St. Bernard Parish v. Lafarge North America, Inc. et al
Filing
265
ORDER AND REASONS: IT IS ORDERED that the 229 Motion to Bifurcate Trial is DENIED. However, a single trial shall occur before the same jury with the liability phase proceeding first, and, if necessary, the damages phase immediately thereafter. Dis covery shall proceed on all issues. Parties shall meet and jointly submit their respective list of witnesses and exhibits for each phase of the trial in accordance with all existing deadlines set forth in court orders. See Rec. Doc. 136 . Signed by Judge Ivan L.R. Lemelle on 8/10/2016. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PARISH OF ST. BERNARD THROUGH
THE ST. BERNARD PARISH GOVERNMENT
CIVIL ACTION
VERSUS
NO. 11-2350
LAFARGE NORTH AMERICA INC.
Section “B” (2)
ORDER AND REASONS
Before the Court is a “Motion to Bifurcate Trial” filed by
Lafarge North America Inc. (“Defendant” or “LNA”). Rec. Doc. 229.
Parish of St. Bernard through the St. Bernard Parish Government
(“Plaintiff” or “the Parish”) filed a “Memorandum in Opposition”
to the Motion to Bifurcate Trial. Rec. Doc. 246. Defendant was
granted leave to file a reply memorandum. Rec. Doc. 248. For the
reasons outlined below,
IT IS ORDERED that the Motion is DENIED.
I.
FACTS AND PROCEDURAL HISTORY
This case arises out of property damage to several St. Bernard
Parish properties during Hurricane Katrina. Following Hurricane
Katrina, St. Bernard Parish filed several lawsuits resulting from
flood damage allegedly caused by barge ING 4727 (“the Barge”)
breaking free and causing two breaches in the Industrial Canal.
Rec. Doc. 112 at 2. On August 23, 2011, St. Bernard Parish
petitioned for damages in Division D of the 34th District Court
1
for the Parish of St. Bernard, State of Louisiana, alleging that
LNA is liable for damages resulting from breaches in the floodwall
allegedly caused by the Barge breaking from its moorings and
alliding with the floodwall. Rec. Doc. 1 at 1-2; Rec. Doc. 1-1.
The Parish alleges that LNA was negligent in its handling and
mooring of the Barge, specifically that LNA allowed the unloaded
Barge to moor outboard of a loaded barge with inadequate lines,
creating a “sail effect,” and that LNA had the opportunity to move
the Barge to a safe location but failed to do so. Rec. Doc. 1-1 at
6-7. Plaintiff alleges that LNA acted in violation of U.S. Coast
Guard standards, Sector New Orleans Hurricane Plan of the Coast
Guard, and Lafarge policies and procedures. Rec. Doc. 1-1 at 9.
LNA removed the action pursuant to 28 U.S.C. §§ 1331, 1332,
1369, 1441, and 1446, and subsequently moved to consolidate this
action
with
In
re
Katrina
Canal
Breaches
Consol.
Litigation
(Pertains to BARGE), Case No. 2:05-cv-04182-SRD-JCW. Rec. Doc. 1
at 1-2; Rec. Doc. 6.
Defendant moved for summary judgment claiming that it was
scientifically impossible that the Barge caused the breach in the
floodwall because the wind patterns during the hurricane were
pushing northeast, which would have pushed the barge away from the
areas that were breached. Rec. Doc. 67-1 at 9. With no genuine
issue of fact to determine with respect to the meteorological
evidence,
Defendant
asserted
that
2
summary
judgment
was
appropriate. Rec. Doc. 67 at 11-12. Section “K” of this Court
agreed
and
granted
Defendant’s
motion.
Rec.
Doc.
100
at
18.
Plaintiff then appealed to the Fifth Circuit Court of Appeals.
Rec. Doc. 103. On February 19, 2014, the United States Court of
Appeals for the Fifth Circuit reversed this Court’s ruling, finding
that
there
was
sufficient
third-party
eyewitness
testimony
supporting the allegations of the movant to present the case to a
jury. Rec. Doc. 112 at 16. Upon remand the case was transferred to
Section “B” of this Court and set for trial on May 8, 2017. Trial
is estimated to last three to four weeks. Rec. Doc. 136.
II.
