollar demand for damages (CPLR 3017 [a]). CPLR 3017 (a) had and has an exception for the class of actions set forth in subdivision (c). The 2003 amendment added personal injury actions to the sorts of actions in which a specific dollar demand was not to be placed in the pleadings (L 2003, ch 694, § 1). So, since 2003, the law forbade the complaint in a personal injury action from setting forth a specific dollar amount of damages. The reason for the change is that

"[a]t the outset of a personal injury case, it is difficult to fairly estimate what the Plaintiffs total damages may be. Present law encourages lawyers to claim a large dollar amount for damages, out of a concern that a demand may turn out to be too{**78 Misc 3d at 961} low and, therefore, limit an eventual recovery" (Senate Introducer's Mem in Support of 2003 NY Senate Bill S4404, enacted as L 2003, ch 694, at 1).

In other words, the 2003 amendments were meant to prevent so-called "anchoring."[*7]

Moreover, prior to the amendments, and consistent with the Governor's position regarding CPLR 4016 (b), at least in summations, a party was permitted to read to the jury either its or the adversary's pleadings (Holmes v Jones, 121 NY 461 [1890], cited by Braun v Ahmed, 127 AD2d 418 [2d Dept 1987] [counsel read counsel's client's pleading without having it admitted as evidence]; Tisdale v Delaware & Hudson Canal Co., 116 NY 416 [1889] [counsel read the adversary's pleading without having it admitted into evidence], cited by Braun).

Nevertheless, in long-standing trial practice that predates the 2003 amendments, the law permitted a party during opening statements to promise what the party intends to prove and to prepare the jury to perform its role (People v Williams, 201 AD3d 969 [2d Dept 2022]; cf. De Vito v Katsch, 157 AD2d 413 [2d Dept 1990]). Most compellingly, "the attorneys will make opening statements in which each will outline for you what [that attorney] expects to prove. . . . What is said in opening statements is not evidence" (PJI 1:3 [Openings and Evidence]). The pattern jury instructions (PJI) are silent about a prohibition or permission to mention a specific dollar amount, leaving the matter to the strategic decision of the lawyers. Obviously, this court remains open to applications that vary from PJI.

For this court to require a party to remain silent on the dollar amount of damages in opening statements might imply to the jury that the party had no specific view on the number. That result would or could, by judicial ruling or order, usurp the jury's function and taint the eventual deliberation by a judicially-directed behavior set instead of leaving the jury's role and eventual deliberations to (A) the instructions on the law, and (B) the art of trial practice as trial counsel performs it while standing constrained by what the law, as the trial court finds it to be, is and by the Rules of Professional Conduct which, by definition, constrain everything a lawyer does. By the same token, requiring a party to set forth a dollar amount would or could imply to the jury that the party's recovery stands limited because of a court-imposed behavior.

[2] This court declines the invitation of defendant to invade the exclusive province of the jury, so to the extent that the pretrial{**78 Misc 3d at 962} motion seeks to forbid plaintiffs from mentioning a specific number in the opening statement or the examination of witnesses, the pretrial motion is denied. This court neither permits nor precludes such behavior. It is a strategic decision for each lawyer to make, and, as set forth above, is not prohibited by CPLR 4016 (b).