Ehrlich et al v. Crown Enterprises, Inc. et al

Filing 206

MEMORANDUM OPINION AND ORDER DENYING MOTION TO SEVER CASES FOR TRIAL denying 201 MOTION to Sever Cases for Trial. Signed by District Judge Gina M. Groh on 10/9/2014. (cwm)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
STEVE EHRLICH,
PETER GARCIA, JR.,
WILLIAM S. ALLEN,
Plaintiffs,
v.

CIVIL ACTION NOS.:
3:13-CV-23 (Lead Case)
3:13-CV-42
3:13-CV-43
(JUDGE GROH)

RONALD J. COFFEE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION
TO SEVER CASES FOR TRIAL
Currently pending before the Court is the Plaintiffs’ Motion to Sever Cases for Trial
filed on September 9, 2014, in this consolidated action as to the claims of Plaintiffs Steve
Allen Ehrlich, Jacqueline Ehrlich, Peter Garcia, Jr., and William S. Allen. ECF 201. For the
following reasons, the Plaintiffs’ motion is DENIED.
I. Background
A. Undisputed Facts
On March 21, 2011, Plaintiff Steve Ehrlich (“Mr. Ehrlich”) was driving a federal
government-owned vehicle on official government business in Harpers Ferry, West Virginia.
Compl. ¶ 14; Defs.’ Mot. Summ. J. ¶ 1. William S. Allen (“Allen”), and Peter Garcia, Jr.
(“Garcia”) were passengers in the vehicle. Mr. Ehrlich’s vehicle came to a stop at a traffic

light at the intersection of 340 North and Shore Line Drive. Compl. ¶ 14; Defs.’ Mot. Summ.
J. ¶ 2-3. At about the same time, Defendant Ronald J. Coffee (“Coffee”), an employee of
Defendant Central Transport, LLC (“Central Transport”), was operating a 2006 International
Tractor with an attached trailer. Defs.’ Mot. Summ. J. ¶ 4; Defs.’ Ans., ¶ 7. Coffee was
traveling in the eastbound lane of Route 340, directly behind Mr. Ehrlich’s vehicle. Compl.
¶ 15; Defs.’ Mot. Summ. J. ¶ 6. As Coffee approached the traffic light, he failed to stop and
crashed into the rear of Mr. Ehrlich’s vehicle. Compl. ¶ 15; Defs.’ Mot. Summ. J. ¶ 7.
B. Procedural History
On March 1, 2013, Mr. Ehrlich and Jacqueline Ehrlich (“Mrs. Ehrlich”) filed a
Complaint in this Court, alleging damages stemming from the accident. On April 22, 2013,
the Defendants filed a Notice of Removal in cases brought by Allen and Garcia, bringing
those matters to this Court.
Subsequently, the parties proposed a stipulation to the effect that “Defendants have
agreed to admit liability for the happening of the accident only while contesting all remaining
damage and other issues, including, but not limited to the causation and nature and extent
of Plaintiff’s alleged injuries and economic damages.” On December 19, 2013, the Court
entered an order granting the agreed stipulation.
On April 23, 2013, the Defendants filed a motion to consolidate the three pending
civil actions, Civil Action Number 3:13-CV-23, Civil Action Number 3:13-CV-42, and Civil
Action Number 3:13-CV-43. On May 10, 2013, the Court granted that motion for discovery
purposes only. On February 19, 2014, this Court sua sponte consolidated the civil actions
for all other purposes, designating Civil Action Number 3:13-CV-23 as the lead case. On
September 9, 2014, Plaintiffs Mr. Ehrlich, Mrs. Ehrlich, Allen, and Garcia filed a Motion to
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Sever Cases for Trial. The remaining Defendants, Coffee and Central Transport, filed a
response to the Plaintiffs’ motion, and the Plaintiffs replied.
II. Discussion
The Plaintiffs argue that the consolidation of these civil actions is improper, primarily
for two reasons.

