*1 17, 19,1989, Diehl’s Argued and remanded October December reversed and submitted 12, 1990, Pendleton denied December and Charles’ reconsideration reconsideration January petitions Community Hospital’s denied all reconsideration Memorial 5,1991 (311 150) February review allowed BREMNER, Charles Adam through Bremner, A. ad litem Deborah Bremner, Deborah Bremner and Brian G. A. Appellants, CHARLES, M.D., Ellen Diehl, M.D., Joseph H. Community Hospital, Memorial

and Pendleton

Respondents. (CV 86-163; A45607) CA Davidson, Silverton, argued the cause and submitted Jossi appellants. the briefs for Eden, Portland,

Jeffrey argued Scott the cause for Charles, Ellen M.D. With him on the brief were respondent *2 Crew, P.C., Cooney Cooney, E. and Moscato & Sil- Thomas verton. Carmack, Portland, the cause for argued J.

Mildred Diehl, Joseph H. M.D. With her on the brief were respondent Schwabe, Wyatt, and & Portland. David K. Miller Williamson Portland, argued respondent Emil R. the cause for Berg, him on the Community Hospital. Pendleton With brief Hallmark, Keat- Keating, Lindsay Hughes Robert H. M. Abbott, P.C., Portland. ing & Buttler, Presiding Judge, Warren

Before Rossman, Judges.

ROSSMAN, J.

Warren, J., dissenting.

ROSSMAN, J. malpractice action, are

In this medical three-year-old are Defendants child, and his mother.1 Adam, a during pregnancy with her Charles, obstetrician mother’s Dr. during her labor and mother Adam; Diehl, attended Dr. who delivery; hospital Plain Adam was delivered. where and the judgment appeal verdict entered on a the trial court’s tiffs assigning alia, error, defendants, as inter in favor of rulings two write to address the trial court. We made trial and trial court erred contentions: The excluding The focus of our the courtroom.2 Adam from in inquiry deprived the trial court’s decisions

is on whether a fair trial. complaint alleged that Adam suf- in their negli- damage permanent brain as a result of defendants’ fered gence. According complaint, he continue to suffer will impairment, retardation, seizures, mental intellectual inability dysfunctions. bodily limbs and other to control morning plaintiffs’ counsel advised defen- of a On the dants’ courtesy, plaintiffs’ professional case counsel, day day longer approximately a half than to a wouldtake original Plain- had discussed. tentative schedule that the tiffs’ counsel also submitted to *3 a list defendants and the court identifying plaintiffs call, each intended to of witnesses that “liability” “damages” witness. or a as either liability portion try of then moved to Defendants parties arguing enable the to first, that that would the case original need for “schedule” and would avoid the adhere to the defendants granted their witnesses. The trial to reschedule plaintiffs’ objection. Defendants also motion over moved, to exclude Adam from the courtroom. before initially ruling, Although it later reserved its the trial court plaintiffs’ request in the court- that Adam be allowed denied presence,” ruling that he should be excluded a “brief room for liability phase entirely of the trial. from the argue trial court’s decision first that the Plaintiffs father, by Bremner, voluntarily the court dismissed Plaintiff Brian stipulation. on discretionary rulings the trial court. assign of numerous other error to Plaintiffs unnecessary appeal, them. disposition to address of the it Given our According trial was an abuse of discretion. bifurcate the on the liability partly on are based jury decisions plaintiffs, Thus, must be of bifurcation jury’s awareness of the may change because it the nature cautiously, applied reason, For that making process itself. decision liability damages and assert, of the issues of bifurcation circumstances, e.g., exceptional be allowed should and necessary expedite litigation in order to where it is entirely are damages separate. of where the issues (1972). 262 Or Perry Sawyer, ex rel State maintain, that “the Otherwise, they danger there is given or as by Oregon declared Constitution by jury trial as by 53B. required ORCP preserved, not be by statute” liability and the issues of in this argue showing excep- and there was no were not distinct Moreover, they by harmed circumstances. tional was barred from consider- ruling, court’s both because and because between the interaction ing strategy their entire trial had to reformulate maintain, circumstances, plaintiffs Those morning of trial. decision to allow bifurcation the trial court’s demonstrate that was error. provides:

