defendant follow the drill set forth in the local order, and send some pointedly friendly and accommodating letters to counsel on this point ahead of time, so you can attach them later when your ne- gotiations on the matter fail.
BIFURCATION:
From: Andrew E. Bederman <
andy@greenbergandbederman.com>
Listmates: What is the current state of the law in
Maryland on the bifurcation of liability and damages issues for separate trial. The rule does not say much and the case law I found says even less. Your comments are welcome.
From: Gerald I. Holtz <
giholtz@aol.com>
Andy,
I believe it is usually discretionary with the trial court.
From: George S. Tolley, III <
gtolley@lawdjb.com>
Although bifurcation may be a matter
of discretion, in my opinion, there is noth- ing simple about it. There is case law to support the notion that bifurcation is not a preferred procedure. Arguably, the Court of Appeals’ refusal to grant mandatory bifurcation in Zenobia (footnote 29) indicated that con- siderations of economy and waste of resources must be considered by the trial court and must weigh in favor of bifurca- tion (i.e., the burden is on the party requesting bifurcation). See also R.E. Linder Steel Erection Co., Inc. v. Wedemeyer, Cernik, Corrubia, Inc., 585
F.Supp. 1530 (D. Md. 1984). In my humble opinion, in all but the most extraordinary personal injury case, it would be wrong to allow bifurcation of “liability” and “damages” without a strong fight, on the grounds that it is simply within the judge’s discretion. It is boilerplate that the plaintiff in a personal injury case must prove how the negligence at issue caused his or her damages. In Hurt v. Chavis, 128 Md. App. 626, 739 A.2d 924 (1999), the court held that a concession of “liability” did not concede the issue of causation. This raises the ques- tion: How can one prove “liability” (including causation) if evidence of dam- ages is inadmissible until the second phase of the trial? Some cases that question the use of bi- furcation in personal injury cases include
Summer 2000
Moss v. Associated Transport, Inc., 344 F.2d 23, 25 (6th Cir. 1965), and Iley v. Hughes, 158 Tex. 362, 367, 311 S.W.2d 648, 651 (1958). Why strenuously object to bifurcation?
Because it alters the fundamental charac- ter of the jury trial, and any further erosion of the jury trial hurts us all. Particularly in medical malpractice cases, statistics show that the defense will a jury trial most of the time. Further study has shown that the defense wins bifurcated trials even more often. E.g., Zeisel, et al., “Split Trials and Time Saving: A Statisti- cal Analysis,” 76 Harv. L. Rev. 1606 (1963). In light of such data, Wright and Miller
remarked in Federal Practice and Proce- dure that “it is apparent that bifurcation makes a substantial change in the nature of the jury trial itself.” 9 Wright, FPP, sec. 2390, at 508 (1995). See also Weinstein, “Routine Bifurcation of Jury Negligence Trials: An Example of the Questionable Use of Rule Making Power,” 14 Vand. L. Rev. 831 (1961) (“Any change of procedure which makes it more or less difficult to obtain a remedy will have an impact on a party’s effective legal rights, will shift the balance somewhat between plaintiffs and defendants”). In my experience, these arguments per- suade trial judges to deny bifurcation.
USE OF NURSES AT THE DEFENSE MEDICAL EXAMINATION:
From: James J. Debelius <
jimdebelius@erols.com>
In update to the issue I raised several months ago and subsequent inquiries from listmates, Montgomery County Circuit Court Judge Jim Chapin has issued a writ- ten Order (4/25/00), without a hearing, that my client may have present with him at an IME a “silent” observer (my descrip- tion of the nurse), “so long as that person does not in any way interfere with the con- duct of said medical examination or offer any assistance to the plaintiff in respond- ing to questions from Dr....”. My client has, however, been ordered to return for a con- tinuation of the IME which had been terminated midstream by Dr..... The issue was raised by Defendants “Motion to Com- pel the Plaintiff to Submit to an IME”, which sought to preclude plaintiff from having a nurse present with him at the IME because it was unethical for a female nurse to be present when a male patient was in his underwear. In this case, as had been my practice, I did not give advance notice that a nurse would be present at the IME. In future cases, I plan to send a letter in ad- vance of the IME which advises that a nurse will accompany plaintiff to the IME, and probably provide a copy of the Order.
Trial Reporter
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