First, they argue that their cases are too factually distinct to be

consolidated. Second, they contend that consolidation would prejudice the individual
Plaintiffs.
In ordering the three civil actions in this matter consolidated, the Court relied on
Federal Rule of Civil Procedure 42(a), which provides that, “If actions before the court
involve a common question of law or fact, the court may . . . consolidate the actions.”
Under Rule 42, a court may order a separate trial of one or more separate issues or claims,
for “convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b).
Rule 21 states that a court may sever any claim against a party. Fed. R. Civ. P. 21.
The decision whether to consolidate is left to the sound discretion of the district
judge. A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr. Corp., 559 F.2d 928, 933
(4th Cir. 1977) (stating that district courts have broad discretion under Rule 42(a) to
consolidate causes pending in the same district); see also Good v. Am. Water Works Co.,
Civil Action No. 2:14-01374, 2014 WL 2481821, at *2 (S.D.W. Va. June 3, 2014) (stating
that the Fourth Circuit affords broad discretion to district courts on matters of consolidation,
“recognizing the superiority of the trial court in determining how best to structure similar
pieces of litigation”).
In ruling on the Motion to Sever, the Court carefully considers the risks of prejudice
and possible confusion identified by the Plaintiffs. Arnold v. E. Air Lines, Inc., 681 F.2d
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186, 193 (4th Cir. 1982), on reh’g, 712 F.2d 899 (4th Cir. 1983). In Arnold, the Fourth
Circuit Court of Appeals stated that the “critical question” for a district court in analyzing a
motion opposing consolidation is:
whether the specific risks of prejudice and possible confusion were overborne
by the risk of inconsistent adjudications of common factual and legal issues,
the burden on parties, witnesses and available judicial resources posed by
multiple lawsuits, the length of time required to conclude multiple suits as
against a single one, and the relative expense to all concerned of the singletrial, multiple-trial alternatives.
Id.
A. Common Questions of Law or Fact
First, the Plaintiffs argue that their cases are too factually distinct to be consolidated.
It is their contention that, once the Defendants stipulated to liability for the happening of the
accident and left only damages at issue, there was no commonality in the three cases. As
proof of the lack of commonality, the Plaintiffs argue that the evidence of each Plaintiff’s
damages will differ because each case will involve different witnesses, exhibits, and facts.
Other examples highlighted by the Plaintiffs include the different medical treatment received
by each Plaintiff, the different schedules and availability of certain witnesses, the Plaintiffs’
different claims for damages, and that certain witnesses will testify differently depending
upon which Plaintiff they are testifying about.
After careful review, the Court finds that the three civil actions should remain
consolidated for trial. The agreed stipulation did not remove all common questions of law
or fact from this matter. The Court was aware of the similarities and differences between
the three cases when it consolidated them on February 19, 2014, and the agreed
stipulation had already been entered for two months at that time.
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While the Defendants have stipulated to liability for the happening of the accident,
they reserve the ability to contest “all remaining damage and other issues, including, but
not limited to the causation and nature and extent” of the Plaintiffs’ alleged injuries and
damages. At trial, it is foreseeable that disputes pertaining to the causation and nature of
the Plaintiffs’ alleged injuries and damages will involve questions of law or fact common to
all cases, as each lawsuit involved the same accident. Even after the agreed stipulation,
the dispute over damages is unlikely to occur in a vacuum. Further, it is likely that multiple
witnesses and certain evidence will be common to each of the Plaintiffs.
Moreover, while they now seek to recover different amounts for different injuries, the
Plaintiffs’ claims arose out of the same transaction or occurrence. See Good, 2014 WL
2481821, at *2 (finding consolidation appropriate for claims arising from an alleged
chemical storage tank leak where, even though the claims asserted were not identical, “the
common trunk from which all branches of the alleged claims spring is the leak and the
consequences flowing therefrom”). Thus, these cases involve sufficient common questions
of law or fact to remain consolidated for trial.
B. Prejudice to the Plaintiffs
Second, the Plaintiffs argue that consolidating these cases would prejudice them.
In support of this argument, the Plaintiffs reference the issues discussed above in the
Plaintiffs’ first argument. They also raise concerns that a jury could compare each
Plaintiff’s injuries and inappropriately limit a Plaintiff’s recovery. The Plaintiffs further state
that a consolidated trial would pose scheduling problems, thus inconveniencing the parties
and their witnesses. Finally, they assert that consolidating the trial would incentivize them

