Hopkins et al v. National RailRoad Passenger Corporation
MEMORANDUM & ORDER granting 77 Motion to Bifurcate. The liability and damages phases of trial will be bifurcated. The trial will occur before a single jury. The damages portion of trial will begin on the third Monday of trial.Ordered by Judge Nicholas G. Garaufis on 4/18/2016. (Piper, Francine)
UNITED STATES DISTRJCT COURT
EASTERN DISTRJCT OF NEW YORK
BRJAN HOPKINS, LIANA HOPKINS, and
MEMORANDUM & ORDER
08-CV-2965 (NGG) (RML)
-againstNATIONAL RAILROAD PASSENGER
CORPORATION a/k/a AMTRAK and
MASSACHUSETTS BAY TRANSPORTATION
IN CLERKS OFFICE
uS OlSTRlCT COURT E.D.N.Y.
APR ., 20\6
NICHOLAS G. GARAUFIS, United States District Judge.
Before the court is Defendants National Railroad Passenger Corporation ("Amtrak") and
Massachusetts Bay Transportation Authority's ("MBTA") motion to bifurcate. (Mot. to
Bifurcate (Dkt. 77).) For the reasons stated below, Defendants' motion to bifurcate is
The court assumes familiarity with Plaintiffs' factual allegations. (See Feb. 27,2013,
Mem. & Order (Dkt. 57) at 1-6.) Broadly, Plaintiffs allege that Defendants were reckless when
they parked a train overnight under a live overhead catenary wire at South Station in Boston.
(@ Plaintiffs allege that Brian Hopkins ("Hopkins") was gravely injured when he was
electrocuted by the wire.
The Federal Rules of Civil Procedure provide that "[f]or convenience, to avoid prejudice,
or to expedite and economize, the court may order a separate trial of one or more separate
issues." Fed. R. Civ. P. 42(b). "Therefore, bifurcation may be appropriate where, for example,
the litigation of the first issue might eliminate the need to litigate the second issue or where one
party will be prejudiced by evidence presented against another party." Amato v. City of
Saratoga Springs, 170 F.3d 311,316 (2d Cir. 1999) (internal citations omitted). "Although
bifurcation of trials is not unusual and may under appropriate circumstances be the preferred
method, bifurcation remains the exception rather than the rule." Dallas v. Goldberg, 143 F.
Supp. 2d 312, 315 (S.D.N.Y. 2001). "[W]hether to bifurcate a trial into liability and damages
phases is a matter within the sound discretion of the trial court." Getty Petroleum Com. v. Island
Transp. Com., 862 F.2d 10, 15 (2d Cir. 1988).
"On a case-by-case basis, courts should examine, among other factors, whether
bifurcation is needed to avoid or minimize prejudice, whether it will produce economies in the
trial of the matter, and whether bifurcation will lessen or eliminate the likelihood of juror
confusion." Lewis v. City of New York, 689 F. Supp. 2d 417, 429 (E.D.N. Y. 2010); see also
Computer Assocs. Int'l, Inc. v. Simple.com, Inc., 247 F.R.D. 63, 67 (E.D.N.Y. 2007) ("To
determine whether bifurcation is warranted, courts generally consider the following three
factors: 'I) whether significant resources would be saved by bifurcation, 2) whether bifurcation
will increase juror comprehension, and 3) whether bifurcation will lead to repeat presentations of
the same evidence and witnesses."' (quoting WeddingChannel.com, Inc. v. The Knot, Inc.,
No. 03-CV-7369 (RWS), 2004 WL 2984305, at *1 (S.D.N.Y. Dec. 23, 2004)).
Defendants argue that "[t]his action is well-suited to bifurcation because the evidence
pertaining to Plaintiffs' recklessness claim is entirely distinct from the evidence pertaining to the
nature and extent of Hopkins' catastrophic injuries. Accordingly, bifurcation will help prevent
the jury from drawing natural, yet impermissible inferences as to liability without prejudicing the
presentation of Plaintiffs' case and will promote judicial economy by avoiding lengthy and
potentially unnecessary trial proceedings." (Defs.' Mem. in Supp. of Mot. to Bifurcate ("Defs.'
