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Romero v. S. Schwab Company, Inc.

United States District Court, S.D. California

November 14, 2017

JESUS ROMERO, a Minor, by and through his Guardian ad Litem, MERIDA RAMOS, Plaintiff,



         Before the Court is Defendants' motion to bifurcate the trial so that liability is tried separately on the issue of damages, including punitive damages. (Dkt. No. 146.) Plaintiff filed an amended opposition, (Dkt. No. 170), and Defendants filed a reply, (Dkt. No. 174). Based on the reasoning below, the Court GRANTS in part and DENIES in part Defendants' motion to bifurcate the trial.


         On January 30, 2005, Plaintiff Jesus Romero and his family were planning an outing to Rosarito, Mexico. Jesus, who was seven years old, and his younger brother, Marcos, who was six years old, were dressed and ready, and went next door to a neighbor's house to use a lighter. Both were sitting down and while Jesus held a flower or green weed, Marcos lit the flower or weed with the lighter. Jesus testified that he let go of the flower or weed because his fingers got hot and the lit flower or weed landed on his shirt near his stomach. Jesus told his brother to go get help so Marcos ran into the house and their father came out, ripped the shirt off, dropped it to the concrete and stepped on it to extinguish the flames. Jesus suffered second and third degree burns covering about 25% of his body. (Dkt. No. 128, Am. PTO at 5[1].)

         On the day of the incident, Jesus was wearing a boy's short-sleeved Ralph Lauren red-and-white gingham button-down dress shirt (“Shirt”). Jesus' mother Merida, only bought 100% cotton clothing for her family and would not have purchased the Shirt if it had not been labeled 100% cotton.

         Jesus alleges that 1) Defendants manufactured the shirt; and 2) although the Shirt was labeled 100% cotton, it was not; instead, it was composed of a “highly flammable, dangerous, and unlawful blend” of 90% cotton, 5% rayon, and 5% nylon causing Jesus more severe burns than he would have suffered if the shirt had been 100% cotton. Plaintiff alleges causes of action for strict product liability for manufacturing defect; negligence; breach of warranty; and negligent misrepresentation against Defendants. (Dkt. No. 17, FAC; Dkt. No. 128, Am. PTO.) Defendants contend that they did not manufacture the Shirt, the Shirt was labeled correctly and made out of 100% cotton, and they are not liable for Jesus' injuries.


         Federal Rule of Civil Procedure (“Rule”) 42(b) empowers the Court to bifurcate trials “[f]or convenience, to avoid prejudice, or to expedite and economize.” Fed.R.Civ.P. 42(b). Bifurcation is an exception to normal trial procedure, Clark v. I.R.S., 772 F.Supp.2d 1265, 1269 (D. Haw. 2009) (citing Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004), and, as such, the moving party bears the burden of showing that bifurcation is warranted. Spectra-Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D. Cal. 1992). In the Ninth Circuit, district courts consider several factors, including: (1) “separability of the issues, ” (2) “simplification of discovery and conservation of resources, ” and (3) “prejudice to the parties.” McDermott v. Potter, No. 07-cv-6300-SI, 2010 WL 956808, at *1 (N.D. Cal. Mar. 12, 2010) (citations omitted). The district court has broad discretion in determining whether to bifurcate. Hangarter, 373 F.3d at 1021. A court may elect “to bifurcate a trial to permit deferral of costly and possibly unnecessary proceedings pending resolution of potentially dispositive preliminary issues.” Jinro America Inc. v. Secure Inv., Inc., 266 F.3d 993, 998 (9th Cir. 2001).

         In this case, Defendants seek to bifurcate the trial between liability and damages, including punitive damages arguing they will be prejudiced and bifurcation will promote judicial economy and avoid jury confusion. Plaintiff argues that bifurcation will prejudice them and will only prolong the trial which will result in a waste of additional resources for the parties and the Court.

         A. Separability

         Defendants argue that there is little overlap in the evidence to be presented as the three liability questions are whether Defendants made the Shirt, the fiber composition of the Shirt and whether the Shirt was dangerously flammable. Plaintiff opposes contending that the liability and damages issues are intertwined as the experts will testify concerning the flammability characteristics and burning behavior of the Shirt and the damages that resulted. It is inherently impossible to separate testimony about the burning characteristics of the combination of low- grade fibers in the Shirt from the manner in which Plaintiff was engulfed by the fire and the severe and permanent injuries suffered.

         District courts have declined motions to bifurcate when an element needed to demonstrate liability also include a showing of damages. See Leite v. Severstal Sparrows Point, LLC, Nos. WDQ-09-0742, WDQ-09-1158, 2010 WL 5148423, at *2 (D. Md. Dec. 10, 2010) (“[b]ecause deciding a negligence claim requires a damages analysis, ‘liability cannot be resolved without calculating damages to some degree.'”); Southwest Stainless, L.P. v. Sappington, No. 07-CV-334-CVE-FHM, 2008 WL 1777476, at *6 (N.D. Okla. Apr. 17, 2008) (denying motion to bifurcate because, inter alia, issue of liability cannot be separated from damages since damages is a required element of the contract and tort-based claims.). Bifurcation is also inappropriate when evidence to prove liability and damages overlap. See Ohio Six Limited v. Motel 6 Operating L.P., Case No. CV 11-8102 MMM(Ex), 2013 WL 12125747, at *5 (C.D. Cal. Aug. 7, 2013) (overlap in the evidence that will be used to prove liability and damages did not warrant bifurcation); Leite, 2010 WL 5148423, at *2 (denying motion to bifurcate liability and damages because evidence on liability and damages overlap); Coryn Group II, LLC v. O.C. Seacrets, Inc., Civil. No. WDQ-08-2764, 2011 WL 5825689, at *2 (D. Md. 2011) (bifurcation inappropriate when evidence on liability and damages overlaps).

         Plaintiff's claims for negligence, manufacturing defect and negligent representation all require a showing of damages/injuries. Negligence requires a showing of (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock, Inc., 349 F.3d 1191, 1203 (9th Cir. 2003). A claim for manufacturing defect requires a showing that a manufacturing defect is “a substantial factor in producing the injury.” Garrett v. Howmedica Osteonics Corp., 214 Cal.App.4th 173, 190 (2013) (citation omitted). “The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal.App.4th 226, 243 (2007). Because damages/injuries are necessary elements to prove liability on Plaintiff's causes of action, the issue of separability does not favor bifurcation. Moreover, the witness testimonies to prove both liability and damages will overlap since the experts will be testifying not only on the fiber composition, and flammability characteristics of the Shirt but also the severity of Plaintiff's injuries as Plaintiff is claiming he suffered more severe injuries due to the blended fabric than he would have suffered if the Shirt had been 100% cotton. Therefore, because the evidence will overlap to demonstrate liability and damages, separability does not favor bifurcation.

         B. ...

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