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to compete for the insurance proceeds available in this case.
As noted, the Court takes into account many considerations, including the risk of
inconsistent adjudications; the burden on parties, witnesses, and available judicial
resources; the length of time required to conclude multiple suits as against a single one;
and the relative expense to all concerned. Arnold, 681 F.2d at 193. These factors can be
weighed against the specific risks of prejudice and possible confusion identified by the party
opposed to consolidation. Id. Here, the Court has carefully considered the potential risks
that the Plaintiffs have identified, but finds that any risks of prejudice and possible confusion
are minimal in light of the factors favoring consolidation. The Court will address each of the
Plaintiffs’ specifically identified concerns below.
1. Jury Prejudice
First, the Plaintiffs identify concerns about jury prejudice, specifically that upon
learning about Allen’s injuries–which were less severe than the injuries suffered by the
other Plaintiffs involved in the same car accident–a jury might inappropriately diminish the
recoveries of Mr. Ehrlich and Garcia.
A jury is capable of receiving evidence as to each Plaintiff and making appropriate
determinations based upon that evidence. As the Court stated in its order consolidating
these cases, if ultimately necessary the consolidated cases will be tried together, but each
individual suit will retain its separate character and separate judgments will be entered.
In their motion, the Plaintiffs cite multiple decisions from different circuit and district
courts, the majority of which are not binding on this Court. In one such case, referenced
in both of the Plaintiffs’ arguments in the Motion to Sever, the United States District Court
for the Western District of Tennessee ordered separate trials for two previously
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consolidated cases after the defendant, Advanced Bionics, filed a motion for separate trials
pursuant to Rule 42(b). Johnson v. Advanced Bionics, LLC, Civil Action No. 2:08-CV02376-JPM, 2011 WL 1323883 (W.D. Tenn. Apr. 4. 2011). But the district court’s decision
to separate the cases in Johnson was based upon facts much different from those in this
case.
In Johnson, Advanced Bionics argued that consolidation was inappropriate because
the two cases involved two different cochlear implant devices. Id. at *4. The cause of the
failure of one of these devices was still in dispute. Id. The court in Johnson also
recognized that, if the two cases were tried together, the court would be forced to admit
otherwise inadmissible evidence that it would exclude if the trials were held separately. Id.
at *4-5. While the court in Johnson did state that the “potentially great” differences in
damages between the two plaintiffs would pose a risk of the jury being “unduly influenced
by the facts of one case,” the court discussed the differences in damages “taken together
with the other differences already noted.” Id. at *6. In the same general discussion, the
court stated, “If the alleged damages suffered . . . were the only differences between the
two cases, the Court would not be inclined to order separate trials.” Id.
Here, the risks of prejudice and possible confusion are not as substantial as those
present in Johnson. The Plaintiffs’ claims in all three lawsuits arose out of the same
accident that occurred when Mr. Ehrlich, Garcia, and Allen were all passengers in the same
car and the car was struck by the tractor-trailer driven by Coffee. These common facts
weigh in favor of consolidation. That the Plaintiffs’ individual claims for damages differ does
not destroy this commonality.
Although each Plaintiff may seek a different recovery and offer different evidence
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of his injuries, other factors, including judicial economy, favor consolidation. See Kelley v.
United States, 580 F. Supp. 2d 490, 494 (E.D. Va. 2008) (granting a motion to consolidate
separate actions in the interest of judicial economy because claims by one plaintiff for
personal injury and by another plaintiff for loss of consortium arose from the same set of
facts–a plane crash). The Plaintiffs’ arguments do not raise sufficient concerns so as to
make consolidation inappropriate in light of the countervailing considerations, including
time, expense, and burdens on those involved. See Arnold, 681 F.2d at 193. Thus, the
Court finds that the risks of prejudice and possible confusion posed by a trial jury hearing
evidence as to the Plaintiffs’ varying injuries and damages are overborne by the factors
favoring consolidation.
2. The Plaintiffs’ Witnesses
The Plaintiffs assert that a consolidated trial would pose prejudicial scheduling
problems. They suggest that certain witnesses’ schedules and professional obligations
may adversely affect witness availability if a single trial is held. The Plaintiffs also argue
that, without knowing the order of presentation of witnesses in a consolidated trial, the
subsequent inability to confirm specific dates for experts’ testimony would lead to additional
expense for the parties or a risk of witness unavailability.
These potential risks do not require severing the consolidated actions. Issues
pertaining to certain witnesses’ schedules and availability can be addressed at a pretrial
conference and among counsel prior to trial. The scheduling of three separate trials would
pose a greater burden on judicial resources, on those witnesses who would appear at more
than one trial, and on the Defendants. Likewise, conducting three separate trials in which
the parties and common questions of law or fact will overlap would require more time and
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would be more costly than the single-trial alternative.
3. The Defendants’ Insurance
Finally, the Plaintiffs argue that a consolidated trial would require each Plaintiff to
compete with the other Plaintiffs over a limited fund because the Defendants have indicated
there is a maximum of $1 million in insurance proceeds available for recovery in this case.
Here, these circumstances do not create risks that would outweigh the other
considerations. The Court recognizes that the Fourth Circuit has found that a trial court
committed reversible error when consolidation of claims prejudiced a defendant by causing
revelations to the jury of the existence of the defendant’s insurance coverage. Arnold v.
E. Air Lines, Inc., 712 F.2d 899, 906-07 (4th Cir. 1983) (en banc). However, in this case
the Court has granted a motion in limine excluding any reference at trial to insurance
coverage. Accordingly, the existence of the Defendants’ insurance coverage and any limits
on that coverage will not be disclosed to the jury. Furthermore, the maximum insurance
coverage available is not relevant to trial strategy or consolidation for trial.
In this case, when considering the risk of inconsistent adjudications; the burden on
parties, witnesses, and available judicial resources; the length of time required to conclude
multiple suits as against a single one; and the relative expense to all concerned–each
factor weighs in favor of denying the Motion to Sever.
III. Conclusion
For the foregoing reasons, the Court DENIES the Plaintiffs’ Motion to Sever.
It is so ORDERED.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record.

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DATED: October 9, 2014

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