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Out of Time: Bifurcating the Statute of Limitations

The statute of limitations is a powerful defense for defendants. But it is a tricky one to assert at trial in any of the majority of states recognizing a discovery rule—which commonly provides that the statute of limitations begins to run when the plaintiff knew or should have known of a potential claim. Asserting the defense requires a defendant who denies liability to simultaneously argue to the jury what may seem to be contradictory positions: First, that there is no claim, but second, that the plaintiff should have known of the claim before a certain date. 

Enter bifurcation. Most are familiar with the concept of bifurcating compensatory liability and punitive damages. But as far back as the 1940s, courts have recognized that Rule 42 can be used to bifurcate the issues of liability and the statute of limitations.[1] A trial solely on the issue of statute of limitations allows defendants to have a streamlined, efficient trial that avoids the seeming contradiction between defending against liability and forcefully asserting a statute of limitations defense.

Federal Rule of Civil Procedure 42(b)

Rule 42(b) grants federal courts broad discretion[2] to bifurcate (i.e., separate) a trial “[f]or convenience, to avoid prejudice, or to expedite and economize.”[3]

Bifurcating issues for trial is not new. In fact, courts have recognized the value of bifurcated trials for more than a century.[4] Courts may bifurcate the liability phase of trial from the damages phase of trial. Some courts are also inclined to bifurcate the jury’s determination of compensatory damages from that of punitive damages.[5] Rule 42(b) “is sweeping in its terms and allows the district court, in its discretion, to grant a separate trial of any kind of issue in any kind of case.”[6]  Bifurcating affirmative defenses—including the statute of limitations defense—is thus clearly within district courts’ authority.[7]

Because the statute of limitations can be dispositive of all claims in a case, if a jury ultimately finds that the plaintiff’s claims are untimely, then there is no need for a long, expensive trial on issues of liability and damages.[8] In observing that the statute of limitations is a “prime candidate” for bifurcation, the Seventh Circuit aptly stated that “the potential savings are greatest when a case is put to death at an early stage.”[9] Bifurcating trial on the statute of limitations provides that earlier stage.[10]

Trial may be bifurcated (1) “[f]or convenience,” (2) “to avoid prejudice,” or (3) “to expedite and economize.”[11]  Bifurcation of the statute of limitations defense serves all three of these interests.

Bifurcation of Statute of Limitations Promotes Economy and Efficiency

Judicial economy is a “controlling” consideration under Rule 42(b),[12] and courts have found that bifurcation is proper when calculated to conserve judicial resources and reduce litigation costs.[13] Bifurcation can save the courts—as well as the parties, witnesses, and even the jury—significant time and resources.

  • Length and Complexity of Trial – A trial dedicated solely to the statute of limitations will likely be significantly shorter than a full trial,[14] particularly in pharmaceutical products liability cases. In some pelvic mesh cases, for instance, it has been estimated that a preliminary trial on the statute of limitations would consume only one or two days, while a full trial on liability could last weeks.[15] A statute of limitations trial will also require far fewer exhibits and witnesses[16] than a trial on liability. For instance, in Young, a pelvic mesh case, the defendant estimated that a statute of limitations trial would only require three witnesses, as opposed to a trial of liability, which would require more than fifteen fact, expert, and company witnesses.[17]
  • Pre-Trial Judicial Resources – Because the statute of limitations issue is narrow in scope, the court can expend fewer resources ruling on motions unrelated to the statute of limitations. For example, few—if any—expert witnesses will be called to testify.[18] Thus, the court can wait to rule on the parties’ Daubert motions or time-consuming deposition designations until after the jury’s determination on statute of limitations. Similarly, the parties can stipulate as to which motions in limine require a ruling prior to the preliminary trial.
  • Discovery and Motion Practice – Given the dispositive nature of the statute of limitations, the parties can ask the court to stay the remaining discovery and motion deadlines until after the first trial. Courts have recognized the value of limiting litigation expenses in determining whether to order bifurcation.[19]

Bifurcation of Statute of Limitations Avoids Confusion of the Issues

The question in a statute of limitations trial is simple: “When did the Plaintiff’s claim accrue?” That’s it. Presentation of complex scientific causation evidence has the potential to confuse the jury and cause jurors to lose sight of the facts pertinent to a statute of limitations issue altogether.[20]  A trial solely on timeliness allows the jury to focus on that issue without being sidetracked by thornier substantive liability issues.