ORCP 53B preju- court, convenience or to avoid “The in furtherance of expedition dice, separate be conducive or when trials will claim, economy, may separate trial of cross- order a counterclaim, any number claim, any separate issue or of ofor issues, pre- cross-claims, counterclaims, always claims, or by by jury as declared right of trial serving inviolate the by Oregon given or as statute.” Constitution try the case court’s decision review the trial We Veer v. discretion. Vander phases for abuse of are P2d 1343 We 282 Or has exercised the trial court determining whether limited to clearly against justified to an end not its discretion Com., Control Oregon Liquor Casciato v. evidence and reason. range The of the 707, 715-17, 185 P2d 246 *4 concerning rulings wide particularly discretion is court’s Accept. Corp., v. Northwest administration. Weiss judicial However, that discretion 356, exercised.” Mitchell oppressively or “capriciously not to be 454, 458, 13 P2d 190 Campbell, case, In this weigh against factors the trial First, action. a court’s threshold requirement for case for is that the issues at each stage separate. be Vander Veer v. supra, 282 Or at plaintiffs point out, 144. As liability issues of and damages entirely were not separate in Adams’s because it was necessary to ascertain the physical nature of his problems in order to determine what caused them. explain: parties “Allthe plaintiff’s physical were aware that condition gave important clues injury, as to the cause his and in fact

provided only evidence to determine the mechanism and timing injury. liability To required plaintiffs establish prove that hypoxic Adam suffered injury near the time of (as opposed, birth example, defect), congenital to a which required a physical detailed damage plain- discussion of the tiff’s organs.” brain and other short,

In the nature of Adam’s condition was relevant to both liability and the damages components of his claim.

At time, the same questions of liability and damages completely not intertwined. Evidence concerning the severity of conditions, the prognosis and the extent and nature of was not essential to a determina- tion of liability. is, That could properly reach a verdict on the question without hearing evidence of his damages. Moreover, plaintiffs do not contend that court’s decision prevented them from introducing any evi- dence that would have been relevant of lia- bility. Although we have decided the differently, matter we cannot say that the trial court’s determination that issues of were sufficiently distinct permit separating them was an abuse of discretion.

A second requirement 53B, of ORCP however, is that separate trials be ordered “in furtherance of convenience or to prejudice, avoid or when trials will be conducive to expedition and economy.” Defendants argued in the trial court unless the bifurcated, trial were have to would reschedule their witnesses. Plaintiffs responded that bifurca- tion would necessitate a complicated rescheduling of their “damages witnesses” and that it might also cause the resolve the issue of liability against simply them in order to be done with the case. The trial granted defendants’ motion

80 on the “that it in ground economy to bifurcate would result concerned.” everyone for time stand- questionable ruling

That was from several apparently trial court reasoned that points. The because, save time if found for defen- jury the trial could the liability issue, unnecessary it be to have a dants on the would that, if the ignores trial to determine That the fact issue, were to render a verdict for on the witnesses would have to be recalled and some of the testimony on the nature of Adam’s condition would have to be damages phase, thereby lengthening pro- in the repeated Nevertheless, precious commodity time is a cess as a whole. might possibility for a trial court. The the bifurcation necessity legitimate for a trial on obviate the bifurcation, speculative its somewhat ground despite supra, nature. Vander Veer Or at 144. however, economy is, it can- important judicial

