Burlington Northern & Sante Fe Railway Company v. Han

Filing 46

OPINION AND ORDER by Magistrate Judge Paul J Cleary Re: Discovery Plan (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

BURLINGTON NORTHERN &
)
SANTA FE RAILWAY COMPANY, )
)
Plaintiff,
)
)
v.
)
)
PATRICK PILGYUN HAN, M.D.,
)
)
Defendant.
)

Case No. 14-CV-69-CVE-PJC

OPINION AND ORDER
This matter was referred to the undersigned United States Magistrate
Judge for hearing on a “detailed discovery plan.” [Dkt. No. 29]. The parties have
fully briefed their positions [Dkt. Nos. 33, 34, 38 & 39]. In addition, Defendant
has submitted some 550 pages of exhibits for the Court’s consideration. Most of
these are pleadings related to discovery in an earlier State court action.
Additional exhibits, including the settlement documents relating to this matter,
were produced to the Court at a hearing conducted December 23, 2014 (“the
December 23 hearing”).
This is an action for contribution pursuant to Okla. Stat. tit. 12 § 832.
Burlington Northern & Santa Fe Railway Co. (“BNSF”) has sued Dr. Patrick Han
(“Han”), alleging that Han is a joint tortfeasor in causing the death of Jamie Kay
Detre (“Detre”). In 2010, BNSF paid $1 million to settle a wrongful death action

1 

brought by the Estate of Detre (“the Estate”). BNSF now seeks to have Han
assessed a proportionate share of their alleged common liability.
I
ANATOMY OF THE LITIGATION
In September 2004, Detre was injured when her vehicle collided with a
BNSF train at one of BNSF’s railway crossings in Creek County, Oklahoma. In
December 2005, Detre sued BNSF and certain individuals associated with BNSF
for her personal injuries resulting from the train-motor vehicle collision (“the
underlying action”).1 While the underlying action was pending, Detre developed
a carotid cavernous fistula (“CCF”).2 On August 26, 2006, Detre received
emergency treatment from Han. Detre died while undergoing treatment. At the
time of her death, Detre was approximately 42 years old and was survived by
her mother and her children. [Dkt. No. 2, Ex. 2, ¶¶ IV-V].
In November 2008, the underlying action was amended, substituting the
Estate as Plaintiff, and adding a claim for wrongful death. Han was not named

Jamie Kay Detre v. Burlington Northern Santa Fe Railway Co., et al., Case No.
D-CJ-2005-29 (Creek County Dist. Ct.). For simplicity, the Defendants in the
underlying action will be referred to collectively as “BNSF.”
1

A CCF is an abnormal passage between an injured carotid artery and the
cavernous sinus or orbital veins. The veins may swell and press against various
ocular nerves, causing visual problems. Dorland’s Illustrated Medical Dictionary
720 (31st ed.).
2

2 

in the amended action.3 In the fall of 2010, following private mediation, BNSF
and the Estate settled the underlying action (“the Settlement”) for $1 million.4
Although he was not a party to the underlying action and had not participated
in the mediation, Han was included in the Release of All Claims (“the Release”)
negotiated between BNSF and the Estate.5
In May 2011, BNSF sued Han in Tulsa County District Court for
indemnification and contribution with regards to the settlement sum paid to the
Estate6 (“the Tulsa County action”). The court in the Tulsa County action made
a number of rulings on discovery and deposition discovery began before BNSF
dismissed the case without prejudice in August 2013. BNSF then filed the
instant case on February 18, 2014. [Dkt. No. 2]. In this action, BNSF asserts only
a claim for contribution. [Id.]. Disputes continue over the permissible scope of

Han has argued that at the time of the amended Complaint, the Statute of
Limitations had run as to any claim by the Estate against him. See Dkt. No. 19.
However, this Court has held that any such bar to an action against Han by the
Estate, does not bar the pending contribution action by BNSF. BNSF v. Han, 2010
WL 4199226, *3 (N.D.Okla. Aug. 22, 2014).
3

The settlement documents recite that the $1 million was paid on or before
Oct. 1, 2010. Approximately $95,000 of the settlement sum was designated to
pay five medical providers. [BNSF0020-27].
4

BNSF and the Estate executed a Mediation Agreement on August 9, 2010,
setting forth the bullet points of the settlement. Han was not mentioned in this
Agreement. Seven weeks later, BNSF and the Estate executed the formal
settlement documents, including the Release, which expressly released Han.
5

Case No. CJ-2011-2916, Burlington Northern & Santa Fe Railway Co., et al. v.
Patrick P. Han (Tulsa County Dist. Ct.) (dismissed Aug. 13, 2013).
6

