Opinion
Case Number 99 C 5564
November 15, 2001
I have a motion to bifurcate liability and damages. It is a motion which I invited. There are substantial arguments for bifurcation and substantial arguments against it, so the motion requires careful consideration.
The liability issue is simple. Plaintiff claims that defendant breached a license agreement with him by failing timely to provide a royalty report. There may be no dispute that plaintiff did not get the report but the issue is whether defendant sent it — if it did, then there is no case. So the finder of fact has to decide whether a secretary to Bard's lawyer gave a royalty report (and a check) to a messenger.
Defendant says that this simple issue ought to be decided before any other work is done on the case. It reasons that there is a savings of judicial time if the defendant wins because time need not be expended on damage issues at trial and, perhaps, on damage discovery issues. It argues that if plaintiff loses on liability, bifurcation would save expert costs associated with complex damage issues. Indeed, all damages discovery costs would be saved because the witnesses and documents relevent to discovery are entirely distinct from those who will be heard on the question of liability.
Plaintiff says that damage discovery is easy because damages are established by a separate agreement entered into by the parties. Defendant says this is not so, or at least might not be so, and thus the damage calculations will be hotly contested and complex. I agree with defendant on this point. I accept then that damages discovery will impose costs on defendant and plaintiff as well.
This does not end the matter. I do not believe the savings of judicial resources justifies bifurcation. The simplest calculus is this: if the plaintiff loses on liability then the case will be over and no further judicial trial time will be required. There may be some expenditure of judicial time on discovery disputes, but this is likely to be quite small. The real costs to be avoided are those imposed upon the parties, estimated by defendant to be "tens of thousands of dollars to hire experts to study the issues and to engage in expert depositions." This assertion seems credible to me. The plaintiff too will bear costs, but he, quite obviously, does no care.
These costs, however, do not justify the sort of bifurcation for which defendant asks. There are costs associated with delaying discovery of damages until after liability is decided. if a jury decides for the plaintiff on liability, it will not be able to proceed to damages. A new jury would have to be chosen to decide damages. This is a very substantial burden on court resources. Of course, it is possible to ask a jury to return after a period of several weeks, but there is a substantial risk that the jury may not be able to reassemble, and it is an undue imposition upon jury members who serve with the understanding that service will occur in a more or less continuous period. if the finder of fact is not a jury, there are still undue costs because the judge will have to prepare twice where otherwise once would do.
I reject the request for bifurcation as it is made now. It is possible that bifurcation might be appropriate in the more conventional sense — that is, a finder of fact decides one issue before it addresses others, and the phases of trial follow after without a break in time. This procedure does not save the cost of discovery, and I do not regard the defendant as asking for this sort of bifurcation and, if it was asking, I would deny the request as premature.
The motion for bifurcation is denied.