Following the crash of a small airplane in 1995, a passenger sued the pilot for negligence. During discovery, the passenger attempted to add as a defendant the manufacturer of an air filter used in the airplane based on theories of negligence and products liability. Instead of staying the entire case so the manufacturer could prepare, the court ordered separate trials, first of the passenger’s claim against the pilot followed by his claims against the manufacturer. Arguing that this bifurcation order severely prejudiced his suit and violated the Seventh Amendment, the passenger challenges the propriety of the district court’s decision. Because the district court did not clearly abuse its discretion in ordering separate trials, we now affirm its decision.
Background
On the night of December 11,1995, a six seat Piper Aztec E airplane (the “Aztec” or the “airplane”) piloted by Robert Timm took off from Wausau, Wisconsin bound for Tulsa, Oklahoma. About thirty minutes into the flight, Timm noticed that the plane’s left engine was losing power. Despite the pilot’s efforts to restore power, it eventually quit. Soon the right engine quit as well, and the pilot tried to glide the airplane to the nearest airport in Boscobel, Wisconsin. This attempt, however, was unsuccessful and the plane crashed into the woods well short of the runway.
Investigations following the crash determined that both engines failed because ice built up inside the air induction system blocking the flow of air into the engines. Normally, air flows to each of the Aztec’s engines from holes behind the propellers. Before reaching the engines, the air passes through an air filter. If this air induction system is blocked by ice build up, and air pressure around the engines drops, an automatic spring door is designed to open creating an alternate air flow channel. This alternate air system provides hot, unfiltered air from inside the airplane which should melt any ice that forms inside the primary air induction system. The alternate channel can also be manual
On February 18, 1997, Steven Houseman, a passenger who suffered serious and permanent injuries in the accident filed suit against the pilot, Robert Timm, in the U.S. District Court for the Western District of Wisconsin.
At an initial conference, Judge Shabaz scheduled trial for November 12, 1997. During discovery, the plaintiff learned that Timm’s expert witness, Douglas Stimpson, was prepared to testify that the Aztec’s air filter, manufactured by Brackett Aircraft Company (“Brackett”), was defective because it allowed excess moisture to pass into the air induction system and turn to ice.
On October 15, 1997, Houseman again sought leave to amend his complaint, this time adding a products liability claim against Brackett based on its air filters. Brackett argued that this claim should have been raised when Houseman’s complaint was first amended and explained that it would be prejudiced by having to counter the strict liability theory on such short notice. Despite these objections, and the court’s own concern that the plaintiff had been dilatory in advancing this theory, the court granted Houseman’s motion on October 29, 1997. However, because it concluded that Brackett would have been unable to fully prepare for the new claim in the time remaining before trial, and that Timm should not have to wait until Brackett was prepared, the court bifurcated the claims against each defendant pursuant to Rule 42(b) of the Federal Rules of Civil Procedure.
The trial against Timm began on December 1, 1997 and ended the next day. The plaintiff argued that the accident was a result of pilot error and not the filter. Timm called expert Douglas Stimpson who testified that the accident was caused by the filter, and that Timm had not acted negligently. The plaintiffs offered no rebuttal testimony. Although the jury found that Timm had been negligent with respect to the operation of the airplane, it determined that his negligence was not a cause of the crash.
Before the second trial started, the plaintiff moved for judgment as a matter of law against Timm or, in the alternative, a new trial and to vacate the bifurcation order. Houseman argued that separating the question of causation between the two proceedings violated the Seventh Amendment because it allowed two juries to try the same issue. Also, by splitting the defendants, bifurcation denied Houseman the chance to take advantage of an “alternative liability” theory which, under certain circumstances, shifts the burden of proof on causation to the defendants. The court rejected the motion, finding ample support for the jury’s special verdict, and concluded that the plaintiff had, to that point, been given a fair trial. As to Houseman’s claim that he was unfairly prejudiced, the court stated that the argument was premature because the issues relating to Brackett had not yet been tried.
In order to pursue this appeal, Houseman agreed to judgment in favor of Timm, and to dismiss with prejudice his claims against Brackett.