Bifurcation Prevents Prejudice to Defendants

There is great risk of potential prejudice in trials where defendants are both dispelling liability and establishing a statute of limitations defense. In many states with a discovery rule, a defendant must establish that the plaintiff knew of her injury and discovered (or should have discovered) its cause. It can be a difficult distinction for jurors (and even some lawyers) to grasp that a defendant can simultaneously deny liability and causation but also assert that the plaintiff either knew or should have known of a causal connection between the product and the claimed injury.  The plaintiff’s knowledge of potential causation, which triggers the statute of limitations, is not the same as legal and scientific causation, which requires proof that the product did cause the plaintiff’s injury. Courts have recognized that these seemingly contradictory positions subject defendants to undue prejudice and that bifurcation can “prevent this consequence.”[21] 

Right to a Jury Trial

Courts ordering bifurcation must “preserve any federal right to a jury trial.”[22] The Seventh Amendment proscribes bifurcation when the questions sought to be bifurcated are “so interwoven . . . that the one cannot be submitted to the jury independently of the other without confusion and uncertainty which would amount to a denial of a fair trial.”[23] Thus, separate juries may consider overlapping evidence but may not consider overlapping issues. Courts have found that, for preliminary trials on the statute of limitations, “[w]hile there may be some overlap of testimony and evidence between the two trials, it will not be significant.”[24] In fact, if a trial on the issues becomes necessary, defendants can eliminate the need for proof relating to the issue of timeliness (as well as the potential prejudice that comes with it).

Conclusion

A trial solely on statute of limitations enables defendants to have a streamlined, cost-efficient trial on the statute of limitations defense without having to navigate between the Scylla of prosecuting the statute of limitations defense and the Charybdis of weakening the substantive defense against liability.  It is a powerful tool all defendants should keep in their toolkits.


[1] See, e.g., Greenspon v. Parke, Davis & Co., 8 F.R.D. 485 (S.D.N.Y. 1948)

 (holding that while bifurcation was authorized by Rule 42(b), the motion was untimely and would not save time because the proof necessary to resolve this issue and those raised in plaintiff’s complaint was the same).

[2] The discretion of a district court to manage its docket is well established. See Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016) (noting that the Supreme Court “has long recognized that a district court possesses inherent powers that are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases” (cleaned up)); In re Beverly Hills Fire Litig., 695 F.2d 207, 216 (6th Cir. 1982) (“It is well settled that the ordering of separate trials is within the sound discretion of the trial judge.”); see also Fed. R. Civ. P. 1 (providing that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding”); Fed. R. Civ. P. 16(c)(2)(M) (noting the district court has the authority to “order[ ] a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue”).

[3] Fed. R. Civ. P. 42(b) (“For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.”).

[4] See John P. Rowley III & Richard G. Moore, Bifurcation of Civil Trials, 45 U. Rich. L. Rev. 1 (2010) (discussing Virginia’s recognition of the advantages of bifurcation in civil trials as early as 1915).

[5] Notably, a bifurcated trial on the statute of limitations defense does not preclude a court from separating the trial again on the compensatory liability and punitive damages determinations. This is known as “trifurcation.” 

[6] 9A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2389 (3d ed. 2008) (emphasis added).

[7] Id. (recognizing that ordering a separate trial to resolve threshold issues, like an affirmative defense under Rule 8(c), is a common utilization of Rule 42(b)); see, e.g., Yung v. Raymark Inds., Inc., 789 F.2d 397, 401 (6th Cir. 1986) (“Separate trials on a statute of limitations issue are particularly appropriate.”); Braun v. Berenson, 432 F.2d 538 (5th Cir. 1970) (“[W]e find the plaintiff’s contention that the district court abused its discretion in ordering a separate trial on the limitations issue without merit.”); Burnham Chem. Co. v. Borax Consol., 170 F.2d 569, 572–73, 578 (9th Cir. 1948) (affirming district court in relevant part); Kimmel v. Paul, Weiss, Rifkind, Wharton & Garrison, No. 94 Civ. 230(SS), 1995 WL 232737, at *3 (S.D.N.Y. Apr. 19, 1995) (Sotomayor, J.) (“Because [the defendant’s] statute of limitations defense raises significant legal issues, the resolution of which will involve issues independent of [the plaintiffs’] underlying claims, I order a separate trial pursuant to Rule 42(b) on the statute of limitations question.”).

