Non-Settling Defendants Precluded From Referencing Joint Tortfeasor Settlement with Another Med Mal Defendant

In the case of Snyder v. North American Partners in Anesthesia, No. 19-CV-83 (C.P. Lacka. Co. Nov. 12, 2021 Nealon, J.), the court granted a Plaintiff’s Motion In Limine in a medical malpractice case and precluded a non-settling Defendant and an Additional Defendant from referencing a joint tortfeasor settlement that the Plaintiff had entered into with a non-party.  The Court also precluded any reference to the Plaintiffs’ previous assertion of a malpractice claim against that former party.

The court noted that the former Defendant, who had secured a joint tortfeasor settlement had previously secured a Discontinuance relative to this action and a removal as a named Defendant.

In so ruling, the court referred to 42 Pa. C.S.A. §6141(c) which provides that, “[e]xcept in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment…shall not be admissible in evidence on the trial of any matter.” 

Judge Nealon noted that, based upon the plain language of this provision, evidence of any prior settlements is inadmissible at any trial on any matter.

The court additionally noted that Pennsylvania Rule of Evidence 408(a)(1) similarly prohibited the admissibility or use of any offer or acceptance of valuable consideration in compromising or attempting to compromise a claim. The court noted that, under the comment of that Rule of Evidence, it is indicated that “Pa.R.E. 408 is consistent with 42 Pa.C.S. §6141 in excluding any evidence of a joint tortfeasor settlement.”

On the basis of this law, the court granted the Plaintiff’s Motion In Limine.

The court additionally granted the Plaintiff’s Motion seeking to prohibit the non-settling Defendants from mentioning the fact that the Plaintiff’s originally asserted a malpractice claim against the settling Defendant. In this regard, the court made a distinction between factual allegations, which could be deemed to be judicial admissions, and allegations of legal conclusions, which could not be deemed to be judicial admissions.

As such, the court noted that certain factual allegations regarding specific documentation created by the relevant medical witnesses and parties may be offered as judicial admissions but any allegations by the Plaintiffs concerning the causal negligence by the settling Defendant or its agents would not be allowed to be introduced into evidence.

Anyone wishing to review a copy of this decision may click this LINK.

Pennsylvania Supreme Court Addresses Proper Application of Fair Share Act

In the case of Roverano v. John Crane, Inc., No. 26 EAP 2018 (Feb. 19, 2020 Mundy, J.), the Pennsylvania Supreme Court addressed the issue of whether the Fair Share Act, 42 Pa. C.S.A 7102, required a factfinder to apportion liability on a percentage, as opposed to per capita, basis in strict liability asbestos actions.

According to the Opinion, the Plaintiff, William Roverano, was allegedly exposed to a variety of asbestos products from 1971 to 1981 in the course of his employment as a helper and a carpenter with PECO Energy Company. Additionally, he allegedly smoked cigarettes for approximately thirty years. In November 2013, Roverano was diagnosed with lung cancer in both lungs. 

In 2014, Roverano brought a strict liability lawsuit against various defendants asserting that exposure to their asbestos products caused his lung cancer. His wife, Jacqueline Roverano, filed a loss of consortium claim. 

Before trial, several defendants filed a Motion In Limine seeking a ruling that the Fair Share Act applied to asbestos cases. The issues raised in that Motion gradually made its way up the appellate ladder to the Pennsylvania Supreme Court. 

The Supreme Court concluded the Act’s plain language was consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases was impossible to execute. 

Accordingly, the Supreme Court reversed the Superior Court’s Order, which had vacated the trial court’s judgment and remanded this case for a new trial to apportion damages on a percentage basis. 

Additionally, the Supreme Court considered whether the Act required a factfinder to apportion liability to bankrupt entities that had previously entered into a release with the Plaintiff. In this regard, the Court concluded that, upon appropriate requests and proofs, bankruptcy trusts that were either joined as third-party defendants or that had entered into a Release with the plaintiff should be included on the verdict sheet for purposes of liability only. 

In the end, this case was remanded to the trial court to consider whether the parties submitted sufficient requests and proofs to apportion liability to the settled bankruptcy trusts.

The Majority Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

Chief Justice Saylor's Concurring and Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Kenneth Newman of the Pittsburgh Office of Thomas, Thomas & Hafer for noting this case.

Keeping Settling Defendants on the Verdict Slip

In his recent decision in the case of Stang v. Smith, PICS Case No. 14-1199 (C.P. Carbon Co. July 28, 2014 Nanovic, P.J.), Judge Roger Nanovic of the Carbon County Court of Common Pleas addressed the issue of whether settling Defendants under a joint tortfeasor release could be required to be on the verdict slip at a medical malpractice trial.  

In this medical malpractice case, several of the Defendants had settled out prior to trial utilizing a pro rata joint tortfeasor release in accordance Uniform Contribution Among Tort-Feasor’s Act.   At trial, all of the Defendants were identified.  The jury entered a defense verdict and the Plaintiff moved for a new trial asserting that the court erred in denying her Motion to Discontinue her suit against the settling Defendants.  The Plaintiff also argued that the court erred by placing the names of the settling Defendants on the jury verdict slip in order for the jury to determine the comparative liability of the settling doctors as well as the non-settling Defendants.  

Judge Nanovic ruled that, under Pennsylvania law, the non-settling Defendants were entitled to have the settling Defendants remain as parties in order to establish their status as joint tortfeasor and, if found to be joint tortfeasor, to have the jury apportion liability amongst them so that the amount of damages be non-settling Defendants might be liability to pay could be determined.  

While Judge Nanovic noted that, although the non-settling Defendants had a right to inquire a settling Defendant to remain as a party, there was no absolute right to have a settling Defendant noted on the verdict slip.  Rather, in order to ensure that a settling Defendant would be included on the verdict slip, evidence had to be presented to establish a prima facie case of negligence against that settling Defendant.  

Applying the law to the case before him, Judge Nanovic found that evidence was presented which compelled the victim of all Defendants, settling and non-settling, upon the verdict slip.  

 

I do not have a copy of this decision.  Anyone wishing to secure a copy of the staying decision by Judge Nanovic may call the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and provide the above-noted PICS Case No. and pay a small fee.