Murphy et al v. Minnesota Department of Human Services et al

Filing 726

MEMORANDUM OPINION AND ORDER: Plaintiffs' Rule 42 Motion to Bifurcate Trial (Doc. 708 ) is respectfully DENIED. (Written Opinion) Signed by Judge Donovan W. Frank on 12/3/2020. (las)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Tenner Murphy, by his guardian Kay
Murphy; Marrie Bottelson; Dionne
Swanson; and on behalf of others
similarly situated,

Civil No. 16-2623 (DWF/BRT)

Plaintiffs,
MEMORANDUM
OPINION AND ORDER

v.
Jodi Harpstead, in her capacity as
Commissioner of the Minnesota
Department of Human Services,
Defendant.

INTRODUCTION
This matter is before the Court upon Plaintiffs’ Rule 42 Motion to Bifurcate Trial.
(Doc. 708.) This Court has already overruled Plaintiffs’ contemporaneously filed
objection (Doc. No. 707) to Magistrate Judge Becky R. Thorson’s August 31, 2020 Order
(August 2020 Order, Doc. No. 706) granting in part and denying in part Plaintiffs’
Motion for Sanctions (Doc. No. 682). The Court held a hearing on November 3, 2020.
(Doc. No. 722.) For the reasons discussed below, the Court denies Plaintiff’s Rule 42
motion to bifurcate trial.
BACKGROUND
The factual background for the above-entitled matter is clearly and precisely set
forth in previous orders of the Court, including the Court’s May 18, 2017 Memorandum

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Opinion and Order (Doc. No. 54) and August 2020 Order, and are incorporated by
reference herein.
Fact discovery in this matter closed pursuant to a June 15, 2018 scheduling order. 1
(Doc. No. 149 (“Third Amended Scheduling Order”).) On April 20, 2020, Defendants
produced over 7,000 pages of documents and disclosed ten new witnesses that Defendant
intended to introduce at trial. (See Doc. No. 685 ¶ 16, Ex. 14 at 1.) On May 5, 2020,
Plaintiffs filed a Rule 37 Motion to Exclude Documents and Witnesses relating to
Defendant’s April 20, 2020 production. (Doc. No. 682.)
Plaintiffs claimed that “Defendant failed to inform Plaintiffs (or the Court) of its
plan for late production, or even of the ongoing creation of purportedly new policies and
procedures, until January 31, 2020.” (Doc. No. 684 at 5.) Plaintiffs asserted that they
were “blindsided” by the late production and sought sanctions pursuant to
Fed. R. Civ. P. 37 in the form of exclusion of the documents and witnesses produced on
April 20, 2020. (Id. at 3, 32.) Alternatively, Plaintiffs requested that if the Court
believed the information in the late production must be introduced to determine whether
Plaintiffs’ requested relief will remedy ongoing harms, the Court should consider the
information separately following a trial on liability. (Id. at 18 n.10.)
In a thoughtful and detailed memorandum and opinion, Magistrate Judge Thorson
observed that the documents and witnesses at issue post-dated the June 18, 2020
discovery cut-off, and that Plaintiffs repeatedly requested supplementation from
1

The parties stipulated to, and the Court permitted, certain limited discovery to take
place following the fact discovery deadline, but by June 25, 2018. (Doc. Nos. 269, 271.)

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Defendant. (August 2020 Order at 12; see also Doc. No. 685-1 at 11–12, 17, 30
(requesting supplementation related to new policies).) Accordingly, she crafted a remedy
she believed would “ensure a fair process for supplementation of new factual
developments after the fact discovery cut-off, with admissibility disputes to be
determined by the District Judge.” (August 2020 Order at 17.) To this end, Magistrate
Judge Thorson denied Plaintiffs’ request to exclude the production under Rule 37(c)(1)
and permitted each side to engage in limited additional discovery. (Id. at 18–19.) This
Court upheld Magistrate Judge Thorson’s August 2020 Order as a “remedy appropriately
accommodat[ing] the significant passage of time in light of Plaintiffs’ request for
prospective injunctive relief and addresses the potential for prejudice by permitting both
parties to engage in additional limited discovery well in advance of trial.” (Doc. No. 718
at 7-8.)
MOTION TO BIFURCATE
Plaintiffs move to: (1) bifurcate the liability and remedy phases of trial; and
(2) limit the liability phase to facts gathered during discovery outlined by the Third
Amended Scheduling Order. Essentially, Plaintiffs argue that the evidence for these two
phases will be different because the liability phase looks at what the system was, and the
remedy phase looks at what the system is to fashion prospective injunctive relief.
Defendant opposes bifurcation.
Under Rule 42(b), “[f]or 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 third-party claims.” In exercising the “broad discretion”
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afforded by Rule 42(b), courts “should consider the preservation of constitutional rights,
clarity, judicial economy, the likelihood of inconsistent results and possibilities for
confusion.” O’Dell v. Hercules, Inc., 904 F.2d 1194, 1202 (8th Cir. 1990). “Because
piecemeal litigation is inefficient, bifurcation is the exception, and not the rule.” In re
RFC and ResCap Liquidating Trust Litig., 2019 WL 2337323, at *2 (D. Minn. June 3,
2019) (citing Transclean Corp. v. Bridgewood Servs., Inc., 101 F. Supp. 2d 788, 793 (D.
Minn. 2000)).
Plaintiffs argue “extreme prejudice” will result should Defendant be “permitted to
introduce selective evidence of her policies over the past three years, while preventing
Plaintiffs from discovering details of her actions and distorting how the system is really
working for class members.” (Doc. No. 710 at 8.) The Court finds no prejudice. As it
stands, the August 2020 Order permits supplemental discovery related to the disclosures
made relating to post-June 15, 2018 information. (August 2020 Order at 18–19.) Indeed,
Plaintiffs’ entire bifurcation motion goes hand in hand with their appeal of the August
2020 Order. (E.g., Doc. No. 710 at 16.) (“If the Court does not grant this Motion to
Bifurcate and overrule Magistrate Judge Thorson’s Order, the parties will have to
conduct that time-consuming discovery related to the activities of the parties since
June 15, 2018.”) Thus, contrary to Plaintiffs arguments, Plaintiffs have the opportunity
to “discover[] details of [Defendant’s] actions and . . . how the system is really working
for class members.”