THE PARTIES’ CONTENTIONS
Defendant requests bifurcation on several grounds. First,
Defendant argues that bifurcation will expedite the proceedings by
potentially eliminating a lengthy damages trial. Rec. Doc. 229-1
at 1. Defendant contends that there are very good reasons to
believe that LNA will prevail on the liability claims, and if LNA
is successful in that regard, there will be no need for a trial on
damages. Rec. Doc. 229-1 at 14. Defendant notes that Plaintiff has
presented no new evidence regarding causation, which this Court
previously found did not implicate LNA. Rec. Doc. 229-1 at 14.
Thus, Defendant argues that likely prevailing on liability will
eliminate a timely and costly trial on damages. Rec. Doc. 229-1 at
14.
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Second, Defendant argues that if LNA does not prevail on the
liability claims and a trial to determine damages is necessary,
bifurcation is the only way to legitimately examine the complex
and individual damages claims. Rec. Doc. 229-1 at 15. Defendant
contends that the way in which Plaintiff has attempted to prove
its damages claim requires a “project-by-project examination,”
regardless of when damages is tried. Rec. Doc. 250 at 3. Defendant
rejects
Plaintiff’s
proposal
to
use
a
set
of
representative
properties upon which damages could be adjudicated, asserting that
any attempt by Plaintiff to “short-cut” the property-specific
issues raised in its claim would fall short of Plaintiff’s burden
to prove damages. Rec. Doc. 250 at 16. In addition to its concerns
about the length of time needed to properly examine damages,
Defendant claims that a trial including issues of both liability
and damages would confuse the jury. Rec. Doc. 250 at 17. Defendant
argues that if the jury is required to consider extensive fact and
expert testimony on over 275 projects and witnesses, the volume of
proof on damages will distract the jury from the critical issue of
liability. Rec. Doc. 250 at 17-18. Therefore, Defendant contends
that bifurcation is the only feasible way to consider damages in
a reasonable amount of time without causing juror confusion. Rec.
Doc. 250 at 18.
Lastly,
Defendant
clarifies
that
Plaintiff
will
not
be
prejudiced by bifurcation because, even if LNA is found to be
4
liable, Plaintiff will have every opportunity to present its
damages evidence in dedicated damages proceedings. Rec. Doc. 250
at 18. Defendant also asserts that Plaintiff will not be prejudiced
by unnecessary delay or increased costs because bifurcation would
allow the damages trial to be eliminated should LNA be found not
liable, reducing both trial length and costs. Rec. Doc. 250 at 18.
Plaintiff
opposes
the
motion
to
bifurcate
on
each
of
Defendant’s contentions, and additionally claims that the motion
to bifurcate would result in a Seventh Amendment violation. Rec.
Doc. 246 at 20.
First,
Plaintiff
counters
Defendant’s
presumption
of
prevailing on the liability claims by noting that the Fifth Circuit
found
that
this
Court
made
“impermissible
credibility
determinations” with respect to the liability issue in the case at
bar, and reversed this Court’s ruling granting summary judgment.
Rec. Doc. 246 at 16. Thus, Plaintiff contends that bifurcation
would not serve to expedite the judicial process if Defendant was
found to be liable because it would result in two separate trials.
Rec. Doc. 246 at 18.
Plaintiff next argues that its claims for liability and
damages can both be tried in the time allotted by the Court. Rec.
Doc. 246 at 17. Plaintiff maintains that Defendant’s motion is an
attempt to elicit additional trial time from the Court, but that
following
the
plan
of
agreeing
5
on
a
set
of
representative
properties and/or projects upon which damages could be adjudicated
would result in a resolution within the time allotted by the Court.
Rec. Doc. 246 at 17.
Finally, Plaintiff argues that bifurcation would be improper
because
it
would
require
a
second
jury
to
evaluate
the
reprehensibility of Defendant’s conduct (in determining punitive
damages) without reconsidering the issues giving rise to liability
that were determined by the first jury in the liability trial.
Rec. Doc. 246 at 20.
Defendant’s reply memorandum primarily addresses Plaintiff’s
claim that bifurcation would violate the Seventh Amendment. Rec.
Doc. 250 at 5. First, Defendant argues that bifurcation is commonly
used in cases involving punitive damages. Rec. Doc. 250 at 6.
Defendant contends that allowing the jury to return a special
verdict under Rule 49 to decide whether LNA’s conduct met the
punitive damages standard would permit a second jury to determine
the amount of punitive damages. Rec. Doc. 250 at 6. Second,
Defendant asserts that bifurcation would not violate Plaintiff’s
rights, and proposes an alternative plan of empaneling a single
jury to hear both trial phases. Rec. Doc. 250 at 7. Third,
Defendant proposes that if the Court finds that Plaintiff’s demand
for punitive damages presents an obstacle to bifurcation, the Court
should provisionally bifurcate the case into two phases before a
6
single jury, and allow Defendant to move for summary judgment on
punitive damages. Rec. Doc. 250 at 7-8.