As parties. expense at the of fairness to one of pursued not be of a case, provided possibility shortened In this bifurcation trial and served to relieve defendants of the need to reschedule hand, it required plaintiffs witnesses. On the other their schedules, from prevented plaintiffs their witnesses’ juggle nature of Adam’s devastating presenting entire trial strat- and forced to reevaluate their short, ruling placed plain- of trial. In egy morning economy or disadvantage justified that cannot be tiffs at a countervailing other benefit. been suffi- view, may have In the court’s decision our However, we need not ciently require reversal. prejudicial Plaintiffs have con- alone. ground decide the case on that excluding Adam from erred in tended that the trial court also in considered and conclude agree the courtroom. We bifurcation, permitting conjunction with its decision of a fair deprived plaintiffs abused its discretion r an extreme from the trial is party of a The exclusion principle That with caution. measure that be viewed must true, part, holds because large appear a suit court and very right prosecute “[t]he it, incident, party, necessary therein as a carries with as a Leson, the trial.” Leson and present during farther to be Haas, citing (1982), Schneider v. 174, 12 P however, plaintiffs presence, always only A is not for his Rather, benefit. as in this seeing plaintiff might jurors enable the to understand better the evidence as it was courtroom, presented thereby in the them in assisting weigh- ing applying that evidence.

The trial court’s view was: “I meaningfully participate don’t see how Adam could in this. going testify. He has no awareness of what’s on. He can’t He’s *6 represented by proposes mother who’s his for the * * * concerned, phase of this trial. I think insofar as this I permit I don’t think will him to on in I come because think the purpose sole prejudice jury.” of that would be to assume, We without deciding, that there are circumstances in which a trial court properly plaintiff exclude a because of potential prejudice. example, For jurisdictions some have held that a plaintiff comprehend who is unable to the proceedings, attorney to aid his or to contribute evidence on question of excluded, fault may be if his injuries presence make his unduly See, prejudicial. e.g., Lab, Ayerst Helminski v. a Div. Amer. of (6th Home Corp., Cir), Prods. 766 F2d 213-18 cert den 474 (1985); 981 Morley Arizona, etc., US v. Superior Court of 85, 638 1331, 1333 (1981). Ariz note, P2d however, We that the judge this case had no evidence before him that Adam had a grotesque appearance disruptive or was any way. Indeed, he Rather, had never seen Adam. he appears to have presumed prejudice description from the condition, of Adam’s and that is an insufficient basis on which to exclude a plaintiff from his own trial.

Because the trial court’s rulings deprived plaintiffs of trial, a fair we remand for a new trial.

Reversed and remanded.

WARREN, J., dissenting.

I dissent. The majority goes-to great painful lengths to find something wrong with the trial court’s discre- tionary rulings. In the process, it has the sympathetic allowed reasoning

nature of case to cloud its and has plaintiffs’ reached an incorrect result. rulings only trial court’s for an abuse

We review the In matters of a concerning of discretion. administration is broad. Weiss v. Northwest the court’s discretion The trial Accept. Corp., decision to bifurcate was based on its sound judge’s that of legitimate determination issues that were there was likelihood that if the case proceeding disposed could be shortened was of liability. Those proper were considerations. 53B; ORCP Vander Veer

135, 143, 577 Additionally, plaintiffs held out P2d liability and damages the court that their witnesses on the court’s lending justification further segregated, could be they they pre do not contend that were ruling. appeal, On to the issue of lia putting vented from on evidence relevant they prejudiced by that bility. They argue bifurcation, presen had to their trial reorganize because not that issue to the trial court or They argue tation. did request a continuance. I would conclude that bifurcation not an abuse discretion. I the decision to

Additionally, would hold liability phase Adam from the courtroom during exclude certainly not an abuse of discretion and was not the trial was adequately represented reversible error. Adam’s interests were *7 litem, mother, attorney. ad There and his personal presence about his in the courtroom nothing determining aided the whether defendants’ could have injuries. his extensive In view of the fact negligence caused counsel, have that Adam could not assisted his his absence have to his prejudice from the courtroom could caused no hand, judge case. On the other could believe presence give that Adam’s condition was such that his could advantage by to decide causing an unfair irrele- sympathy, based on a factor that is question of certainly in the case and to the issue vant issue not affect culpability. ruling The court’s did defendants’ damages phase of present during to be have been relevant physical appearance would when his rulings complained by plaintiffs All of the say within the trial court’s discretion. Unless we can that one beyond ruling range or more was of the trial court’s discre- majority point tion, we should not reverse. The fails to con- vincingly any ruling in which the trial court acted improperly. rulings It is difficult to understand how the two can, which were not combined, error when constitute revers- ible error.