3 

discovery in this contribution action, and the matter has been referred to the
undersigned to assist the parties in fashioning a discovery plan.
II
THE DISPUTE OVER DISCOVERY
The parties have very different views of what discovery is permissible.
BNSF would limit discovery to two issues: (1) whether Han committed medical
malpractice in his treatment of Detre; (2) Han’s share of the common liability for
aggravation of Detre’s injuries. [Dkt. No. 33, at 9].
On the other hand, Han seeks discovery into a broad range of topics
including the subjective thoughts of BNSF’s managers, agents and corporate
representatives regarding the underlying action and the Settlement, [Dkt. No. 43,
p. 5-6], BNSF’s possible exposure to punitive damages in the underlying action,
how Han came to be added to the Release executed by BNSF and the Estate, and
litigation positions taken by BNSF in the underlying action, the Tulsa County
action and the instant action. Han’s proposed discovery covers a wide array of
topics and a lengthy time period. [See, Dkt. No. 34, Defendant Han’s Discovery
Brief in Accord with Court order Dated October 20, 2014, at 5-6 and exhibits “A”
and “B” attached thereto]. For example, Han seeks depositions of BNSF
representatives concerning “how and why” the settlement was reached in the
underlying action, records concerning the railroad crossing at issue “for 15 years
preceding this collision,” all known failures of the signal system at the railroad
crossing “for a period of not less than 5 years preceding the subject incident.”
4 

[Dkt. No. 34, Ex. “B”]. Han asserts that he is entitled to this discovery to
determine the reasonableness of the settlement, why he was included in the
Release, explore issues pertaining to possible punitive damages against BNSF in
the underlying action, determine whether the Settlement was done in good faith,
and determine the appropriate allocation of fault for Detre’s death, among other
things.
III
APPLICABLE LEGAL PRINCIPLES
In a Federal case premised on diversity jurisdiction, the right to
contribution is considered substantive and controlled by state law. Smith v.
Whitmore, 270 F.2d 741 (3d Cir. 1959); Fort Worth & Denver Ry. Co. v. Threadgill,
228 F.2d 307 (5th Cir. 1955); ICI Am. Inc. v. Martin-Marietta Corp, 368 F.Supp.
1148, 1150 (D.Del. 1974). Oklahoma has adopted the Uniform Contribution
Among Tortfeasors Act (“UCATA”), Okla. Stat. tit. 12 § 832. Pursuant to that Act,
“When two or more persons become jointly or severally liable in tort for the
same injury to person or property for the same wrongful death, there is a right
of contribution among them even though judgment has not been recovered
against all or any of them....” Okla. Stat. tit. 12 § 832(A). A primary purpose of
the statute is to provide “judicial control over the distribution of damages in tort
claims in which there is more than one tortfeasor.” BNSF v. Han, 2014 WL
4199226, *2 (N.D.Okla. Aug. 22, 2014) (citing Barringer v. Baptist Healthcare of
Okla., 22 P.3d 695, 698 (Okla. 2001)).
5 

A second underlying goal of UCATA is to encourage settlement of
lawsuits. 12 U.L.A. § 1, p. 203, comment to Subsection (d) (2008); Healthcare
Staffing Solution, Inc. v. Wilkinson, 86 So.3d 519, 522 (Fla. Dist. App. 2012) (a
purpose of UCATA is to encourage settlement and avoid lengthy litigation of
claims). A tortfeasor who settles a claim against him knows that he is protected
against contribution claims brought by non-settling tortfeasors (Okla. Stat. tit. 12
§ 832(H)(2)), and that under certain circumstances, he can pursue a contribution
claim against a non-settling tortfeasor for his proportionate share of the
common liability. Id. at § 832(B). It is this latter, offensive, use of contribution
that is involved in this action.
A settling tortfeasor is entitled to contribution only when it has paid
more than its pro-rata share of a common liability. Berry v. Empire Indem. Ins. Co.,
634 P.2d 718, 719–20 (Okla.1981). A tortfeasor's pro-rata share is determined
based on its proportionate degree of fault for the common liability. Nat'l Union
Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 784 P.2d 52, 57 (Okla.1989). “A tortfeasor who enters into a settlement with a claimant is not entitled to recover
contribution from another tort-feasor whose liability for the injury or wrongful
death is not extinguished by the settlement nor in respect to any amount paid
in a settlement which is in excess of what was reasonable.” Okla. Stat. tit. 12 §
832(D); BNSF v. Han, 2014 WL 4199226, *2, [Dkt. No. 22].

