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Reverse BifurcationOct. 5, 2009
Can Your Trial Be Reverse Bifurcated?
If the jury determines your client’s damages first, before the defendant’s liability, won’t your chances of obtaining an exceptional settlement be enhanced? Won’t jury instructions, as well as the presentation of exhibits, appear even clearer to your jurors? One study indicates that reverse bifurcation results in a 29% increase in liability verdicts and more than a $600,000 increase in compensatory damages.1 Reverse bifurcation may be a workable option.
Bifurcation of issues to be tried is encouraged in most jurisdictions. In New York, our Civil Practice Law and Rules, at Rule 4011, says that, The court may determine the sequence in which the issues shall be tried and otherwise regulate conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of proper decorum. Moreover, “[j]udges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.”2
Reverse bifurcation is no exception, and has often been treated as an appropriate variation. This is especially true in the context of mass tort litigations which may consume a court’s docket. Reverse bifurcation is proven to foster settlement, clarify the issues, and encourage the expeditious resolution of the cases. The Honorable Jack B. Weinstein recently explained: “Sectionalization of a jury trial into phases is appropriate in many cases involving mass torts, class actions, or other complex suits. . . The most common instances of bifurcation involve the separation of issues of liability and damages, with a jury usually deciding the issue of liability first. . . Trials may also be reverse-bifurcated, with the issue of damages being tried first where the issue of damages is most contentious.”3
Judge Weinstein — who along with Professor David Siegel is New York’s leading authority on this state’s civil practice — expansively elucidated the benefits of bifurcation and reverse bifurcation in his Simon I opinion: “There has gradually crept into our law through rule, statute and case law development widespread severance of issues in many types of litigation. . . Trial judges regularly employ a wide range of procedures that may result in the severance of issues for trial. . . Further trial splittings such as trifurcation are also utilized. Sometimes damages are tried before liability in a process known as ‘reverse bifurcation’ to encourage settlement and shortening of the trial. This severance procedure is enshrined as a general American policy in countless statutes, rules, casebooks, hornbooks and treatises.”4
For these reasons, courts have usefully applied this approach throughout the development of New York’s asbestos litigation, from its inception to the present day. Indeed, at the outset, it was defense counsel who urged the reverse bifurcation method.5 In the intervening years, many asbestos actions have been tried by reverse bifurcation.
As suggested, the beneficial effects of the reverse bifurcation approach have been acknowledged not solely in New York, but in courts nationwide, and to the present day.6 In Fritz v. Wright, 7 for example, the Pennsylvania high court found that, “for most asbestos cases, issues of medical causation and damages are bifurcated and tried before issues involving theories of liability and product identification, in the practice known as ‘reverse bifurcation’.”
FOOTNOTES: 1 Michelle J. White, Why the Asbestos Genie Won’t Stay in the Bankruptcy Bottle, 70 U. CINN. L. REV. 1319 (2002).
2 22 NYCRR § 202.42(a).
3 In re Simon II Litig., ? 00-CV-5332, 2002 U.S. Dist. LEXIS 25632, at *307-08 (E.D.N.Y. Oct. 22, 2002).
4 Simon v. Philip Morris, 200 F.R.D. 21, 25, 32 (E.D.N.Y. 2001) (specifically citing Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 963 (10th Cir. 1993), for that Circuit’s approval of “reverse bifurcation in asbestos case where the procedure would save time and money and would not prevent plaintiffs from developing a history of their exposure to defendant’s product”); see also In re New York City Asbestos Litig., 188 A.D.2d 214, 224-25 (1st Dep’t 1993) (“[t]he joint trial of the actions of these 25 plaintiffs, and nine others, in the ‘reverse bifurcation’ format was entirely appropriate . . . The joint trial format has the potential to reduce the cost of litigation, make more economical use of the trial court’s time, and speed the disposition of cases . . . as well as to encourage settlements”).
5 E.g., In re New York City Asbestos Litig., 142 F.R.D. 60 (E.D.N.Y. 1992) (annexing letter from counsel to defendant Owens-Corning Fiberglas Corp., urging that “all future BNSY cases . . . be subject to a time saving reverse bifurcation trial plan with Phase One involving only the questions of medical causation and compensatory damages and Phase Two presenting the question of specific defendants’ liability. As you know, such trial plans have successfully resolved cases in other jurisdictions while minimizing the use of the court’s time”).
6 E.g., Porter v. Vincenti, ? B186093, 2007 Cal. App. Unpub. LEXIS 7193, at *8 (2d App. Dist. Sept. 5, 2007) (noting trial court’s ruling “that damages would be tried before the issue of liability”).
7 589 Pa. 219, 238-39 & n.10 (2006).