concurring in part and dissenting in part.
I write separately today for two reasons. First, I write to point out my disagreement with the majority on the exclusion, by the district court, of certain plaintiffs from the courtroom during the twenty-two day jury trial on causation. Secondly, I write to express a few of my concerns regarding the district court’s trifurcation order. My opinion, however, is both narrow and focused as I examine only these two issues; issues which possess both great value and import in the functioning of our judicial system. As to all remaining issues raised by this appeal, I concur in the very thorough and well-written majority opinion.
I.
Although I concur in the final result of the majority opinion with regard to the district court’s trifurcation order, I do so reluctantly and with serious reservation. However, pursuant to the applicable standard of review, i.e., an abuse of discretion standard which favors the district court’s ability and judgment to fairly and expeditiously handle its docket, and to case law within this circuit where such a procedure *327has previously been approved, i.e., In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982), I agree with the majority that, in this instance, the district court did not abuse its discretion in trifurcating the issues of causation, liability and damages. However, I do express my concerns about the fairness of this mechanism as a tool for handling complex cases such as this. In so doing, I do not re-analyze all of the relevant factors to which courts look in making their decisions as to trifurcation; Chief Judge Engel has quite thoroughly analyzed those factors. See supra pp. 306-320. Instead, I point out potential problems and prejudices that can arise by the use of this procedure.
While it is clear that a trifurcation order such as the one here is not unprecedented, it is equally clear that trifurcated trials are a rarity and have only been approved in the most extreme cases. The fact that trifur-cation has rarely taken place, however, does not mean that it is without merit. Rather, since so many potential prejudices loom, trifurcation of issues is limited to rare occasions.
Although I have no problem with the approved trifurcation order in this court’s Beverly Hills decision, I do become hesitant when that decision is applied, seemingly without reservation, to a case, such as this one, which is complex in nature. Because I find several distinctions between this case and Beverly Hills, I am reluctant to apply such reasoning wholesale. Thus, I find that if Beverly Hills is narrowly construed, several problems become apparent with the majority opinion.
First, all of the victims in the Beverly Hills litigation were affected by the same event, a disastrous and tragic fire. Thus, the issue of causation could, quite competently, be tried separately from the issues of liability and damages with only a small chance that the plaintiffs would be prejudiced. This was simply because all plaintiffs were affected in the same manner by a unique, single event. Individual facts about the individual plaintiffs would therefore, have had little significance in regard to the question of causation.
The Bendectin litigation, however, is quite different. Over eight hundred plaintiffs, whose mothers took the drug at different times and places and under different circumstances, are involved. As such, a single, unique event such as a fire is replaced by over eight hundred distinct events that, in all likelihood, affected the individual plaintiffs in different ways. Although each distinct event involved the ingesting of the same drug, it is hard to believe that all eight hundred plus claims can be tied neatly into one package and satisfactorily resolved by the answering, of one question, i.e., did Bendectin cause the relevant birth defects? In tying all of these claims together, an argument could certainly be made as to prejudice. That is, by not allowing the plaintiffs to present evidence as to how they were individually affected by the drug could have resulted in prejudice to them in their attempt to establish the required elements of their case. Indeed, although I concur in the majority’s end result, I disagree with the language used in reaching the conclusion. The majority opinion refers to the fact that the plaintiffs were not “unduly” prejudiced by the court’s trifurcation order. I do not agree that this is the burden plaintiffs must meet to establish an abuse of discretion by the lower court with regard to a trifurcation order. Rather, my suggestion is that any prejudice to a plaintiff in the litigation of his or her case should be enough to hold that the lower court has abused its discretion. I do not agree with the majority that absent a showing of unduly or excessive prejudice, the court’s order should be upheld. Indeed, this court should define the amount of prejudice that must be demonstrated to establish that a trifurcation order was an abuse of discretion. Such a discussion in this case, however, is without utility. Plaintiffs here simply failed to meet their burden to demonstrate any prejudice. That is, plaintiffs lost their case because they failed to establish any link between their birth defects and the drug Bendectin, not because of any prejudice to them resulting from the trifur-cation order.
