Free Response in Opposition to Motion - District Court of Arizona - Arizona

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MARY JO O'NEILL, AZ Bar No. 005924 SALLY C. SHANLEY, AZ Bar No. 012251 KATHERINE J. KRUSE, AZ Bar No. 019167 VALERIE L. MEYER, CA Bar No. 228586 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 e-mail: [email protected] [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, vs. Connecticut General Life Insurance Company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CIV 04-0627-PHX-JAT PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO BIFURCATE PUNITIVE DAMAGES

Plaintiff Equal Employment Opportunity Commission (the Commission or EEOC) hereby responds to Defendant's Motion to Bifurcate Punitive Damages. Specifically, Defendant seeks to preclude the jury from hearing any evidence of Defendant's financial condition prior to a finding of liability. Because separate trials in this case will not be conducive to judicial economy or the avoidance of prejudice, Plaintiff opposes Defendant's Motion to Bifurcate and respectfully requests the Motion be denied in its entirety. ARGUMENT Bifurcation is not routine, and the party seeking bifurcation has the burden to demonstrate that it is justified, even in cases where bifurcation may be common. See Thorndike ex re. Thorndike v. Daimlerchrysler Corp., 220 F.R.D. 6, 8 (D. Me. 2004); Real v. Bunn-O-Matic Corp., 195 F.R..D. 618, 620 (N.D. Ill. 2000) (burden rests with

