Michelle HAMRE and Mary Ann Hamre, Plaintiffs, v. Abrar MIZRA, Ann Marie Baratta, Romel Arjona, Peter M. Gottlieb, Farhang F. Ebrahimi and Saint Vincents Catholic Medical Centers of New York, Defendants No. 02Civ.9088(PKL)(HBP) United States District Court, S.D. New York May 09, 2005 Leisure, Peter K., United States District Judge MEMORANDUM ORDER *1 Plaintiff Michelle Hamre brings this suit with her mother and guardian, Mary Ann Hamre, to recover for damages allegedly incurred from defendants' negligent medical treatment while Michelle Hamre was in their care. Plaintiffs filed the instant Complaint on November 14, 2002. On October 24, 2003, this Court referred the matter to Magistrate Judge Henry B. Pitman for general pre-trial purposes, including decisions on non-dispositive motions. On December 3, 2004, plaintiffs moved to sanction defendants, pursuant to Federal Rule of Civil Procedure 37, based on non-production of discovery documents. On January 13, 2005, defendants made three motions in limine to preclude two of plaintiffs' expert witnesses from testifying and to bifurcate the trial into liability and damages phases. On March 31, 2005, Judge Pitman issued an Order denying plaintiffs' motion for sanctions and granting defendants' in limine motion to bifurcate the trial.[1] Plaintiffs have since objected to that Order and the parties have fully briefed the issues. BACKGROUND Plaintiff Michelle Hamre entered into defendants' care on December 7, 2000 after she was admitted to Saint Vincents Catholic Medical Centers' (the “Hospital”) Emergency Room. She was diagnosed with Guillain Barre Syndrome, a neuromuscular disorder that caused her total but temporary paralysis. While in the Hospital's care, plaintiffs claim that Michelle Hamre was negligently moved from the Hospital's Intensive Care Unit (“ICU”) on January 8, 2001 to a “step-down unit,” a unit with less frequent monitoring. There, plaintiffs claim Michelle Hamre suffered a cardiac arrest on January 12, 2001, which was not timely discovered or treated. This allegedly caused the patient permanent and severe brain damage from deprivation of oxygen to her brain (“anoxia”). She is now in a persistent vegetative state with no prognosis for recovery. Plaintiffs allege that Michelle Hamre would not have suffered such permanent damage but for defendants' moving her to the step-down unit contrary to proper medical procedure; failure to properly monitor her vital statistics; and failure to return her to the ICU when her body temperature reached a critical stage. Defendants deny the allegations and deny that the anoxia caused Michelle Hamre's injuries. During discovery, plaintiffs discovered that the Hospital had not maintained certain documents in Michelle Hamre's chart. Namely, the Hospital cannot account for, and cannot produce for discovery purposes, three documents: (1) an initial consultation note by Michelle Hamre's treating physician, Dr. Peter M. Gottlieb; (2) a vital signs flow sheet memorializing, inter alia, Michelle Hamre's temperature from January 8-12, 2001; and, (3) a treating nurse's note supposedly written contemporaneously with the nurse's discovery of Michelle Hamre's cardiac arrest precipitating her injuries here in issue. Judge Pitman found that defendants did not willfully destroy the documents; therefore, he felt that striking defendants' answer and / or precluding them from offering testimony on liability was an inappropriate sanction. Judge Pitman assumed for the sake of argument that defendants failure to preserve the documents as per their legal obligation rendered them negligent. However, Judge Pitman ruled that the documents were not sufficiently “relevant” in the sense contemplated by Second Circuit caselaw imposing the sanction of adverse inference on the party failing to produce required discovery. Thus, Judge Pitman concluded that sanctioning defendants was not appropriate. *2 Defendants sought to bifurcate this trial into a liability phase and a damages phase, claiming that they would be unduly prejudiced by evidence of Michelle Hamre's daily medical needs and detailed descriptions of her current condition. Specifically, defendants argued that, based on the recent controversy surrounding Theresa Schiavo's family dispute regarding the continuation of her care, jurors would be prejudicially sympathetic to Michelle Hamre's plight. This would unfairly lessen plaintiffs' burden regarding liability. Judge Pitman agreed with defendants, finding plaintiffs' argument that they would be prejudiced because they would have to duplicate an expert witness's testimony unpersuasive. Judge Pitman ordered the trial bifurcated, advising plaintiffs that they could prove