Trial practice – Civil Procedure – settlement with less than all tortfeasors

A frequent issue for trial lawyers as they approach an impending trial against multiple defendants is whether to settle with one and go to trial against other defendants. The dilemma is that the most culpable defendant frequently is the one who wants to settle, so that the trial against the non-settling, less culpable defendants becomes weaker – especially as the jury tries to figure out degrees of fault. Defendants can often use the “empty chair” argument to point to the absent defendant and make that defendant seem all the more culpable.

In this case, the plaintiff’s counsel used an innovative tool to avoid that dilemma. The settling defendant in a medical malpractice case, an anesthesiologist, paid $2 million. The non-settling defendant, a surgeon who had directed the anesthesiologist to give a drug during an operation that caused a severe injury to the patient, only had $1 million insurance and was judgment-proof beyond that. So rather than pursue the malpractice victim’s own claim against the non-settling surgeon, the plaintiff agreed in her settlement with the anesthesiologist to receive an assignment of the anesthesiologist’s contribution claim against the surgeon, which meant she could sue, on the anesthesiologist’s behalf, for the surgeon’s 50 percent share of the settlement. This eliminated the “empty chair” argument, since the issue became whether the surgeon was liable in addition to the admitted fault of the anesthesiologist. The anesthesiologist’s admission of fault would not have been admissible in evidence in a trial of the patient’s claim against the surgeon. This also converted the case into an equitable claim, which was non-jury. The trial judge issued findings of fact and conclusions of law in favor of the anesthesiologist’s contribution claim – meaning in effect that the patient would receive his full $1 million insurance coverage. Then the surgeon’s attorneys appealed, arguing that the assignment was illegal.

In the decision by the D.C. Court of Appeals, the court ruled that the assignment of the anesthesiologist’s contribution claim to the patient was legal and enforceable, and it affirmed the trial court.

This is the appellee’s brief filed by the anesthesiologist (who was represented for this phase of the case by the patient’s lawyer).