Discussion
The sole issue on appeal is whether the district court’s decision to bifurcate the liability claims was an appropriate use of Rule 42(b). This rule permits the separation of claims or issues for trial if certain conditions are met. First, the trial judge must determine whether separate trials would avoid prejudice to a party or promote judicial economy. DeWitt, Porter, Huggett, Schumacher & Morgan v. Kovalic,
Basis for Bifurcation
When Houseman moved to amend his complaint for a second time just prior to trial, the judge was faced with having to balance the interests of the three parties involved. As the court explained:
[I]t would be unduly prejudicial to require defendant Brackett to adhere to the amended trial schedule previously announced. The additional claims for strict liability would have severely prejudiced Brackett requiring a prolonged trial without sufficient preparation. Instead of denying the motion to amend, which based on plaintiffs’ dilatory tactics would also have been an appropriate exercise of authority, the Court preserved for the plaintiff the opportunity to proceed against Brackett on negligence and strict liability at a later date. Defendant Timm was prepared to proceed on December 1, 1997 and should not have been prejudiced by plaintiffs further delay. Accordingly, it would have been a violation of the spirit of Rule 1 to adjourn the entire trial.
Based on the plaintiffs delay in readying the matter for trial and the late filed motion to amend their complaint for the second time, the Court had no other choice then to sever the claim for trial or deny the plaintiffs belated motion.5
Once the court decided to allow Houseman’s belated amendment, keeping the claims together would either require Timm to delay trial for over two months or force Brackett to defend a complex claim on short notice. The inconvenience to the first and the potential prejudice to the second was aggravated by the court’s concern that Houseman had engaged in dilatory tactics. This was a sufficient basis for the court’s decision. See MCI Communications,
Prejudice to Houseman
Houseman argues that even if the decision had an adequate basis, the court abused its discretion because bifurcation unfairly prejudiced the plaintiffs case. See Angelo v. Armstrong World Industries,
Burden Shifting
Houseman first argues that by separating the claims against Brackett from those against Timm, the plaintiff was denied the chance to shift the burden of proof on causation to the defendants under an alternative liability theory. See Summers v. Tice,
When the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty asto which one of them has caused it, the burden is upon each such actor to prove that he has not caused the harm.
Restatement (Second) of ToRts, § 433B(3) (1965). The Restatement rule is an outgrowth of Summers.
Wisconsin courts have adopted the scheme, and identified its triggering prerequisites.
While we agree that incorrectly denying a plaintiff the opportunity to shift the burden of proof would certainly be prejudicial and would justify overturning the district court’s decision, we do not believe the alternative liability theory applies to Houseman’s claims. Although Houseman could potentially have satisfied the first and third requirements — that both Timm and Brackett’s conduct was tortious, and that uncertainty existed as to which (if either) caused the accident — the plaintiff cannot satisfy the second requirement — that only one of the defendants was responsible.
First, this was not a case where only one of the two defendants necessarily caused the crash. When the suit was initiated, it was entirely possible that the jury could have found that Timm’s and Brackett’s conduct jointly resulted in Houseman’s injuries. See Johnson v. Heintz,
We are not persuaded by this analogy. For one thing, Houseman can point to no authority even suggesting that Wisconsin courts recognize this “special responsibility” theory. Moreover, even New Jersey courts have emphasized that this theory is limited to the particular facts of Anderson. See Blitz v. Hutchinson,
The second reason the alternative liability theory would not apply to Houseman is that implied in the requirement that only one defendant be responsible is the assumption that all of the potentially liable defendants have been joined in the lawsuit. Collins v. Eli Lilly Co.,
Finally, the plaintiff was not in a position of being unable to prove causation. Houseman, through discovery, had access to the same information as the defendants, and had expert witnesses prepared to testify as to causation. This was not a situation, like that faced by the victim in Tice, where the injured party had no basis for determining and establishing which of the two defendants caused the accident. Collins,
Houseman Forced to Destroy Case Against Brackett
The second prong of Houseman’s prejudice argument is that by separating the defendants, the court forced the plaintiff to destroy in the first trial his case against Brackett in the second. Without Brackett there to defend itself, Houseman asserts, Timm was free to argue that the filter was the sole cause of the accident, requiring Houseman to defend the integrity of Brackett’s product. Indeed this is what occurred during the first trial. One of Timm’s anticipated defenses was that the filter was the sole cause of the accident and he presented expert testimony to that effect. Houseman called experts Arthur B. Childers and Charles J. Wray who had filed affidavits stating that there was nothing wrong with Brackett’s filters and that
However, we are unable to see how this prejudice is anything but self-imposed. At trial, Houseman chose to refute Timm’s anticipated defense in part by claiming that the filters were not defective and played no part in the accident. We find nothing in the record suggesting that this was the only, or even the best, argument he could have made. If it were, Houseman had no business joining Brackett in the first place.
