United States District Court, S.D. California
JESUS ROMERO, a Minor, by and through his Guardian ad Litem, MERIDA RAMOS, Plaintiff,
S. SCHWAB COMPANY, INC.; RL CHILDRENSWEAR COMPANY, LLC; SYLVIA COMPANY, LLC; CUNY ASSOCIATES, LLC; AND LM SERVICES LLC. Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO BIFURCATE THE TRIAL [DKT. NO.
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
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.
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
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%
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
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).
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.
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.
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).
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