Edwards adv Epstein Case No Motion for Separate Trials or in the Alternative to Adjust the Order of Proof Rothstein is not actively represented by counsel in this case and is cmTently serving a substantial federal prison sentence In fact the US Government has recently moved to extend Rothsteins sentence to the full years Thus Rothstein may very well never be released from prison Regardless it is clear that Rothstein has no assets and is not collectible in any fashion Epstein through counsel has nonetheless notified Edwards that he intends to try his damages claim against Rothstein and that he intends to put on that damages-only case first before presentation of Edwards claim for malicious prosecution Epstein based this argument solely on the fact that page of the parties Joint Pre-Trial Stipulation which contained the State of Issues of Fact for Determination at Trial listed the damages-only claim against Rothstein first and the malicious prosecution claim against Epstein second The ordering was at least from Edwards perspective not intended to pre-determine the order of proof at trial which is within the province of the Court Epsteins counsel has informed the undersigned that four witnesses will be called to establish his damages Rothstein by deposition L.M Edwards by deposition and William Scherer None of these witnesses has any testimony remotely relevant to Epsteins non-existent damages resulting from a Ponzi scheme in which he was not an investor and knew nothing about Calling them to support his damage claim is an obvious ruse to place inadmissible evidence before the jury on the only claim that really matters the counterclaim Permitting the intended evidence to be offered before the same jury trying the counterclaim puts Edwards in the untenable position of raising objections to evidence not being offered against him and appearing to be defending Rothstein Edwards adv Epstein Case No Motion for Separate Trials or in the Alternative to Adjust the Order of Proof Edwards requests that the Court sever the defaulted claim from the contested counterclaim and permit Edwards malicious prosecution claim against Epstein to proceed on the March trial date Epsteins damages-only claim against Rothstein an uncollectible defendant in federal prison can then be set on the next available trial docket Alternatively the order of proof should be adjusted so that the jury may resolve the counterclaim before considering the claim against Rothstein Memorandum of Law This Court has discretion to separately try the claim and counterclaim under Rule Fla Civ The court in furtherance of convenience or to avoid prejudice may order a separate trial on any claim crossclaim counterclaim or third-party claim or of any separate issue or of any number of claims crossclaims counterclaims third-party claims or issues Roseman Town Square Assn Inc So 2d Fla 4th DCA recognizing that a trial courts ruling to bifurcate claims is reviewed for abuse of discretion Separating the trials is necessary for a number of reasons specifically to avoid prejudice and inconvenience to Edwards First trying the damages-only claim against Rothstein at the same trial as Edwards malicious prosecution claim runs the substantial risk that the jury will be mislead and confused by the default liability judgment that was entered against Rothstein for the same allegations that Edwards contends Epstein lacked probable cause to file against him Many of these allegations claim that Rothstein ordered Epstein to engage in improper discovery or illegal activities such as forgery in order to fund the Ponzi scheme Asking the jury to award Epstein damages for these claims against Rothstein based on allegations the jury is obliged to assume are true while Edwards Edwards adv Epstein Case No Motion for Separate Trials or in the Alternative to Adjust the Order of Proof is simultaneously contending the allegations were made without probable cause and for at least some were knowingly false virtually guarantees confusion on both the probable cause element and issues regarding causation That confusion will severely prejudice Edwards in a case where his burden of proof is as the Court mentioned at a recent hearing a substantial one Second Rothstein will not be represented at the trial and therefore there will be no attorney to object or file any motions such as a motion for directed verdict on his behalf Edwards will be severely prejudiced by this fact because the jury will be asked to award damages against Epstein while at the same time Edwards is arguing that Epsteins damage claims are absolutely barred by Floridas litigation privilege and because Epstein was not an investor in Rothsteins Ponzi scheme This conundrum created yet another risk of confusing the jury Third the parties have only ten days to try a legally and factually complex case Two of these days will likely be taken up by jury selection and opening statements Using up two of the remaining days trying a damages-only case against an uncollectible defendant in federal prison who will not be present or represented at trial is a waste of judicial resources and could result in Edwards running out of time to complete his presentation of the only actual claim being litigated the malicious prosecution claim In fact separating the cases will actually conserve judicial resources because if the Court were to reset Epsteins damages claim against Rothstein there is very little likelihood that Epstein will bother to come back to the courthouse to try that separate case against an uncollectible defendant in federal prison Trying the Rothstein case only benefits Epstein if he can use the issues to confuse the jury and introduce otherwise inadmissible evidence to a jury that is simultaneously deciding Edwards malicious prosecution claim Edwards adv Epstein Case No Motion for Separate Trials or in the Alternative to Adjust the Order of Proof Fourth Epsteins counsel has made it abundantly clear that Epstein as a party will neither be appearing nor testifying at trial That fact alone renders the entire damages-only claim a nullity as Epstein cannot possibly put forth evidence of the damages he allegedly suffered without taking the stand and testifying to those alleged damages Finally as the Fourth DCA recently stated bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party Roseman So 2d at quoting Microclimate Sales Co Inc Doherty So 2d Fla 5th DCA There is no threat of inconsistent verdicts if the Court were to bifurcate the claims because Epsteins only remaining claim against Rothstein is for the damages Rothstein caused Epstein by operating a Ponzi scheme in which Epstein did not invest In contrast Edwards malicious prosecution counterclaim seeks damages against Epstein for Epsteins baseless allegations labelling Edwards a co-conspirator in that Ponzi scheme The elements of damages are therefore completely different and stem from different facts Thus Edwards asks that the Court separate the trial of Epsteins claim so that Edwards malicious prosecution claim can proceed alone at the March trial setting In the alternative Edwards requests that the Comi order that Edwards malicious prosecution claim will proceed prior Epsteins damages-only claim against an unrepresented and uncollectible defendant so that Edwards can head off at least some of the above-mentioned prejudice WHEREFORE Counter-Plaintiff Bradley Edwards respectfully requests that the Court enter an Order granting this Motion for Separate Trials or in the Alternative to Adjust the Order of Proof as well as awarding any such further relief as the Court deems just given the circumstances Edwards adv Epstein Case No Motion for Separate Trials or in the Alternative to Adjust the Order of Proof I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list this day of v..ve Florida Bar No DAVID VITALE JR Florida Bar No Attorney E-Mail jsx searcylaw.com and mmccann searcylaw.com Primary E-Mail _scarolateam searcylaw.com Searcy Denney Scarola Barnhart Shipley P.A Palm Beach Lakes Boulevard West Palm Beach Florida Phone Fax Attorneys for Bradley Edwards Edwards adv Epstein Case No Motion for Separate Trials or in the Alternative to Adjust the Order of Proof Scott Link Esq Link Rockenbach P.A Scott linkrocklaw.com Kara linkrocklaw.com Palm Beach Lakes Boulevard Suite West Palm Beach FL Phone Fax Attorneys for Jeffrey Epstein COUNSEL LIST Jack A Goldberger Esquire jgoldberger agwpa.com smahoney agwpa.com Atterbury Goldberger Weiss P.A Australian Avenue Suite West Palm Beach FL Phone Fax Attorneys for Jeffrey Epstein Nichole Segal Esquire njs FLAppellateLaw.com kbt FLAppellateLaw.com Burlington Rockenbach P.A Railroad Avenue Suite West Palm Beach FL Phone Attorneys for Bradley Edwards Bradley Edwards Esquire staff.efile pathtojustice.com Andrews A venue Suite Fort Lauderdale FL Phone Fax 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