Response to Motion to Bifrucate

26 Jun 2015

Response to Motion to Bifrucate

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RESPONSE IN OPPOSITION TO MOTION TO BIFURCATE

Plaintiffs, Elizabeth Mitchell and B.W., respond to Defendant Pizza Buffet Gainesville, LLC’s Motion to Bifurcate as follows:

1. Ordinarily, claims or issues that are interrelated and intertwined should not be bifurcated. See, e.g., Rooss v. Mayberry, 866 So.2d 174, 176 (Fla. 5th DCA 2004)(holding that a unified trial, rather than bifurcated action as to liability and damages issues, was required to affect substantial justice in medical malpractice action brought by a German national); Yost v. Am. Nat’l Bank, 570 So.2d 350, 352-53 (Fla. 1st DCA 1990) (concluding that in an action brought by lender to foreclose promissory note, defendants’ compulsory counterclaims were improperly severed for separate trial); Travelers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981) (noting that a severance for separate trial is within the discretion of the trial court, but that separate trials are appropriate only when a joint trial may prejudice a party or cause inconvenience).1

2. In this case, the issue of the Defendant’s use of a hazardous material (the Auto-Chlor detergent) and the damages it could case is intertwined with the actual damages suffered by Plaintiff. Contrary to the damages suffered by B.W., Defendant is expected to argue at trial that such material is not dangerous and cannot cause substantial harm. Thus, Defendant will argue that it did not have to train its employees as to such material or prohibit its transportation via its employees.

3. As such, bifurcation would only serve to prejudice Plaintiff should it result in Plaintiff not being able to discuss B.W.’s condition during a “liability phase.” Such a ruling would permit Defendant to falsely imply/argue that the hazardous material in question is relatively harmless “detergent” without equal opportunity by Plaintiff to show that the material is dangerous. Because proving the Auto-Chlor chemical is hazardous is a central part of the liability in this case (and the duty owed by Defendant), preventing Plaintiff from proving the damages it caused is interrelated and intertwined. See Johansen v. Vuocolo, 125 So. 3d 197 (4th DCA 2013). (“Ordinarily, claims or issues that are interrelated and intertwined should not be bifurcated.”)

4. As noted by the First DCA in quashing a trial order severing causes of action in Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022 (Fla. 1st DCA 1998):

Although the matter of separation of the issues to be tried rests in the trial court’s discretion, a single trial generally tends to lessen the delay, expense and inconvenience to all concerned, and the courts have emphasized that separate trial should not be ordered unless such disposition is clearly necessary, and then only in the furtherance of justice.

(citations omitted, emphasis supplied). The Defendant’s proposal also would only lengthen these proceedings a result in juror inconvenience. Plaintiff expects that by the time of trial those medical professional actually called will be greatly reduced. Moreover, bifurcation would only convert what should have been one trial into two, with much duplicative testimony from the same medical witnesses about the harm caused (or which may be caused) by the Auto-Chlor chemical. See Rooss v. Mayberry, 866 So. 2d 174, 176 (Fla. 5th DCA 2004) (observing that writ of certiorari granted to prevent improper bifurcation of liability and damage issues and to “[e]ffect substantial justice”).

WHEREFORE, Plaintiff respectfully requests that the Defendant’s motion to bifurcate be denied.

Dated: May 20, 2015

/s/ Michael Massey

Fla. Bar. No. 153680

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the Court’s ePortal system, which will provide an email copy of the same to all counsel of record on the date noted below:

Dated on May 20, 2015

/s/ Michael Massey

Fla. Bar. No. 153680

Designated email: Massey@352law.com

Massey & Duffy, L.L.C.

855 E. Univ. Ave.

Gainesville, FL 32601

(352) 505-8900

Attorney for Plaintiffs  

1Florida Rule of Civil Procedure 1.270(b) governs the bifurcation of trials and permits “[t]he court in furtherance of convenience or to avoid prejudice [to] order a separate trial of any claim … or of any separate issue or of any number of claims … or issues.” Fla. R. Civ. P. 1.270(b).

Summary
Article Name
Response to Motion to Bifurcate
Description
This is a sample response to a motion to bifurcate a trial. The defendant lost, and this response won.
Author
About the Author:

Massey & Duffy has existed since October, 2003. We focus exclusively on civil litigation, including wrongful death, overtime cases, car and trucking accidents, insurance claims, breach of contract, general employment law, and serious personal injury lawsuits.