CSX Transportation, Inc. v. Gilkison et al
Filing
1243
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS 1095 MOTION FORSEPARATE TRIALS OF THE CLAIMS IN THE THIRD AMENDED COMPLAINT AND THE COUNTERCLAIMS. Signed by Senior Judge Frederick P. Stamp, Jr on 8/10/12. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.
Civil Action No. 5:05CV202
(STAMP)
ROBERT V. GILKISON,
PEIRCE, RAIMOND & COULTER, P.C.,
a Pennsylvania professional corporation
a/k/a ROBERT PEIRCE & ASSOCIATES, P.C.,
a Pennsylvania professional corporation,
ROBERT PEIRCE, JR., LOUIS A. RAIMOND,
MARK T. COULTER and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION
DENYING PLAINTIFF’S
SEPARATE TRIALS OF THE
THIRD AMENDED COMPLAINT AND
I.
AND ORDER
MOTION FOR
CLAIMS IN THE
THE COUNTERCLAIMS
Background1
On October 19, 2011, the plaintiff in the above-styled civil
action filed a third amended complaint against Robert N. Peirce,
Jr., Louis A. Raimond, Mark T. Coulter (collectively, the “lawyer
defendants”), and Ray Harron, M.D.
The third amended complaint
alleges that the lawyer defendants prosecuted fabricated asbestos
claims against CSX Transportation, Inc. (“CSXT”), including a claim
filed on behalf of Earl Baylor (“Baylor”), and thereby violated the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1961, et seq., and the common law of West Virginia.
1
For the purpose of resolving the pending motion, this Court
believes that the following abbreviated summary of this case is
sufficient.
Also
on
October
19,
2011,
the
lawyer
defendants
filed
counterclaims against CSXT, alleging that, in light of a release
that Baylor executed in connection with a prior claim, CSXT
committed fraud (1) when it alleged in its amended complaint2 that
it had sustained damages in defending the Baylor asbestos claim;
and (2) when it did not immediately produce the release in response
to a discovery request in this case, instead of waiting until it
obtained a disclosure authorization from Baylor.3
Earlier this year, this Court denied the lawyer defendants’
motion to dismiss the third amended complaint (ECF No. 1050), and
also denied CSXT’s motion to dismiss the counterclaims (ECF No.
1039). CSXT’s claims in the third amended complaint and the lawyer
defendants’ counterclaims are scheduled to be tried jointly on
December 11, 2012.
On June 13, 2012, CSXT filed a motion for separate trials of
the claims in the third amended complaint and the counterclaims.
Citing Rule 42(b) of the Federal Rules of Civil Procedure, CSXT
argues that in this case, the criteria identified in the rule --
2
The amended complaint was filed on July 5, 2007. (ECF No.
208.) Later, the plaintiff sought leave to file a second amended
complaint.
This Court denied the plaintiff’s motion to file a
second amended complaint -- a decision was eventually reversed by
the United States Court of Appeals for the Fourth Circuit.
3
Defendant Ray A. Harron also filed a separate counterclaim
against CSXT.
(ECF No. 875.)
Harron later requested that his
counterclaim be dismissed. On January 30, 2012, this Court entered
an order granting Harron’s motion to voluntarily dismiss his
counterclaim without prejudice. (ECF No. 928.)
2
convenience, avoidance of prejudice, or expediting and economizing
-- have been met, and therefore, the claims set forth in the third
amended complaint should be tried separately from those set forth
in the lawyer defendants’ counterclaims. CSXT also argues that its
attorneys in the trial of its own claims are likely to be witnesses
in the trial of the lawyer defendants’ counterclaims, and would
thus be disqualified from trying CSXT’s affirmative claims under
Rule 3.7 of the West Virginia Rules of Professional Conduct.
The defendants filed a response in opposition to the motion
for separate trials, in which they argue that bifurcation of the
trial is unnecessary.
The lawyer defendants further request that
this Court enter an order finding that Rule 3.7 is not implicated
here and/or that the exceptions to Rule 3.7 apply in this case.