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party seeking bifurcation to demonstrate judicial economy would be served and no resulting prejudice from separate trials). Central to the practice of bifurcation is the promotion of judicial economy without unduly prejudicing either party. See Spectra-Physics Lasers, Inc. v. Uniphase Corp. 144 F.R.D. 99, 101 (N.D. Cal. 1992). Federal Rule of Civil Procedure 42(b) provides in pertinent part: [t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim . . . or issues . . . . FED. R. CIV. P. 42(b). When deciding whether to bifurcate a proceeding into separate trials on liability and damages, judges generally consider the following: (1) the risk of prejudice, (2) the likelihood that bifurcation would enhance juror comprehension, (3) the likelihood significant resources would be wasted or saved, and (4) potential that remaining issues may be resolved by motion or settlement. Union Carbide Corp. v. Montell N.V., 28 F.Supp.2d 833, 837 (S.D.N.Y. 1998). Defendant provides the Court very little to assist it with its considerations. Defendant suggests generally that separate trials "would serve the important interests cited in the text of Rule 42(b): avoidance of prejudice and judicial economy." (Def.'s Motion at 2.) Without factual support or a single citation of caselaw, Defendant warns that a jury "could be prejudiced against Defendant by irrelevant `deep pocket' evidence during the liability phase." (Def.'s Motion at 2). This vague allegation is insufficient to meet Defendant's burden of demonstrating prejudice. Dallas v. Goldberg, 143 F. Supp. 2d 312, 315-16 (S.D.N.Y. 2001) (requiring more than "generalized assertions" of prejudice). Any evidence of Defendants' finance is likely to comprise only a very small portion of the evidence submitted to the jury at trial. Moreover, it is highly unlikely that Defendant's financial information would suggest the existence of "deep pockets" any more than Defendant's relationship with the well-known CIGNA name, which is undisputed and certain to arise early in trial proceedings, such as voir dire. (Proposed Final Pretrial Form of Order at 2.) Even if there was a genuine risk of prejudice, the jury
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instruction regarding punitive damages and counsel's arguments during closing should more than adequately address any potential risk of prejudice to Defendant. See Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (referring to appropriate jury instructions in support of refusal to bifurcate). Defendant also suggests that bifurcation of punitive damages in this case "promotes efficiency in the conduct of this trial" because it would "altogether obviate the need for the introduction of financial evidence" if Plaintiff is unsuccessful in establishing liability. (Def.'s Motion at 3.) To the contrary, bifurcation of liability from punitive damages will result in judicial inefficiency and inconvenience for trial witnesses. Industrias Metalicas Marva, Inc. v. Lausell, 172 F.R.D. 1, 2 (D.P.R. 1997) ("It is obvious that one trial will generally be more expedient than two . . . ."). The total duration of the trial is expected to be sufficiently brief so that neither the fact finders nor the parties will be inconvenienced by a single trial. In fact, bifurcation would likely result in witnesses testifying twice during the same three (3) or possibly four (4) day period. For example, critical witnesses such as Sandra Gasche, Cheryl Wroten, and Heather Casey Giles, who will be called to testify during the liability phase regarding their interactions with Carmen Santa Cruz, are also likely to be called as witnesses during the punitive damages phase in order to offer evidence concerning alleged efforts by Defendant to comply with Title VII. Evidence of these efforts is relevant to Defendant's affirmative defense to punitive damages under Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999). Thus, Ms. Gasche, Ms. Wroten, and Ms. Casey Giles would testify during the liability trial and, should Defendant's Motion be granted, would also be required to testify days later, after the verdict is returned. Ms. Gasche currently lives in the mid-west and is no longer employed by Defendant. If Ms. Gasche chooses to submit to this Court's jurisdiction and appear at trial, she would be required to either remain in Arizona for a significant duration to testify during the liability and damages mini-trials, or to submit to the inconvenience of interstate travel, not once, but twice. If Ms. Gasche's testimony is presented through her videotaped deposition, the presentation of her testimony on two
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separate occasions will still require additional time from the trial schedule. Ms. Casey Giles, although residing in Arizona, is no longer an employee of Defendant and would be required to arrange her work schedule with her current employer to accommodate two separate days of testimony. Certainly, such results are a significant waste of resources. Moreover, even though a judgment for Defendant in the liability mini-trial would obviate the need for further proceedings, that fact alone does not support bifurcation. See, e.g., Svege v. Mercedes-Benz Credit Corp., 329 F.Supp.2d 283, 284-85 (D. Conn. 2004) (noting that "projected savings are by no means guaranteed"); Keyes Fibre Co. v. Packaging Corp. of Am., 763, F. Supp. 374 (D.C. Ill. 1999) (separate trial on liability and damages not warranted because no real threat of prejudice when case not particularly complex); Brown v. Advantage Engineering, Inc., 732 F. Supp. 1163 (D.C. Ga. 1999) (refusing to order separate trials for liability and damages despite contention that separate liability trial likely would eliminate need for damages trial). Bifurcation would eliminate the need for further proceedings in every case in which punitive damages are an issue, yet courts consistently hold that not every such case is appropriate for bifurcation. Id. "Bifurcation remains the exception, not the rule." Trading Tech. Int'l Inc. v. eSpeed Inc., 2006 WL 1037322, at *1 (N.D. Ill. April 17, 2006); see also L-3 Commc'ns Corp. v. OSI Sys., Inc., 418 F.Supp.2d 380, 382 (S.D.N.Y. 2005); Svege, 329 F.Supp.2d at 284 (D. Conn. 2004).

CONCLUSION Defendant is unable to demonstrate that bifurcation will avoid the risk of prejudice or promote efficiency in the conduct of this small, individual Title VII case. As demonstrated above, there is no risk of prejudice. Moreover, separating liability from punitive damages will waste significant resources by inconveniencing fact witnesses. Bifurcating this matter would not promote judicial economy and would, in fact, unduly burden the parties, witnesses, and the fact finder. Consequently, the EEOC respectfully requests that Defendant's Motion to Bifurcate Punitive Damages be denied in its entirety.
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Dated this 10th day of July, 2006.

MARY JO O'NEILL Regional Attorney SALLY C. SHANLEY Supervisory Trial Attorney s/Valerie L. Meyer KATHERINE J. KRUSE MICHELLE G. MARSHALL VALERIE L. MEYER Trial Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Ave., Suite 690 Phoenix, Arizona 85012-2504 (602) 640-5029 Attorneys for Plaintiff CERTIFICATE OF SERVICE I certify that on this 10th day of July 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:

J. Mark Ogden, Esq. J. Greg Coulter, Esq. Kristin R. Culbertson, Esq. LITTLER MENDELSON Suite 900 2425 E. Camelback Rd. Phoenix, Arizona 85016-4242 Attorneys for Defendants s/ Phyllis Brady

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