The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case Number: 21-22433-CIV-MARTINEZ-BECERRA
FLOR MORERA LOPEZ, and
ASBERT ANAZCO, individually and
as personal representatives of the
Estate of Asbert E. Anazco,
Plaintiffs,
Vs.
ZOLL SERVICES, LLC, ZOLL
MEDICAL CORP., and ZOLL
MANUFACTURING CORP.,
Defendants.
/
ORDER DENYING MOTION TO BIFURCATE
THIS MATTER came before the Court on Defendant Zoll Services LLC, Zoll Medical
Corp., and Zoll Manufacturing Corp. (together, “Zoll”)’s Motion to Bifurcate the Determination
of the Amount of Punitive Damages for Plaintiffs Fraudulent Marketing Claim from all Other
Issue[s] (“Motion to Bifurcate”). (ECF No. 198). Zoll argues that because Plaintiffs failed to
include a specific request for punitive damages in their Amended Complaint and have failed to
set forth sufficient allegations warranting such relief they should be “precluded from bringing
any argument for punitive damages as trial.” (/d at 1-2). To the extent the Court permits
Plaintiffs’ request for punitive damages, Zoll moves to bifurcate the merits of Plaintiffs’
fraudulent marketing claim from the request for punitive damages. (/d.)
Federal Rule of Civil Procedure 8(a)(3) provides that “[a] pleading that states a claim for
relief must contain . . . (3) a demand for the relief sought, which may include a relief in the
alternative or different types of relief.” A “Florida plaintiff in federal court because of diversity
jurisdiction need not obtain leave of court before pleading a request for punitive damages.”
Cohen v. Office Depot, Inc., No. 204 F.3d 1069, 1072 (11th Cir. 2000). “Florida courts entertain
the punitive damages issue by way of a motion to dismiss or a motion to strike, not a summary
judgment motion.” Porter v. Ogden, Newell, & Welch, 241 F.3d 1334, 1341 (11th Cir. 2001).
In other words, “a fact intensive investigation into the merits” of a punitive damages request is
not required. Id.
Here, Zoll has not moved to strike or dismiss Plaintiffs’ request for punitive damages.
Rather, in what appears to be a disguised motion in limine, Zoll attempts to preclude Plaintiff
from seeking punitive damages at trial, arguing that such a claim for relief has not been properly
plead. The time to make this argument has passed.
In any event, Plaintiffs’ demand for punitive damages is based on their claim for
fraudulent marketing and promotion under sections 817.40(5) and 817.41(1), Florida Statutes.
(Compl. at 16-17, ECF No. 58). As Zoll itself concedes, the Amended Complaint requests an
award of “damages allowed by section 817.41(6), Florida Statutes... .’ (Compl. at 17, ECF
No. 58). And section 817.41(6), Florida Statutes, provides that “[a]ny person prevailing in a civil
action for violation of this section shall be awarded costs, ... and may be awarded punitive
damages in addition to actual damages proven.” § 817.41(6), Fla. Stat. (emphasis added).
Moreover, the Court has already found—on summary judgment, no less—that there are disputed
issues of fact on this claim for fraudulent marketing and promotion. Accordingly, the Court will
permit Plaintiffs to pursue their request for punitive damages relief.
Now, the Court turns to whether it should bifurcate the trial on the merits of the fraudulent
marking and promotion claim from the punitive damages issue. Federal Rule of Civil Procedure
42(b) authorizes the Court to “order a separate trial of one or more separate issues” “[flor
convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b). The
decision to bifurcate a trial “is a matter to be decided on a case-by-case basis and must be subject
to an informed discretion by the trial judge in each instance.” Brown v. Toscano, 630 F. Supp.
2d 1342, 1345 (S.D. Fla. 2008) (citation omitted). The Court’s “paramount consideration must
remain a fair and impartial trial to all litigants through a balance of benefits and prejudice.”
Nuvasive, Inc. v. Absolute Med., No. 17-cv-2206, 2021 U.S. Dist. LEXIS 254205, *23 (M.D.
Fla. Nov. 12, 2021) (citation omitted). In addition to the factors set forth in Rule 42(b), courts
have considered other factors when determining whether to bifurcate, including “(1) whether the
issues sought to be tried separately are significantly different; (2) whether they are triable by jury
or the court; (3) whether discovery has been directed to a single trial of all issues; (4) whether
the evidence required for each issue is substantially different; (5) whether one party would gain
some unfair advantage from separate trials; (6) whether a single trial of all issues would create
the potential for jury bias or confusion; and (7) whether bifurcation would enhance or reduce the
possibility of a pretrial settlement.” /d. (citations and internal quotation marks omitted).
Zoll’s argues for bifurcation based on its concern that Plaintiffs will present to the jury
evidence of Zoll’s “financial condition, net worth, or ‘value’ in arguing for the imposition of a
punitive damage award.” (Mot. at 6, ECF No. 198). But Plaintiffs represent that they have not
sought out or obtained this information during discovery and “will not introduce evidence of
Zoll’s financial resources at trial[.]” (Resp. at 12, ECF No. 207) (emphasis in original).
Accordingly, it does not appear that Zoll will be prejudiced by the introduction of evidence with
respect to punitive damages before a determination of liability is made.
Zoll argues that “Florida law requires bifurcation” under W.R. Grace & Co. v. Waters,
638 So.2d 502, 505 (Fla. 1994). But the decision about whether to bifurcate is discretionary
under Rule 42(b), and the procedure described in W.R. Grace for submitting punitive damages
to a jury in Florida “is not binding upon a federal trial court.” Soliday vy. 7-Eleven, Inc., No. 09-
cv-807, 2011 U.S. Dist. LEXIS 63288, at *5 (M.D. Fla. June 13, 2011); B-K Cypress Log Homes
Inc. vy. Auto-Owners Ins. Co., No. 09-cv-211, 2012 U.S. Dist. LEXIS 200754, *5 (N.D. Fla. May
10, 2012) (“Although the W.R. Grace procedure is not binding on a federal court, it has been
applied to punitive damages claims under Florida law in appropriate cases.”’).
Moreover, the logic behind W.R. Grace’s punitive-damages procedure is not applicable
here. In W.R. Grace, the Florida Supreme Court recognized that defendants are prejudiced by a
trial procedure that “permits evidence of a defendant’s net worth to be introduced when liability
for punitive damages has not yet been determined.” Jd. at 506. That is not a concern here, since
Plaintiffs have assured the Court that they will not seek to introduce this evidence into the trial.
At this point, the Court does not find that the evidence to be substantial different for a
liability and punitive-damages determination, nor does it believe that Plaintiffs will gain an unfair
advantage by having the jury decide these issues together. Bifurcation will not economize the
trial or serve the convenience of the parties or the Court. After careful consideration of all
bifurcation factors, it is hereby ORDERED AND ADJUDGED that
Defendants’ Motion to Bifurcate, (ECF No. 198), is DENIED without prejudice.
Nevertheless, the Court cautions the parties to tread lightly around this issue. To the extent there
is any evidence that pertains solely to Plaintiffs’ request for punitive damages, the parties shall
bring the matter to the attention of the Court, outside the presence of the jury.
DONE AND ORDERED in Chambers at Miami, Florida, this (7. day of October, 2022.
( 9 £
JOSE E. MARTINEZ —
UNITED STATES DISTRICT JUDGE
Copies provided to:
Magistrate Judge Becerra
All Counsel of Record