Bajorek-Delater v. America et al

Filing 92

ORDER DENYING 80 Motion to Bifurcate- Signed by Magistrate Judge R. Steven Whalen. (CCie)

Case 2:17-cv-10570-GCS-RSW ECF No. 92, PageID.1327 Filed 03/15/21 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMILY E. BAJOREK-DELATOR,
Plaintiff,

No. 17-10570

v.

District Judge George Caram Steeh
Magistrate Judge R. Steven Whalen

UNITED STATES OF AMERICA,
ET AL.,
Defendants,
and
UNITED STATES OF AMERICA,
Third-Party Plaintiff,
v.
HENRY FORD ALLEGIANCE HEALTH,
ET AL.,
Third-Party Defendants.
/
ORDER DENYING MOTION TO BIFURCATE1
Before the Court is Third-Party Defendant (“TPD”) Dr. Waseem Ullah’s August 4,
2020 Motion for Bifurcated Trial, arguing that the underlying Federal Tort Claims Act
(“FTCA”) claims by Plaintiff Emily E. Bajorek-Delator (“Plaintiff”) against
Defendant/Third-Party Plaintiff United States of America (“the government”) should be tried
separately from the government’s third-party indemnification claim against Dr. Ullah. [ECF
No. 80]. For the reasons set forth below, TPD Dr. Ullah’s motion is DENIED.
1

Because a motion to bifurcate is non-dispositive, this ruling is made under 28
U.S.C. § 636(b)(1)(A).
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I. BACKGROUND FACTS
On February 22, 2017, Plaintiff filed suit under the FTCA, alleging malpractice by
federal employees working at federally-funded clinics. ECF No. 1. On December 13, 2018,
the government filed a third-party complaint seeking contribution under M.C.L. § 600.2925a
against Henry Ford Allegiance Health, and physicians Dorothy Brown, Kristina Sturgill,
Waseem Ullah and Harish Rawal (“TPDs”), alleging that they were liable for “all or part”
of Plaintiff’s alleged injuries. ECF. No. 29. On March 29, 2019, the District Court denied
the TPDs’ motions to dismiss, finding that M.C.L. 600.2925a(1) conferred a substantive
cause of action to the government’s right to contribution. ECF Nos. 31, 35, 40.
In its third-party complaint, the government alleges negligence by TPDs, including
Dr. Ullah, resulting in permanent injuries to Plaintiff due to their failure to timely diagnose
the condition of cauda equina syndrome.2
II. APPLICABLE LAW
Under Fed. R. Civ. P. 42(b), the court may permit “a separate trial of one or more
separate issues, claims, crossclaims, counterclaims, or third-party claims” in the interests
of “convenience, to avoid prejudice, or to expedite and economize” judicial resources.
“The decision whether to try issues separately is within the sound discretion of the court.”
Yung v Raymark Indus, Inc, 789 F.2d 397, 400 (6th Cir. 1986)(citing Helminski v. Ayerst
Lab., Div. of American Home Prod. Corp., 766 F.2d 208, 212 (6th Cir. 1985)). “‘The
party seeking bifurcation has the burden of demonstrating judicial economy would be

