T16-0149

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE
CHATTANOOGA DIVISION

JOHN DOE )
by and through his next friend JANE DOE
)
)
PLAINTIFF )
)
V. ) No. 1:16-CV-00373
) JURY DEMAND
HAMILTON COUNTY BOARD OF EDUCATION,)
d/b/a HAMILTON COUNTY SCHOOLS; et al )
)
DEFENDANTS. )
)
RICHARD ROE, et al )
)
PLAINTIFFS )
)
V. ) No. 1:16-cv-00497
) JURY DEMAND
HAMILTON COUNTY DEPARTMENT OF )
EDUCATION, d/b/a HAMILTON COUNTY )
SCHOOLS; et al )
)
DEFENDANTS. )

DEFENDANTS’, HAMILTON COUNTY BOARD OF EDUCATION AND

MARSHA DRAKE, MOTION AND MEMORANDUM TO BIFURCATE TRIAL

Now comes the Defendant, Hamilton County Department of Education, and moves

this Honorable Court for an Order bifurcating the trial of previously consolidated cases,

Case No. 1:16-cv-373 and Case No. 1:16-cv-497. In support of said Motion, the Defendant

would state as follows:

I. Federal Rule of Civil Procedure 42(b) permits the trial court to

bifurcate the trials.

Federal Rule of Civil Procedure 42(b) provides, “For convenience, to avoid

prejudice, or to expedite and economize, the court may order a separate trial of one or

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 more separate issues, claims, crossclaims, counterclaims, or third-party claims.” The

language of Rule 42(b) places the decision to bifurcate within the sound discretion of the

District Court. Saxion v. Titan-C-Mfg., Inc., 86 F.3d 553, 556 (6th Cir. 1996). The

principal purpose of this rule is to enable the Trial Judge to dispose of a case in a way

that both advances judicial efficiency and is fair to the parties. Marcum v. Scioto Cty.,

Ohio, No. 1:10-CV-790, 2012 WL 2674303, at *1 (S.D. Ohio July 5, 2012).

In determining whether bifurcation is appropriate, courts should consider the

following issues: (1) the potential prejudice to the parties; (2) the possibility of juror

confusion; and, (3) the resulting convenience and economy. Martin v. Heideman, 106

F.3d 1308, 1311 (6th Cir.1997). Only one of these criteria need be met to justify

bifurcation. Saxion, 86 F.3d at 556. As demonstrated below, a consolidation of these cases

for trial will result in unavoidable prejudice against the Defendants, and it will lead to

confusion of the jury. Further, convenience and economy are outweighed by the

unavoidable prejudice that will result from the consolidation of these cases for trial.

i. Consolidation of the cases for trial will result in prejudice

against the Defendants.

When determining whether separate claims should be consolidated or bifurcated,

care must be taken that consolidation does not result in unavoidable prejudice or unfair

advantage. Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993). In the case at hand,

prejudice against the Defendants is unavoidable if the cases remain consolidated. There is

a vast disparity in the severity of the injuries of John Doe and Richard Roe. Richard Roe

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 was the victim of an assault that did not result in any physical injuries. However, John

Doe was the victim of rape, and he was hospitalized for six days due to traumatic injuries

to his rectum and bladder. This disparity will undoubtedly engender prejudice among the

jury.

In Richard Roe’s deposition, he testified that one upperclassman sat on his back

while another attempted to insert a pool stick into his rectum. (Depo. R. Roe, Jr. pg.

116:18-25). However, he was not anally penetrated. (Depo. R. Roe, Jr. pg. 117:1-4). He

testified that he grabbed the pool stick with both hands to prevent it from being inserted

into his rectum. (Depo. R. Roe, Jr. pg. 117:12-16). Therefore, he did not suffer any

physical injuries. (Depo. R. Roe, Jr. pg. 120:8-11) (Depo. John Doe pg. 168:17-23).

Richard Roe subsequently pressed charges of assault against the perpetrators. (Depo. R.

Roe, Jr. pg. 120:12-16).

