United States District Court, S.D. West Virginia, Charleston Division
January 9, 2017
MYKENDRA DEITZ, et al., Plaintiffs,
DANNY E. PATTON, et al., Defendants.
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court are twelve Motions in Limine [ECF Nos. 46,
47, 48, 49, 50, 53, 54, 55, 56, 57, 58, 59], a Motion to
Strike or Bifurcate [ECF No. 51], and a Motion to Reserve the
Right to File Additional Motions in Limine [ECF No. 52]
submitted by the defendant BWC Trucking Co., Inc.
(“BWC”). The plaintiffs have responded.
case arises out of a motor vehicle accident in Nicholas
County, West Virginia on October 21, 2013. See
Compl. ¶¶ 9-23 [ECF No. 1]. The Complaint alleges
the plaintiffs were attempting a left turn at the
intersection of Grizzly Road and Interstate 119 when they
were struck by a tractor-trailer operated by the defendant
Danny Patton. Id. at ¶¶ 9-12. The
Complaint prays for both compensatory and punitive damages
for the plaintiffs' injuries. Id. at 4.
24, 2015, the plaintiffs filed suit in the United States
District Court for the Southern District of West Virginia
against the defendants Danny Patton and BWC. Id. at
1. The court has jurisdiction over this case pursuant to 28
U.S.C. § 1332. Id. at ¶¶ 1-2.
Motion to Strike or to Bifurcate
filed a Motion to Strike Plaintiffs' Claim for Punitive
Damages Or, In The Alternative, To Bifurcate Trial [ECF No.
51]. BWC's Motion is, in part, a renewed summary judgment
motion requesting dismissal of the plaintiffs' punitive
damages claim. The court has previously ruled on this matter
and denied summary judgment. See Order, Nov. 16,
2016 [ECF No. 35]. Therefore, the Motion insofar as it
requests dismissal of the punitive damages claim is DENIED.
extent that the Motion requests bifurcation of the punitive
damages claims pursuant to Rule 42(b) of the Federal Rules of
Civil Procedureand W.Va. Code § 55-7-29(b),
Motion is also DENIED. Federal Rule of Civil Procedure 42(b)
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 third-party claim, or of
any separate issue or of any number of claims, cross-claims,
counterclaims, third-party claims, or issues, always
preserving the right of trial by jury as declared by the
Seventh Amendment to the Constitution or as given by a
statute of the United States.
Fed. R. Civ. P. 42(b). Under Rule 42(b), “the granting
of separate trials is within the sound discretion of the
trial judge.” Bowie v. Sorrell, 209 F.2d 49,
51 (4th Cir. 1953). Separating issues for trial, however,
“is not to be routinely ordered.” Fed.R.Civ.P.
42(b) advisory committee's note; see also 9A
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2388 (3d ed. 2008)
(“Rule 42(b) should be resorted to only as the result
of the exercise of informed discretion when the district
judge believes that separation will achieve the purposes of
the separate trial rule.”). In determining whether
bifurcation is appropriate in the instant case, I must
perform a two-step analysis: first, I must determine whether
separate trials would either avoid prejudice or promote
judicial economy; and second, I must determine whether
bifurcation would unfairly prejudice the non-moving party.
See Houseman v. U.S. Aviation Underwriters, 171 F.3d
1117, 1121 (7th Cir. 1999).