6 

A settling tortfeasor’s right to contribution is limited only by the
requirement that the settlement be made “in good faith.” Okla. Stat. tit. 12 §
832(H); Dubina v. Mesirow Realty Dev., Inc., 719 N.E.2d 1084, 1088 (Ill.App.3d
1999). Generally, the right to settle is not affected by whether a joint tortfeasor
received notice and an opportunity to participate in the settlement negotiations.
Jerome Wahlert, Annotation, Contribution Between Joint Tortfeasors as Affected by
Settlement with Injured Party by One or More Tortfeasors, 17 A.L.R.6th 1, § 20
(2006) (hereafter, “Wahlert”).7 The Oklahoma contribution statute contains no
such notice requirement, and in similar situations, courts have been unwilling to
imply such a requirement. E.g., Hodges v. U.S. Fidelity & Guaranty Co., 91 A.2d
473 (D.C. 1952) (applying Maryland law) (court had no right to imply a notice
condition in the statute that the Maryland legislature specifically omitted).
Faced with a contribution lawsuit, an alleged non-settling tortfeasor may
assert any available defense, including that it was not a tortfeasor or liable to
plaintiff, that the settlement was not reasonable because the settling tortfeasor
paid more than plaintiff’s claim was worth, or because the settlement was not
made in good faith. Barringer, 22 P.3d at 698-99; 18 Am.Jur.2d Contribution §
119 at 131 (2004).

Although some courts have held that failing to give notice to a nonsettling tortfeasor does affect contribution rights, these decisions appear to be
premised on factors unique to that jurisdiction. E.g., Fishbach-Natkin, Inc. v.
Shimizu Am. Corp., 854 F.Supp. 1294 (E.D.Mich. 1994) (A Michigan statute
required that a joint tortfeasor be given notice and an opportunity to participate
in settlement negotiations.). See, Wahlert at § 19.
7

7 

This discussion of the nature and purpose of contribution informs the
Court’s decision as to the scope of discovery. For purposes of discovery,
“relevance” has a broad meaning because discovery “is designed to help define
and clarify the issues.” Intl. Bhd. of Teamsters, Airline Div. v. Frontier Airlines, Inc.,
2012 WL 1801979 (D.Colo. May 16, 2012) (quoting Gomez v. Martin Marietta
Corp., 50 F.3d 1511, 1519 (10th Cir. 1995)). However, while the concept of
relevance for discovery purposes is broad, it is not unlimited. Murphy v. Deloitte
& Touche Grp. Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010). The mere fact that
a plaintiff offers a “broad theory of the case” does not automatically justify
equally broad discovery, “unless the discovery is relevant to the plaintiff's actual
claims or defenses.” In re Cooper Tire & Rubber, 568 F.3d 1180, 1193 (10th Cir.
2009). Trial courts have broad discretion in managing discovery matters and
are subject to review only for abuse of discretion. Smith v. Sentinel Ins. Co., 2011
WL 2883433, *1 (N.D.Okla. July 15, 2011).
IV
DISCUSSION
A. Nature of Claims and Defenses
There are two prongs to BNSF’s claim against Han. First, in order to prove
a medical malpractice claim against Han, BNSF must establish: (1) duty of care
owed by Han to Detre; (2) breach of that duty; (3) injury; and, (4) causation.
Jennings v. Badgett, 230 P.3d 861, 865 (Okla. 2010); Guideone Am. Ins. Co. v. Shore
Ins. Agency, Inc., 259 P.2d 864, 870 (Okla. Civ. App. 2011). Discovery here will
8 

focus on BNSF’s assertion that Han breached a duty of care to Detre and that this
breach caused or contributed to Detre’s death. Development of these issues will
undoubtedly rely heavily on expert testimony.
It is the second prong of BNSF’s claim that lies at the core of these parties’
discovery disputes. Under the second prong of its claim, BNSF must establish its
right to contribution by showing: (1) that BNSF and Han share a common
liability for Detre’s death, Okla. Stat. tit. 12 § 832(A); (2) that BNSF’s settlement
with the Estate was reasonable, Okla. Stat. tit. 12 § 832(D); and, (3) that BNSF paid
more than its proportionate share of the liability based on its share of fault.
Okla. Stat. tit. 12 § 832(B), Natl. Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc.
784 P.2d 52 (Okla. 1989).
In defense, Han is entitled to contest the contribution claim by showing
that the Settlement was the product of bad faith. Barringer, 22 P.3d at 698.
BNSF must make a prima facie case of good faith by showing that it and Han
have a common liability to the Estate, that BNSF settled the Estate’s claims as to
BNSF and Han, and that BNSF paid the settlement sum. Southcrest, L.L.C. v. Bovis
Lend Lease, Inc., 2012 WL 3886093, *4 (N.D.Okla. Sept. 6, 2012). Han can then
challenge whether the Settlement was conducted in good faith.
Ultimately, the finder of fact must make three determinations in a
contribution action: (1) the amount of the “common liability,” (2) the identity of
each person who contributed to the injury that gave rise to the tort claim, and