However, in John Doe’s deposition, he testified that three upperclassmen locked

him in a room, held him down, and anally penetrated him with a pool stick through his

clothing. (Depo. John Doe pg. 120:1-25). As a result, the entire wall of John Doe’s

rectum was traumatically injured. (Depo. R. Bollig pg. 6:18-25). Further, the pool stick

went through to the interior of his bladder, which resulted in a full thickness bladder

injury. (Depo. R. Bollig pg. 6:18-25). Consequently, John Doe was hospitalized for six

days. (Depo. John Doe pg. 132:19-24). He subsequently pressed charges of rape against

the perpetrators. (Depo. Jane Doe pg. 51:14-17).

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 It is axiomatic that evidence of John Doe’s rape will engender prejudice among

the jury against the Defendants. As a result, the jury’s verdict will not be based on the

merits of each individual case. Rather, the jury will be prejudiced by the evidence

presented on behalf of John Doe while making a determination concerning Richard Roe.

This constitutes prejudice sufficient to warrant a bifurcation of the trials pursuant to

Rule 42 of the Federal Rules of Civil Procedure. Therefore, the Defendants would

request that previously consolidated cases, Case No. 1:16-cv-373 and Case No. 1:16-cv-

497, be bifurcated due to the fact that consolidation will create unavoidable prejudice.

ii. Consolidation of the cases will result in confusion of the jury.

In determining whether consolidation is appropriate under Rule 42, courts must be

careful to avoid prejudice to the parties and jury confusion. Guild Assocs., Inc. v. Bio-

Energy (Washington), LLC, 309 F.R.D. 436, 440 (S.D. Ohio 2015). Courts should be

particularly cautious when consolidating complex cases with complex issues in a case that

will be tried to a jury. Organic Chemicals, Inc. v. Carroll Products, Inc., 86 F.R.D. 468,

469–70 (W.D.Mich.1980). If it appears that a consolidated trial would create more

confusion and inefficiency than separate trials, the Court has the discretion—and perhaps

the duty—to sever the cases for trial. MacLean v. Evans, Mechwart, Hambleton & Tilton,

Inc., No. 2:09-CV-521, 2009 WL 2983072, at *2 (S.D. Ohio Sept. 14, 2009).

In the case at hand, consolidation of the cases for trial will result in confusion of the

jury. Specifically, John Doe and Richard Roe suffered from immensely different injuries.

John Doe was hospitalized for six days due to traumatic injury to his rectum and bladder,

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 whereas Richard Roe suffered no physical injuries. Therefore, any medical proof proffered

on behalf of John Doe may confuse the jury about the injuries, or lack thereof, of Richard

Roe.

Based on John Doe’s Final List of Witnesses filed with this Court on January 2,

2018, John Doe intends to call Dr. Sarah Vinson, Delilah Cohn, Dr. John Pope, Dr. Jeffrey

King, Dr. Dana Taylor, N.P. Rachel Savoy, Dr. Reagan Bollig, Dr. Ryan Dickens, and Dr.

Mark Casillas to testify as to John Doe’s physical and emotional injuries. Further, based

on Richard Roe’s Final List of Witnesses also filed with this Court on January 2, 2018,

Richard Roe intends to call Dr. Yolanda Spraggins and Dr. William Hilner to testify as to

Richard Roe’s alleged emotional injuries. This is an exhaustive amount of medical

testimony for a jury to retain over the course of a trial lasting several days. Consequently,

there is a danger that the jury will become confused by the considerable amount of medical

proof and attribute physical injuries to Richard Roe that do not exist. Therefore, the

Defendants would request that previously consolidated cases, Case No. 1:16-cv-373 and

Case No. 1:16-cv-497, be bifurcated due to the fact that the considerable amount of medical

proof may confuse the jury.

iii. The prejudice caused by consolidation outweighs

convenience and judicial economy.

Where there are common issues of law or fact, courts must balance the benefit of

expedience and judicial resources against prejudice that may be caused by consolidation.

Guild Assocs., 309 F.R.D. at 441. Considerations of economy of time, money and

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 convenience of witnesses must yield to the paramount consideration of having a fair and

impartial trial. Allen v. United Mine Workers of Am., 30 F.R.D. 41, 42 (E.D. Tenn. 1962).