liability, including causation and injury, without delving into the specific details of plaintiffs' damages. DISCUSSION I. Standard of Review As a preliminary matter, the Court notes that Judge Pitman's Order dealt with two non-dispositive motions. “[A] judge may designate a magistrate to hear and determine any pretrial matter pending before the court,” except for certain enumerated motions. See 28 U.S.C. § 636(b)(1)(A); see also Fed.R.Civ.P. 72(b). When a magistrate judge issues an order regarding non-dispositive pretrial matters, the district court must determine whether such an order is “clearly erroneous or contrary to law.” See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). A magistrate judge's finding is “clearly erroneous” when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Derthick v. Bassett-Walker, Inc., Nos. 90 Civ. 5427, 90 Civ. 7479, 90 Civ. 3845, 1992 WL 249951, at *8 (S.D.N.Y. Sept.23, 1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Under this deferential standard of review, magistrate judges are granted broad discretion and will only be reversed if that discretion is abused. SeeLanzo v. City of New York, No. 96 Civ. 3242, 1999 WL 1007346, at *2 (E.D.N.Y. Sept. 21, 1999) (citation omitted). Having reviewed the parties' submissions concerning plaintiffs' objections to Magistrate Judge Pitman's Order, the Court adopts the Order in full, finding it was not in clear error or contrary to law. The Court's reasons are further elucidated below. II. Plaintiffs' Motion for Sanctions Plaintiffs moved for sanctions striking defendants' Answer or, in the alternative, precluding defendants from offering testimony on the issue of liability. Plaintiffs argued that these severe sanctions were necessary because the fact that the only missing documents are those created during the dates surrounding the incident at issue demonstrate that defendants acted in bad faith. Further, plaintiffs argued the documents were relevant to their case and may have shown defendants were negligent in their care of Michelle Hamre. At the oral argument, Judge Pitman found that no showing of willful destruction or bad faith had been made and therefore, the “ultimate sanction” “tantamount to a default judgment” requested by plaintiffs was not appropriate. (Tr. 66 (citing Luft v. Crown Publishers, Inc., 906 F.2d 862, 865 (2d Cir.1990), and Worldcom Network Servs., 205 F.R.D. 136, 142 (S.D.N.Y.2002).) Addressing the lesser sanction of adverse inference, not proposed by the parties, Judge Pitman noted that, according to Second Circuit caselaw, plaintiffs must demonstrate that defendants (1) had an obligation to preserve the evidence and had control over it when it was destroyed; (2) destruction resulted from defendants' culpable state of mind; and, (3) the destroyed evidence was relevant to plaintiffs' case. (Tr. 66-67 (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002).) Judge Pitman assumed plaintiffs had met the first two requirements but found that plaintiffs had not shown the documents to be relevant, or that they would have supported plaintiffs' case, as defined by the caselaw. (Tr. 67-68 (citing Residential Funding, 306 F.3d at 108-09, and Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 176 (S.D.N.Y.2004).) *3 The Court finds no clear error in Judge Pitman's assessment of plaintiffs' arguments and finds that his Order denying sanctions is not contrary to the law in this Circuit. In order for the sanction of adverse inference to be imposed, plaintiffs must present some evidence corroborating plaintiffs' assumption that the missing evidence would have been favorable to their case. Zubulake v. UBS Warburg LLC, No. 02 Civ. 1243, 2003 WL 22410619 (S.D.N.Y. Oct. 22, 2003); see Residential Funding, 306 F.3d at 109 (requiring the prejudiced party demonstrate the destroyed documents are “of the nature alleged by the party”). While plaintiffs are correct that they should not be held to “too specific a level of proof” regarding the destroyed documents, they must provide some evidence that the documents would have aided them in the manner alleged. See Shamis v. Ambassador Factors Corp., 34 F.Supp.2d 879, 889 (S.D.N.Y.1999). Plaintiffs did not put forth any evidence regarding the contents of the destroyed documents. Rather, they argued that, because of temporal coincidence, the Court should infer that the destroyed documents would contradict defendants theory of the case, and therefore corroborate plaintiffs' theory. This plainly does not trigger the sanction of adverse inference. Nor does it support the imposition of any other sanction as a spoliation of evidence sanction should “reflect the materiality and value of the suppressed evidence