9 

(3) the percentage of fault attributable to each of those persons. Healthcare
Staffing, 86 So.2d at 521. Where a tortfeasor brings a contribution action
following settlement of a tort claim, the amount paid to settle the underlying
claim represents the “common liability.” See City of Tucson v. Superior Court, 798
P.2d 374, 379 (Ariz. 1990) (holding that “common liability” under UCATA is
established “either by verdict or through settlement.”). Accord Healthcare Staffing,
86 So.3d at 522 (interpreting phrase “entire liability” used in Florida’s version of
UCATA).
B. General Areas of Discovery
(1) Discovery Regarding Reasonableness of the Settlement
Under Oklahoma law, Han can contest the “reasonableness” of the
Settlement on the ground that BNSF “paid more than the claim was worth.”
Barringer, 22 P.3d at 698. Actually, the reasonableness of the settlement sum can
arise in two scenarios; however, neither of them is present in the instant case.
The first scenario arises where a settling tortfeasor pays a disproportionately low
settlement sum and does not secure a release for other joint tortfeasors. In this
situation, in a subsequent action by the plaintiff against the non-settling
tortfeasor, the non-settling tortfeasor would be prejudiced because the set-off it
would receive of the settling tortfeasor’s settlement sum would leave it with a
disproportionately high share of the liability. Some courts have found that this
scenario can indicate bad faith. E.g., Tech-Bilt v. Woodward-Clyde & Assoc., 698

10 

P.2d 159, 163-68 (Ca. 1985). This situation is not present here, however, because
BNSF did secure a release of Han in connection with BNSF’s settlement of the
underlying action. Thus, Han would enjoy the benefit of a disproportionately
low settlement between BNSF and the Estate, because his liability is limited to
his share of an unusually low sum.
The second scenario arises where the settling tortfeasor pays “more than
the [plaintiff’s] claim was worth.” Barringer, 22 P.3d at 698. But Han does not
contend that the $1 million settlement sum was excessive; to the contrary, he has
stated on several occasions that the reasonableness of the $1 million settlement
sum is not an issue, rather it is the allocation of that amount. Han stated in his
Reply Brief in Accord with Court Order Dated October 20, 2014 [Dkt. No. 38]:
[T]he issue is less about reasonableness (given BNSF’s massive
exposure, there is every reason to think BNSF may have paid too
little in settlement rather than too much) but rather about
allocation.
[Dkt. No. 38, at 5 (emphasis added)].
At the December 23 hearing, counsel reiterated that the $1 million
settlement sum was not excessive considering BNSF’s exposure and that a
settlement demand from the Estate was several times the settlement sum. Based
on these representations, there is no need for discovery into the reasonableness
of the settlement sum.
Furthermore, even if the reasonableness of the settlement sum were in
dispute, there are multiple reasons why the discovery Han seeks is improper.
11 

First, reasonableness is determined using an objective, not subjective, test. White
Electrical Servs. v. Franke Food Sys., Inc., 2010 WL 1992586, *2 (N.D.Okla. May 14,
2010) (reasonableness of settlement is an objective determination based on
circumstances existing at that time; subjective thoughts of party, lawyers, and
insurers are not relevant); Wilshire Ins. Co. v. Tuff Boy Holding, Inc., 103
Cal.Rptr.2d 480, 489-90 (Cal.Ct.App. 2001) (settlement must not be grossly
disproportionate to what a reasonable person, at the time of the settlement,
would estimate the settling defendant’s liability to be). The standard is “what a
reasonably prudent person in the position of the defendant would have settled
for on the merits of plaintiff’s claim.” Home Ins. Co. v. Advance Machine Co., 443
So.2d 165, 168 (Fla. Dist. App. 1983) (applying Florida law under the UCATA);
accord, Miller v. Shugart, 316 N.W.2d 729, 735 (Minn. 1982).
As Han points out, Home Ins. Co. indicates that certain subjective
considerations may be considered in applying this objective test. These include:
the degree of certainty of the tortfeasor’s subjection to liability, the risks of going
to trial, and the chances that the jury verdict might exceed the settlement offer.
Home Ins. Co., 443 So.2d at 168. However, none of these subjective
considerations are at issue. Han has conceded that the $1 million settlement
sum is not unreasonably high. Han has acknowledged that BNSF faced “massive”
liability, i.e., the risk of going to trial and facing a much higher jury verdict.