The case at hand has been consolidated due to the fact that there are common

issues of law and fact. However, even though there are common issues of law and fact, the

Court must balance expedience and judicial resources against prejudice that may be

caused by consolidation. As stated previously, there will be unavoidable prejudice if the

cases remain consolidated. There is a vast disparity in the injuries suffered by John Doe

and Richard Roe. Richard Roe was the victim of an assault that resulted in no physical

injuries. However, John Doe was the victim of rape, suffered from traumatic injuries, and

was hospitalized for six days. This disparity creates a danger that the jury will not decide

each case on its merits, and that it will be prejudiced by the evidence presented on behalf

of John Doe when it makes its determination concerning Richard Roe.

As a result, the prejudice that will be caused by consolidation is so great that it

outweighs any expedience or judicial economy. As stated previously, considerations of

time, money, and convenience of witnesses must yield to the paramount consideration of

having a fair and impartial trial. Therefore, the Defendants would request that previously

consolidated cases, Case No. 1:16-cv-373 and Case No. 1:16-cv-497, be bifurcated due to

the fact that the prejudice caused by consolidation outweighs considerations of expedience

and judicial economy.

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 II. Conclusion

In conclusion, a consolidation of these cases for trial will result in unavoidable

prejudice against the Defendants. The disparity in the severity of the injuries of John Doe

and Richard Roe will undoubtedly engender prejudice among the jury. Further, the

considerable amount of medical testimony may lead to confusion of the jury. Finally, the

prejudice that will be caused by consolidation is so great that it outweighs any

consideration of expedience or judicial economy. Therefore, based on the foregoing, the

Defendants would request that previously consolidated cases, Case No. 1:16-cv-373 and

Case No. 1:16-cv-497, be bifurcated for trial pursuant to Rule 42 of the Federal Rules of

Civil Procedure.

Respectfully submitted,

PURCELL, SELLERS & CRAIG, INC.

By: s/Charles M. Purcell _____________

Charles M. Purcell (012461)
Jennifer C. Craig (020036)
Christopher C. Hayden (028220)
Attorneys for Defendant
P.O. Box 10547
Jackson, Tennessee 38308
(731) 300-0737
Chuck@psclegal.com
jennifer@psclegal.com
Chris@psclegal.com

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 CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing document was
forwarded by electronic means via the Court’s electronic filing system.

s/Charles M. Purcell
Date: February 20, 2018

PERSONS SERVED:

Monica Beck
The Fierberg National Law Group, PLLC
School Violence Law
105 East Philip Street
P.O. Box 121
Lake Leelanau, MI 49653

Edmund J. Schmidt, III

Law Office of Eddie Schmidt
2323 21st Avenue South, Suite 502
Nashville, TN 37212

Arthur F. Knight, III

Taylor & Knight, G.P.
800 South Gay Street, Suite 600
Knoxville, TN 37929

Justin S. Gilbert
Gilbert Russell McWherter Scott Bobbitt PLC
100 W. Martin Luther King Blvd., Suite 504
Chattanooga, TN 37402

Eric J. Oliver
Lewis & Oliver
100 W. Martin Luther King Blvd., Suite 501
Chattanooga, TN 37402

Jordan K. Crews
Brian A. Pierce
Office of Attorney General
General Civil Division
P.O. Box 20207
Nashville, TN 37202

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 Curtis L. Bowe, III
Bowe & Associates, PLLC
707 Georgia Avenue, Suite 301
Chattanooga, TN 37402

Jaclyn L. McAndrew
Heather Ross
Office of Attorney General and Reporter
P.O. Box 20207
Nashville, TN 37202

Thomas William Caldwell

W. Carl Spining
Ortale, Kelley, Herbert & Crawford
P.O. Box 198985
Nashville, TN 37219

Rheubin M. Taylor
Office of the County Attorney
Room 204, County Courthouse
Chattanooga, TN 37402

Benjamin M. Rose
Joshua D. Arters
Law Office of Ben M. Rose, PLLC
P.O. Box 1108
Brentwood, TN 37024

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