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1 It does not appear to be clear to Maximus that only

the claim of Dr. Fujisawa is going to trial this fall. 

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LAURA FUJISAWA, et al.

Plaintiff(s),

v.

COMPASS VISION, INC., et

al.,

Defendant(s).

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No. C07-5642 BZ

Related Cases: C07-3431 BZ

 C08-4118 BZ

 C09-2016 BZ

ORDER DENYING MOTION 

TO SEVER

The Court understands the posture of this case, as it

approaches trial, to be as follows1:

Plaintiff Fujisawa claims that she was improperly

disciplined as a result of EtG tests she took which were

interpreted by Compass Vision and National to have produced

positive results. She claims that EtG tests produce faulty

results because the test results are affected not only by

alcohol but by other common products such as hand sanitizers. 

She denies using alcohol. She asserts that a variety of

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2 While this may not be entirely clear from the third

party complaint, it is clearer from the argument in opposition

to a motion to sever (see e.g., pgs. 5-7). It became less

clear at oral argument, when Compass argued, inter alia, that

Maximus had somehow caused Compass to promote EtG tests in

spite of regulatory warnings. The Court placed more credence

on Compass’s written arguments. 

2

independent and regulatory warnings cautioned against undue

reliance on EtG test results.

Compass denies that the EtG test results were not

reliable and asserts that Maximus was responsible for

interpreting the results and deciding whether the results

Compass reported indicated that Dr. Fujisawa had violated the

terms of her recovery program. Compass asserts that if Dr.

Fujisawa prevails, it will be because Maximus misinterpreted

the results and improperly disciplined her. In that event,

Compass claims, Maximus will have breached the agreement with

Compass, entitling Compass to indemnity.2

At oral argument, Maximus insisted that the facts adduced

during discovery will not support the claims Compass has

advanced. If that is so, it is better asserted by a Rule 50

or 56 motion, than by a motion to sever.

Both sides agree that the decision to sever lies within

the discretion of the Court. Maximus has not met its burden

of establishing grounds for severance. Several factors weigh

against the Court using its discretion to sever the third

party complaint. One is the danger of inconsistent results. 

The first jury could conclude that the EtG test was not an

appropriate test in determining whether Dr. Fujisawa had

violated the recovery program or that Maximus was responsible

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3

for some of the conduct at issue. Since Maximus will not be a

party to the first trial, no principle of collateral estoppel

or res judicata of which the Court is aware, will prevent

Maximus from re-litigating such issues and possibly persuading

a second jury that the test was appropriate or that it was not

responsible. Nor would Maximus consent to be bound by any

adverse findings in the first trial.

It also appears that much testimony would have to be

replicated in the second trial. For example, Compass asserts

that the decision to discipline Dr. Fujisawa involved a

determination that she had used alcohol not just that she had

tested above a certain EtG level and that it was Maximus who

had made this erroneous determination. It would seem that Dr.

Fujisawa and whoever made the determination would have to

testify at both trials. It would also seem that much of

testimony about the efficacy of the EtG test would have to be

repeated.

Third, granting a severance does not advance the Court’s

approach to managing these related cases by having Fujisawa

serve as a “test case” which could lead to the disposition of

the other cases.

Further, under no circumstance would the severance result

in just one trial as Compass has declared its intent to seek

indemnity from Maximus even if Compass prevails at trial

against Dr. Fujisawa, because Maximus has declined to provide

a defense.

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For the foregoing reasons, IT IS ORDERED, in the Court’s

discretion, that the motion to sever is DENIED.

Dated: May 6, 2010 

 Bernard Zimmerman

 United States Magistrate Judge

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