[8] See In re Beverly Hills Fire Litig., 695 F.2d at 216 (“[W]hether resolution of a single issue would likely be dispositive of an entire claim is highly relevant in determining the efficacy of bifurcation.”); see also Rowley, supra note 4, at 13 (“Logically and practically, an issue that, ‘if decided in the defendant’s favor will dispose of the whole case, should be tried first.’” (quoting 88 C.J.S., Trial § 10 (1955))).

[9] Stewart v. RCA Corp., 790 F.2d 624, 629 (7th Cir. 1986); see also Yung, 789 F.2d at 401 (opining that “separate trials on a statute of limitations issue are particularly appropriate” when a decision on that issue would minimize court time and litigation expenses).  

[10] See Stewart, 790 F.2d at 629; Yacub v. Sandoz Pharms. Corp., 85 F. Supp. 2d 817, 828 (S.D. Ohio 1999); Grisham v. Philip Morris, Inc., No. CV 02-7930 SVW RCX, 2009 WL 9102320, at *4 (C.D. Cal. Dec. 3, 2009).

[11] Fed. R. Civ. P. 42(b).

[12] Grant Heilman Photography, Inc. v. McGraw-Hill Co., Inc., No. 12-2061, 2013 WL 1890367, at *1 (E.D. Pa. May 7, 2013).

[13] See In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 452 n.5 (3d Cir. 1997) (stating that dispositive issues are particularly suitable for bifurcation because their resolution can “reduce the length of trial and improve comprehension of the issues and evidence” (cleaned up)).

[14] See Grisham, 2009 WL 9102320, at *6 (“[R]resolution of the statute of limitations issue will not require Plaintiff to present her entire case to the jury. The statute of limitations trial will be significantly more limited than Plaintiff seems to envision.”).

[15] See, e.g., Heinrich v. Ethicon, Inc., No. 220CV00166APGVCF, 2021 WL 2801961, at *1 (D. Nev. Apr. 15, 2021) (“The statute of limitations defense could be dispositive, and a trial on that issue will be far shorter than a trial on the merits.”); McBroom v. Ethicon, Inc., No. CV-20-02127-PHX-DGC, 2021 WL 2661463, at *2 (D. Ariz. June 29, 2021) (discussing the possibility of a one-day trial on the timeliness issue); see also Young v. Mentor Worldwide LLC, 312 F. Supp. 3d 765, 768 (E.D. Ark. 2018)(settling after the trial was bifurcated but before the trial commenced).

[16] See, e.g., Young, 312 F. Supp. 3d at 768(recognizing that a trial on liability would involve “the presentation of sixteen to seventeen witnesses,” while a statute of limitations trial would involve only three, the plaintiffs and a doctor).

[17] Id.

[18] See id.

[19] See, e.g., Yacub, 85 F. Supp. 2d at 828 (“Sandoz has represented to the Court that a separate trial on the statute of limitations issue would not only promote judicial economy, but also limit litigation expenses, avoid confusion of the issues, and prevent undue prejudice.” (emphasis added)).

[20] See id., 85 F. Supp. 2d at 828 (“[A] separate trial on the statute of limitations issue would . . . avoid confusion of the issues.”).

[21] McBroom, 2021 WL 2661463, at *2; see Heinrich, 2021 WL 2801961, at *1 (stating that these seemingly conflicting positions could confuse the jury and prejudice the defendant).

[22] Fed. R. Civ. P. 42(b).

[23] Arthur Young & Co. v. United States Dist. Court, 549 F.2d 686, 692 (9th Cir. 1977); see also Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1126 (7th Cir. 1999) (“While both juries can examine overlapping evidence, they may not decide factual issues that are common to both trials and essential to the outcome.”).

[24] Heinrich, 2021 WL 2801961, at *1; McBroom, 2021 WL 2661463, at *2.

Finis