Mem.") (Dkt. 79) at 5 (internal citations and quotation marks omitted).)
Plaintiffs oppose bifurcation for three reasons. First, they contend that there is minimal
risk that Defendants will be prejudiced, because "[i]n order for the jury to decide if Amtrak
and/or the MBT A were reckless in causing this accident, they must be informed of the nature and
extent of Brian Hopkins' injuries." (Pis.' Mem. in Opp'n to Defs.' Mot. to Bifurcate ("Pis.'
Mem.") (Dkt. 80) at 4.) Second, Plaintiffs argue that "since the parties have greatly paired down
the witnesses, bifurcation will have a more minimal effect on judicial economy." (ld. at 5.)
Finally, Plaintiffs maintain that bifurcation risks prejudice to them, because it "provides an
incentive for some juries to find against plaintiffs, not on the evidence, but on their desire be
done with their service." Mat 6.)
Risk of Prejudice to Defendants and Juror Confusion over Liability
Defendants' prejudice argument has two critical premises: first, that there is minimal
overlap, in either theory or proof, between Plaintiffs' liability and damages case; and second, that
exposing the jury to the damages case likely would prejudice Defendants' liability defense. The
court finds both premises to be compelling; absent bifurcation, Defendants would likely be
prejudiced and the jury may be confused.
Overlap between Liability and Damages
Plaintiffs argue that there is significant overlap between the liability and damages phases
of their case because, under Massachusetts law, a finding of recklessness requires an assessment
of the risk of harm, including "the extent of the harm inherent in the hazard creating the risk."
(Pis.' Mem. at 4.) Plaintiffs reason that the jury must learn about Hopkins's injuries in order to
assess the dangerousness of overhead catenary wires.
ilil at 5.)
The court disagrees.
A showing of recklessness under Massachusetts law does not require actual substantial
harm (which would require testimony concerning Plaintiffs actual injuries); instead, it requires
only that the risk of harm be substantial. See, e.g., Manning v. Nobile, 582 N.E.2d 942, 946
(1991) (holding that recklessness requires that "the risk, viewed prospectively, must entail a high
degree of probability that substantial harm would result to the plaintiff." (internal quotation
marks and citation omitted)); see also Restatement (Second) of Torts§ 500 cmt. g (1965) ("[T]he
actor to be reckless must recognize that his conduct involves a risk substantially greater in
amount than tbat which is necessary to make his conduct negligent."). Thus, under
Massachusetts law, the relevant question is whether live overhead catenary wires posed an ex
ante substantial risk to individuals at South Station.
Plaintiffs intend to call numerous witnesses who will testify regarding the risk of harm
posed by live overhead catenary wires. For example, Richard Gill, Plaintiffs' human factors
expert, has stated that the overhead catenary wire was a "life threatening hazard." (JPTO at 14.)
Likewise, Michael Morse, Plaintiffs' electrical expert, is expected to testify regarding the risks
associated with "arcing" from live catenary wires. Mat 15.) Indeed, Defendants "do not intend
to dispute that the risk created by the electrified wire is very great and clearly involves the
danger of death or grave physical harm." (Defs.' Mem. at 6 (internal quotation marks and
citation omitted).) True, testimony concerning Hopkins's actual injuries may offer some
circumstantial evidence of the ex ante risk posed by live wires. However, to the extent
Hopkins's testimony is needed at all to show the ex ante risk of a live wire, such liability
testimony would be significantly more limited than a thorough examination of the actual
damages Hopkins suffered.
