BIGELOW et al v. WASHINGTON HOSPITAL CENTER, INC. et al

Filing 87

MEMORANDUM AND OPINION Re Defendants' 78 Motion for Judicial Determination of Joint Tortfeasor Status; Defendants' 79 Motion for Leave to File an Amended Answer; and Defendant Washington Hospital Center's 82 Motion to Dismiss. Signed by Judge Robert L. Wilkins on 12/21/2012. (lcrlw3)

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HOUSTON BIGELOW, et al.,
Plaintiffs,
v.

Civil Action No. 10-cv-1471 (RLW)

WASHINGTON HOSPITAL CENTER
CORPORATION, et al.,
Defendants.

MEMORANDUM OPINION 1
Plaintiff Houston Bigelow (“Bigelow”), in both his individual capacity and as the
personal representative of the estate of Mary Bigelow, filed this medical malpractice and
wrongful death action against Defendant Washington Hospital Center (“WHC”), as well as
Defendants Elwin Bustos, M.D. and Doris Pablo-Bustos, M.D. (the “Bustos Defendants”), based
on the medical treatment that Mary Bigelow received at WHC in September 2008. 2 Bigelow has
since reached a settlement with WHC, and WHC now seeks to be dismissed from this action,
which would leave the Bustos Defendants as the sole remaining defendants. At the same time,

1

This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or, alternatively, to assist in any potential
future analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court
has designated this opinion as “not intended for publication,” but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion
by counsel. Cf. FED. R. APP. P. 32.1. Nonetheless, as stated in the operational handbook adopted
by our Court of Appeals, “counsel are reminded that the Court’s decision to issue an unpublished
disposition means that the Court sees no precedential value in that disposition.” D.C. Circuit
Handbook of Practice and Internal Procedures 43 (2011).
2
Bigelow subsequently dismissed his wrongful death claim from this action, leaving only
the medical malpractice claim advanced through Count I. (Dkt. No. 61).
1

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS

the Bustos Defendants request that, following trial in this matter, the Court make a determination
as to WHC’s negligence, in order to preserve their ability to claim a pro rata credit against any
potential judgment that might be rendered against them.
Presently before the Court are: (1) the Bustos Defendants’ Motion for Judicial
Determination of Joint Tortfeasor Status of Defendant WHC (Dkt. No. 78); (2) the Bustos
Defendants’ Motion for Leave to File an Amended Answer (Dkt. No. 79); and (3) WHC’s
Motion for Dismissal (Dkt. No. 82). Having carefully considered the parties’ respective filings,
and for the reasons set forth herein, the Court will GRANT the Bustos Defendants’ motions and
will DENY WITHOUT PREJUDICE WHC’s motion for dismissal.

ANALYSIS
The parties’ recent flurry of filings all stem from a single, albeit significant, development
in this case: Bigelow and WHC reached a settlement of Bigelow’s claims against WHC. Not
surprisingly, the terms of that settlement included an agreement that Bigelow would dismiss
WHC from this action, in exchange for payment of some amount of monetary consideration. But
to accomplish WHC’s dismissal by stipulation under Federal Rule of Civil Procedure 41(a), all
of the parties who have appeared in the action must consent and sign the stipulation, FED. R. CIV.
P. 41(a)(1)(A)(ii), and it appears that the Bustos Defendants were not willing to consent to
WHC’s dismissal—at least not until they preserve their ability to seek a pro rata offset against
any future judgment based on WHC’s potential liability as a joint tortfeasor.