and ability of a party to fully and fairly prepare for trial.” Id. (quotation omitted) (alteration in original). Without any showing regarding the materiality of the evidence, a sanction is not appropriate. Further, it is notable that, regarding the vital sign flow sheets, the information normally contained therein is summarized in the treating physicians' summary notes. Judge Pitman appropriately applied the law in this Circuit to the facts at hand, and this Court adopts his Order denying sanctions in full. III. Defendants' Motion to Bifurcate the Trial Defendants moved to bifurcate the trial into a liability phase and a damages phase, arguing that they would be unduly prejudiced during the liability phase if the extent of Michelle Hamre's current condition allegedly caused by defendants' negligence were detailed. According to defendants, there is a particular risk of undue prejudice because her medical condition is similar to that of Theresa Schiavo, who was recently the subject of intense national media coverage, a highly contentious court battle, and Congressional legislation. Plaintiffs argued that it would be far too difficult to separate out the two phases as evidence of causation and injury are inextricably intertwined with evidence of damages. Further, plaintiffs claim they would be prejudiced by duplicitous effort by plaintiffs' expert witness. Judge Pitman found no clear guidance in Second Circuit or New York state court caselaw regarding bifurcation of medical malpractice cases. Applying Guidi v. Inter-cont'l Hotels Corp., No. 95 Civ. 9006, 2003 WL 1846864 (S.D.N.Y. Apr.8, 2003), and TVT Records v. Island Def Jam Music Group, 257 F.Supp.2d 737 (S.D.N.Y.2003), Judge Pitman found that defendants would be unduly prejudiced if details regarding Michelle Hamre's daily care were revealed while the jury was contemplating defendants' liability for her injury. Thus, he granted defendants' motion to bifurcate the trial. *4 Bifurcation of a trial is deemed appropriate on a case-by-case basis pursuant to Federal Rule of Civil Procedure 42(b) “in furtherance of convenience or to avoid prejudice, or where separat[ion] will be conducive to expedition and economy.” Fed.R.Civ.P. 42(b). Courts examine several, non-exhaustive factors in making this decision: (1) whether the issues are significantly different; (2) whether it is a jury or bench trial; (3) overlap of evidence; (4) prejudice to either party. See Guidi, 2003 WL 1846864, at *1. Plaintiffs' argument that they will be prejudiced by bifurcation is unpersuasive. Defendants solely wish to prevent the details of Michelle Hamre's daily needs and medical care from unduly influencing the jury's decision on liability. Plaintiffs can still show that Michelle Hamre was injured and that she would not be in a vegetative state but for defendants' failure to properly treat her. In that regard, plaintiffs may demonstrate the extent of Michelle Hamre's brain damage in order to evidence the amount of time she was deprived of oxygen if necessary to prove causation. However, on the current record, the Court agrees with Judge Pitman that it does not appear necessary for plaintiffs to detail her daily needs in order to demonstrate defendants' liability for her injury. If this turns out not to be the case, the Court can of course revisit preliminary rulings pursuant to Federal Rule of Civil Procedure 104 as the case unfolds. Fed.R.Civ.P. 104; Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Thus, plaintiffs' fears that their case on liability will be compromised by bifurcation and that they will be unable to explain Michelle Hamre's absence at trial overstate the breadth of Judge Pitman's ruling. Based on the arguments and affidavits presented to him, Judge Pitman determined that defendants' potential prejudice resulting from a jury overly sensitive and sympathetic to Michelle Hamre's condition outweighed that of plaintiffs' potential inconvenience of presenting possibly duplicitous evidence. The Court finds that Judge Pitman did not act contrary to the law in this Circuit nor did he clearly err in granting defendants' in limine motion to bifurcate the trial. Therefore, the Court adopts his Order in full. CONCLUSION For the preceding reasons, the Court adopts in full Judge Pitman's Order denying plaintiffs' motion to sanction defendants and preliminarily granting defendants' motion in limine to bifurcate the trial. SO ORDERED. Footnotes [1] Judge Pitman reserved judgment on defendants' two other motions in limine regarding plaintiffs' expert witnesses until he had adequate time to weigh the issues presented in the parties' papers. (Transcript of Oral Argument, dated March 29, 2005 (“Tr.”) at 71.)