moving party, BWC has the burden of persuading me that
bifurcation is appropriate. See Toler, 309 F.R.D. at
225. BWC argues that a bifurcated trial would avoid prejudice
because the case involves a traumatic brain injury-“a
sensitive topic, highly susceptible to confusion, and further
requir[ing] the fact finder to carefully consider and analyze
scientific issues requiring extensive expert
testimony.” Mot. Strike 4. BWC further argues that the
punitive damages claim hinges on malicious conduct and that
the plaintiffs “undoubtedly intend to turn to
inflammatory evidence.” Id. Thus, according to
BWC, a bifurcated trial will “preserve the impartial
jury necessary to truly evaluate a complex and sensitive
question.” Id. at 5. BWC's argument,
simply, is that if the compensatory and punitive damages are
tried together, prejudice will result because the jury will
not be able to reach an unbiased calculation of compensatory
damages having heard evidence of malice going to the punitive
argument is based on mere speculation, and federal courts
have found that such a naked assertion is an inadequate basis
upon which a court should grant a separate trial. See,
e.g., Toler, 309 F.R.D. at 225-26 (finding the
movant's argument, that evidence of bad faith would taint
jury's ability to fairly decide the amount of coverage
owed, as inadequate to prove prejudice); see also
Montgomery v. Am. Family Ins. Co., No. 3:09-v-00545,
2010 WL 1936085, at *2 (N.D. Ind. May 11, 2010)
(“American Family's naked assertion that it
‘might' be prejudiced by certain testimony and
defense tactics is an inadequate basis for
bifurcation.”). Moreover, “[a]ny potential
prejudice resulting from combined trials can be remedied by
protective measures, including cautionary warnings, limiting
instructions, and other instructions to the jury.”
Welch v. Logan Gen. Hosp., LLC, No. 2:15-cv-01022,
2015 WL 3797148, at *3 (S.D. W.Va. June 18, 2015) (citation
omitted). BWC has offered no argument for how bifurcation
would serve judicial economy. Accordingly, BWC has not
demonstrated that it will be prejudiced by a unitary trial of
this case. For all these reasons, insofar as the
Motion seeks bifurcation, the Motion [ECF No. 51] is DENIED.
submitted several Motions in Limine that are a regurgitation
of the Federal Rules of Evidence. The court does not permit
general evidentiary objections to be made in the guise of a
motion in limine and declines to issue an advisory opinion on
evidentiary objections. The court will apply the Federal
Rules of Evidence at trial. For this reason, BWC's
Motions in Limine [ECF Nos. 47, 48, 50, 53, 55, 56, 57, 58]
court intends to handle all Daubert motions at
trial. For this reason, BWC's Motions in Limine [ECF Nos.
46, 59] are DENIED without prejudice. Additionally, the court
intendeds to handle procedural matters such as the exclusion
of witnesses from the courtroom and the presentation of
evidence at trial. For this reason, BWC's Motions in
Limine [ECF Nos. 49, 54] are DENIED without prejudice.
also has filed a Motion to Reserve the Right to File
Additional Motions in Limine [ECF No. 52]. While styled as a
motion, the filing is substantively a notice- no relief is
requested. Accordingly, the Motion [ECF No. 52] is DENIED as
Motions in Limine [ECF Nos. 47, 48, 50, 53, 55, 56, 57, 58]
are DENIED. The Motions in Limine [ECF Nos. 46, 49, 54, 59]
are DENIED without prejudice. The Motion to Strike or
Bifurcate [ECF No. 51] is DENIED. The Motion to Reserve the
Right to File Additional Motions in Limine [ECF No. 52] is
DENIED as moot.
court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.
 Although the defendant cites to both
state and federal rules, the court has consistently applied
the federal rule, Rule 42(b), for cases over which the court
has diversity jurisdiction. See, e.g., Toler v.
Gov't Emps. Ins. Co., 309 F.R.D. 223, 224-25 (S.D.
W.Va. 2015); Lester v. Homesite Ins. Co. of the
Midwest, No. 1:14-cv-20361, 2014 WL 6682334, at *1 (S.D.
W.Va. Nov. 25, 2014); see generally Hanna v. Plumer,
380 U.S. 460 (1965).
 In Toler, the movant alleged
an identical argument to BWC. In its memorandum supporting
its motion to bifurcate, the movant in Toler argued,
“[i]f the bad faith and coverage issues were tried
together, prejudice will result because the jury will be
confronted with the alleged bad acts of [the defendant] and
be expected to reach an unbiased decision as to the coverage
claim at the same time.” Toler, 309 F.R.D. at
225. This argument was found to be wholly inadequate to prove
prejudice. Id. at 225-26.
 Because I do not find that the
defendant has met its burden of demonstrating that
bifurcation would either promote judicial economy or avoid
prejudice, I need not determine whether bifurcation would
unfairly prejudice the nonmoving parties. See
Houseman, 171 F.3d at 1121.