The Bustos

Defendants ultimately filed a motion with the Court seeking such relief, which, in turn, led WHC
to file its own motion requesting dismissal from the case, in view of its settlement with Bigelow.
As the only remaining obstacle to WHC’s dismissal appears to be the issue of whether the Bustos

2

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS

Defendants can properly request a determination as to WHC’s liability without filing a formal
cross-claim, the Court will tackle that issue first.
Under District of Columbia law, “if a verdict is obtained against a nonsettling tortfeasor
and it is also determined that the settling tortfeasor should contribute, the non-settling tortfeasor
is liable only for one-half of the verdict, i.e., a pro rata portion of the judgment.” Gilberg v.
MetLife, Inc., 734 F. Supp. 2d 5, 7-8 (D.D.C. 2010) (citing Martello v. Hawley, 300 F.2d 721,
724 (D.C. Cir. 1962)). 3 To this end, the D.C. Court of Appeals has explained that non-settling
defendants can preserve and safeguard their claim for a pro rata credit in one of two ways—“by
asserting a cross-claim for contribution . . . or an equivalent request for a determination by the
jury of the settling defendants’ negligence.” Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 188
(D.C. 1990) (emphasis added).
propose here.

This latter approach is precisely what the Bustos Defendants

Notably, WHC—the settling defendant in this case—does not oppose this

approach and “takes no position” with respect to the Bustos Defendants’ requested relief. (Dkt.
No. 81 at 2). Bigelow, on the other hand, argues that the Bustos Defendants cannot proceed in
this fashion, but should instead be required to file a cross-claim or a third-party claim for
contribution against WHC. (See Dkt. No. 84). The Court disagrees.
It is well settled that “a defendant need not have filed a crossclaim against the settling
defendant to preserve the right to a pro rata credit as long as the jury determines the liability of
the settling party.”

District of Columbia v. Shannon, 696 A.2d 1359, 1367 (D.C. 1997)

(emphasis added). Stated differently, “provided a plaintiff has adequate notice[,] a special
interrogatory requesting the jury to determine the liability of a settling defendant will suffice to
3

This type of pro rata offset or reduction is sometimes referred to as a “Martello credit.”
On the other hand, if “a trier of fact has exonerated the settling defendant, only pro tanto (the
amount of the settlement) reduction is available.” Hall v. General Motors Corp., 647 F.2d 175,
184 (D.C. 1980) (citing Snowden v. D.C. Transit Sys., 454 F.2d 1047 (D.C. Cir. 1971)).
3

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS

preserve a nonsettling defendant’s pro rata credit for the settler’s imputed share of the jury’s
assessment of total liability.” Id.; see also Paul v. Bier, 758 A.2d 40, 45 (D.C. 2000). To require
otherwise, and to force a non-settling defendant to bring a settling defendant back into a lawsuit
through a cross-claim, “would seriously undermine the incentive of parties to settle their claims.”
Gilberg, 734 F. Supp. 2d at 8; Farmer v. Mt. Vernon Realty, Inc., 720 F. Supp. 223, 225 (D.D.C.
1989). Such is the case here. In settling with Bigelow, WHC “bought its peace.” Martello, 300
F.2d at 724. Forcing the Bustos Defendants to now file a cross-claim against WHC to preserve
their right to a pro rata credit on any future liability determination, as Bigelow urges, would
substantially prejudice WHC—which would be forced to expend substantial time and expense in
continuing to defend against claims it has settled—and would seriously undermine the important
public policy favoring the efficient settlement of claims.
Bigelow’s remaining arguments are equally unconvincing.

First, Bigelow points to

similar malpractice case being litigated by his attorneys, in which the non-settling defendant filed
a cross-claim against the settling defendant to preserve its right to a contribution claim. But
simply because that defendant chose to proceed by way of a cross-claim—in lieu of requesting a
determination by the jury of the settling defendant’s negligence—does not mean that the Bustos
Defendants cannot opt to proceed differently and pursue that alternative approach here.
Additionally, Bigelow suggests that he will be prejudiced if the Bustos Defendants are not
required to file a cross-claim because he was never informed in discovery that they contended
WHC was a joint tortfeasor. (Dkt. No. 84 at 5). But Bigelow’s Amended Complaint itself
expressly alleges that WHC and the Bustos Defendants are “liable to him jointly and severally,”
(Am. Compl. at ¶ 40), which tends to undermine the notion that he is now somehow surprised
by this development. In any event, given the procedural posture of this case, permitting Bustos