12 

In addition, allowing deposition of the persons who negotiated a
settlement, as Han seeks here, would generally breach public policies regarding
the confidentiality of settlement negotiations and would specifically undermine
one of the primary purposes of UCATA – to encourage settlements. E.g., Jacobs
v. Flynn, 749 A.2d 174, 188 (Md.App. 2000); Converse v. James, 974 P.2d 1051,
1063 (Haw. App. 1997). Parties would hardly be encouraged to settle lawsuits if
they understood that their “confidential” negotiations were not confidential at
all. Han’s proposed discovery would do grave harm to the settlement process –
in the interest of exploring an issue that Han has conceded is not in dispute.
Finally, Han has cited Home Ins. Co. in support of his argument regarding
discovery of subjective settlement considerations. While Home Ins. Co. holds
that the test for reasonableness is an objective determination, the opinion also
states that some subjective considerations may be considered where appropriate.
Home Ins. Co., 443 So.2d at 168-89. Han’s view is that the Oklahoma Supreme
Court adopted this subjective approach to determining reasonableness of a
settlement sum when it cited Home Ins. Co. in its decision in Barringer, supra.
The Court rejects such a reading of Barringer. Barringer included Home
Ins. Co. in a string citation of several cases for a narrow and simple proposition:
that a non-settling tortfeasor may assert such defenses as unreasonableness and
bad faith in response to a contribution claim. Barringer, 22 P.3d at 698-99 (citing
Home Ins. Co., 443 So.2d 165. There is nothing in Barringer that indicates the

13 

Oklahoma Supreme Court was taking any position on the scope of discovery in
contribution actions, let alone that it was adopting the position that Han
advocates here.
For these reasons, the Court finds that discovery into the reasonableness
of the $1 million settlement sum is not relevant to the claims and defenses
herein. Depositions and other discovery as to how the settlement was
negotiated and what occurred during negotiations are improper.
(2) Discovery Related to Bad Faith
It is clear that under Oklahoma law, a contribution defendant may defend
on the ground that a settlement between a settling tortfeasor and plaintiff was
secured in “bad faith.” Barringer, 22 P.3d at 698. However, it is far less clear
what constitutes “bad faith” in this context. Han contends that he is entitled to
conduct discovery into such areas as BNSF’s motivation for settling and its
subjective considerations in reaching a settlement with the Estate, its reasons for
adding Han to the Release, internal communications regarding adding Han, and
the like. A review of relevant legal authority finds scant support for this sort of
discovery.8
The term “good faith” appears in one provision of UCATA:

For a lengthy and detailed analysis of the test for “bad faith” in
contribution cases, see Troyer v. Adams, 77 P.3d 83, 98-115 (Haw. 2003). See also,
Tech-Bilt, Inc., 698 P.2d at 162-68 & 168-73 (dissent). The concept of “good faith”
settlement is the subject of an article by Florrie Young Roberts, The Good Faith
Settlement: An Accommodation of Competing Goals, 17 Loy. L.A. L. Rev. 841 (1984)
(hereafter, “Roberts”).
8

14 

H. When a release, covenant not to sue, or a similar agreement is
given in good faith to one of two or more persons liable in tort for
the same injury or the same wrongful death:
1. It does not discharge any other tort-feasor from liability for the
injury or wrongful death unless the other tort-feasor is specifically
named; but it reduces the claim against others to the extent of any
amount stipulated by the release or the covenant, or in the amount
of the consideration paid for it, whichever is greater; and
2. It discharges the tort-feasor to whom it is given from all liability
for contribution to any other tort-feasor.
Okla. Stat. tit. 12 § 832(H) (emphasis added).
Unfortunately, the statute gives little guidance as to the meaning of “good
faith” or “bad faith” in this context, or how courts determine whether a
settlement has been in good faith. The commentary to UCATA states: “The
requirement that the release or covenant be given in good faith gives the court
occasion to determine whether the [settlement] was collusive….” UCATA § 4,
12 U.L.A. 285 comment to subsection (b) (2008).
Courts have used several of tests in determining whether a settlement was
entered into in good faith: (1) the proportionality or “reasonable range” test, e.g.,
Tech-Bilt, Inc., 698 P.2d 159, River Garden Farms, Inc. v. Superior Court, 103
Cal.Rptr. 498 (Cal. App. 1972); (2) the tortious conduct or collusion test, e.g.,
Dompeling v. Superior Court, 173 Cal.Rptr. 38 (Cal. App. 1981), Copper Mountain,
Inc. v. Poma of Am., Inc., 890 P.2d 100 (Colo. 1995), Bohna v. Hughes, Thorsness,
Gantz, Powell & Brundin, 828 P.2d 745, 759 n.34 (Alaska 1992), Noyes v. Raymond,
548 N.E.2d 196, 199 (Mass. App. 1990), Friend v. Dibble, 475 N.Y.S.2d 765
15 