Seventh Amendment
Houseman’s final argument is that bifurcation violated - the Seventh Amendment because it would have required different juries to pass on the same essential question. The Seventh Amendment provides that: “In suits at common law ... the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined.” U.S. Const. Amend. VII. Houseman’s challenge is based on the second clause. To avoid conflict with this constitutional provision, questions in a single suit can only be tried by different juries if they are “so distinct and separable from the others that a trial of [them] alone may be had without injustice.” Gasoline Products Co. v. Champlin Refining Co.,
Houseman argues that because Timm asserted in the first case that Brackett’s filter was the sole cause of the accident, causation was a single issue, or at least two issues which were substantially intertwined. Either way, claims Houseman, the jury could not have decided Timm’s liability without determining -Brackett’s. The bifurcation order thus set up a situation where two juries would decide the same issue: the cause of the crash. Specifically, the jury found that even though Timm had negligently piloted the airplane, he had not caused the crash. According to Houseman, the only way Timm’s negligence could not have been a cause is if the airplane would have crashed in any event because of Brackett’s defective filter. This, asserts Houseman, necessarily implies that the first jury decided that Brackett’s filter was the cause of the crash. Thus if the second jury were to examine causation as it related to Brack-ett, it would be doing so in violation of the Seventh Amendment. Rhone-Poulenc,
Houseman asserts that this case is analogous to and controlled by our decision in Rhone-Poulenc, 51 E.3d at 1293. In that case, the district court had certified a class of hemophiliacs attempting to sue manufacturers of antihemophiliac factor concentrate (AHF) claiming that as a result of using that product they had become infected with the Human Immunodeficiency Virus (HIV). However, the class was only certified for a determination of whether, based on two distinct theories, any of the
That risk, however, is not present here. The claims against each defendant are based on different legal theories and involve distinct inquiries. The first jury could decide that Timm was not a cause of the crash without deciding anything about Brackett. As discussed above, this is not a case of alternative liability where one of two or more defendants necessarily caused the harm and each defendant’s causal negligence is mutually exclusive of the other’s. Summers v. Tice,
Had Houseman proceeded to the second trial against Brackett, the jury would have been asked to decide only whether Brack-ett’s filter, if defective, was a cause of the accident. The jury would need to determine whether the filter functioned in a way that prevented ah- from getting to the engine, creating the likelihood of engine failure. This question is antecedent to and independent of anything the pilot may have done once the airplane was in trouble. At trial, Brackett would have been limited to arguing that its filter was not defective, or that something other than Timm’s negligence caused the crash. In its answer to Houseman’s amended complaint, Brackett did allege as an affirmative defense that “any injuries or damages sustained by plaintiffs were caused by third parties for whom these defendants have no responsibility.” Assuming this means Brackett meant to argue at trial that Timm’s negligence was a superseding cause of the accident, that argument would have been preempted by the special jury verdict in favor of Timm in the first trial. That Timm was not a cause of the accident would have already been decided and Brackett could not have reargued that question. See In re Innotron Diagnostics,
In the end, Houseman’s Seventh Amendment argument boils down to an assertion that much of the evidence presented in the first trial would have been re-examined in the second. Yet, this alone does not raise constitutional concerns. See Innotron Diagnostics,
Conclusion
The deferential standard by which we review challenges to bifurcation is based on the notion that the district court is in a far better position to assess and attempt to reconcile the competing interests of each party, judicial economy and unfair prejudice. McLaughlin,
Notes
. Federal jurisdiction was based on diversity. 28U.S.C. § 1332 (1996).
. Steven Houseman's wife Mary C. Houseman and his son Steven Houseman Jr. are also plaintiffs claiming loss of companionship. Neither were passengers in the airplane, however, and for convenience, we refer to the plaintiff in the singular, or as “Houseman.”
