A court, in furtherance of convenience or to avoid prejudice, or when separate trials would be conducive to expedition and economy, may order separate or bifurcated149 trials of any claim, cross-claim, counterclaim or third-party claim or of any separate issue or of any number of claims counterclaims, third-party claims or issues.150
The decision whether to grant a separate or bifurcated trial is within the discretion of the trial court.151 It has been said that a motion for bifurcated trials should be “carefully considered and sparingly granted” and may be denied if it will result in unnecessary duplication, double expense and is generally not conducive to the expedition or efficiency of the trial.152 In deciding whether to grant a motion to sever, a court should weigh the similarity or dissimilarity between the facts and issues underlying the claims, the potential for delay, any additional expense and prejudice to the parties that might result, and whether the efficient administration of justice would be served by severance, for example, whether an initial trial on some of the issues might eliminate the need for a subsequent trial on some or all of the remaining issues.153
Additional considerations include the possibility of duplication of testimony, whether facts and issues are distinctly complicated, whether discovery on certain claims would delay a single trial, whether different counsel would try different issues if they were severed and whether one of the issues is already pending in another court.154
Circumstances conducive to bifurcation include (i) multi-party litigation where many plaintiffs are joined and there is an issue of liability as to all of them but damages differ for each party; (ii) cases containing diverse claims, such as permissive counterclaims, that are unrelated to the principal cause of action; and (iii) when numerous witnesses will testify on a complex issue of damages.155 It is also proper to sever a common-law counterclaim, to which a right to trial by jury attaches, from an eminent domain case, which does not involve a jury trial.156 Severance may also be appropriate in a jury trial where a party’s insurance company is also a party subject to a claim, since this runs the risk that the issue of insurance coverage will be injected into the trial, which is an inappropriate consideration.157 Bifurcation on the issue of punitive damages may be appropriate where there are several defendants who have disparate financial positions, so as to avoid prejudice to a less well-off defendant.158
Trial of various issues in the same case before different juries should be permitted only where the issues are sufficiently distinct and separable such that separation of the issues will not cause confusion and uncertainty. There should be no possibility that the different juries could reach different conclusions on the same matters.159
149. The term “bifurcated trial” refers to separate trials of two issues in the same case by either the same or a different jury. Garrett v. State, 320 A.2d 745, 748 n.3 (Del. 1974).
150. Ch. Ct. R. 42(b); Super. Ct. Civ. R. 42(b); Comm. Pls. Ct. Civ. R. 42(b); Fam. Ct. Civ. R. 42(b).
151. McNally v. Eckman, 466 A.2d 363, 367 (Del. 1983); Auerbach v. Cities Service Co., 143 A.2d 904, 907 (Del. 1958); Union Mut. Life Ins. Co. v. Dewey, 270 A.2d 833 (Del. Super. 1970).
152. Union Mut. Life Ins. Co. v. Dewey, 270 A.2d 833 (Del. Super. 1970). See also Delaware Chemicals, Inc. v. Reichhold Chemicals, Inc., 124 A.2d 553, 555 (Del. Ch. 1956); Siegman v. Columbia Pictures Entertainment, Inc., C.A. No. 11,152, slip op. at 7, Hartnett, V.C. (Del. Ch. Apr. 14, 1993); American Home Prods. Corp. v. Norden Lab., Inc., C.A. No. 11615, slip op. at 16, Hartnett, V.C. (Del. Ch. Dec. 9, 1992); Delmarva Drilling Co. v. American Water Well Systems, Inc., C.A. No. 8521, slip op. at 15, Hartnett, V.C. (Del. Ch. Jan. 26, 1988); Preston v. Preston, C.A. No. 6409, slip op. at 3, Hartnett, V.C. (Del. Ch. Sept. 17, 1980).
153. Marshall v. Watkins Truck, Inc., C.A No. 90C-AP-256, slip op. at 3, Toliver, J. (Del. Super. Apr. 20, 1992) (ORDER).
154. Siegman v. Columbia Pictures Entertainment, Inc., C.A. No. 11,152, slip op. at 7, Hartnett, V.C. (Del. Ch. Apr. 14, 1993); American Home Prods. Corp. v. Norden Lab., Inc., C.A. No. 11615, slip op. at 3, Hartnett, V.C. (Del. Ch. Dec. 9, 1992).
155. Randolph v. Scott, 338 A.2d 135, 137 (Del. Super. 1975); In re Asbestosis Litigation, C.A. No. 82C-AP-77, slip op. at 2, Poppiti, J. (Del. Super. Mar. 31, 1987).
156. State ex rel. Smith v. 0.24148 and 0.12277 Acres of Land, 171 A.2d 228, 231 (Del. 1961).
157. Clark v. Simon, C.A. No. 85C-MY-1, slip op at 6, Lee, J. (Del. Super. Nov. 9, 1992), modified on other grounds, on reh’g, C.A. No. 85C-MY-1, Lee, J. (Del. Super. Dec. 9, 1992).
158. Rochen v. Huang, C.A. No. 87C-JN-96, slip op. at 3, Gebelein, J. (Del. Super. Jan. 6, 1989).
159. Mancari v. A.C. & S. Co., Inc., C.A. No. 82-JL-80, slip op. at 2-4, Taylor, J. (Del. Super. Mar. 31, 1988) (ORDER), reh’g denied, C.A. No. 82C-JL-80, Taylor, J. (Del. Super. Apr. 28, 1988) (ORDER).
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