17.13 - B. Prejudice

• Jurisdiction: New York

b. Prejudice

Concerning the objection based on the ground of prejudice, a combination of common sense and cooperation should be the rule of thumb for plaintiff’s counsel. Given that New York courts are generally receptive to day-in-the-life films, counsel for plaintiff should not overdramatize the film in an effort to play upon the sympathies of the jurors.

A day-in-the-life film is an effective means of illustrating the impact the injury has had on the plaintiff’s life in terms of “pain and suffering and debilitation,”²⁹⁶¹ and its admission into evidence should not be foreclosed by a well-founded claim that it has been formulated to unfairly stir the jurors’ passions. For example, in Fellin v. Sahgal, involving a malpractice suit over a debilitating aneurysm suffered by an otherwise healthy 23-year-old man, the court observed that “[a] ‘day in the life’ film presented to the Court and to the jury brought tears to everyone’s eyes,” and that “[c]learly, the sympathy factor weighed heavily upon the jury which issued a verdict” which, at the time of the ruling, “constituted the third highest monetary award in a medical malpractice action in the history of the State.”²⁹⁶²

In BD ex rel. Jean Doe v. DeBuono,²⁹⁶³ involving claims by plaintiffs, children with autism or pervasive developmental disorder (PDD), against several state and county government agencies because the defendant county department of health limited a particular therapy for the plaintiffs’ treatment, the defendants challenged the admission into evidence of videotapes allegedly showing the plaintiffs receiving therapy around the time the offending policy was in place. The U.S. District Court for the Southern District of New York adopted a four-part test to determine whether videotaped “day-in-the-life” depictions of physical injury should be admitted or excluded as unfairly prejudicial: (1) whether the tape fairly represents the facts about the impact of the injury or condition of the party; (2) whether the party was aware that he or she was being videotaped such that he or she might have been engaging in self-serving behavior; (3) the risk that the jury might give greater weight to videotape evidence because it is more memorable; and (4) whether the benefit of cross-examination is lost.²⁹⁶⁴ Applying that test, the court deemed the tapes admissible because, “unlike [conventional] ‘day-in-the-life’ tapes, Plaintiffs’ tapes were not made for the purpose of litigation—and even if they were, [the plaintiffs’ children] were incapable of engaging in self-serving behavior at the time they were recorded.”²⁹⁶⁵ Further, “any undue weight accorded the tapes by the jury can be remedied through the use of a limiting instruction.”²⁹⁶⁶

Caprara offers a paradigm for plaintiff’s counsel preparing such a film. In that case, the film was a 10-minute silent depiction, narrated by the plaintiff’s brother, of the typical daily routine of the plaintiff. The court conceded that some scenes were unpleasant but noted that “so too is plaintiff’s injury.”²⁹⁶⁷ One can gather from the case law that the film should strive to be informational²⁹⁶⁸ and that sensationalism and length may well doom the film.²⁹⁶⁹

Grimes v. Employers Mutual Liability Insurance Co.²⁹⁷⁰ offers a helpful juxtaposition of admissible versus inadmissible scenes. Scenes of the plaintiff hugging his daughter as well as a scene of the plaintiff lighting a cigarette for his quadriplegic brother were ruled prejudicial because they served little purpose other than to arouse sympathy. However, other scenes of the plaintiff, who had injured his hand, were allowed. These included scenes of the plaintiff driving a car, loading a gun, operating a fishing reel and performing clinical tests.²⁹⁷¹

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