III. LAW AND ANALYSIS
“For convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or more
separate issues, claims, crossclaims, counterclaims, or thirdparty claims.” Fed. R. Civ. P. 42(b). “Whether to conduct separate
trials under the Rule [42(b)] is ‘a matter left to the sound
discretion of the trial court on the bases of circumstances of the
litigation before it.’” Alaniz v. Zamora-Quezada, 591 F.3d 761,
773-74 (5th Cir. 2009), (citing 9A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE
AND
PROCEDURE §2388 (3d ed. 2008)). Bifurcation
into separate trials of liability and damages is a “common tool”
used by federal courts in a wide array of civil cases. Equal Emp’t
Opportunity Comm’n v. Bass Pro Outdoor World, L.L.C., No. 1520078, 2016 WL 3397696 at *6 (5th Cir. June 17, 2016).
Here, Defendant claims that bifurcating the trial into a trial
for
liability
and
a
separate
trial
to
determine
damages,
if
necessary, will result in a faster and more economic resolution
because the issue of damages will be eliminated completely if
Defendant prevails on liability. Rec. Doc. 229-1 at 14. Plaintiff
avers the opposite, contending that if Defendant is unsuccessful
in
defending
against
the
liability
claims,
bifurcation
would
result in two separate trials, thus prolonging proceedings. Rec.
7
Doc. 246 at 18. However, Defendant contends that even if it does
not prevail on the liability claims after bifurcation, there will
be little overlap between the evidence and witnesses presented,
and therefore bifurcation would nevertheless be desirable. Rec.
Doc. 250 at 6.
This Court has previously ruled bifurcation to be appropriate
in order to avoid potential prolonged delay of trial. See Derouen
v. Hercules Liftboat Co., L.L.C. et al, Nos. 13-4805, 13-4806, 135060, 2016 WL 349311 at *5 (E.D. La. Jan. 26, 2015). As this case
has been ongoing since September of 2011, it is the desire of this
Court
to
resolve
this
matter
as
swiftly
as
possible
without
prejudicing either party. If the Court were to bifurcate this trial
and LNA was not implicated in any liability, bifurcation would
indeed be a more efficient and economic option by eliminating a
trial on damages. However, if this Court were to bifurcate the
trial and LNA was found to be liable for the damages claimed by
the Parish, bifurcation would result in the exact prolonged delay
of trial that it is intended to eliminate. In its opposition
Plaintiff contends that bifurcation would result in the defense
presenting
duplicative
witnesses
and
evidence
in
both
the
liability and damages trials which would prolong an already lengthy
trial. Rec. Doc. 246 at 5-6. If this were true, bifurcation would
certainly
result
in
a
delayed
trial.
However,
in
its
reply
memorandum Defendant contends that there will be very little
8
overlap of evidence and witnesses, stating that none of LNA’s
witnesses will testify in both the causation and damages trials.
Rec. Doc. 250 at 6.
The Fifth Circuit has cautioned that bifurcation of issues is
not the usual course that should be followed and should be reserved
for issues that are “so distinct and separable from the others
that a trial of it alone may be had without injustice.” State of
Ala. v. Blue Bird Body Co., Inc., 573 F.2d 309, 318 (5th Cir.
1978). This limitation on the use of bifurcation is a recognition
of the fact that inherent in the Seventh Amendment guarantee of a
trial by jury is the general right of a litigant to have only one
jury pass on a common issue of fact. McDaniel v. Anheuser-Busch,
Inc., 987 F.2d 298, 305 (5th Cir. 1993) (citing Blue Bird Body
Co., Inc., 573 F.2d at 318).
Plaintiff claims that the punitive damages in this case are
“reasonably related to the reprehensibility of the Defendant’s
conduct,” and that having a second jury as a result of bifurcation
would result in a Seventh Amendment violation. Rec. Doc. 246 at
20. However, the Fifth Circuit has held that a district court may
use Rule 49 in order to structure a jury’s finding of fact, which
would allow the jury to first determine whether the standard for
punitive damages has been met, and only after answering in the
affirmative would the jury determine an award of punitive damages.
