Opinion
No. X05 CV 000177475 S
November 14, 2007
Memorandum of Decision on Motion to Bifurcate (No. 305)
Procedural and Factual Background
In its present posture this is a products liability action against Medtronic, Inc. ("Medtronic"), the manufacturer of a pacemaker implanted for several years in the body of the plaintiff Nicole Hurley ("plaintiff") when she experienced a cardiac arrest in October 1998 allegedly causing her to suffer severe, painful and permanent injuries. A motion for summary judgment in favor of the defendant was granted in this court in 2005 on the ground that the plaintiff's claims were barred by the "learned intermediary rule." Hurley v. The Heart Physicians, P.C., Docket No. X05-CV-00-0177475S, Superior Court, Judicial district of Stamford-Norwalk Complex Litigation Docket at Stamford (January 4, 2005, Rogers, J.) 2005 Ct.Sup. 172. The court held that the plaintiff's cardiologist Dr. Landesman was a "learned intermediary" standing between the manufacturer and the patient which obviated the need for the manufacturer to warn the ultimate consumer, the plaintiff, since it was undisputed that the Medtronic pacemaker was accompanied by adequate warnings in the technical manual available to the physician. The Supreme Court reversed on the ground that there was an issue of fact whether or not a Medtronic representative, Mr. Frank Kling, by oral communications to Dr. Landesman accompanied by his (Kling's) conduct in making a certain adjustment to the pacemaker, ". . . actually contradicted the [technical] manual, thereby vitiating and nullifying the manual's warnings and rendered the pacemaker essentially ineffective." Hurley v. Heart Physicians, P.C., 278 Conn. 305, 321-22 (2006). The case was remanded to this court for trial of that issue of fact which is vigorously disputed between the parties, each armed with multiple expert opinions. The case is presently in the process of selecting a jury of six regular jurors and four alternates.
The action has been withdrawn as to the defendants The Heart Physicians, P.C. and Richard Landesman, M.D. The sole remaining defendant Medtronic, Inc. will be referred to as "the defendant."
Now before the court is the defendant's Motion to Bifurcate the issues before the court into separate trials on liability and damages before a single jury. Medtronic requests the court to try the issue of liability first and separately. Then, only if a verdict regarding Medtronic's liability is rendered in favor of the plaintiff should the court conduct a separate and separate phase of the trial to determine the extent of the plaintiff's damages. The reasons advanced for the requested bifurcation are (1) promotion of judicial economy and convenience, and potential elimination of one portion of the trial, (2) the likelihood that the absence of bifurcation would leave the trial "unfairly overshadowed with sympathy" for the plaintiff to the prejudice of Medtronic, and (3) the absence of any prejudice to the plaintiff should the trial be bifurcated. Plaintiff challenges the application of the foregoing reasons to this case and points out that the party seeking bifurcation of proof ". . . must justify bifurcation on the basis of the substantial benefit that it can be expected to produce." PRI Capital Group, LLC v. Eastern Capital Funding, LLC, Docket no. X04-CV01-0103512S, Superior Court, Judicial District of Hartford (November 17, 2004, Quinn, J.), 2004 Conn.Super.LEXIS 3426 at*7, quoting from Svege v. Mercedes-Benz Credit Corp., 329 F.Sup.2d 283, 284 (D.Conn. 2004). Plaintiff also argues that ". . . bifurcation appears to be more the exception than the rule in Connecticut courts." Lodge v. Arett Sales Corp., Docket No. 098122, Superior Court, Judicial District of Waterbury (November 7, 1995, Kulawiz, J.), 1995 Conn.Super. LEXIS 3130 at *2. The plaintiff has also raised in her Sur-Reply a procedural issue relating to dismissal of alternate jurors, discussed below, which is dispositive of this motion.
This motion to bifurcate was denied by verbal order of the court on October 30, 2007 at the commencement of jury selection. This memorandum of decision is an articulation of the reasons for that ruling.