Next, CSXT filed a reply in support of its motion for separate
trials, reiterating its argument that separate trials of the claims
and counterclaims would solve a number of problems that would
result from a single trial, including: (1) the prospect that the
parties’
lawyers
counterclaims;
(2)
will
the
be
witnesses
severe
in
prejudice
the
from
trial
of
the
allowing
the
plaintiff’s claims to be portrayed as fraudulent before the jury
that decides them; (3) the possibility that a joint trial would
result in unnecessary litigation, in that the verdict on the claims
could obviate the need for a trial on the counterclaims; and (4)
the potential for juror confusion.
3
The defendants then filed a supplement to their response in
opposition to the motion for separate trials, in which they clarify
a comment regarding Mr. Duncan Getchell, who CSXT indicated is
involved in preparing discovery responses and producing documents
in response to the discovery served on CSXT.
CSXT also filed a
supplement in support of its motion for separate trials, apprising
this Court of the fact that since the filing of CSXT’s reply, the
defendants have noticed the depositions of three of the four
lawyers for CSXT on its claims, including lead trial counsel, all
of whom have been representing CSXT from the time the claims were
filed.
The motion for separate trials is currently pending before
this Court, and for the reasons set forth below, this Court finds
that it must be denied.
II.
A.
Applicable Law
Bifurcation of the Proceedings
Rule 42 of the Federal Rules of Civil Procedure provides, in
pertinent part:
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 third-party claims. When ordering a separate trial,
the court must preserve any federal right to a jury
trial.
Fed. R. Civ. P. 42(b).
It is well established that Rule 42(b)
affords the district court broad discretion “to order separate
trials
where
such
an
order
will
prejudice, or promote efficiency.”
4
further
convenience,
avoid
Amato v. City of Saratoga
Springs, N.Y., 170 F.3d 311, 316 (2d Cir. 1999); Bowie v. Sorrell,
209 F.2d 49, 51 (4th Cir. 1954) (“[T]he granting of separate trials
is within the sound discretion of the trial judge.”).
“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, 170 F.3d at 316 (internal citations
omitted). “It is the interest of efficient judicial administration
that is to be controlling under the rule, rather than the wishes of
the parties.”
9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2388 (3d ed. 2008).
However, “[t]he
piecemeal trial of separate issues in a single lawsuit or the
repetitive trial of the same issue in severed claims is not to be
the usual course.”
B.
Id.
Lawyer as Witness
Rule 3.7 of the West Virginia Rules of Professional Conduct
(“Rule 3.7”) states:
(a) A lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness
except where:
(1) the testimony relates to an uncontested
issue;
(2) the testimony relates to the nature and
value of legal services rendered in the case;
or
(3) disqualification of the lawyer would work
substantial hardship on the client.
5
(b) A lawyer may act as advocate in a trial in which
another lawyer in the lawyer’s firm is likely to be
called as a witness unless precluded from doing so by
Rule 1.7 or Rule 1.9.
W. Va. R. Prof’l Conduct 3.7.
According to Rule 3.7, “it is
unethical for a lawyer representing a client to appear as a witness
on behalf of the client except under very limited conditions.”
Syl. pt. 1, Smithson v. United States Fid. & Guar. Co., 411 S.E.2d
850 (W. Va. 1991).
Further, “‘[w]hen counsel for a party to a
cause finds that he is required to be a material witness for his
client he should immediately so advise his client and retire as
counsel in the case.’”
Syl. pt. 3, Garlow v. Zakaib, 413 S.E.3d
112 (W. Va. 1991) (quoting Syl. pt. 3, Smithson)).
The rationale
for Rule 3.7 is explained in the commentary following the section:
“Combining the roles of advocate and witness can prejudice the
opposing party and can involve a conflict of interest between the
lawyer and client.”
Musick v. Musick, 453 S.E.2d 361, 367 (W. Va.
1994).
III.
A.
Discussion
Rule 3.7
CSXT’s motion for separate trials centers around its argument
that
a
bifurcated
trial
of
the
claims
and
counterclaims
is
necessary in order to avoid the potential disqualification of
attorneys under Rule 3.7.
CSXT argues that because the lawyer
defendants filed their fraud claims against CSXT as counterclaims
in this case rather than as a separate lawsuit, CSXT’s attorneys
6
will likely be needed as witnesses in the trial of the lawyer
defendants’ fraud claims in the same case in which they are
representing CSXT on its own claims.
According to CSXT, this
scenario would violate Rule 3.7, which advises against proceeding
with a trial where the lawyer for a party is called as a witness
and
cross-examined
by
the
opposing
party’s
counsel.
