Brister Concurrence opposing trifurcation in
Columbia Medical Center of Los Colinas v. Hogue,
No. 04-0575 (Tex. Aug. 29, 2008)(Wainwright) (HCLC, med-mal, gross negligence by hospital, contributory
negligence, trifurcation of trial)

ROBERT HOGUE, III; from Dallas County; 5th district
(05-03-00279-CV, 132 SW3d 671, 04-13-04)   
The Court affirms in part and reverses in part the court of appeals' judgment.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, Justice
Medina, Justice Johnson, and Justice Willett joined, and in Parts II-A, II-C, and II-D of which Justice Hecht and Justice Green

Brister delivered a concurring opinion, in which Justice Medina joined.
Green delivered an opinion concurring in part and dissenting in part, in which Justice Hecht joined.  


Brister's Concurrence in Columbia Medical Center v. Hogue (Tex. 2008)


Justice Brister, joined by Justice Medina, concurring.

I join the Court’s opinion. But I would be clearer about the “trifurcation” of this trial into
three parts: (1) ten days of evidence, two days of arguments, and a verdict on the
hospital’s negligence, followed by (2) one more day of arguments and a second verdict
on exemplary damages, and finally (3) further arguments and a third verdict on the
plaintiff’s contributory negligence. Rather than merely expressing “serious reservations”
about this “unusual” procedure, I would say “Don’t do it.”

Bifurcation is proper in a few instances,[1] but no one appears to have ever bifurcated
the plaintiff’s negligence from the defendant’s negligence as the trial court did here. Trial
on these two issues cannot be severed; a jury cannot decide whose negligence (if any)
caused an occurrence without knowing what both did. Nor can a jury apportion fault
between two parties until it finds both negligent.[2] Whenever there is evidence that both
parties are negligent, it is hard to imagine any circumstances in which a trial judge could
properly bifurcate the trial of these issues and ask a jury about them separately.[3]
Since 1973, we have required broad-form jury questions because the complexity of
granulated questions threatened to make the jury system unworkable.[4] We reformed
jury submission practice so that questions would be submitted “logically, simply, clearly,
fairly, correctly, and completely.”[5]

But submitting the negligence of two parties in separate questions at different points in
the trial is not logical (as the two are related), simple (as two sets of arguments and
deliberations are required), clear (as the fault question is asked twice), fair (as someone
must go last), correct (as there is no precedent for this), or complete (as the charge is
split in half). Granulated questions are frustrating and confusing enough when they
appear in a single charge; they are surely much more so if given to jurors at different

The record reflects the trial court “trifurcated” this case because, after initially finding no
evidence of contributory negligence (correctly), he decided to submit the question
nonetheless as a “bill” in case an appellate court disagreed. But a jury question should
be submitted if the evidence supports it and refused if the evidence does not; it cannot
be halfway submitted as an afterthought so one can have it both ways. Either party —
plaintiff or defendant — is prejudiced if its issues are postponed until after the jury has
decided most of the case and is ready to go home. In this case, for example, the plaintiff’
s counsel simply urged jurors in the third set of closing arguments to “[b]ring it to an end.
Just say no, and then we can all be done with this work that you’ve done . . . .”

“Our courts have always frowned upon piecemeal trials, deeming the public interest, the
interests of litigants and the administration of justice to be better served by rules of trial
which avoid a multiplicity of suits.”[6] We should state today, as we have in the past,
that we “remain resolute that piecemeal trials as a general rule should be avoided.”[7]
Accordingly, I would hold the trial court’s “trifurcation” was erroneous. But as there was
no evidence the plaintiff here was negligent,[8] the trial court’s initial refusal to submit
contributory negligence was correct and rendered its later error harmless.


     Scott Brister


OPINION DELIVERED: August 29, 2008


[1] See, e.g., Tex. Civ. Prac. & Rem. Code § 41.009 (allowing defendants to opt to bifurcate trial on exemplary
damages); Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979) (allowing bill-of-review to be tried separately
from underlying case).

[2] See Tex. Civ. Prac. & Rem. Code § 33.003; Tex. R. Civ. P. 277.

[3] See, e.g., Otis Elevator, Co. v. Bedre, 776 S.W.2d 152, 153 (Tex. 1989) (holding court of appeals erred in
remanding issue of defendant’s negligence but not plaintiff’s); Elbaor v. Smith, 845 S.W.2d 240, 251 (Tex.
1992) (holding trial court erred in failing to submit issue of plaintiff’s negligence as well as defendant’s).

[4] See Yarborough v. Berner, 467 S.W.2d 188, 193 (Tex. 1971) (“The present practice of separate submission
of [granulated] issues has been the author of much confusion and mischief, has unduly complicated the special
issue system, and has, on occasion, smothered what otherwise would be a simple submission under the special
issue system.”); Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984); see also Tex. R. Civ. P. 277 (“In all jury
cases the court shall, whenever feasible, submit the cause upon broad-form questions.”).

[5] Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).

[6] Iley v. Hughes, 311 S.W.2d 648, 651 (Tex. 1958).

[7] Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 30 n.29 (Tex. 1994).

[8] Jackson v. Axelrad, 221 S.W.3d 650, 652 (Tex. 2007) (“[L]aymen generally have no duty to volunteer
information during medical treatment.”).