Practice Tip: Consider Filing a Motion to Bifurcate Medical Causation

In a complex product liability case where medical causation is at issue, defendants may want to consider moving to bifurcate the trial so that medical causation issues are tried before any liability or damages issues. If the plaintiff fails to convince the jury that the product caused the alleged injury, the case will terminate. If the jury does find causation, the trial continues with the same jury and focuses on liability and damages issues.

Bifurcation often makes good sense. Because medical causation must be established before a jury can or should even consider liability and damages issues, the intertwining of liability evidence with causation evidence can confuse the jury and unfairly prejudice the defendant. Internal corporate documents taken out of context and paraded in front of a jury can make a corporate defendant look like a bad actor. Where the evidence of causation is weak or nonexistent, bifurcation is a very appealing strategy because it will prevent the plaintiffs from distracting jurors from this hole in their case by presenting liability and damages evidence instead. Also, if the plaintiffs' causation case is weak, bifurcation promotes efficiency and judicial economy because the causation phase will be shorter than a non-bifurcated trial.

Moving for bifurcation may benefit your client even if the court denies the motion. By laying out the bifurcation argument, the trial judge will be sensitized to the importance of proving causation before determining liability and damages. As a result, even if you lose the bifurcation motion, you may be in a better position later to argue for and obtain a jury verdict form that first addresses causation. A properly designed verdict form will make clear to the jury that should it find for the defendant on causation (or fail to reach a quorum), it should not proceed to liability and damages issues.

The decision to move for bifurcation should be considered carefully, as it is not risk free. If the motion is granted and the jury finds that there is causation, the settlement value of the case mid-trial may increase dramatically. Additionally, if causation is considered first and you lose, the jury will then focus all of its attention on liability and damages issues, which could conceivably result in a higher damages award, since you will be unable to weaken plaintiffs' arguments by stressing the lack of causation.

Julie A. Blum is of counsel to Spriggs & Hollingsworth in Washington, D.C..

In a complex product liability case where medical causation is at issue, defendants may want to consider moving to bifurcate the trial so that medical causation issues are tried before any liability or damages issues. If the plaintiff fails to convince the jury that the product caused the alleged injury, the case will terminate. If the jury does find causation, the trial continues with the same jury and focuses on liability and damages issues.

Bifurcation often makes good sense. Because medical causation must be established before a jury can or should even consider liability and damages issues, the intertwining of liability evidence with causation evidence can confuse the jury and unfairly prejudice the defendant. Internal corporate documents taken out of context and paraded in front of a jury can make a corporate defendant look like a bad actor. Where the evidence of causation is weak or nonexistent, bifurcation is a very appealing strategy because it will prevent the plaintiffs from distracting jurors from this hole in their case by presenting liability and damages evidence instead. Also, if the plaintiffs' causation case is weak, bifurcation promotes efficiency and judicial economy because the causation phase will be shorter than a non-bifurcated trial.

Moving for bifurcation may benefit your client even if the court denies the motion. By laying out the bifurcation argument, the trial judge will be sensitized to the importance of proving causation before determining liability and damages. As a result, even if you lose the bifurcation motion, you may be in a better position later to argue for and obtain a jury verdict form that first addresses causation. A properly designed verdict form will make clear to the jury that should it find for the defendant on causation (or fail to reach a quorum), it should not proceed to liability and damages issues.

The decision to move for bifurcation should be considered carefully, as it is not risk free. If the motion is granted and the jury finds that there is causation, the settlement value of the case mid-trial may increase dramatically. Additionally, if causation is considered first and you lose, the jury will then focus all of its attention on liability and damages issues, which could conceivably result in a higher damages award, since you will be unable to weaken plaintiffs' arguments by stressing the lack of causation.

Julie A. Blum is of counsel to Spriggs & Hollingsworth in Washington, D.C..