United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
bellwether case is set for trial next month. Defendants have
filed a motion to bifurcate the trial pursuant to Rule 42(b)
of the Federal Rules of Civil Procedure. Doc. 12094. The
motion is fully briefed, and oral argument will not aid the
Court's decision. For reasons stated below, the Court
will grant the motion.
Lisa Hyde received a Bard IVC filter implant in 2011. In
2014, she learned that the filter had tilted, perforated the
IVC wall, and fractured. The filter and fractured limbs were
removed three months later.
Hyde and her husband assert various claims. Doc. 364; Doc. 1,
No. CV-16-00893. The Court granted summary judgment on
certain claims, applying the law of the forum state,
Wisconsin. Doc. 12007. The following claims remain: strict
liability design defect (Count III), negligent design (Count
IV), negligence per se (Count IX), loss of consortium (Count
XV), and punitive damages. Id. at 19.
The Court's Power to Bifurcate.
42(b) confers broad discretion on the Court to bifurcate a
trial involving separate issues or claims for
“convenience, to avoid prejudice, or to expedite and
economize” the proceedings. Fed.R.Civ.P. 42(b); see
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th
Cir. 2002); Jinro Am. Inc. v. Secure Invs., Inc.,
266 F.3d 993, 998 (9th Cir. 2001). The power to bifurcate
under Rule 42(b) includes “the authority to separate
trials into liability and damage phases.” Estate of
Diaz v. City of Anaheim, 840 F.3d 592, 601 (9th Cir.
2016) (citing De Anda v. City of Long Beach, 7 F.3d
1418, 1421 (9th Cir. 1993)). Indeed, because the existence of
liability must be resolved before damages are considered, the
“separation of issues of liability from those relating
to damages is an obvious use” for Rule 42(b). 9A
Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 2390 (3d ed. 2016))
see M2 Software, Inc., v. Madacy
Entm't, 421 F.3d 1073, 1088 (9th Cir. 2005)
(“The district court had broad discretion to try the
liability phase first and did not abuse its discretion in
bifurcating the trial.”).
Bifurcation of the Hyde Trial is Warranted.
first two bellwether trials, the Court bifurcated the trials
into a first phase that determined liability, compensatory
damages, and whether punitive damages should be awarded, and
if necessary, a second phase that determined the amount of
punitive damages. Docs. 10048 at 2, 10587 at 3-4. Defendants
request that the Hyde trial be conducted in the same manner
to avoid the prejudicial effect of admitting evidence of
Bard's net worth during the liability and compensatory
damages phase. Doc. 12094 at 3. Plaintiffs oppose
bifurcation, contending that (1) Wisconsin law does not
provide for bifurcation with respect to the amount of
punitive damages, (2) Defendants have not met their burden to
justify any form of bifurcation, and (3) bifurcation would
prolong the trial and prejudice Plaintiffs. Doc. 12205 at 1.
Bifurcation Is Not Precluded by Wisconsin Law.
in the Booker and Jones trials was based in part on Georgia
law. See O.C.G.A § 51-12-5.1(d)(2) (“If
it is found that punitive damages are to be awarded, the
trial shall immediately be recommenced in order to receive
such evidence as is relevant to a decision regarding [the]
amount of damages[.]”). Plaintiffs note that
Wisconsin's statute on punitive damages does not require
bifurcation. Doc. 12205 at 3.
neither does the statute preclude bifurcation. The statute
provides that the plaintiff “may introduce evidence of
the wealth of the defendant” if the plaintiff
“establishes a prima facie case for the allowance of
punitive damages[.]” Wis.Stat. 895.043(4)(a). The
statute says nothing about bifurcation, and Plaintiffs cite
no authority suggesting that the statute somehow limits the
Court's discretion under Rule 42(b). “As a
procedural matter, the discretion to bifurcate remains with
the district court, even in diversity cases with a
conflicting state law on bifurcation.” N.T. by
& through Nelson v. Children's Hosp. Med. Ctr.,
No. 1:13CV230, 2017 WL 5969343, at *5 (S.D. Ohio Sept. 28,
2017); see Arvest Bank v. Byrd, No. 10-02004, 2012
WL 12887955, at *5 (W.D. Tenn. Sept. 27, 2012) (Rule 42(b) is
“controlling on the issue of bifurcation in this
case”); Riddle v. Royal Indem. Co., No.
3:05CV-540-S, 2007 WL 542389, at *1 n.1 (W.D. Ky. Feb. 16,
2007) (“Although a federal court sitting in diversity
applies the law of the forum state, the conduct of discovery
and bifurcation are matters of federal procedural law.”
(citing Erie)); Hamm v. Am. Home Prods.
Corp., 888 F.Supp. 1037, 1038 (E.D. Cal. 1995) (noting
that “there is ample precedent holding that bifurcation
is a procedural issue for purposes of Erie
analysis” (citing cases)).
Defendants Have Met Their ...