(N.Y.Sup. 1984); and (3) the totality of the circumstances test, e.g., Troyer, 77 P.3d
83; Velsicol Chem. Corp. v. Davidson, 811 P.2d 561, 563 (Nev. 1991), Johnson v.
United Airlines, 784 N.E.2d 812, 821 (Ill. 2003), Mahathiraj v. Columbia Gas of
Ohio, Inc., 617 N.E.2d 737, 742 (Ohio App. 1992).
Noting the lack of authority on this issue, this Court has previously
determined that Oklahoma courts would adopt the “totality of the
circumstances” test in determining good faith under Okla. Stat. tit. 12 § 832. In
Southcrest, L.L.C., 2012 WL 3886093, the Court reviewed the various tests for
good faith settlement and found:
The last approach commits to the court's discretion a determination
of good faith in light of the “totality of the circumstances.” While
the court may consider the proportionate liability of the settling
party to the non-settling party where appropriate, the court is not
required “to consider it in every case or in cases where such
calculations would be of little value in good faith determinations.”
Id. at *3 (citations omitted).
In the totality of circumstances test, courts have discretion to examine
only those factors that arise in the individual case before them. Brooks v. WalMart Stores, Inc., 535 S.E.2d 55, 62 (N.C. App. 2000) (Factors a trial court
considers depend on the circumstances of the individual case. “[M]andating that
the court perform all factors in every case would indisputably be disruptive of,
and discouraging to, settlement.” Id. Thus, Courts may consider “the proportion
and amount of liability the settling and nonsettling parties might respectively
bear at trial, but are not specifically required to make proportionate liability
16 

calculations.” Mahathiraj, 617 N.E.2d at 742. Courts may also consider whether
the party challenging the settlement “has demonstrated evidence indicating
collusion, fraud or other tortious or wrongful conduct on the part of the settling
parties.” Id.
(3) Discovery Under the ‘Totality of Circumstances’ Test
The test adopted by this Court informs the decision as to the scope of
permissible discovery. The key, then, is to tie discovery to the factors the Court
should consider in determining whether BNSF’s settlement with the Estate was
the product of good faith.
(a) Proportionate Liability of BNSF to Han
The Court may consider proportionate liability, but is not required to do
so “in cases where such calculations would be of little value in good faith
determinations.” Southcrest, 2012 WL 3886093, *3 (quoting Mahathiraj, 617
N.E.2d at 742.). For the reasons set forth above discussing the reasonableness of
the settlement sum, the Court finds that this factor is of little value to the good
faith determination to be made herein. The settlement between BNSF and the
Estate did not assign any percentage of liability to either BNSF or Han; thus, this
issue is not relevant here. The allocation of proportionate liability will
ultimately be resolved in the trial of this matter. A preliminary good faith
analysis would chiefly focus on the reasonableness of the amount BNSF paid to

17 

settle the underlying action, and as set forth above, “reasonableness” is not at
issue here.
(b) Collusion, Fraud or Other Tortious Conduct
The Court may consider evidence that indicates collusion, fraud or other
tortious or wrongful conduct on the part of the settling parties. Id. Han is
entitled to explore these issues in order to provide the Court with the evidence
necessary to attack whether BNSF and the Estate conducted their settlement in
good faith.
In addressing this issue, BNSF bears the initial burden of showing that the
Settlement was conducted in good faith. At a minimum, this requires proof of
the existence of a legally valid settlement agreement, including proof of
consideration given and received. Southcrest, 2012 WL 3886093, *4 (citing
Johnson, 784 N.E.2d at 819). Once this prima facie evidence is produced, a
presumption arises that the settlement was made in good faith. Id. The
evidentiary burden then shifts to Han to establish that the settlement was not in
good faith. Id. It is unclear whether Han faces a simple preponderance of the
evidence test or the more exacting clear and convincing test. Id.
Thus, Han is entitled to discovery to determine whether there has been
collusion between BNSF and the Estate in reaching this settlement, but this
should be a narrowly focused effort. For example, Han is entitled to explore the
relationships between the parties, i.e., whether there is some personal

18 

relationship between BNSF and the Estate or its representative that indicates a
collusive settlement may have occurred. Han is entitled to explore discovery as
to whether the $1 million settlement sum was fully and irrevocably paid. See
e.g., In re Babb, 642 N.E.2d 1195, 1204-07 (Ill. 1994), where the settling parties
entered into a “loan-receipt agreement” whereby the settling tortfeasor’s
settlement payment was actually a loan to the plaintiff to be repaid out of
damages collected from non-settling tortfeasors. “Because loan-receipt
agreements violate the terms of and the policies underlying the Contribution
Act, we conclude that such agreements may not be considered ‘good faith’
settlements within the meaning of the Contribution Act.” Id. at 1207.