Discussion
Discretionary bifurcation of civil trials is authorized both by statute and rule of court:
In all cases, whether entered upon the docket as jury cases or court cases the court may order that one or more of the issues be tried before the others.
In all cases, whether entered upon the docket as jury cases or court cases, the judicial authority may order that one or more of the issues joined be tried before the others.
Practice Book § 15-1.
Connecticut Superior Court judges in the exercise of their discretionary authority have ordered the bifurcation of issues in civil jury trials into phases to be considered separately by the jury, and have been upheld in doing so. See, e.g. Reichold Chemicals, Inc. v. Hartford Accident Indemnity Company, 243 Conn. 401 (1997) (Insurance coverage dispute: notice issue bifurcated from coverage issue and tried separately to a jury. Case reversed on choice of law issue, but bifurcation specifically approved by the Supreme Court, 243 Conn. at 423-24); O'Shea v. Mignone, 50 Conn.App. 577, 583 (1998), cert. denied, 247 Conn. 941 (1998) (bifurcation of liability and damages in personal injury action not an abuse of discretion.); and Swenson v. Sawoska, 18 Conn.App. 597, 601 (1989), affirmed, 215 Conn. 148 (1990) (bifurcation of liability and damages proper exercise of discretion; liability based on "hotly disputed facts" and there were "complex damage issues"). Other judges have done so without appellate review. See, e.g. Wozniak v. New Britain General Hospital, Docket No. X03 CV95-0502560S, Superior Court, Judicial District of New Britain (January 25, 2001, Aurigemma, J.), 2001 Conn.Super.LEXIS 271, *3-4 (liability and damages bifucated in medical malpractice case); Suh v. Yale University, Docket No. CV95-0377911S, Superior Court, Judicial District of New Haven (February 9, 2000, Silbert, J.), 2000 Conn.Super.LEXIS 340, *3 (Liability and damages bifurcated in personal injury action; no prejudice to plaintiff other than impact on ability to inject sympathy into liability determinations); Steadfast Insurance Company v. The Perdue Frederick Company, Docket No. X08C02-00191697S, Superior Court, Judicial District of Stamford-Norwalk at Stamford (May 9, 2006, Adams, J.), 2006 Conn.Super.LEXIS 1456, *1-4 (insurance coverage issues ordered to be tried first, followed by separate trial on damages if coverage is found in first phase); and Perras v. Allstate Insurance Company, Docket No. CV02-0067400, Superior Court, Judicial District of Windham, at Putnam (January 6, 2003, Foley J.) (Breach of contract claim bifurcated from other counts).
The plaintiff has now raised a procedural point relating to the dismissal of alternate jurors, which apparently is a matter of first impression in the context of opposition to bifurcation. The argument is that, if a case is bifurcated and the phase one issue (the liability issue) is submitted to the jury, the court must discharge all the alternate jurors before the jury retires to deliberate the phase one issue, leaving no alternates for the second phase of the trial. The argument is premised on Conn. Gen. Stat. § 51-243(d) and (e) governing alternate jurors in civil cases, which provide:
(d) If, at any time, any juror shall, for any reason, become unable to perform his duty, the court may excuse him. If any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk, shall become part of the regular panel and the trial shall then proceed as though the alternate juror had been a member of the regular panel from the time when the trial was begun.
(e) A juror selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on the case. (Emphasis added).
The current rule in criminal cases is different:
If, at any time, any juror shall, for any reason, become unable to further perform the duty of a juror, the court may excuse such juror and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial or deliberation shall then proceed with appropriate instructions from the court as though such alternate juror had been a member of the regular panel from the time when the trial or deliberation began. If the alternate juror becomes a member of the regular panel after deliberations began, the jury shall be instructed by the court that deliberations by the jury shall begin anew. A juror who has been designated to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time such alternate juror may be dismissed from further service on said case or may remain in service under the direction of the court. (Emphasis added.)