*328In conclusion, trifurcation orders present fundamental problems of fairness simply because the typical procedure in litigation does not involve the splitting up of a case, element by element, and trying each point to the jury separately. Rather, the plaintiffs entire case is presented to the jury at once, thereby preventing the isolation of issues in a sterile atmosphere. Simply because a litigant shares his complaint with eight hundred other claimants is not a reason to deprive him of the day in court he would have enjoyed had he been the sole plaintiff. However, as the majority points out, a trifurcation order is authorized and necessitated at some point so as to allow a district court to manage and control the complexities and massive size of a case. The duty of this court, however, is to prevent such a case-management tool from becoming a penalty to injured plaintiffs seeking relief via the legal system.
In this case, after all of these concerns have been considered and accounted for, I agree with the majority that the district court did not abuse its discretion in trifur-cating the issue of causation.
II.
While, on the whole, Judge Rubin conducted the potentially mammoth proceedings at issue with great caution, I find that his decision to exclude certain plaintiffs from the courtroom, without first conducting a hearing, was clearly erroneous. By relying upon representations made by the defendant’s attorneys, the district court excluded all plaintiffs under ten years of age and certain plaintiffs over ten, i.e., those with noticeable deformities, from the courtroom during the jury trial on causation. To make such a decision without first observing or speaking to those plaintiffs is certainly a violation of the principles of due process. Although, as recognized by the majority in this case and this court in Helminski v. Ayerst Laboratories, 766 F.2d 208, 213 (6th Cir.1985), a civil litigant does not have an “absolute right to be present personally during the trial of his [or her] case,” a decision to exclude a plaintiff from the trial of his or her action must be consistent with due process principles. Id. at 216. To be consistent with due process, such a decision must be an informed one. This is necessary to ensure that an excluded party receives a fundamentally fair trial. In meeting this requirement, a district court must take that extra step and conduct a hearing, thereby allowing such plaintiffs to be seen and heard. Such a procedure prevents any arbitrary exclusion of a party from the courtroom. In this case, the lower court did not follow such procedures, but instead relied upon representations of the defendant’s attorneys. I simply cannot sanction such an action.
Chief Judge Engel, in the majority opinion, correctly notes the above principles and the fact that this court has now required that such procedures be adhered to so as to protect plaintiffs from arbitrary exclusion from the courtroom during the trial of their action. The majority opinion also notes that such procedures were not followed by the district court in this case. Chief Judge Engel points out, however, that the case establishing these procedures, Helminski, was not decided until after the district court had made its decision to exclude certain plaintiffs and after Judge Rubin had already conducted a twenty-two day jury trial on the issue of causation. While I concur in the praise offered by the majority of the district court’s efforts to manage this complex action, I disagree with the majority as to this issue. Rather, I find that the trial court, in this regard, violated the plaintiffs’ constitutional due process rights. Furthermore, I disagree with the majority’s proposition that Hel-minski, a case which would quickly dispose of this issue, was an unprecedented decision and thus should not be applied retroactively to this case. Indeed, this is the bulk of my disagreement since all three judges on this panel would seemingly agree that the record shows that the district court certainly did not follow the required Hel-minski procedures, discussed in depth in the majority opinion and not repeated here. See supra pp. 323-25.
Because I disagree with the majority’s finding that no case law existed within this *329circuit or the Supreme Court, prior to Hel-minski, which would have placed the district court on notice as to its duties vis-a-vis the exclusion of plaintiffs from the courtroom, thereby precluding the application of Helminski to this case because of the applicable Chevron [Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) ] rules on retroactivity, I respectively offer my dissent.
A.