Other

collusive situations include those where the settling parties “manipulated the
settlement allocation to deprive the nonsettling defendant of his right to a
setoff,” Id. at 1205 (citing Blagg v. Ill. F.W.D. Truck & Equipment Co., 572 N.E.2d 920,
924 (Ill. 1991)), or where the settlement was intended solely to shield a family
member of the plaintiff from liability on a cross-claim. Int’l Action Sports v.
Sabellico, 573 So.2d 928 (Fla.Dist. App. 1991). The fundamental issue has been
summarized thus:
If the ‘good faith’ condition is to have any meaning at all consistent
with the underlying purposes of the [UCATA], we believe that it
prevents a claimant from arbitrarily deciding how much each
tortfeasor will pay on the basis of which tortfeasor has been more
cooperative with claimant.
Sobik’s Sandwich Shops, Inc. v. Davis, 371 So.2d 709, 711-12 (Fla.Dist. App. 1979).

19 

“[T]he issue of whether a settlement is in ‘good faith’ presents itself only
when the nonsettling tortfeasors think that the settling tortfeasor is paying less
than his or her fair share.” Roberts, 17 Loy. L. A. L. Rev. at 843, n.12. At this
juncture, BNSF has paid the full settlement sum, releasing itself and Han; thus,
Han can hardly complain that he has been required to pay more than his fair
share of the common liability – it has not yet been determined what, if anything,
Han may be required to contribute.9
Han asserts that BNSF acted in bad faith in adding him to the final
settlement agreement between BNSF and the Estate. Han complains that he was
added to the settlement solely for the purpose of allowing BNSF to seek
contribution from him. Han points out that he was not named in the bulletpoint settlement terms negotiated on August 9, 2010, but was added to the
formal settlement Release seven weeks later. Han says this is evidence of bad
faith. The Court disagrees for several reasons.
First, the Court rejects the notion that the fact that Han was not
mentioned in the settlement until the final Release indicates bad faith. It is not
unusual for parties to continue negotiating the terms of a settlement after they
have reached an initial agreement. Apparently, the Estate had no objection to
adding Han to the Release. Furthermore, it would likely constitute malpractice

Han suggests that discovery is necessary as to “the meaning and
interpretation of the language in the Settlement Agreement purporting to release
Dr. Han.” [Dkt. No. 39, at 3]. The undersigned finds no ambiguity in the
language of the Release. See discussion at section IV(C)(4)(h), infra.
9

20 

if BNSF had not obtained a Release of any non-settling tortfeasor from whom it
intended to seek contribution. Absent some showing that the Estate was
defrauded by BNSF in this regard or colluded with BNSF to Han’s disadvantage,
this does not amount to bad faith. There is nothing before the Court that
indicates that the Estate was not agreeable to the final terms of the settlement
and the release of Han. Furthermore, it seems clear why Han was added to the
settlement. Oklahoma law requires that Han be named in the Release in order
for BNSF to pursue a contribution claim. Okla. Stat. tit. 12 § 832(D).
The good faith requirement is not meant to police BNSF’s motivation for
settling, but to ensure that the settlement does not unfairly apportion
responsibility among joint tortfeasors.
The Court concludes that discovery such as depositions of those who
participated in the mediation or decided to settle the underlying case is not
relevant to the claims or defenses herein and is not reasonably calculated to
lead to discovery of admissible evidence. Furthermore, such discovery would
destroy the confidentiality of the settlement process and undermine the
purposes of UCATA.
(4) Discovery Related to Punitive Damages in the Underlying Action
Han seeks broad discovery regarding the Estate’s “alleged basis for the
punitive damages claim against BNSF in the Creek County lawsuit.” [Dkt. No. 34,

21 

p. 6].

Han asserts that such evidence could affect the factfinder’s allocation of

fault in this action.
While there is little guidance from Oklahoma cases as to how to address
this issue, after reviewing cases from other jurisdictions as well as the policy
goals of UCATA, the Court finds that Oklahoma would adhere to several basic
principles guiding discovery in a contribution action arising from an underlying
lawsuit where allegations of punitive damages were made: First, it is clear that a
tortfeasor guilty of intentional misconduct has no right of contribution under
Oklahoma law. 12 O.S. § 832(C) (“There is no right of contribution in favor of
any tort-feasor who has intentionally caused or contributed to the injury or
wrongful death.”); Restatement (Second) of Torts § 886A(3). There is nothing in
the record before the Court of any contention that BNSF’s conduct related to the
2004 collision was intentional.
Second, a tortfeasor specifically adjudicated liable for punitive damages
cannot seek contribution for the punitive damage portion of the verdict. Kevin
J. Grehan, “Comparative Negligence,” 81 Colum. L. Rev. 1668, 1694-95 (Dec.
1981). E.g., Pyramid Condominium Ass’n v. Morgan, 606 F.Supp. 592, 599 (D.Md.
1985); Alabama Power Co. v. Marine Builders, Inc., 475 So.2d 168, 180 (Ala. 1985).
To allow a tortfeasor who has been adjudged liable for punitive damages to seek
contribution for a portion of those damages, would undermine the purpose of
the UCATA to apportion damages equitably. This second situation does not