State v. Murray, 254 Conn. 472 (2000), which is determinative on the duty to dismiss alternate jurors is not a bifurcation case. Tyson Murray was convicted of attempted murder and assault in the first degree by a Hartford jury, for which he was sentenced to a lengthy term in prison. There was just a single phase to the jury trial, with the jury instructed on the elements of the crimes charged and asked to render verdicts of guilty or not guilty. The alternate jurors were sent home when the regular panel began its deliberations. After one partial day of deliberation a juror sent a note the following morning expressing concern about her continuation in service on the panel because a fear of repercussion from the defendant or his friends. After voire dire questioning by the court, the juror was excused from further service. The defendant refused to stipulate to verdict by less then six jurors and moved for a mistrial. The trial court decided to recall the alternate jurors and, after questioning them as to their ability to sit on the case and determining that they were eligible to serve, substituted one of the alternates drawn by lot as a member of the regular panel and denied the motion for mistrial. The reconstituted jury was then instructed to start their deliberations all over again. After approximately three hours of deliberation the jury reached its verdict of guilty as charged on both counts. At that time, the rule for substitution of alternate jurors in criminal cases as set forth in Conn. Gen. Stat. § 54-82h(c) mirrored exactly (except for some minor variations in syntax which did not alter the meaning) the current rule for civil cases as set forth in § 51-243(d) and (e), quoted above, including the concluding provision at the time of § 54-82h(c) that "A juror who has been selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on said case." The trial court denied the defendant's motion for mistrial despite a ". . . concern that it is basically committing an error by substituting an alternate juror for a regular juror after deliberations had already begun." Murray, 254 Conn. at 586. The state directed the court's attention to State v. Williams, 231 Conn. 235, 242-43 (1994), which held that an assumed violation of § 54-82h(c) by substituting an alternate juror after deliberations had commenced was subject to a harmless error analysis with the burden on the criminal defendant to demonstrate the harm caused by the violation.
Prior to 1980, the procedures regarding alternate jurors in both civil and criminal cases were governed by § 51-243, which required the dismissal of alternate jurors when the case was given to the regular panel for deliberation. In 1969 a bill (House Bill No. 6809) was introduced to amend § 51-243 by permitting the substitution of alternate jurors after deliberations had commenced and requiring the dismissal of alternates at the same time as the regular panel. The bill passed in the House of Representatives, but was drastically amended in the Senate which took out the references to substitution of alternates during deliberations and the dismissal of alternates at the same time as the regular panel. The Senate version was enacted into law but, in effect, as amended, it just restated the prior law. In 1980 the legislature severed § 51-243 into two separate provisions. § 51-243 continued to apply to civil trials, and § 54-82h(c) governed criminal trials. From 1980 to 2000 the two statutes co-existed with virtually identical wording. The amendments to § 54-82h which permit the substitution of an alternate juror after deliberations have commenced, and permitting but not requiring that the court excuse the alternates when deliberations begin in a criminal case (quoted above, at p. 5 of the text) took effect on October 1, 2000. The Murray trial took place during that 1980-2000 interval when the two statutes were the same. See State v. Murray, supra, 254 Conn. at 494. Murray, therefore is apt precedent for either a civil or a criminal trial.
Murray relied on State v. Walton, 41 Conn.App. 831 (1996), where the Appellate Court had held that substitution of an alternate juror for a member of the regular panel after deliberations had started was a per se violation of § 54-82h(c), but, in keeping with State v. Willams, the Appellate Court agreed that the trial court had properly subjected the violation to a harmless error analysis and had properly concluded that the defendant had shown no prejudice.
On appeal the Supreme court reversed and remanded the case for a new trial, holding, after a thorough review of the statutory history (summarized at footnote 3 hereof) that the command of § 54-82h(c) to dismiss the alternate jurors when the case is submitted for deliberation to the jury is mandatory and not directory. ". . . § 54-82h(c) mandates the dismissal of alternate jurors once deliberations have begun . . ." 154 Conn. at 496. Furthermore, in considering the remedy for the trial court's violation of § 54-82h(c), the Supreme Court expressly overruled State v. Williams, supra, to the extent that Williams had held that a violation of § 54-82h(c) was subject to a harmless error analysis, and concluded that the violation amounted to a ". . . [defect] in the structure of the trial mechanism that defies harmless error review," and that ". . . reversal must be automatic." 254 Conn. 498-99.
