THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KATHLEEN BOWERS,

 Plaintiff,

v.

THE NATIONAL COLLEGIATE

ATHLETIC ASSOCIATION, et al., 

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 97-2600 (JBS)

MEMORANDUM OPINION

SIMANDLE, District Judge:

This matter is before the Court on its proposal to bifurcate

the jury trial in this matter into a liability phase and a

damages phase. THIS COURT FINDS AS FOLLOWS:

1. This case arises out of Plaintiff’s allegations that

during the 1995-1996 academic year, Defendants subjected her son

to unlawful discrimination on account of his learning disability. 

Due to the complexity of the issues raised by the claims and

defenses that will be presented to the jury, the Court suggested

to the parties at the Final Pretrial Conference on April 25, 2008

that the trial be bifurcated into separate liability and damages

phases, to be tried to the same jury. The Court solicited the

comments of counsel. 

2. Both Plaintiff and Defendants subsequently submitted

letters to the Court, each dated May 15, 2008, stating that they

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favored bifurcation between liability and damages, pursuant to

Rule 42(b), Fed. R. Civ. P. One issue that divided the parties,

however, was whether Plaintiff’s claim for punitive damages

against the National Collegiate Athletic Association (“NCAA”)

under the New Jersey Law Against Discrimination (the “NJLAD”)

would be presented during the liability phase or the damages

phase of trial. 

3. The Court researched this matter, and recognized that

trifurcation of trial might be necessary. Under New Jersey law,

on which Plaintiff’s claim for punitive damages is based, NJSA

2A:15-5.13 provides that the issue of liability for punitive

damages is to be tried only after compensatory damages have been

awarded in the earlier stage of trial, and an award of nominal

damages cannot support an award of punitive damages. See NJSA

2A:15-5.13(c) and (d). The law further provides that “[e]vidence

relevant only to the issues of punitive damages shall not be

admissible in this stage [that is, in the stage of trial where

liability for compensatory damages and the amount of compensatory

damages or nominal damages is determined].” NJSA 2A:15-5.13(b). 

4. Accordingly, on May 21, 2008, the Court wrote to the

parties to seek their input on whether to trifurcate the trial

proceedings, noting that “it appears that a third stage of trial

is required in which the ‘trier of fact shall determine if a

defendant is liable for punitive damages.’” (Docket Item 444)

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 As revealed by the Joint Final Pretrial Order (filed 1

April 25, 2008) and various motions in limine presently pending,

Plaintiff intends to present a significant body of evidence that

may be exclusively relevant to punitive damages issues, such as

the NCAA’s alleged continuing indifference to the qualifications

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(quoting NJSA 2A:15-5.13(d)). In their responses to the Court,

Plaintiff and Defendants agreed that trifurcation would be in

order. 

5. Having been informed by the parties that they agree that

the trial in this matter should be conducted in three phases, the

Court will order the trifurcation of trial for the following

reasons. In this case, the complexities of the Plaintiff’s

liability and compensatory damages claims are sufficient under

Rule 42(b), Fed. R. Civ. P., to warrant bifurcation of liability

and compensatory damages into two phases of trial. That the

Plaintiff seeks punitive damages under New Jersey law against a

single Defendant – the NCAA – triggers the need for a separate

phase to occur, if necessary, after compensatory damages have

been determined. N.J.S.A. 2A:15-5.13(d). 

6. The New Jersey rule segmenting punitive damages to its

own final phase of trial precludes the presentation of evidence

relevant exclusively to punitive damages issues during the

compensatory damages phase of the case so as to avoid undue

prejudice to the defending party. Otherwise the jury could be

confused or influenced in its determination of compensatory

damages by consideration of punitive damages evidence, and, as 1

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of special education students for purposes of intercollegiate

athletic eligibility. Such evidence may be of no relevance to

liability and compensatory damages while seeming to be relevant

to punitive damages issues. 

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in this case, the co-defendants could be prejudiced by the

inclusion of punitive damages evidence against the NCAA that does

not apply to them, since punitives are sought only from the NCAA. 

The trifurcation favors judicial economy as well, since the

punitive damages phase will be reached only if NJLAD compensatory

damages (greater than nominal damages, N.J.S.A. 2A:15-5.13(c))

have been awarded against Defendant NCAA in the second phase. 

7. The Court thus finds that the trial shall be conducted

in three phases, if necessary, namely: (1) liability, (2)

compensatory damages, and (3) punitive damages, with the NCAA’s

liability for punitive damages, as well as the amount of punitive 

damages, if any, to be determined during the third phase of

trial.

The accompanying Order is entered. 

May 29, 2008 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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