Bifurcation Can Reduce Costs In Malpractice Trials
As health care costs continue to rise, and the debate regarding malpractice damages caps and other methods to reduce the cost of medical malpractice insurance continues to rage, attorneys have more incentive than ever to consider alternative ways to reduce litigation costs in complex medical cases.
Bifurcation of the liability and damages phases is one method for keeping costs down. In certain types of cases, where the claimed damages are extensive and causation is hotly contested, bifurcation can be more efficient and reduce the potential for prejudice to the defendant based on sympathy or emotion related to the damages evidence. If there are multiple experts for each side on both liability and damages, and the trial is expected to last for weeks, it often makes sense for the jury to consider and decide liability before hearing any evidence of damages.
Indeed, the theory behind bifurcation is that there is little reason to expend the time and resources in trying two issues if one issue could obviate the need for considering a second issue. See, e.g., Barry v. Quality Steel Prods., 263 Conn. 424, 449 (2003).
Bifurcation is left to the discretion and authority of the trial judge. General Statutes § 52-205; Practice Book § 15-1. Despite that discretion, however, at least one Superior Court judge has suggested that bifurcation can never be ordered in a civil case that involves the use of alternate jurors — which, ironically, would include all the complex medical malpractice trials in which bifurcation might make the most sense. See Hurley v. Heart Physicians P.C, X05CV000177475S, 2007 Conn. Super. LEXIS 3143, at *1-*17 (Conn. Super. Ct. Nov. 8, 2007).
The decision is based on language in General Statutes § 51-243, governing the use of alternate jurors in civil cases. Subsection (e) of that statute provides that, when the case is given to the regular panel for deliberation, the alternate jurors "shall be dismissed from further service on the case." General Statutes § 51-243(e) (emphasis added). The Hurley court held that this language precluded bifurcation of the trial into stages because, by statutory mandate, "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 trial judge was concerned about the lack of alternate jurors for the damages phase, if necessary, and held that "it would be irresponsible . . . to ignore the very real risk of a mistrial by proceeding on a bifurcated basis."
The Hurley court's strict construction of the statute effectively renders bifurcation unavailable in all complex civil trials, including medical malpractice cases where it could potentially provide the most benefit. That result cannot be what the legislature intended. It is also inconsistent with current practice, where civil trials are often bifurcated without running afoul of the alternate juror statute. In fact, the model Civil Jury Instructions on the Judicial Branch web site contains a note at the end of Instruction 2.9-8 (Discharge of Alternate Jurors) that provides: "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).
Although theHurley court considered this language, the judge concluded that it was not binding on his decision to interpret General Statutes § 51-243(3) strictly.
A review of the reasoning inHurley reveals that a legislative clarification may be overdue. Hurley relied heavily on a Supreme Court decision in the criminal context, State v. Murray, 254 Conn. 472 (2000), that interpreted the criminal statute governing alternate jurors strictly to require dismissal of the alternates when the regular jury begins deliberations.
Murraydid not involve bifurcation, but concerned the substitution of an alternate juror after the regular jury had begun deliberations. At the time of the Murray decision, the criminal alternate juror statute contained the same language as the civil provision does today. In fact, until 1980, there was only one provision governing the role of alternate jurors in both civil and criminal trials. When the alternate juror provision was separated into two provisions in 1980, one for criminal trials and one for civil trials, those provisions remained identical until a 2000 amendment relevant to this issue and described below.
In 2000, in response to the issue raised inMurray, the legislature enacted P.A. 00-116 to amend the criminal provision governing alternate jurors and give judges the discretion to hold alternate jurors in the service of the court during the jury's deliberations in criminal trials. The civil rule was not amended at the same time.
Thus, in 2000, the civil and criminal provisions for alternate jurors became different for the first time (and they remain that way today). Unlike the civil rule, General Statutes § 54-82h (the criminal provision) now provides that, when a case is submitted to the regular jury panel, an alternate juror "may be dismissed from further service on said case or may remain in service under the direction of the court." General Statutes § 54-82h(c) (emphasis added). The criminal provision therefore gives judges the discretion to hold alternate jurors during deliberations and for another phase of trial.
There is no ready explanation for the amendment of the criminal rule for alternate jurors without a similar amendment to the civil rules. There is no policy rationale that would be furthered by disparate alternate juror rules for criminal and civil trials. The legislative history of P.A. 00-116 does not reveal any legislative intention to treat alternate jurors in criminal and civil trials differently.
Most telling, the model Civil Jury Instructions found on the Judicial Branch web site assume that a Superior Court judge presiding over a civil trial has the discretion to hold alternate jurors in service during the regular panel's deliberations, particularly in the case of a bifurcated trial. Given these facts, the legislature would be wise to revisit the anomaly created by its amendment of General Statutes § 54-82h without also amending General Statutes § 51-243(e), because the unintended effect may be to render bifurcation a practical nullity in complex civil trials.
Even absent a legislative amendment, courts can and should interpret General Statutes § 51-243(e) liberally and consistently with the authority to bifurcate trials found in General Statutes § 52-205. "'It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions.'"Lopa v. Brinker Int'l Inc., 296 Conn. 426; 994 A.2d 1265, 1269 (2010). Reading § 51-243(e) to preclude the possibility of a bifurcated trial with alternate jurors, as in Hurley, effectively nullifies § 52-205 whenever alternate jurors are selected – which as a practical matter happens in all complex medical malpractice trials.
Bifurcation can be an efficient way to keep litigation costs down in complex medical malpractice cases. The procedural impediment to bifurcation thatHurley identifies is an anomaly without justification. Whether to bifurcate, and when, should be decided based on the issues in the case and an exercise of judicial discretion. Bifurcation should not be precluded right out of the gate because of the procedural rules governing alternate jurors. Connecticut courts would be well-served by giving full effect to the legislature's grant of discretionary authority to bifurcate trials.