In circumstances similar to this case, courts have found that the liability and damages
facts did not overlap. For example, in Guidi v. Inter-Cont'l Hotels Corn., the court found that
bifurcation was justified where:
The evidence to be presented on the issue of liability focuse[ d] on
whether the security at the Semiramis Hotel, where the tragic events
of October 26, 1993 occurred, was appropriate.... In contrast, the
damages issue will revolve around the injuries sustained by and the
pain and suffering of the victims and other damages suffered by their
No. 95-CV-9006 (LAP), 2003 WL 1846864, at *1 (S.D.N.Y. Apr. 8, 2003). Indeed, the Guidi
court found that there was not sufficient overlap between liability and damages despite
recognizing that the plaintiff likely would need to testifY as to both. Id. at *2.
Here too, the issues to be addressed at the liability phase mainly concern the security and
safety precautions taken at South Station, whereas the damages phase concerns the injuries
sustained by Hopkins. Thus, the court concludes that liability and damages are not so
intertwined that bifurcation would be impractical.
In addition, the court finds that Defendants likely would be prejudiced if the liability and
damages phases were pot bifurcated. At the damages phase, Hopkins will recount his extensive
injuries, which include severe burns, multiple amputations, and alleged sexual dysfunction, and
other witnesses will offer testimony concerning Hopkins's extensive pain and suffering. (See,
JPTO 6, 9, 11-12.) "The emotional and heart-rending testimony of the plaintiffs as to the
pain and suffering they and their loved ones experienced as a result of the tragic events [here at
issue] will unquestionably cloud a jury's ability to render an objective verdict on the issue of
liability." Guidi, 2003 WL 1846864, at *2. Indeed, courts in this circuit regularly find that
"[e]vidence of harm to a plaintiff, regardless of the cause, may result in sympathetic jurors more
concerned with compensating plaintiff for his injury than whether or not defendant is at fault."
Lagudi v. Long Island R. Co., 775 F. Supp. 73,74-75 (E.D.N.Y. 1991) (quoting Buscemi v.
Pepsico. Inc., 736 F. Supp. 1267, 1272 (S.D.N.Y. 1990)); see also Mineo v. City ofNew Yorls,
No. 09-CV-2261 (RRM) (MDG), 2013 WL 1334322, at *2 (E.D.N.Y. Mar. 29, 2013); Zofcin v.
Dean, 144 F.R.D. 203, 205 (S.D.N.Y. 1992). Thus, the court concludes that without bifurcation,
Defendants' liability case likely would be prejudiced.
Bifurcation here also serves the interests of judicial economy. If, following the liability
phase, the jury finds that Defendants are not liable, the court and the parties will be spared the
cost and time of holding a trial on the damages phase. See, e.g., Crown Cork & Seal Co. Master
Ret. Trust v. Credit Suisse First Boston Com., 288 F.R.D. 335, 338 (S.D.N.Y. 2013); Paulay v.
John T. Mather Mem'l Hasp., No. 14-CV-5613 (SJF) (AYS), 2016 WL 829992, at *2 (E.D.N.Y.
Mar. 3, 2016) ("[E]vidence of the nature and extent of plaintiff's physical pain and emotional
distress will be unnecessary if the jury finds no liability against defendant, bifurcation will
further the goal of efficiency."). These judicial economy concerns are particularly acute in this
case where much of the liability phase has been narrowed in pre-trial motion practice. (See
Feb. 27,2013, Mem. & Order (granting in part Defendants' motion for summary judgment).)
Indeed, liability now largely revolves around the single issue of whether Defendants' conduct
was reckless. (Id.) By contrast, the damages phase is likely to be lengthy. (See JPTO at 11-12
(describing numerous damages witnesses).) Accordingly, the court finds that bifurcation
benefits judicial economy.
