How do you reduce Plaintiff’s damage claim to zero?


We’ve all had a case where Plaintiff claims catastrophic, lifetime injuries.  In a recent case, Plaintiff designated 7 damage experts to opine he was permanently disabled and required constant supervision.  The defense identified 7 experts to counter each issue – a total of 14 damage experts!

In the midst of endless discovery, it became obvious that none of this was relevant until a fact-finder first determined our client breached the standard of care, allegedly causing these tragic injuries.  So why should a jury hear any disputed damage testimony until liability is decided?  They shouldn’t.

It used to be that motions to bifurcate were denied as a matter of course.  Now, we believe the “times are a changin’.”  Here’s why:

  1. The judicial efficiency argument is now considered more seriously by our overburdened court system; and,
  2. Bifurcation can be in Plaintiff’s financial interest, in order to avoid, or at least defer, expensive discovery (i.e., 14 experts testifying at deposition and trial).

So consider your case.  Does it have severable damage issues?  Separate witnesses?  Emotional testimony on damages wholly unrelated to liability?  Can the damage portion cut the trial in half or more?

Fight back.  Bifurcate.  Don’t let the jury hear the damage cart before the liability horse.

Neal Brown

Neal Brown

Neal Brown is a Fellow of the American College of Trial Lawyers and a Martindale-Hubbell AV-rated trial attorney. He is a founding partner of Waranch & Brown, where he has devoted his career to defending hospitals and health care providers in medical malpractice and related cases.
Share on facebook
Share on twitter
Share on linkedin
Share on email