The Reexamination Clause: Exploring Bifurcation in Mass Tort Litigation: Analyzing the Constitutional Hurdle to Bifurcated Trials

By Taber, W. Russell | Defense Counsel Journal, January 2006 | Go to article overview

The Reexamination Clause: Exploring Bifurcation in Mass Tort Litigation: Analyzing the Constitutional Hurdle to Bifurcated Trials


Taber, W. Russell, Defense Counsel Journal


THE rise of mass tort cases has stretched judicial ingenuity and resources to their limits. Dockets across the country are flooded with claims against manufacturers of goods, like cigarettes and asbestos, that carry the capacity to cause mass injury. Resolving these cases individually could take decades, and prevailing plaintiffs often receive pennies for every dollar spent on litigation and transaction costs. In response, many district courts have separated a particular issue or issues for class treatment under Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure, while leaving individual issues for individual trials before different juries. This procedure, known as bifurcation, (1) can streamline a case because resolution of a common issue (e.g., general causation) often eliminates the need for further proceedings. Accordingly, bifurcation has been described as "one of the sharpest instruments available to trial courts managing mass tort litigation" (2) and "one of the most necessary and natural in [trial judges'] arsenal of tools required for the shaping of these types of cases for efficient adjudication." (3)

In addition, plaintiffs often seek certification of an issue class to pressure defendants into an overall settlement of claims. Aggregation of claims exerts pressure on defendants to settle all of the plaintiffs' claims because of "the sheer magnitude of the risk" to which litigating an aggregated proceeding exposes defendants. (4) Aggregation can be difficult to achieve in a traditional class action due to "intractable management problems" and other hurdles identified by the Supreme Court in Amchem Products, Inc. v. Windsor, which has made judicial approval of class settlement--a device which avoids the management problems of a class action precisely because there is no trial--difficult to obtain for similar reasons. (5) Not surprisingly, plaintiffs have resorted to certification of issue classes to achieve the overall settlement pressures of aggregation while potentially avoiding pitfalls identified in Amchem due to the more limited nature of the issue class inquiry. (6)

Yet perhaps the most significant obstacle to bifurcation is the Constitution itself. The Reexamination Clause of the Seventh Amendment provides that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. (7) Various courts have held that the Reexamination Clause prevents judges from bifurcating trials where "an overlapping common issue tried by a jury in an aggregate proceeding might thereafter be subjected to prohibited reexamination by juries in subsequent individual proceedings." (8) Other courts have largely reached the opposite conclusion--that the Clause "does not substantially inhibit" a trial judge's ability to bifurcate. (9)

I. The Relevance of the Reexamination Clause in Mass Tort Cases

Courts have frequently allowed mass tort (10) cases to be brought as class actions "with respect to particular issues" under Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure, (11) and have left individual issues for separate trials before different juries.

A. Gasoline Products Co. v. Champlin Refining Co.

Those courts that view the Reexamination Clause as a significant stumbling block to bifurcation have claimed support in Gasoline Products. (12) In this breach of contract case, a jury found liability and awarded damages, but did not specify its findings as to the terms of the contract or the date of its formation and breach. The First Circuit affirmed the liability determination, but set aside the jury's finding with respect to damages due to erroneous jury instructions. On appeal, the Supreme Court faced the question whether a partial new trial on damages before a different jury violated the Reexamination Clause. Although the Seventh Amendment "does not compel a new trial of [liability] even though another and separable issue must be tried again," the Court held that this partial new trial was impermissible:

   Where the practice permits a partial new
   trial, it may not properly be resorted to
   unless it clearly appears that the issue to
   be retried is so distinct and separable
   from the others that a trial of it alone
   may be had without injustice . … 

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