CSXT
represents that the witnesses with the most intimate knowledge of
the claims asserted, which concern the commencement and subsequent
conduct of CSXT’s lawsuit, are the lawyers who prepared and filed
the amended complaint and responded to the lawyer defendants’
discovery requests.
These lawyers (from McGuire Woods LLP) began
representing CSXT in this case when the amended complaint was filed
nearly five years ago and continue to represent CSXT on the claims
in its third amended complaint today. Thus, CSXT contends that its
lawyers are likely to be witnesses in the trial of the lawyer
defendants’ counterclaims, describing to the jury CSXT’s decisionmaking process in filing the amended complaint and responding to
the lawyer defendants’ discovery requests, as well as explaining to
the jury how the Baylor release figured into that process.4
CSXT argues that trying the claims in its third amended
complaint together with the lawyer defendants’ counterclaims would
impose
upon
CSXT
and
its
lawyers
4
three
equally
unacceptable
With this probability in mind, CSXT states that it has
retained separate counsel, Mayer Brown LLP, to represent it on the
counterclaims.
7
alternatives: (1) CSXT’s lawyers could serve as attorneys in the
single trial but not as witnesses; (2) CSXT’s lawyers could serve
as witnesses in the single trial but not as attorneys; and (3)
CSXT’s lawyers could serve as both attorneys and witnesses, risking
violation of Rule 3.7.
The only way out of this dilemma, claims
CSXT, is for this Court to hold separate trials of the claims in
the
third
amended
complaint
and
the
lawyer
defendants’
counterclaims.
In further support of its argument for separate trials, CSXT
asserts that the lawyer defendants’ attorneys are also likely to be
witnesses in the trial of the counterclaims. CSXT expects that the
lawyer defendants’ attorneys may be called to testify as to two
general issues raised by the counterclaims: reliance and damages,
which are also essential elements of the lawyer defendants’ claims
of fraud.
Second, CSXT predicts that the lawyer defendants’
attorneys are likely to be called as witnesses with respect to two
specific issues raised by the counterclaims: (1) whether, between
the time that CSXT filed its amended complaint and the time that it
responded to the discovery request at issue in the counterclaims,
the lawyer defendants learned or should have learned of the prior
Baylor case and resulting release; and (2) whether the lawyer
defendants’ claims are barred by their failure to meet and confer
concerning the alleged deficiencies in CSXT’s Rule 26 disclosures,
its responses to document requests, and/or its privilege logs.
8
In
addition, CSXT argues that the lawyer defendants’ attorneys are
likely to be called to testify about some of the underlying
historical facts relevant to the counterclaims.
In response, the defendants first make clear that they have
informed CSXT that they have no intention of seeking to disqualify
CSXT’s counsel under Rule 3.7.
They further allege that CSXT has
previously agreed that Rule 3.7 is not implicated in this case.
Significantly, the defendants state that they intend to prove their
counterclaims at trial without the testimony of their current
defense counsel or CSXT’s counsel.
The defendants state that they
plan to establish the elements of their claims and damages through
their
own
admissions,
testimony,
submission
stipulations
regarding
of
documentary
undisputed
evidence,
facts,
possibly
expert testimony, and possibly the testimony of former counsel
Robert Lockhart.
According to the defendants, the testimony of the lawyer
defendants’
attorneys
will
not
be
needed
because
the
lawyer
defendants themselves or Mr. Lockhart will be available to testify
as to each of the issues described by CSXT.
contend
that
the
lawyer
defendants
and/or
The defendants also
Mr.
Lockhart
adequately describe the historical facts of this litigation.
can
In
the view of the defendants, mere speculation on the part of CSXT as
to whether the defendants’ current defense counsel may testify at
trial is insufficient to justify bifurcation of the trial.
9
As the moving party, CSXT has the burden of proving that
bifurcation is appropriate. Roberts v. Consolidation Coal Co., 539
S.E.2d 478, 498-99 (W. Va. 2000).
With regard to the lawyer
defendants’ attorneys, CSXT has described various issues that it
suspects these attorneys are “likely to be called as witnesses” to
address.
Mot. for Separate Trials at 13-15.
