Tate v. Colabello, 58 N.Y.2d 84 (1983)

A supplemental bill of particulars in a personal injury case may include a more definitive statement of the sequelae of previously listed permanent injuries, provided the later statement is a reasonably foreseeable evolution of the original injuries and does not introduce a completely new injury.

Summary

Liza Tate, a 15-year-old, was struck by the defendant’s car and sustained injuries. The plaintiff presented a supplemental bill of particulars that included a description of an “asymmetrical looking chest,” stemming from the initial injuries. The defense argued this was a new injury not previously disclosed, and thus inadmissible. The Court of Appeals held that the supplemental bill was admissible because it described a foreseeable consequence of the original injuries, rather than a new, distinct injury, especially since the defense declined the plaintiff’s offer of a new physical examination. The court also addressed the propriety of the plaintiff’s attorney suggesting a total compensation amount during summation.

Facts

• 15-year-old Liza Tate was struck by the defendant’s motor vehicle.
• The original bill of particulars listed a dislocation of the spine, a fractured clavicle, and resulting shoulder and clavicular “deformation” affecting the thoracic and spinal areas as permanent injuries.
• A supplemental bill of particulars described stiffness and atrophy of the shoulder, muscle spasm, distortion of the clavicle, a lowered shoulder, and a “permanent cosmetic disfiguration” in the form of an “asymmetrical looking chest.”
• The plaintiff offered a new physical examination when serving the supplemental bill, but the defendants declined.

Procedural History

• The trial court initially granted the defendant’s motion for a new trial after a jury verdict of $320,000 for the plaintiff.
• The Appellate Division modified the order, reinstating the verdict on liability but ordering a new trial on damages unless the plaintiff consented to reduce the verdict to $150,000, which she did.
• The defendants appealed to the Court of Appeals based on alleged errors of law during the trial.

Issue(s)

1. Whether the trial court committed reversible error by admitting evidence of the “asymmetrical looking chest” without the plaintiff first obtaining leave to include it in a supplemental bill of particulars.
2. Whether the plaintiff’s counsel committed reversible error by suggesting a specific monetary amount for the plaintiff’s injuries during summation.
3. Whether the plaintiff’s counsel’s reference to the plaintiff’s life expectancy and rhetorical questions about the value of pain over that time constituted an impermissible “per diem” argument.

Holding

1. No, because the “asymmetrical looking chest” was a reasonably foreseeable sequela of the injuries described in the original bill of particulars, not a new injury.
2. No, because counsel is permitted to state the amount of damages demanded in the complaint to place before the jury the client’s contentions regarding compensation.
3. No, because the counsel did not suggest a specific monetary value for units of time or multiply them for the jury.

Court’s Reasoning

The Court reasoned that the description of the “asymmetrical looking chest” was a more definitive statement of the already-listed permanent injuries. The court emphasized that it was a reasonably foreseeable development of the initial injuries, especially considering the dynamics of maturing injuries. The defendants were also offered a new physical examination to assess the updated condition, which they declined. Therefore, the court found no surprise or prejudice to the defendants.

Regarding the summation, the court stated, “[I]t was counsel’s privilege ‘to place before the jury his client’s contentions in this regard’ and, to this end, he was ‘entitled to state the amount of damages demanded’.” The court also noted that the trial judge properly instructed the jury that the ultimate measure of damages was to be a sum that would justly and fairly compensate the plaintiff.

Finally, the court distinguished the summation from an impermissible “per diem” argument, noting that the counsel suggested no specific monetary value for units of time and did not perform any multiplication to arrive at a total amount. Because a unit-of-time argument was not made, the court did not have the opportunity to rule on its propriety. The court affirmed the Appellate Division’s order.