MILLER v. OWEN (2000)

In this case of first impression, the sole issue is whether a unit of time measure of damages argument made by plaintiff's counsel, during his opening statement in this personal injury action, warrants a declaration of a mistrial.   Upon oral argument, and its own research, the Court makes the following determination:

 The purpose of an opening statement is to permit the parties to advance their client's theory of recovery or defense before the jury. Counsel is permitted to present those facts that can be proven and communicate the issues to the jury (DeVito v. Katsch, 157 A.D.2d 413, 415, fn. 1, 556 N.Y.S.2d 649 [2nd Dept.1990] ).   Similarly, a closing statement, or summation, is designed to afford a parties the opportunity to:  address the jury with respect to the contentions;  comment on the credibility of the witnesses;  summarize the evidence adduced at trial;  and ask the jurors to draw certain inferences in their favor.   Furthermore, during summation in a personal injury action, plaintiff's counsel may ask for a specific amount for pain and suffering in the form of a lump-sum figure as stated in the ad damnum clause of the complaint, or a figure based on the evidence as a matter of fair comment (see, Tate by McMahon v. Colabello, 58 N.Y.2d 84, 459 N.Y.S.2d 422, 445 N.E.2d 1101 [1983];  Braun v. Ahmed, 127 A.D.2d 418, 515 N.Y.S.2d 473 (2d Dept.1987)).

 It is, however, improper for a counsel to raise a per diem argument, otherwise known as a “unit of time” measure of damages, by referring to plaintiff's life in terms of days, months, or years in asking the jury to determine past and future pain and suffering awards in reaching a verdict (Paley v. Brust, 21 A.D.2d 758, 250 N.Y.S.2d 356 [1st Dept.1964];  DeCicco v. Methodist Hosp. of Brooklyn, 74 A.D.2d 593, 424 N.Y.S.2d 524 [2nd Dept.1980] ).   In DeCicco, the appellate court noted, at 594, 424 N.Y.S.2d 524,

“In view of the fact that there is no mechanical method by which pain and suffering may be translated into dollars and cents, the time-unit technique injects an element of false simplicity into the determination by holding out a mathematical formula by which damages may be neatly calculated.   To that extent the technique tends to deflect the jury from the essential task of exercising its own sound discretion in determining the appropriate award.”

Furthermore, in DeCicco, supra, plaintiff's counsel specified certain dollar amount awards for past and future pain and suffering and emphasized to the jury that the amounts did not sound like a lot of money after he broke it down based upon the years of plaintiff's life expectancy.   Although the trial court, in DeCicco, gave a curative instruction, the Appeals Court found that such impropriety was not curable and directed a new trial on damages only.

Published case law dictates that a unit of time argument on summation constitutes reversible error, where the matter is timely preserved for appeal, warranting a new trial (Halftown v. Triple D Leasing Corp., 89 A.D.2d 794, 453 N.Y.S.2d 514 [4th Dept.1982] ), or at a minimum, a new trial on damages only (see, Paley, supra;  Jacobs v. Peress, 24 A.D.2d 746, 263 N.Y.S.2d 675 [1st Dept.1965];  DeCicco, supra;  Feldman v. Town of Bethel, 106 A.D.2d 695, 484 N.Y.S.2d 147 [3rd Dept.1984];  cf., Lee v. Bank of N.Y., 144 A.D.2d 543, 534 N.Y.S.2d 409 [2d Dept.1988] [the Court, while finding error, affirmed verdict of $85,000 where plaintiff's counsel's unit of time argument sought millions in pain and suffering] ).

 In the case at bar, plaintiff's counsel took the unprecedented tactic of, during opening statement, telling the jury that he intended to ask them to award his client the amount of $850,000.   He then proceeded to break down the amount as follows:  $30,000 for past medical expenses;  $20,000 for future medical expenses;  $200,000 for past pain and suffering (for two surgeries);  $600,000 for forty years' future pain and suffering at $15,000 per year (40 years being the expected life span of plaintiff).

Immediately thereafter, defense counsel objected and timely moved for a mistrial.   While this Court has not found a published decision where counsel raised a unit of time argument on opening, the impact and damage of such an argument at any stage of a jury trial is clear on its face and from the preceding case law cited, especially Paley, supra and DeCicco, supra.   The jury's mind has already been infected with respect to its essential task of using its own judgment.   Had plaintiff's counsel not mentioned any specific dollar amounts for each unit or multiples of the unit, the error would not have been fatal (see, Tate by McMahon v. Colabello, supra ).

Plaintiff's reliance on Chlystun v. Frenmer Transp. Corp., 74 A.D.2d 862, 426 N.Y.S.2d 55 [2d Dept.1980] is misplaced.   In Chlystun, unlike in the case at bar, defense counsel failed to make a timely objection to the unit of time argument on summation.   Moreover, the appellate court ordered a new trial unless that plaintiff agreed to accept $250,000 instead of the $500,000 the jury awarded.   Finally, the appeals court decision made no reference concerning what unit of time measure argument had been made by plaintiff's counsel.

In light of the posture of this case, this Court finds defendant established entitlement to a mistrial, as a matter of law.   A curative instruction, while not requested by either party, would be rendered meaningless when plaintiff, on summation, would be entitled to renew his request for certain monetary damages.

JOSE A. PADILLA, JR., J.