The General Assembly, in its infinite wisdom, inserted a provision in S.L. 2011-400 (SB 33) which will change our basic strategy in how we try civil cases.  Specifically, Section 2 of S.L. 2011-400 provides that any party may move for bifurcation on the issues of liability and damages where the plaintiff seeks damages in excess of $150,000.  This provision is not limited to medical malpractice cases.  It applies to all civil cases.  Moreover, such a motion shall be granted “unless the court for good cause shown orders a single trial.”  The statute reads:

SECTION 2. G.S. 1A-1, Rule 42(b), is amended by adding a new subdivision to read:

“(b) Separate trials. –

(1) The court may in furtherance of convenience or to avoid prejudice and shall for considerations of venue upon timely motion order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

(2) Upon motion of any party in an action that includes a claim commenced under Article 1G of Chapter 90 of the General Statutes involving a managed care entity as defined in G.S. 90-21.50, the court shall order separate discovery and a separate trial of any claim, cross-claim, counterclaim, or third-party claim against a physician or other medical provider.

(3) Upon motion of any party in an action in tort wherein the plaintiff seeks damages exceeding one hundred fifty thousand dollars ($150,000), the court shall order separate trials for the issue of liability and the issue of damages, unless the court for good cause shown orders a single trial. Evidence relating solely to compensatory damages shall not be admissible until the trier of fact has determined that the defendant is liable.  The same trier of fact that tries the issues relating to liability shall try the issues relating to damages.”

While this statute may not affect many of the other civil tort claims in the system, it will affect most, if not all, medical malpractice cases.  The economics of medical malpractice cases are such that it is not financially feasible to take on these cases unless the damages threshold is quite high.  Firms that routinely take on medical malpractice cases valued at less than $150,000 simply will not stay in business very long.

Traditionally, defense lawyers have been the ones to attempt to move for bifurcation.  Such motions were borne out of the concern that juries’ feelings and emotions would cloud their judgment in favor of the plaintiff.  In this author’s experience, trial judges have been historically reluctant to do so, likely out of fear of upsetting the apple cart.  Historically, it was in the judge’s discretion to order bifurcation “in furtherance of convenience or to avoid prejudice.”  N.C. Gen. Stat. § 1A-1, R. 42 (2002).  But it was just not how tort cases were tried in North Carolina.  Now, unless one party can show good cause as to why bifurcation should be denied, the judge’s hands are tied.  The question now becomes whether you want to be the one to request bifurcation.  If you do not intend to request bifurcation, you will need to address this with defense counsel in advance lest you be surprised by a motion to bifurcate the Monday of trial when your first medical expert is not expected to fly into town until Wednesday or Thursday.  This author suggests adding a provision in your discovery scheduling orders going forward which sets forth a deadline by which to file a motion to bifurcate.

A.  Possible Advantages of Bifurcation?

Because bifurcation has historically been so rare, opining as to whether bifurcation can be a good thing for plaintiffs necessarily requires some speculation, and perhaps rationalization.  The general benefits associated with bifurcation are: (1) simplification of the liability issue; (2) exclusion of facts irrelevant to the liability issue; and (3) reduced costs/shorter trials.  Advocates for bifurcation argue that trials will not be any longer where juries find liability, than cases were liability and damages are combined.  However, this author sees a whole host of other potential problems such as having to bring back standard of care/causation experts to talk about the injuries your client suffered, the procedures they have since endured, and their long-term prognosis.  Frequently, it’s much easier to get this kind of testimony from your retained experts rather than subsequent treaters.  However, by necessity, it is time to re-think whether simplifying the liability issue and excluding facts of damages can actually benefit the medical malpractice patients we represent.

Historically, trial lawyers have placed a big emphasis on presenting strong damages witnesses both early on and at the end of their case in chief.  For example, this author generally likes to put on a strong lay witness first to set the table.  In other words, tell the jury the story about what happened to the patient, including the resulting injuries or death.  The testimony is likely to be emotional, not just for the witness, but for the jurors.  And perhaps jurors will recall this testimony during deliberation and lean more towards answering “yes” to the first question regarding negligence.  That’s always been the hope, anyway.

But do they really recall such testimony?  Is it really a benefit for us to address damages up front?  Or can all this added information regarding damages be a hindrance?  This author contends that simplification of the liability issue may very well benefit the plaintiff.  Nowadays, it seems that even the smallest of medical malpractice cases last at least 2 weeks.  I am convinced that some trial lawyers lose these cases, not because they tried a bad case, but because at the end of the day, the jury has too much information to process.  There has been too long a delay between the testimony of your liability experts and their deliberations.  The jury instructions are too long.  The jurors can no longer even picture your experts in their minds’ eye, let alone recall what they said.  Sure, they took notes, but at this point, they do not understand what many of those notes mean.  Consequently, they throw their hands up at the end of the trial in frustration because they are unable to wade through all the evidence.  We are the ones with the burden of proof.  The more confused the jurors are, the more likely it is they will answer “no” on the issue of negligence.

Let’s assume both sides designate 3 liability experts.  With bifurcation, the jury is likely to be deliberating the liability issue within 2-3 days after you put on your last expert.  Regardless of whether you bifurcate or not, the jury will always deliberate having just heard from defense experts.  Would you rather have them deliberate liability 2-3 days after listening to your experts, or a week to a week and a half?  Further, their minds are not muddled with the extraneous (and frankly boring) testimony from economists, life care planners and physiatrists.

Secondly, exclusion of the facts irrelevant to liability may also be of benefit.  After several weeks (days?), jurors want to go home.  While they were initially in your corner after your client’s emotional testimony on Thursday of week 1, they have been inundated with testimony from the defendant who resembles Marcus Welby, M.D., from likeable (and local) defense experts, from nurses involved in the procedure, and from a subsequent treater or two.  Throw in the fact that they have listened to testimony from your economist, life care planner, and physiatrist, in addition to your own medical experts.  The charge conference takes at least half a day, if not more.  Jury instructions take the entire afternoon.  At this point, many of the jurors are immune to the emotional response your damages evidence was meant to evoke.  I would go so far as to venture that some jurors are so determined to follow the judge’s admonition that they must not be swayed by “pity, sympathy, partiality or public opinion,” that they instead become a strong lean for the defense.  Some jurors resent you for what they feel was an obvious ploy to tug at their heartstrings.  The very emotional response you hoped to elicit in your favor may rebound the other way.  Trial lawyers frequently lose cases where they believe the medicine is on their side.  Perhaps bifurcation will allow jurors to focus on the medicine and we will win more of these cases.

Lastly, bifurcation will generally reduce costs in most medical malpractice cases.  Obviously, if you lose the liability issue, you will save the cost and expense of your damages experts.  Economists, life care planners and, in particular, physiatrists, can be quite expensive to bring to trial.  But even if you win, there may be opportunities to save costs.  One risk of bifurcation is that you may need to bring back standard of care/causation experts who can also discuss damages.  This will cost more money.  However, these costs will come off the top of the verdict that you now know you are going to get.  Further, if the jury finds liability, the insurance carrier is going to scramble to explore settlement before the damages phase.  If they offer an appropriate number, settle the case and save the money on the damages experts.  If they do not, at least you can try the damages portion of the case with the peace of mind that the jury has already answered the hardest question in your favor.

Whether bifurcation will ultimately a good thing for medical malpractice lawyers remains to be seen.  Regardless, we now must decide whether we want to be the ones to request it, or leave it in the hands of the defense.  If you do not intend to request it, make sure you address it before the eve of trial to avoid scheduling problems.

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