Practice Tip: Consider Filing a Motion to Bifurcate Medical Causation

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.