Q: Timing of Bifurcation---immediate? Lag?

A: The motion to bifurcate can be filed with a defendant’s answer but must be filed by the later of: 1) the 120th day after filing defendant’s answer or 2) 30 days after a claim is asserted against defendant.


Q: What changes to discovery practice: MORE objections? Motion to compel?

A: Discovery concerning compliance with federal/state regulations should reflect the limitations contained in section 72.053 (namely, applicability to specific defendant and threshold showing of proximate cause). The appropriate objections should be asserted in discovery responses. Motions to compel are anticipated as the proximate cause standard is likely to be disputed. On the other hand, the statute’s elimination of expert proof to admit photographic/video evidence should eliminate some discovery battles.


Q: Can you waive bifurcation?

A: Yes! By failing to timely move for bifurcation, a defendant will waive the statutory bifurcation. While the court may grant a motion under the general rule of civil procedure 40, it will be discretionary with the court, not mandatory.


Q: Can you waive stipulation?

A: Based on the specific facts of each case, a defendant may wish to stipulate that the driver was its employee and within the course and scope of employment pursuant to section 72.054. If filed by the deadline to file a motion to bifurcate, the stipulation limits claims against the employer to respondent superior. Note that unlike a motion to bifurcate, which is procedural, a stipulation of employment status is evidentiary. Also--it is not a stipulation of liability.


Q: How do you see this for Mediation strategy?

A: Defendants should factor in HB19 in mediation and settlement strategy. The “Texas Two-Step” means that the jury must make predicate findings of driver liability prior to getting to the next stage for punitive damages or claims of negligent entrustment. The focus will be on whether a claimant can prove liability prior to consideration of punitive damages and negligent entrustment in cases of questionable liability.


Q: What happens if there is clear liability? Does HB19 limit the employer negligence claims or is it specific for questionable liability that will be split into a bifurcated trial?

A: HB19 is intended to limit direct negligence claims against employer defendants where employment status and course and scope are undisputed. In all other circumstances, HB19 is intended to affect lawsuits involving dubious liability by limiting extraneous evidence of unrelated violations and punitive damage evidence in the initial liability phase. There may be little practical difference in other cases.