2

Cauda equina syndrome, involving compression of the spinal nerve roots, “is a
rare disorder that usually is a surgical emergency.” https://www.webmd.com/back-pain
/guide/cauda-equina-syndrome-overview. (Last visited March 10, 2021). Patients with
cauda equina syndrome “may need fast treatment to prevent lasting damage leading to
incontinence and possibly permanent paralysis of the legs.” Id.
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promoted and that no party would be prejudiced by separate trials.’” KW Muth Co, Inc v
Bing-Lear Mfg Group, LLC, No. 01-CV-71925, 2002 WL 1879943, at *3 (E.D. Mich. July
16, 2002)(Steeh, J.)(quoting Princeton Biochemicals, Inc. v. Beckman Instruments, Inc.,
180 F.R.D. 254, 256 (D.N.J.1997).
III. ANALYSIS
In favor of bifurcation, TPD Dr. Ullah argues that the question of whether he is
liable is “not ripe,” and that the issue of liability could become moot depending on the
outcome of Plaintiff’s original claims against the government (ECF No. 80,
PageID.1216.). He argues that his inclusion in the trial on the first-party Complaint would
result in “an unnecessarily long trial” with multiple opening and closing statements,
additional attorneys, and increased costs to all parties. Id. He points out that while parties
to the underlying FTCA action have no entitlement to a jury trial, he does have a right to
a jury trial as to the third-party claims against him. (Id. at 1217). The remaining TPDs
filed a notice of joinder and concurrence in TPD Ullah’s motion. ECF. No 88.
In response, the government contends that the applicable factors to be considered
under Rule 42(b) weigh against bifurcation. ECF No. 88. The government argues that the
facts and issues in both the underlying and third party claim are largely identical. (ECF
No. 88, PageID.1280). The government also disputes Dr. Ullah’s contention that the third
party claims are not ripe for adjudication and that the FTCA action must be resolved prior
to determination of TPDs’ liability. (Id. at 1286). The government cites Fed. R. Civ. P.
14(a), which allows joinder of a third party “‘who is or may be liable to it for all or part
of the claim against it.’” (Id.). And the government contends that TPDs’ right to a jury
trial will not be prejudiced, because the FTCA and third-party claims can be decided in
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a single, combined bench and jury trial. (Id. at 1286). Plaintiff also opposes TPD Ullah’s
motion to bifurcate. ECF No. 87.
In determining whether bifurcation is appropriate, “the court should consider
several facts, including ‘the potential prejudice to the parties, the possible confusion of the
jurors, and the resulting convenience and economy.’” Wilson v Morgan, 477 F3d 326, 339
(6th Cir. 2007)(quoting Martin v. Heideman, 106 F.3d 1308, 1311 (6th Cir.1997)). Wilson
held that the trial court did not err in bifurcating § 1983 claims against individual officers
and municipal claims on basis that the absence of an underlying constitutional violation
by officers would moot claims against the municipality. Id. at 340.
In this case, the Wilson factors weigh against bifurcation. TPD Ullah’s strongest
argument is that the issue of his liability “may become moot” depending on the outcome
of the first party FTCA claim. (ECF No. 80, PageID.1316). To be sure, in denying TPDs’
motion for summary judgment, the District Court noted that “[w]hen the underlying
complaint pleads alternative theories of negligence, a court cannot determine whether a
claim for common law indemnity against a third party is valid until the parties obtain a
judgment on the issue of active versus passive negligence.” (ECF No.90, PageID.1316).
But the remaining factors support the opposite finding. Assuming that the District
Court finds some degree of liability by the government, both it and Plaintiff would be
inconvenienced by the need to reintroduce the same evidence at a second trial. The
government correctly points out that a second trial would be largely duplicative and that
its defense to Plaintiff’s claims would be the same as its third-party claim against TPDs,
namely, i.e., that Plaintiff’s injuries were caused by the negligence of TPDs rather than its
own staff. (ECF No.88, PageID.1284). In contrast to Wilson, where the criteria for

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municipal liability differed from the claims against the individual officers,

the

government correctly notes that in this case, the legal and factual issues in both trials will
be identical: “which of the doctors treating [P]laintiff in June and July of 2014 were
negligent, whether their negligence caused [her] injuries, and what portion of [her] total
damages are attributable to each doctor.” Id. The government also notes that both trials
would include testimony by Plaintiff and all of the TPDs, that the same medical records
offered by the government and TPDs would be admitted, and that the same expert
testimony would be introduced. Id. TPD Ullah’s potential inconvenience due to a longer
trial with “multiple attorneys, witnesses, examinations, and opening and closing
statements” is outweighed by the redundancies involved in two separate trials with the
same factual underpinning, testimony, and evidence (ECF No. 80, PageID.1216).
“Bifurcation requires a certain degree of duplication of efforts by the parties, counsel, and
the Court” including “another round of opening statements [and] closing arguments . . .”
Jacobs v Alam, No. 15-10516, 2019 WL 6003132, at *6 (E.D. Mich, November 13,
2019)(Hood, C.J.). In this case as well, a single trial is warranted in the interests of both
convenience to the parties and judicial economy.
Moreover, TPD Ullah has not shown that his entitlement to a jury trial would be
compromised by a single trial. See In re Air Crash Disaster at Metro. Airport, Detroit,
Mich. on Jan. 19, 1979, 619 F. Supp. 13, 17 (E.D. Mich. 1984) (Feikens, J.)(combined
jury and bench trial “the jury determines the liability of [cross-defendants] as is their right
under the Seventh Amendment, and I determine the liability, if any, of the United States,
as is my duty under the [FTCA]”), aff’d 782 F.2d 1041,1985 WL 14069 (6th Cir.
December 8, 1985)(unpublished table decision). There is no basis for TPD Ullah’s

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argument that a concurrent bench and jury trial would prevent him from making an
effective case to the jury. See Bederson v United States, 935 F. Supp. 2d 48, 51 (D.D.C.
2013)(jury verdict in favor of private physician where “Court heard evidence on the
plaintiff’s claim against the government defendant concurrently with a jury trial on the
negligence claim against the private physician”).3
IV. CONCLUSION
For these reasons, TPD Dr. Waseem Ullah’s August 4, 2020 Motion for Bifurcated
Trial is DENIED.

IT IS SO ORDERED.
s/R. Steven Whalen
R. Steven Whalen
United States Magistrate Judge
Dated: March 15, 2021

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of
record on March 15, 2021 electronically and/or by U.S. mail.
s/Carolyn M. Ciesla

3

In contrast to the present case, the plaintiff in Benderson brought first-party claims
against both the U.S. and the private physician. Nonetheless, Benderson supports the
conclusion that the private physician’s right to a jury trial was preserved in a combined
bench/jury trial.
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