Equal Emp’t Opportunity Comm’n, 2016 WL 3397696 at *7. “This system
9
avoids the risk that a second jury would reconsider the first
finding of fact[.]” Id.
Defendant proposes this special verdict procedure in its
reply
memorandum
in
order
to
avoid
any
Seventh
Amendment
violations. Rec. Doc. 250 at 6. Defendant contends that the Court
could ask the jury to return a special verdict under Rule 49 to
decide whether LNA’s conduct met the punitive damage standard.
Rec. Doc. 248-1 at 6. If the first jury found that LNA’s conduct
met the required standard, the second jury could determine the
amount of punitive damages, and therefore bifurcation would not
lead to a violation of Plaintiff’s rights. Rec. Doc. 250 at 6. As
an alternative, Defendant offers that the Court could bifurcate
the case into two phases that would appear before a single jury,
and permit LNA to move for summary judgment on punitive damages,
potentially eliminating the issue completely. Rec. Doc. 250 at 8.
“Prejudice is the Court’s most important consideration in
deciding whether to order separate trials under Rule 42(b).”
Derouen, 2016 WL 349311 at *4 (citing Laitrim Corp. v. HewlettPackard Co., 791 F.Supp. 113, 115 (E.D. La, 1992)). Plaintiff
claims that it would be prejudiced by expenses incurred because
Defendant did not move to bifurcate discovery. Rec. Doc. 246 at
22.
Plaintiff
thousands
of
claims
it
documents
would
have
relating
to
to
produce
damages
“hundreds
and
of
presenting
deposition of witnesses on the same,” at the request of Defendant,
10
only to have Defendant petition the Court to postpone the damages
trial.
Rec.
Doc.
246
at
22.
The
Court
finds
this
argument
unconvincing. First, both sides will have to prepare discovery
documents relating to damages regardless of whether the trial is
bifurcated
or
not.
Second,
Plaintiff’s
argument
assumes
prematurely that Defendant will not only petition to postpone the
damages trial, but also that the Court will grant the request.
As an alternative to bifurcation, this Court has previously
ordered that a trial be separated into separate and distinct
phases. See Laitram, 791 F.Supp. at 117; Bayou Fleet P’ship, L.L.P.
v. St. Charles Parish, No. 10-1557, 2013 WL 149584 (E.D. La. Jan.
14, 2013); see also Joy Technologies, Inc. v Flakt, Inc., 772
F.Supp 842 (D.Del. 1991). In Laitram Corp. v. Hewlett-Packard Co.,
this
Court
infringement
denied
case,
a
motion
but
to
instead
bifurcate
ordered
trial
separate
in
and
a
patent
distinct
phases within one trial to try the issues of patent infringement
and, if necessary, the resulting damages. Laitrim, 791 F.Supp at
117. The Court ordered discovery to proceed on all issues, and
further ordered that the jury will first decide on liability, and,
if necessary, the damages phases of the trial would immediately
proceed before the same jury. Id. at 115. The Court reasoned that
jury confusion would be reduced if examination of the complex
technical evidence was saved until the jury could narrowly focus
on the specific issues relevant in determining damages. Id. at
11
116. Additionally, the Court found that separate phases would avoid
any prejudice caused by delay of trial, an additional discovery
period, and increased expenses. Id. at 117.
Similar to Laitrim, separation of the issues into distinct
and
separate
alternative
phases
to
in
this
bifurcation.
case
would
Separate
provide
phases
a
would
desirable
promote
efficiency and would economize the proceedings by still allowing
the possibility to eliminate the damages phase if LNA was not
implicated
in
liability.
In
addition,
separate
phases
would
eliminate the prejudice and potential Seventh Amendment violations
cited by Plaintiff by allowing the same jury to hear both liability
and, if necessary, damages. This would also alleviate Defendant’s
concerns of jury confusion resulting from a combined trial. Thus,
separate phases rather than bifurcation would achieve the goals of
both parties.
IV.
CONCLUSION
For all of the reasons outlined above,
IT IS ORDERED that the motion is DENIED. However, a single
trial shall occur before the same jury with the liability phase
proceeding first, and, if necessary, the damages phase immediately
thereafter. Discovery shall proceed on all issues. Parties shall
meet and jointly submit their respective list of witnesses and
exhibits for each phase of the trial in accordance with all
12
existing deadlines set forth in court orders. See Rec. Doc. 136.
New Orleans, Louisiana, this 10th day of August, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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