Bremner By and Through Bremner v. Charles
| Decision Date | 22 November 1991 |
| Citation | 821 P.2d 1080,312 Or. 274 |
| Parties | Adam Charles BREMNER, By and Through his guardian ad litem Deborah A. BREMNER, Deborah A. Bremner and Brian G. Bremner, Respondents on Review, v. Ellen CHARLES, M.D., Joseph H. Diehl, M.D., and Pendleton Community Memorial Hospital, an Oregon non-profit corporation, Petitioners on Review. TC 86-163; CA A45607; SC S37713, S37668, S37674. |
| Court | Oregon Supreme Court |
Jeffrey S. Eden of Cooney, Moscato & Crew, P.C., Portland, argued the cause and filed the petition for petitioner on review Ellen Charles, M.D.
Mildred J. Carmack of Schwabe, Williamson & Wyatt, Portland, argued the cause and filed the petition for petitioner on review Joseph H. Diehl, M.D.
Lindsey H. Hughes of Hallmark, Keating & Abbott, Portland, argued the cause and filed the petition for petitioner on review Pendleton Community Memorial Hosp.
Jossi Davidson of Gracey & Davidson, Silverton, argued the cause and filed the response brief for respondents on review.
In this medical negligence case, we are asked to resolve two issues: first, whether the trial court erred in ordering a bifurcated trial on the issues of liability and damages; and, second, whether the trial court erred when it prohibited plaintiff Adam, a brain-damaged child who was then three years old, from being in the courtroom for a brief appearance during the liability phase of the trial.
Adam could not comprehend the proceedings, meaningfully participate in them, or assist his lawyers. He was represented by his mother as guardian ad litem. As Adam's guardian ad litem and on her own behalf, Adam's mother 1 filed a complaint alleging negligence of three defendants who were involved in different stages of mother's pregnancy and Adam's birth. Those defendants are Dr. Charles, mother's obstetrician during her pregnancy with Adam; Dr. Diehl, who attended mother during her labor and delivery; and Pendleton Community Memorial Hospital, where Adam was delivered. Plaintiffs alleged that Adam suffered permanent brain damage as a result of defendants' negligence. According to the complaint, Adam will continue to suffer mental retardation, seizures, inability to control his limbs, and other bodily dysfunctions.
Several weeks before trial, the parties attended an informal meeting to discuss, among other things, evidentiary stipulations. During the course of that meeting, plaintiffs advised defendants that they hoped to conclude their case in chief with one week of testimony. Defendants scheduled their own witnesses based on this tentative plan. On the morning of trial in Pendleton, plaintiffs advised defendants and the trial court that plaintiffs would require "an extra day or maybe a day-and-a-half" beyond their original estimate to present their case in chief. Plaintiffs submitted to defendants and to the trial court a list of witnesses whom plaintiffs intended to call, identifying each witness as either a "liability" or a "damages" witness.
On being advised that plaintiffs would require additional time, defendants moved to bifurcate the trial and to allow the parties first to try the liability portion of the case and then, if necessary, to try the matter of damages. Defendants contended that bifurcation would enable the parties to adhere to the original schedule so that their witnesses would not need to be rescheduled. Numerous medical experts, nearly all of whom were from out of town (some were from out of state) and needed to be flown in and out of Pendleton, had been scheduled in advance of trial.
The trial court allowed plaintiffs the time that they requested to respond to the motion to bifurcate. After considering their position, plaintiffs objected to bifurcation on two grounds: First, the jury might find for defendants on the liability issue in order to be released sooner; and, second, bifurcation would complicate their case because of the need to reschedule their witnesses. 2 On the basis of the arguments and representations made by both parties, the trial court, convinced that bifurcation of the liability and damages issues for trial by the same jury would "result in economy of time for everyone concerned," ordered bifurcation.
After that ruling, but before trial, defendants moved to exclude Adam from the courtroom in the liability phase, and the trial court reserved its ruling. Several days into plaintiffs' case in chief in the liability phase of the trial, 3 plaintiffs asked that the trial court allow Adam to enter the courtroom solely for a brief appearance to allow the jury to view him. The trial court, without ever seeing Adam, denied plaintiffs' request.