4

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS

Defendants to ultimately submit the question of WHC’s potential joint liability to the trier of fact
will not prejudice Bigelow. Magistrate Judge Robinson recently extended the discovery period
as between Bigelow and the Bustos Defendants through April 2013, (see Dkt. No. 76), which
will allow Bigelow and/or the Bustos Defendants to conduct any additional discovery they
believe might be necessary in light of these developments. In addition, since no trial date has
been set, the parties will have ample opportunity to tailor their claims and defenses accordingly.
Simply put, the Bustos Defendants’ motion provides Bigelow with more than fair notice that
they intend to seek a pro rata credit against any potential verdict, thereby obviating any potential
prejudice toward Bigelow. See Washington, 579 A.2d at 188 (“[A] plaintiff facing possible
application of a Martello credit should have fair notice that the non-settling defendant plans to
seek a pro rata reduction of the verdict on the ground that his settling counterparts were
negligent, and an opportunity to build a rebuttal case.”).
Accordingly, in the event that the jury ultimately finds the Bustos Defendants liable in
this case, the Court grants the Bustos Defendants’ request to have the jury also determine,
through a special verdict form, whether WHC should also be found liable. 4
The Bustos Defendants also seek leave to amend their Answer to expressly assert an
additional affirmative defense: that they “assert that the Defendants named in Plaintiffs’
Amended Complaint are joint tortfeasors and, in the event of a jury verdict for the Plaintiffs and
against one or more of them, [the Bustos Defendants] reserve the right to seek a pro rata
reduction upon settlement by any Defendant.” (Dkt. No. 79 at 2). Under Federal Rule of Civil
Procedure 15(a), leave to amend should be “freely given” absent “any apparent or declared

4

While the Bustos Defendants actually request a “judicial determination” as to WHC’s
joint tortfeasor status, the Court believes that the question is more properly decided by a jury
than by the Court.
5

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS

reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis,
371 U.S. 178, 182 (1962); see also Davis v. Liberty Mutual Ins. Co., 276 U.S. App. D.C. 394,
871 F.2d 1134, 1136-37 (D.C. Cir. 1989) (“It is common ground that Rule 15 embodies a
generally favorable policy toward amendments.”).

Bigelow does not expressly oppose the

Bustos Defendants’ request to amend, and even if the Court were to construe Bigelow’s earlier
arguments as an opposition to the Bustos Defendants’ motion to amend as well, those arguments
are unconvincing for the reasons already stated. Accordingly, the Court will permit the Bustos
Defendants to amend their Answer to assert their additional affirmative defense.
With those issues resolved, only WHC’s motion to dismiss remains. However, the Court
expects that its resolution of the above issues should enable the parties to overcome their present
impasse in reaching a stipulation for WHC’s dismissal from this case under Federal Rule 41(a). 5
At this juncture, therefore, the Court will deny WHC’s motion without prejudice. The parties are
directed to further meet and confer, and to submit, by no later than January 4, 2013, either: (a) a
stipulation dismissing WHC from this action, or (b) a joint status report summarizing any
remaining impediments to such an outcome.

5

According to WHC, the Bustos Defendants would not consent to WHC’s dismissal “until
such time that that the joint tortfeasor status was resolved as to Washington Hospital Center.”
(Dkt. No. 82 at 2). Similarly, in his “Opposition” to WHC’s Motion to Dismiss, Bigelow
asserted that WHC’s dismissal was premature because the Court should rule on the Bustos
Defendants’ motion before dismissing WHC as a settling defendant. (See Dkt. No. 86).
6

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS

CONCLUSION
For the foregoing reasons, the Bustos Defendants’ Motion for a Determination of WHC’s
Joint Tortfeasor Status and Motion for Leave to File an Amended Answer are GRANTED, and
WHC’s Motion to Dismiss is DENIED WITHOUT PREJUDICE. An Order accompanies this
Memorandum Opinion.
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court,
ou=Chambers of Honorable Robert
L. Wilkins,
email=[e-mail], c=US
Date: 2012.12.21 17:55:19 -05'00'

Date: December 21, 2012

ROBERT L. WILKINS
United States District Judge

7