United States District Court, D. Utah, Central Division
COLLETTE C. RUSSELL, Plaintiff,
NEBO SCHOOL DISTRICT, a political subdivision of the State of Utah, ANGIE KILLIAN, an individual, BRUCE MOON, an individual, and DOES I-X, individuals, Defendants.
MEMORANDUM DECISION AND ORDER
HONORABLE DAVID SAM U.S. DISTRICT COURT JUDGE
Bruce Moon (“Moon”) has filed a Motion for
Bifurcation, pursuant to Fed.R.Civ.P. 42(b). ECF No. 176. He
requests that the court bifurcate the claims brought against
him from those against Defendants Nebo School District (the
“District”) and Angie Killian
(“Killian”) (collectively the “Nebo
Defendants”), and that his trial be bifurcated into
liability and damages phases. The Nebo Defendants have also
filed a request for bifurcation of their claims from Moon and
to bifurcate the liability and damages phases of trial. ECF
No. 179. The parties requested expedited treatment.
Collette Russell has brought five causes of action against
the District in its role as employer. Two of these claims are
also against Killian in her capacity as principal of Mr.
Loafer Elementary School. These claims include sexual
discrimination and harassment in violation of Title VII,
retaliation in violation of Title VII and Title IX, and
violation of Plaintiff's free speech/equal protection
rights. Each of these claims is based on how the District
and/or Killian supervised its employees and operated the
school during the relevant period. Plaintiff has also brought
three claims against Moon in his individual capacity. They
are assault and battery, and intentional infliction of
emotional distress, arising from certain discrete sexual
Federal Rules of Civil Procedure provide for the bifurcation
of trials: “For convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial
of one of more separate issues, claims, crossclaims,
counterclaims, or third-party claims.” Fed.R.Civ.P.
42(b). “District courts have broad discretion in
deciding whether to sever issues for trial. . .”
U.S. ex Rel. Bahrani v. Conagra, Inc., 624 F.3d
1275, 1283 (10th Cir. 2010) (quoting Anaeme v.
Diagnostek, Inc., 164 F.3d 1275, 1284 (10th
Cir. 1999) (internal quotations removed). In deciding whether
to bifurcate, “courts balance the potential prejudice
to parties, convenience, and judicial economy . . .”
with the goal of reaching a just final disposition of
Moon has made a compelling argument that his claims should be
bifurcated. As a preliminary matter, the issues in question
must be clearly separable for a court to grant bifurcation.
In this case, the elements of the claims against Mr. Moon are
not similar to the elements of the claims against the other
defendants. Although some of the evidence may overlap, by and
large Plaintiff will need to present different evidence to
prove her claims against Mr. Moon than she needs to present
to prove her claims against the Nebo defendants. Also, there
is no overlap of claims or issues between Mr. Moon and the
Nebo defendants. Therefore, the issues are clearly separable.
Moon will be unduly prejudiced unless the claims against him
are bifurcated into a separate trial. Courts must consider
whether “a single proceeding will unduly prejudice
either party or confuse the jury. York v. American
Telephone Telegraph Co., 95 F.3d 948, 957
(10th Cir. 1996). A party will be unfairly
prejudiced if a limiting instruction would be insufficient to
“unring the bell in the minds of jurors regarding the
prejudicial evidence.” Trujillo v. Am. Family Mut.
Ins. Co., No. 1:08cv36 TS, 2009 WL 440638, at *3 (D.
Utah Feb. 20, 2009) (unpublished). In this case, there is
significant evidence that would be appropriate for the jury
to hear regarding Plaintiff's claims against the Nebo
School District and Principal Angie Killian, but that would
be inadmissible against Mr. Moon. Under the Federal Rules of
Evidence, evidence of a party's character or other acts
is not admissible to show that “on a particular
occasion the person acted in accordance with the
character.” Fed.R.Evid. 404(b)(1). Plaintiff disclosed
that she plans to offer written statements and testimony from
multiple witnesses to show that Mr. Moon behaved
inappropriately towards other women in the school district.