I believe that prior to Helminski authority and precedent existed which required lower courts to at least allow a plaintiff, prior to being excluded from the courtroom during his or her trial, the opportunity to be seen and heard. Indeed, I not only find that Helminski was not unprecedented, I also find that that decision was simply a continuation and affirmation of the prior case law setting forth principles of procedural due process. Thus, these principles not only were in existence, but also required lower courts to do more than simply rely upon representations made by opposing parties in such important and fundamental decisions. Accordingly, the excluded plaintiffs’ due process rights were violated by the lower court’s actions with regard to this issue.
I specifically find support for my conclusion in Helminski. Although the majority opinion correctly notes that the decision in Helminski is basically supported by decisions from state courts, it fails to note that the Helminski court cited as support for the fundamental notions of due process set forth within that opinion, decisions from this circuit and the Supreme Court. Although the district court in this instance should not be held to a standard where it should have known all the nuances of what due process required before it could exclude a party from the courtroom during the trial of his or her action, it certainly must be held to a standard requiring it to follow and respect a litigant’s due process rights to a fundamentally fair trial.
No language in Helminski is indicative of the fact that this decision is one of first impression within this circuit. Rather, the opinion draws from a variety of Supreme Court and circuit courts of appeals’ due process opinions in holding, ultimately, that a hearing is necessary prior to the time a party may be excluded from the courtroom. Indeed, the court cites to a prior Sixth Circuit opinion, Drayton v. Jiffee Chemical Corp., 591 F.2d 352 (6th Cir.1978), for the proposition that:
Exclusion of a party who is able to comprehend the proceedings and aid his attorney would infringe upon the “fundamental standards of fairness which every litigant before a federal court has a right to expect,” and hence, would constitute a deprivation of due process which could be remedied only by granting a new trial.
Helminski, 766 F.2d at 218 (citing Drayton, 591 F.2d at 361).
Based upon the Helminski court’s language and its cited precedent, I find nothing that would allow me to hold that that decision was such a break from past law as to prevent its retroactive application to this ease. Rather, I find that the district court should have been on notice as to the fact that its particular actions were unconstitutional.
B.
The majority also lists several equitable reasons why Helminski should not be applied to this case, i.e., a twenty-two day jury trial had been completed and a verdict rendered before Helminski was decided. Surely such reasoning must hold to the fundamental due process rights of litigants to receive a fair trial. Indeed, because it is not evident that all excluded plaintiffs could not have understood the proceedings and could not have aided their counsel in presenting their case, i.e., Helminski requirements, the excluded plaintiffs’ due process rights to a fundamentally fair trial were violated. The plaintiffs were thereby prejudiced by the court’s failure to make the necessary findings regarding their ability to comprehend and aid in the presentation of their case to the jury. Because I find that it is not evident that the plaintiffs would have been excluded from the courtroom if the proper procedures had been *330adhered to by the district court, I find that such error is not harmless and therefore constitutes reversible error.
Because, in my judgment the decision in Helminsfci was a continuation of this court and the Supreme Court’s prior due process analyses, it should be applied retroactively to this case, thereby resulting in a finding that the lower court erred in arbitrarily excluding certain plaintiffs from the courtroom without the benefit of an opportunity to be heard and seen. As noted by the majority, the presumption is that a newly announced rule of law will apply retroactively and the burden of persuasion to demonstrate that such an application is unjust is on the party asserting prospective-only application. See Cochran v. Birkel, 651 F.2d 1219, 1223 n. 8 (6th Cir.1981). Here, that burden has not been met. The lower court-made no findings, with support, as to whether the plaintiffs’ presence would prejudice the jurors or as to whether the excluded plaintiffs would have been able to comprehend the proceedings and aid their counsel in presenting their ease. Such findings are requirements of due process. I find that the district court’s error in this regard should allow those plaintiffs who were arbitrarily excluded from the courtroom during the trial of their action an opportunity to have another day — a fundamentally fair one — in court. Therefore, I respectfully dissent.