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While the parties dispute whether the issues of liability and remedies could be
separated, 2 the reality is that it is the Court that would have to compartmentalize the
testimony and evidence. Plaintiffs have withdrawn their demand for a jury trial. (Doc.
No. 413.) Defendants consented. (Doc. No. 414.); see Fed. R. Civ. P. 38(d). The same
concerns about confusing and prejudicing the factfinder with evidence or testimony
relevant to only one matter and not the other does not bear out as it would with a jury
when the Court acts in that role. Further hedging against the prospect of prejudicial
confusion, the Court could request post-trial briefing delineating the evidence and
testimony applicable to each particular factor of the decision-making process.
Bifurcation would not foster judicial efficiency. Defendants note that many
witnesses testifying regarding liability would then testify again at a remedies phase. The
parties’ experts would likely have to testify twice. While practices have changed as
evidenced by Defendant’s late discovery productions, historical context will likely aid in
understanding the developments. Thus, separating liability and remedies phases will lead
to greater likelihood of confusion and higher inefficiency. Nor would bifurcation speed
up the trial process. The discovery that Plaintiffs can do under the August 2020 Order

2

In Olmstead v. L.C., the Supreme Court examined whether Georgia’s refusal to
provide services to mentally disabled persons in community settings instead of
institutions violated the ADA, holding that such action would violate the ADA only
“when the State’s treatment professionals have determined that community placement is
appropriate, the transfer from institutional care to a less restrictive setting is not opposed
by the affected individual, and the placement can be reasonably accommodated, taking
into account the resources available to the State and the needs of others with mental
disabilities.” 527 U.S. 581, 587 (1999); see also 28 C.F.R. § 35.130(b)(7)(i). This
appears to tie liability, in part, to the reasonableness of modifying the current practice.

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regarding present policy and practices would just be delayed to after a liability trial
pending the remedies trial. Procrastinating on discovery does not make it more efficient.
The opposite is generally true: factual clarity fades, employees move to new projects or
leave the organization, priorities and expertise shift. Defendant’s policies may change
again and require even more discovery for a remedies phase if that portion of trial is
delayed, thus amplifying proceedings further. Finally, Plaintiffs argue an outcome in
their favor after the liability phase will pressure Defendant to settle and an outcome in
Defendant’s favor will make additional discovery unnecessary. This is simply far too
speculative for the Court to consider. The Court finds no judicial efficiency in
bifurcation.
The Court cannot ignore the realities of the present situation, either. Trial in this
case has been extended several times through the parties’ stipulations to extend discovery
and settlement discussions. Even if the parties had all evidence desired and were ready to
go to trial instantly, that would likely not occur due to the COVID-19 pandemic. This
District has been generally unable to hold trials since the inception of the pandemic and
will not be holding trials for the foreseeable future. See General Order No. 20 (D. Minn.
Nov. 4, 2020) (continuing all trials through at least December 31, 2020). While a jury
trial certainly raises the most difficult logistical concerns, jury and court trials alike face
questions regarding health and safety of witnesses, attorneys, and court staff. Another
pressing reality is that the District’s backlog of criminal trials must take priority over civil
trials. Unfortunately, even if were bifurcation proper, Plaintiffs’ stated desire of a rapid

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trial on liability followed by a secondary trial on remedies cannot be squared with reality
because no civil trial appears imminently possible.
In sum, the Court finds no reason to exercise its discretion to bifurcate trial in this
matter.
CONCLUSION
Based upon the foregoing, and on all the files, records, and proceedings herein, IT
IS HEREBY ORDERED that Plaintiffs’ Rule 42 Motion to Bifurcate Trial (Doc. [708])
is respectfully DENIED.

Dated: December 3, 2020

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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