Following nearly three weeks of trial on the liability issue, the jury rendered a unanimous verdict for defendants. Judgment for defendants was entered. Plaintiffs appealed. The Court of Appeals reversed and remanded for a new trial, holding that the trial court erred in bifurcating the trial and in not allowing Adam to enter the courtroom for a brief appearance. Bremner v. Charles, 104 Or.App. 75, 799 P.2d 188 (1990). We allowed review and now reverse the decision of the Court of Appeals.
We first address whether the trial court erred when it bifurcated the trial into a liability phase followed, if necessary, by the damages phase. We review the decision to bifurcate for abuse of discretion. See Vander Veer v. Toyota Motor Distributors, 282 Or. 135, 144, 577 P.2d 1343 (1978) (applying the standard). Because a trial court's ruling on a motion for bifurcation of issues concerns "the administration of the business of the trial court," the trial judge is granted broad discretion in making such rulings. Black v. Funderburk, 277 Or. 157, 159, 560 P.2d 272 (1977) ). 4
ORCP 53B permits bifurcation of issues under certain specific circumstances: 5
"The 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, cross-claim, counterclaim, or of any separate issue or of any number of claims, cross-claims, counterclaims, or issues, always preserving inviolate the right of trial by jury as declared by the Oregon Constitution or as given by statute." 6
Under ORCP 53B, the trial judge may order a separate trial of any claim or of any separate issue or issues only (1) in furtherance of convenience, (2) to avoid prejudice, or (3) if conducive to expedition and economy. 7 A decision to bifurcate under ORCP 53B may be made by a trial judge, therefore, only as a result of an informed exercise of discretion on the merits of each case. 8 Bifurcation of issues for trial is not to be ordered routinely. A prerequisite to the exercise of discretion is that bifurcation will promote one or more of the purposes of the rule, i.e., convenience, avoidance of prejudice, or conduciveness to expedition and economy.
In this case, the trial court's decision to bifurcate is in accordance with two of those purposes--convenience and expedition and economy. The bifurcation order permitted the parties to adhere to their original trial schedule in a complex, multi-party medical negligence action and obviated the rescheduling of numerous witnesses' appearances (most of whom were nonresident medical experts) and airplane flights.
Plaintiffs did not object to bifurcation on the ground that the issues of liability and damages were interwoven. In fact, on the list of witnesses which plaintiffs submitted to the trial court and to defendants, plaintiffs identified each witness as either a "liability" or a "damages" witness. 9 Nothing in the record suggests that bifurcation prevented plaintiffs from introducing damages evidence that was also related to liability. Although plaintiffs argued that bifurcation of the issues would complicate their case because of the need to reschedule their witnesses, plaintiffs did not request a continuance of the trial. Plaintiffs did not contend at trial that bifurcation in any way forced them to revise their trial strategy. In fact, plaintiffs did not begin the presentation of their evidence until four days after the bifurcation order occurred. Plaintiffs have not pointed to anything in the record that indicates that the bifurcation order improperly limited their efforts to prove their claims of negligence. Plaintiffs called, and testimony was received from, eleven medical witnesses 10 and two lay witnesses, in addition to the parties themselves.
Further, plaintiffs' objection to bifurcation on the ground that the jurors might find for defendants on the liability issue so that they could be released sooner reflects a purely speculative belief that the jurors would seek expediency rather than fulfillment of their sworn obligations as jurors. We reject such a contention, and there is nothing in the record to support it.
On this record, the trial court did not abuse its discretion and, therefore, did not err in ordering bifurcation.
We next address whether the trial court erred when it refused to allow Adam to be in the courtroom for a brief appearance during the liability phase of the trial in order to allow the jury to view him. In granting defendants' motion to exclude Adam from the courtroom during the liability phase of trial, the trial court stated that Adam could not "meaningfully participate in [the trial]," that Adam was "represented by his mother who's his guardian [ad litem ] for the purposes of this trial," and that "the sole purpose of [an appearance] would be to prejudice the jury."
On only a few occasions has this court addressed a trial court's authority to exclude parties from a trial. In Schneider v. Haas, 14 Or. 174, 175, 12 P. 236 (1886), this court interpreted a statute that allowed the exclusion of a witness not to apply to parties:
"The very right to prosecute a suit in court and to...
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