. The Brackett air filter was not the Aztec's original filter. It was a replacement installed sometime after the airplane was built. The filter was actually designed by AC Spark Plug Co., but the design was acquired and marketed by Brackett. In addition to Brackett, Stimpson's report identified the Federal Aviation Administration, AC Spark Plug and the Aztec's manufacturer, Piper Aircraft Co., as having some potential responsibility for what Stimpson saw as defects in the way air was delivered to the plane's engine.
.Rule 42(b) provides:
(b) SEPARATE TRIALS. 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, counter-claim, or third-party claim, or of any separate issue ... always preserving inviolate 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).
. Although courts generally use the terms sever and separate interchangeably, they are analytically distinct: "The procedure authorized by Rule 42(b) should be distinguished from severance under Rule 21. Separate trials will usually result in one judgment, but severed claims become entirely independent actions to be tried, and judgment entered thereon, independently." McDaniel v. Anheuser-Busch,
. The parties do not dispute that the burden of proof in this diversity action is determined by Wisconsin law. See Roberts & Schaefer v. Merit Contracting, 99 F.3d 248, 253 n. 2 (7th Cir.1996) (in diversity action, "state law governs questions regarding which party bears the burden of proof on a particular issue.”).
. Brackett argues that concerted action by the defendants is an additional requirement for application of the theory. See Fiumefreddo,
. It is important to note that Houseman is not claiming he was denied full discovery against both defendants. He was free to pursue evidence from either defendant, and claimed, in his brief opposing bifurcation, to be prepared to proceed against Brackett.
. The record reveals that the plaintiff had identified a potential expert, Mr. Huls, who was prepared to testify that even if ice formed within the induction system, the pilot should still have pulled the alternate induction switch, which would have melted the ice and (presumably) averted the accident. However, because the plaintiff was unable to secure his presence voluntarily, and failed to establish that he was not within the court’s 100 mile subpoena power, Huls’ testimony was not allowed. The plaintiffs do not challenge this.
. We recognize that it would have been to Houseman’s advantage to have Brackett at the first trial to have another voice arguing that Timm had been negligent. But this loss of a trial advantage is not by itself sufficiently prejudicial to justify reversal. Balancing the loss of this advantage with the benefit of being allowed to amend the complaint a second time and with the hardship the joinder would cause the defendants is a calculation within the court's special competence. Because its decision did not prevent Houseman from fully pursuing his theories against the pilot, we do not believe the court abused its discretion.
.The jury instructions on causation stated: The cause questions ask whether there was a causal connection between the negligence of Robert Timm and the accident. The question does not ask about "the cause” but rather "a cause.” The reason for this is that there may be more than one cause of an accident. The negligence of one person
. To some extent, the prejudice Houseman claims is inherent in suits claiming that multiple defendants are liable for the same injury. Whether the claims were tried together or separately, because Houseman bore the burden of proof he would have needed to produce evidence against each defendants. The evidence he presented against either defendant could then have been used by the other.
. Based on Houseman’s late attempt to join Brackett, the district court indicated that without bifurcation, it would likely deny the motion to amend entirely, leaving Houseman without a potentially fruitful strict liability theory. Although this question is not before us, we see nothing on the record suggesting that such a decision would have been an abuse of the court’s discretion.
. Although Timm's expert witness testified in the first trial that it was the filter, not Timm’s conduct which caused the crash, this does not mean that the jury decided this issue, let alone credited the evidence. As the district court noted in its denial of post trial motions, the same expert testified that Timm had not been negligent — a conclusion the jury clearly rejected.
. Any prejudice Brackett would have endured as a result of the loss of this defense was certainly within the risk the defendant assumed by requesting bifurcation in the first place. Cf. Cohen v. Bucci,
. We note, however, that when the decision to bifurcate was made, it did create a risk of Seventh Amendment violation, and to that extent was erroneous. Had the first jury determined that Timm’s conduct played a causal role in the accident and had a second jury decided that Brackett’s filter was also a cause, Wisconsin law suggests that Brackett could have asked a second jury to address the issue of comparative negligence. See Howes v. Deere & Company,