The impact of Murray on this motion to bifurcate is that, were there a bifurcation, the court would have a mandatory obligation to dismiss all the remaining alternate jurors at the time the case is submitted to the jury for liability deliberations at the end of the first phase of the trial. It would be error subject to automatic reversal to substitute an alternate for a regular juror at any time after that point either during deliberations, or during the second evidentiary phase of the trial on damages should there be a plaintiff's verdict on liability. Given that obligation, the only possible legal manner to proceed on a bifurcated basis would be to dismiss the alternates at the start of phase one deliberations and just take a chance that none of the regular six jurors would become ill or otherwise unable to continue in service until the termination of the trial. This is a risk the court is unwilling to take. It could result in a needless mistrial after five or six or more weeks of trial proceedings should there be a regular juror discharged during the second phase. The negative impact of such a mistrial on judicial economy would be of a much greater magnitude than any positive impact on judicial economy to be achieved by a bifurcation. Nor is the risk to be ignored as merely abstract. The second phase of this trial would not be a short "hearing in damages." The defendant suggests it would involve up to two weeks of evidence. There is a certain amount of overlap evidence of circumstances and events preceding the plaintiff's cardiac arrest which the defendant claims to be relevant to the issue of causation of damages. The plaintiff has disclosed three and the defendant four expert witnesses on damage-related issues. The plaintiff has evidence of a life care plan for the plaintiff who is said to be in a vegetative state. The risk of losing a juror during the time period of the deliberations on phase one plus the evidence and deliberations on phase two, should there be a phase two, is far more than minimal. This trial is scheduled to continue well into the holiday season, the winter weather season, and the influenza season, all of which present risk factors for losing jurors. It would be irresponsible for this court to ignore the very real risk of a mistrial by proceeding on a bifurcated basis. The defendant's concern that a unified single trial on both liability and damages will leave the trial unfairly overshadowed with sympathy for the plaintiff will be alleviated by an appropriate instruction to the jury that sympathy may play no role in their deliberations.
By making this argument part of plaintiff's written objection to bifurcation and by stating during oral argument an intent to raise this issue on appeal from any adverse judgment, the plaintiff clearly would not consent to proceed to verdict with any less than a full panel of six jurors.
The defendant argues that it would not be error to retain the alternates during and after deliberations on phase one for possible inclusion on the regular panel if necessary during phase two, citing the Judicial Branch Civil Jury Instructions, No. 1-52, which contains suggested language for discharging and thanking alternate jurors at the start of deliberations by the regular panel. The "Notes" to model instruction 1-52 include the statement:
There are circumstances when the judge may wish not to discharge the alternate jurors or to emphasize the possibility that they may be recalled. Those circumstances will most often occur where the case has been bifurcated or where, because of the anticipated length of deliberation or other conditions, concern exists as to whether a regular juror might be lost during deliberation. (Emphasis added.)
There are several retorts to defendant's reliance on that Note. First of all, there is a caveat on the Judicial Branch website at the beginning of the civil jury instructions that "The use of the jury instructions is entirely discretionary and their promulgation by the Judicial Branch is not a guarantee of their legal sufficiency." Furthermore, Instruction No. 1-52 is qualified by the caveat "Revised to December 31, 1998," which means that the model instruction and its accompanying Notes predate the Supreme Court's September 5, 2000 decision in State v. Murray, supra, establishing that the court's duty to discharge alternate jurors when the case is given to the regular panel for deliberation is mandatory and not directive, calling for automatic reversal if violated. To the extent that the Note implies a bifurcated trial exception to the § 51-243(e) duty to discharge the alternates at the start of deliberations, it lacks support in the law and is contrary to the holding of Murray.
Order
For the foregoing reasons the defendant's Motion to Bifurcate is denied.