To Defend Damages Or To Not Defend Damages?

Defendants face a real dilemma in addressing economic damages at trial. If defendants present such evidence, there is a fear that the jury will infer liability. The jury might believe that the defendant is concerned about damages and that this may be an admission that damages are due this injured plaintiff. On the other hand, if they fail to present evidence to show that plaintiff's damage claims are inflated, they take the risk that such inflated numbers will be reflected in the jury's award, and even worse, will be sustained on appeal. Today's First Department decision in Ulerio v. New York City Tr. Auth. highlights that problem.