However, CSXT’s bare
assertion that it would be prejudiced by certain testimony of
witnesses who might be called to testify is an inadequate basis for
bifurcation. Montgomery v. Am. Family Ins. Co., No. 3:09-cv-00545,
2010 WL 1936085, at *2 (N.D. Ind. May 11, 2010) (citing Williamson
v. Progressive N. Ins. Co., No. 1:07-cv-263, 2007 WL 2176561, at *2
(S.D. Ind. July 26, 2007) (holding that mere speculation “is an
inadequate basis upon which the Court should grant a separate
trial”)).
Even the “realistic prospect” that attorney-witness
issues might arise during trial is not a certainty, and this Court
finds that any such issues would be better addressed in motions in
limine.
Pl.’s Reply at 3.
As CSXT correctly states, at this time,
no motions for disqualification have been filed.
only
limited
discovery
has
taken
place
Further, because
with
regard
to
the
counterclaims, it is not clear who, if any, of CSX’s counsel could
be potential witnesses.
Defs.’ Resp. at n.5.
At this stage of the
litigation, this Court cannot be certain whether any of the
parties’ attorneys will face potential disqualification because the
testifying witnesses have not yet been identified.
10
The defendants go on to argue that even if defense counsel
trying the case were required to testify, the exceptions to Rule
3.7 would apply because there is no potential testimony involving
a contested issue of fact,5 and any testimony relating to the
nature and value of legal services rendered is not prohibited by
Rule 3.7.
See W. Va. R. of Prof’l Conduct 3.7(a).
Further, the
defendants argue that disqualification of any member of the two
lawyer defense team from DeForest Koscelnik, who will serve as
trial
counsel
November
2006,
and
who
have
represented
“would
work
a
the
substantial
defendants
hardship”
since
on
the
defendants.
This Court need not address, at this time, whether attorneys
for either party face disqualification. Rather, this Court focuses
on Rule 3.7, and finds that neither the rule nor the policies
underlying it justify separate trials in this case.
As the
defendants have explained, the testimony of their own defense
counsel will not be needed to prove their claims.
Although CSXT
claims that the testimony of the lawyer defendants’ attorneys will
be needed to show that the lawyer defendants reasonably relied on
CSXT’s assertions in the amended complaint, CSXT cannot force
5
The defendants argue that the facts relating to the two main
issues presented in the counterclaims cannot be disputed.
According to the defendants, whether the existence of the Baylor
release was disclosed on CSXT’s privilege log will be established
by the privilege log itself. The defendants further assert that
there should be no dispute that they were required to defend
against the amended complaint.
11
defense counsel into testifying.
defendants’
counsel
representation
will
not
be
that
required
This Court relies upon the
testimony
in
the
from
their
prosecution
defense
of
the
counterclaims.
In their response, the defendants next address CSXT’s defense
of the counterclaims, arguing that CSXT has failed to establish in
its motion for separate trials that non-lawyer witnesses are not
available to provide whatever testimony may be needed. Pointing to
CSXT’s privilege objections to discovery, the defendants argue that
CSXT does not intend to and cannot use counsel’s testimony in
defending the counterclaims since it has opposed discovery on that
topic.
The defendants also contend that CSXT has six active and
able trial lawyers, and there has been no showing that CSXT could
not present its case even if any of those lawyers disqualified
themselves.
CSXT cites multiple cases in support of its contention that
allowing its attorneys to be witnesses in the trial of the lawyer
defendants’ counterclaims would result in prejudice.
However, as
the defendants noted, most of these cases involve patent and
antitrust litigation, and can be distinguished from the present
case.
For example, in Coolsavings.com Inc. v. E-Centives, Inc.,
No. 98 C 4924, 2000 WL 1262929 (N.D. Ill. Sept. 1, 2000), the court
held that a separate trial of the inequitable conduct defense after
the jury trial on the patent infringement claim was appropriate.
12
Id. at *7.
Patent and antitrust litigation typically involves
unique issues that lend themselves to bifurcated trials, including
fraud before the patent office and anti-competitive allegations
related to patent misuse that require testimony from counsel.
See
Crystal Import Corp. v. Avid Identification Sys., Inc., Civil No.
05-2527, 2007 WL 424537 (D. Minn. Feb. 2, 2007) (“Courts often
sever such antitrust claims under Rule 42(b) and stay them pending
the resolution of the issues of patent validity and infringement,
reasoning
that
resolution
of
the
patent
claims
could
likely
preclude the need to address the counterclaims that the patentee
has engaged in mere ‘sham’ litigation.”); Johns Hopkins Univ. v.
