## Facts

- Robert Bender and five other patients each underwent a hair-implantation procedure that involved placing synthetic fibers through the scalp.
- The patients filed six separate actions arising out of their respective procedures.
- The suits named multiple defendants connected to the hair-implant business and the procedure, including Donald Underwood, Barclay’s Hair Center, Inc., For Men Only, Ltd., the New York News, Inc., Kaneka America Corp., and Dr. Ricardo Crudo.
- As to Dr. Crudo, the patients alleged that he failed to properly examine and treat them, improperly performed and/or supervised the implantation procedures, made false statements that the procedure was safe, and failed to obtain informed consent.
- The patients moved in Supreme Court, New York County, to consolidate the six actions for a joint trial.
- Supreme Court granted the motion for a joint trial.
- Dr. Crudo (and Kaneka America Corp.) appealed from the portion of the order that required a joint trial of the actions in which Crudo was a defendant, arguing that each patient’s circumstances and proof were different and that a combined trial would be unfair and confusing.

## Issues

1. Whether six separate malpractice actions arising from similar hair-implantation procedures may be consolidated for a joint trial under CPLR 602(a) when individualized issues of treatment, informed consent, causation, and damages would dominate the proof.
2. Whether the risk of prejudice to the physician and jury confusion outweighs any savings in time and resources from a joint trial.

## Decision

- The Appellate Division, First Department, modified the order.
- The court denied consolidation for a joint trial of the actions in which Dr. Ricardo Crudo was a defendant.
- The order was otherwise affirmed.

## Legal Principles

- Under CPLR 602(a), consolidation or a joint trial may be ordered where actions share common questions of law or fact, but the determination rests in the court’s discretion.
- Even where some common questions exist, consolidation for joint trial should be denied when patient-by-patient proof predominates, including differences in medical histories, the course of care, what was said to each patient, informed-consent issues, causation, and damages.
- A joint trial may be refused when trying multiple similar claims together would unfairly prejudice a defendant through the cumulative effect of evidence and would likely confuse the jury or make the trial unwieldy.

## Conclusion

The First Department held that, although the six suits shared a general subject matter (a synthetic-fiber hair-implant procedure and related allegations against Dr. Crudo), the cases turned largely on individualized proof about each patient’s treatment, consent discussions, injuries, and damages; because a joint trial would create an unacceptable risk of prejudice and jury confusion, the court modified Supreme Court’s order to deny a joint trial of the actions involving Crudo while otherwise leaving the order in place.


Bender v. Underwood, 93 A.D.2d 747, 461 N.Y.S.2d 301 (1983)