This evidence is not admissible against Mr. Moon to show that
on a particular occasion he sexually assaulted Plaintiff or
acted to intentionally inflict emotional distress on
Rule of Evidence 415 allows the admission of evidence that a
“party committed any other sexual assault . . .”
only if (1) the defendant is accused of sexual assault, (2)
the evidence proffered is of another sexual assault, and (3)
the evidence is relevant. Plaintiff has not proffered any
evidence of prior sexual assault by Mr. Moon. None of the
statements about Mr. Moon from other women working in the
district allege that he sexually assaulted them. Also,
evidence is only relevant if it shows that “the
defendant has a particular propensity, and the propensity it
demonstrates has a bearing on the [claim] Seeley v.
Chase, 443 F.3d 1290, 1294 (10th Cir. 2006).
Plaintiff has not proffered any evidence of a prior sexual
assault by Mr. Moon. None of the women allege that Mr. Moon
sexually assaulted them and therefore, the evidence does not
show that Mr. Moon had a particular propensity for sexual
assault. In fact, as Mr. Moon points out, it shows the exact
opposite-"despite being touchy feeling, ” he never
touched another woman's breast or buttocks without their
that Mr. Moon made other women “uncomfortable, ”
while being relevant and likely admissible regarding the
claims against the District, would be the type of evidence
that would inflame a jury and prejudice them against Mr.
Moon. Once this evidence is heard, it would be impossible for
the jurors to compartmentalize it to just the claims against
the District without considering it in relation to the claims
against Mr. Moon. Furthermore, the majority of evidence
Plaintiff and the District seek to admit is not relevant to
her claims against Mr. Moon. If the trial is not bifurcated,
Mr. Moon will be forced to attend a lengthy portion of the
trial that has nothing to do with him. Bifurcation will not
significantly affect judicial economy, as both trials can
reasonably be conducted in the three-week time span already
set aside for the trial. For the above reasons, the court
hereby grants Defendant Moon's motion to bifurcate the
claims brought against Mr. Moon from those against Nebo
School District and Angie Killian.
Moon and the District Defendants have both also requested
that the court bifurcate their trials into liability and
damages phases. Plaintiff has disclosed that she plans to
present evidence of the therapy she has undergone as a result
of Mr. Moon's alleged assault. Mr. Moon argues that this
evidence, while admissible to prove the emotional distress
Mr. Moon allegedly inflicted on Plaintiff, is inadmissible
hearsay to prove whether Mr. Moon committed the alleged acts.
The defendants also argue that this evidence is prejudicial
and would taint the minds of the jurors as to liability.
Plaintiff notes, however, that she has asserted in
intentional infliction of emotional distress claim against
Moon under Utah law. To prove her claim, she must show that
she suffered extreme or severe emotional distress to
establish liability. See MUJI 2d CV1501-1503.
or extreme emotional distress includes “such things as
mental suffering, mental anguish, mental or nervous shock, or
highly unpleasant reactions, such as fright, horror, grief,
or shame, ” and can be shown by, among other things,
the nature of the distress and “observable behavioral
or physical symptoms, and the nature of [defendant]'s
conduct.” MUJI 2d CV1503. Hence testimony from
Russell's therapist, from her or her family members is
directly relevant to establishing liability and will
necessarily be part of the evidence that she must introduce
during the liability phase of her trials to show she suffered
severe emotional distress. See Miller v. Fairchild
Industries, inc., 885 F.2d 498, 511-12 (9th
Cir. 1989) (affirming denial of motion to bifurcate and
stating that in “an intentional infliction of emotional
distress claim, the issue of liability is intertwined with
the issue of damages since the trier of fact can find
liability only if it first finds that the plaintiff suffered
severe emotional distress.” Thus “[a]n attempt to
separate the trial of liability and damages issues”
would tend to create “confusion and uncertainty”)
(internal citations omitted)).
on the foregoing, the court hereby GRANTS Mr. Moon's
motion to Bifurcate the claims brought against Mr. Moon from
those against Nebo School District and Angie
Killian.The court DENIES both Mr. Moon's and
the Nebo Defendants' ...