Cellpro, 160 F.R.D. 30, 33 (D. Del. 1995) (“Historically, courts
have found it worthwhile to hold separate trials on liability and
damages issues in patent cases.”). Similarly, in State of Illinois
v. Borg, Inc., 564 F. Supp. 102 (N.D. Ill. 1983), the court held
that a separate trial of the fraudulent concealment issue and the
claims alleging violations of the Sherman Act would achieve the
purposes of Rule 42(b).
Id. at 105-06.
Although courts routinely
separate trials for patent and antitrust issues, those issues are
not implicated here.
This Court’s decision in Ferrell v. Brooks, No. 5:05CV115,
2006 WL 1867267 (N.D. W. Va. June 30, 2006), cited by the plaintiff
in support of its argument that separate trials are warranted when
the resolution of one claim is potentially dispositive of the
13
other, is also distinguishable from this case.
In Ferrell, the
decision to bifurcate the trial was based on a joint motion of the
parties in an insurance and bad faith related matter -- claims that
also lend themselves to bifurcation.
See Brantley v. Safeco Ins.
Co. of Am., No. 1:11-CV-00054-R, 2011 WL 6012554 (W.D. Ky. Dec. 1,
2011) (“The bifurcation of claims for coverage under an insurance
agreement and claims of bad faith on the part of the insurance
provider is an oft discussed topic by district courts. These cases
lend themselves to bifurcation under Rule 42(b) because if the
plaintiff cannot prevail on the coverage issue, the claim for bad
faith necessarily fails.”).
CSXT
also
cites
Winnett
v.
Caterpillar
Inc.,
Nos.
3:06-CV-00235, 3:06-CV-01113, 2010 WL 424914 (M.D. Tenn. Jan. 28,
2010), in support of its argument that a separate trial would avoid
potential problems under Rule 3.7.
In Winnett, the court granted
a motion to sever third-party claims and contingent counterclaims
pursuant to Rule 42(b).
In reaching this decision, the court
discussed
if
the
fact
that
all
claims
proceeded
to
trial,
substantial evidence would be introduced in connection with certain
claims that would have no bearing on other claims.
Id. at *2-*3.
Thus, the jury would hear vast amounts of evidence that would not
be relevant to the claims on which the jury would have to render a
verdict.
Id. at *2.
Fortunately, this Court is not faced with the
same challenges presented in Winnett.
14
Unlike the patent, antitrust, and insurance coverage cases
cited by CSXT, this case is not suited to bifurcation because the
lawyer defendants’ counterclaims do not hinge solely upon the
success of CSXT’s claims.
Also, the facts and legal issues
presented in the third amended complaint and the counterclaims are
inextricably intertwined -- all of the claims relate to allegedly
fraudulent conduct in the Federal Employers Liability Act (“FELA”)
litigation involving Baylor and the past history of CSXT and the
defendants with regard to FELA action.
See 2 James Wm. Moore, et
al., Moore’s Manual: Federal Practice ¶ 20.03[4][c] (3d ed. 2012)
(“Bifurcation
is
improper
where
the
issues
are
so
closely
interwoven that the plaintiff would have to present the same
evidence twice in separate trials.”).
As the defendants state,
much of the background information that will be presented with
regard to the history of the FELA litigation and the interactions
between CSXT and the defendants during the prosecution and defense
of CSXT’s affirmative claims is highly relevant to and will need to
be presented to give context to the counterclaims.
Moreover, this
Court finds that if it were to order separate trials, it would risk
the possibility of an appeal staying the progress of the second
trial.
In the view of this Court, CSXT’s purported concerns about
Rule 3.7 are not a legitimate basis for altering the normal course
of events, which is to have a single trial.
15
B.
Rule 42(b)
CSXT’s secondary arguments in support of bifurcation under
Rule 42(b) are also without merit. CSXT claims that a single trial
would result in prejudice to CSXT because it would allow the jury
deciding its claims to hear evidence purporting to show that a
portion of those same claims were fraudulently filed and litigated.
According to CSXT, a jury cannot reasonably be expected to decide
its claims fairly and impartially when it is simultaneously told
that CSXT has engaged in wrongdoing in filing and litigating those
claims.
