Opinion
No. 02 Civ. 8613 (LAK).
January 28, 2005
ORDER
Plaintiffs move, pursuant to Fed.R.Civ.P. 42(b), for separate trials on plaintiffs' claims and defendants' counterclaims, respectively.
The factors pertinent to the determination of this application include:
"(1) whether the issues are significantly different from one another; (2) whether the issues are to be tried before a jury or to the court; (3) whether the posture of discovery on the issues favors a single trial or bifurcation; (4) whether the documentary and testimonial evidence on the issues overlap; and (5) whether the party opposing bifurcation will be prejudiced if it is granted." Dallas v. Goldberg, 143 F. Supp.2d 312, 315 (S.D.N.Y. 2001).
But these are not the only considerations. Rule 42(b) itself makes clear that separate trials may be ordered where that would be "conducive to expedition and economy." Moreover, the Court has broad discretion in the matter.
What remains for trial on Pfizer's claims against Stryker is principally damages for Stryker's breach of its obligation to indemnify Pfizer for product liability losses incurred as a result of products sold after the closing date. Stryker's counterclaims relate principally to alleged breaches of warranty in the course of Pfizer's sale of the business to it. Moreover, Stryker is entitled ultimately to recover only to the extent that the losses it sustains are net of insurance, and insurance coverage litigation remains pending.
While there certainly is some overlap in the proof between the parties' respective claims, the dissimilarities outweigh the similarities. Stryker would not be prejudiced materially by bifurcation, particularly as its right to a jury trial can be preserved by empaneling juries in both trials should two trials ultimately prove necessary. The significance and, indeed, the very existence of the counterclaims stand likely to be altered substantially by the outcome of the coverage litigation, which is scheduled for trial later this year. Moreover, trying the counterclaims now could diminish Stryker's incentives to pursue recovery from the carriers, as it could be obliged to pay over such a recovery to Pfizer to the extent that it collected from Pfizer on the counterclaims.
In all the circumstances, the better part of valor is to try what remains of Pfizer's complaint as scheduled and to defer resolution of the counterclaims until after resolution of the coverage litigation. The motion for separate trials therefore is granted.
SO ORDERED.