Risk of Prejudice to Plaintiffs
Finally, Plaintiffs oppose bifurcation because "bifurcation provides an incentive for some
juries to find against plaintiffs, not on the evidence, but on their desire be done with their service
and return to their normal routines as soon as possible." (Pis.' Mem. at 6.) The court finds this
concern significantly overstated. First, Plaintiffs admit that "jurors often take their responsibility
seriously." (Id.) This aligns with the court's experience with jurors. In the vast majority of
cases, jurors are engaged and take their role seriously. Second, and more important, the type of
juror who would be so swayed by avoiding service during the damages phase of the trial, is
likely the type of juror who will seek to avoid service all together. Such a juror's desire to avoid
service will most likely be revealed in voir dire. At that time, Plaintiffs can either strike the juror
or move to have the juror struck for cause. Thus, the court concludes that bifurcation presents
little risk of prejudice to Plaintiffs.
For the above reasons, the court finds that bifurcation is proper.
SEPARATE JURIES AND TIME BETWEEN PHASES
Plaintiffs argue that "if the court orders bifurcation, the damages portion of the case
should be heard by a different jury some time after liability is decided." (Pl.'s Mem. at 6.)
Defendants disagree. (See Defs.' Reply (Dkt. 91).) The court finds that separate juries are
"[I)t seems to be accepted that the better and preferred practice is to use the same jury for
all of the issues in an action, even though it may hear those issues at different times. This
certainly is the safer course for the court to follow." 9A Charles Alan Wright, Arthur Miller &
Edward H. Cooper, Federal Practice and Procedure§ 2391 (3d ed. 1988). Plaintiffs argue that
the court should depart from this preferred practice for two reasons. First, Plaintiffs argue that
separate juries will eliminate the potential of jurors deciding the case against Plaintiffs to shorten
their jury service. (Pis.' Mem. at 7.) As discussed above, the court does not believe that there is
much risk that a jury would find against Plaintiffs on liability in order to shorten their service.
(See suprs Part III. C.) Second, Plaintiffs argue that separate juries would prevent jurors' notions
concerning liability from effecting their damages decision. (Pis.' Mem. at 7.) Again, the court
thinks this risk is unlikely. The jury will be told at the outset that liability and damages are
distinct. Indeed, in the event that the jury hears damages evidence at all, they already will have
found in favor of Plaintiffs on liability, so any risk of prejudice to Plaintiffs is minimal.
Accordingly, the court will not utilize separate juries.
Plaintiffs also argue that there should be a short time period between the liability and
damages phase. (Pis.' Mem. at 6.) Defendants do not appear to object. Plaintiffs offer three
reasons in support of having a short break between the damages and liability phase. First, they
argue that a short break will eliminate the need for Plaintiffs to prepare witnesses who may not
be called. (I d. at 6-7.) Second, Plaintiffs claim that a short break will eliminate the need to
prepare evidence that may never be used. Mat 7.) Finally, Plaintiffs maintain that a short
break will give the parties time to resolve the case. (Id. at 8.) Accordingly, Plaintiffs propose a
break of 30-60 days between the liability and damages phase.
The court believes that 30 days is too long of a time for the jury to wait for the parties to
prepare their damages witnesses and evidence. Indeed, Plaintiffs implicitly represented that they
would have been prepared immediately to begin the damages phase had bifurcation not been
ordered when they opposed bifurcation. Nonetheless, the court sees some benefit to giving the
parties a chance to resolve damages issues in the event that the jury rules for Plaintiffs on
liability. Moreover, the court notes that witnesses benefit from having firm date on which to
Accordingly, the court will inform the jury that the trial will last approximately three
weeks. Therefore, the court plans to begin the damages phase on the third Monday of trial.
Assuming the parties' projections of the length of the liability phase are accurate, this will allow
for up to a week between the damages and liability phases, which the court believes is more than
For the reasons stated above, the court holds:
The liability and damages phases of trial will be bifurcated.
The trial will occur before a single jury.
The damages portion of trial will begin on the third Monday of trial.
Dated: Brooklyn, New York
April It_, 2016
MrCHOLAS G. GARAUFGS
United States District Judge
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