This Court has confidence, however, that the jurors will
be able to follow this Court’s instructions and serve as impartial
factfinders, even in a complicated case such as this one.
See CSX
Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009) (“Jurors
routinely serve as impartial factfinders in cases that involve
sensitive, even life-and-death matters.
In those cases, as in all
cases, juries are presumed to follow the court’s instructions.”).
As all of the claims are based on fraud, a single trial will not
require confusing or conflicting instructions. Even with “multiple
layers” of fraud claims, certainly, any concerns about potential
prejudice or confusion could be cured by proper jury instructions.
Pl.’s Reply at 13.
As explained above, the lawyer defendants’ counterclaims
relate directly to the subject of CSXT’s claims.
Simply put, CSXT
alleges that it was misled and forced to expend substantial sums of
16
money on Baylor’s claim. The defendants assert the known existence
of the Baylor release by CSXT as both an affirmative defense to
CSXT’s fraud claims and as a basis for their counterclaims.
In
fact, the defendants have specifically alleged as part of their
affirmative defenses that “Plaintiff was not defrauded,” that
“Plaintiff’s claims fail for lack of reasonable reliance,” and
“Plaintiff’s claims are barred by the doctrine of release.” Lawyer
Defs.’ Answer to Third Am. Compl. at 15, 17.
The overlap between
the claims in the third amended complaint, the counterclaims, and
the defenses to those claims, is a factor that balances against
ordering separate trials.
See In re Lower Lake Erie Iron Ore
Antitrust Litig., 998 F.2d 1144, 1182 (3d Cir. 1993) (“According to
the Supreme Court, bifurcated trials are permitted only if the
separate issues are so distinct that a trial of one without the
other may be had without injustice.”) (citing Gasoline Prods. Co.
v. Champlin Refining Co., 283 U.S. 494, 500 (1931)).
CSXT also argues that bifurcation will expedite and economize
this action because a verdict in CSXT’s favor on its claims will
preclude the defendants from winning a trial on the counterclaims.
CSXT explains that the third amended complaint alleges that the
lawyer defendants falsely represented that a number of asbestos
claims, including Baylor’s, had a good-faith basis in fact; that
CSXT relied on those misrepresentations; and that CSXT sustained
damages as a result. One of the lawyer defendants’ defenses to the
17
Baylor fraud claim is that the Baylor release was executed in
connection with Baylor’s prior suit, which precludes a finding of
reliance or damages on the part of CSXT.
The lawyer defendants
allege in the counterclaims that in light of the release, CSXT’s
allegations in the amended complaint concerning Baylor’s asbestos
claim are false.
Thus, CSXT argues that if the jury finds in its
favor on the Baylor claims, the defendants cannot prevail on the
counterclaims.
This Court disagrees.
Even assuming that the jury
finds in favor of CSXT on the Baylor claim, the jury could conclude
that CSXT was damaged but that its allegations in the third amended
complaint
and
its
other
improper
conduct
counterclaims were, nonetheless, fraudulent.6
alleged
in
the
Moreover, a jury
might conclude that CSXT is entitled to recover regarding the
assertion of certain of the underlying claims, but not Baylor’s.
Therefore, a verdict in CSXT’s favor does not preclude a verdict in
favor of the defendants.
Although CSXT asserts that two separate trials would not
result in increasing expense, this Court finds that a bifurcated
trial
in
this
matter
would
substantially
increase
costs
by
requiring the parties to re-try issues and re-present facts.
6
Among other allegations, the lawyer defendants’ counterclaims
assert that CSXT falsely alleged that it was forced by the
defendants’ alleged conduct to expend substantial money and
resources to defend the Baylor claim. CSXT has argued that its
having incurred any damage can support its RICO and fraud claims.
Thus, an issue exists regarding the extent of the damages incurred
by CSXT in defending the Baylor claim.
18
Duplication of pretrial pleadings, testimony, and evidence would
almost certainly add up to increased costs for both the parties and
this Court.
Bifurcation would also delay the ultimate resolution
of this case, the procedural history of which extends back over
five years. For these reasons, the motion for separate trials must
be denied.
IV.
Conclusion
For the reasons set forth above, the plaintiff’s motion for
separate trials of the claims in the third amended complaint and
the counterclaims (ECF No. 1095) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
August 10, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
19
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