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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

August 31, 2018

IN RE Bard IVC Filters Products Liability Litigation,
C. R. Bard, Inc., a New Jersey corporation; and Bard Peripheral Vascular, Inc., an Arizona corporation, Defendants. Lisa Hyde and Mark E. Hyde, a married couple, Plaintiffs,


          David G. Campbell, Senior United States District Judge.

         This 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.

         I. Background.

         Plaintiff 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.

         Mrs. 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.

         II. Discussion.

         A. The Court's Power to Bifurcate.

         Rule 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.”).

         B. Bifurcation of the Hyde Trial is Warranted.

         In the 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.

         1. Bifurcation Is Not Precluded by Wisconsin Law.

         Bifurcation 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.

         But 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)).

         2. Defendants Have Met Their ...

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