22 

apply here, because there was no adjudication of punitive damages in the
underlying action.
Finally, absent intentional conduct, the mere claim of punitive damages in
the settled action should not open the door to wide-ranging discovery trying to
parse the distinction between ordinary negligence and willful/wanton conduct.
As one court has noted: “[T]he mere existence of a claim for punitive damages
should not deprive the settling tortfeasor of the opportunity to seek
proportional contribution. The claim for punitive damages may turn out to be
wholly without merit.” Blackburn v. Harnischfeger Corp., 773 F.Supp. 296, 299-300
(D.Kan. 1991). Furthermore, under Oklahoma’s comparative negligence statute,
no distinction is made between degrees or kinds of negligence. Amoco Pipeline
Co. v. Montgomery, 487 F.Supp. 1268, 1271 (W.D.Okla. 1980). To permit
discovery aimed at drawing this distinction for purposes of punitive damages
would subject the Court and the parties to needless satellite litigation. In the
case of a settlement, where there has been no adjudication of a tortfeasor’s
culpability or a finding of liability for punitive damages, and where the
settlement sum is objectively reasonable under the circumstances existing at the
time of the settlement, the question of punitive damages is irrelevant to the
central issue in the lawsuit: the proportionate fault of each of the joint
tortfeasors for plaintiff’s injury.

23 

(5) Discovery Regarding BNSF’s Actions and the 2004 Accident
Han is entitled to explore the proportionate shares of liability of both the
party seeking contribution and the party alleged to be liable in contribution.
Okla. Stat. tit. 12 § 832(B); City of Tucson, 798 P.2d at 378. Thus, Han is entitled
to discovery as to how the September 2004 accident occurred, the damages
Detre suffered, the damages suffered by her surviving children and mother, and
the like. Han also seeks discovery regarding the railroad crossing at issue before
the 2004 accident i.e., previous accidents at the site, remedial measures that were
planned, condition of the warning systems in place. Under Rule 26, the Court
cannot say that this discovery would have no relevance to the allocation of
proportionate share of fault herein; nevertheless, such discovery should be
narrowly confined to show what BNSF knew about safety issues at the crossing
in the time immediately leading up to the 2004 accident. The Court finds that
a two-year window is sufficient for this purpose. Thus, Han may pursue
discovery concerning conditions at the railroad crossing from September 1, 2002
forward. Discovery on matters prior to September 1, 2002, is barred.
C. Other Specific Discovery Issues
(1) Alternative or Inconsistent Litigation Positions.
Han seeks discovery as to litigations positions that BNSF took in the
underlying action and/or the Tulsa County action. The Court finds this
discovery is largely irrelevant. The issue is BNSF’s evidence in this case; however,

24 

if BNSF proposed an expert witness in the underlying action whose report
contradicts BNSF’s expert(s) in this case, that report is discoverable and may be
used for impeachment. BNSF is not estopped from taking a different litigation
position in this case than the one it took in the underlying action, because no
issues were decided in the underlying action. See, Brown v. Felsen, 442 U.S. 127,
139 n. 10 (1979) (citation omitted) (collateral estoppel treats as final only those
questions actually and necessarily decided in a prior suit). Discovery as to
BNSF’s legal theory in the underlying action is irrelevant.
(2) Depositions of BNSF Personnel.
Han may take a Rule 30(b)(6) deposition of BNSF as limited below. This
would seem to be resolved through the completion of the deposition of
Kamalah Minor. Depositions of BNSF personnel with regard to the negotiation
of the settlement with the Estate and issues related to the settlement are
improper. (Han may obtain any written communications between BNSF and the
Estate, and drafts of the final Settlement Agreement between the settling parties.).
Deposition discovery is limited to information from September 1, 2002, forward,
concerning the 2004 collision. The deposition topics listed in Exhibit “B” to
Han’s Discovery Brief in Accord With Court Order Dated October 20, 2014,
[Dkt. No. 34], are further limited as follows: Within the two-year limit imposed
herein, Han may depose BNSF with respect to deposition topics Nos. 1, 3, 6, 7, 8,
12 and 13. The remaining topics are overly broad, irrelevant to the claims and

25 

defenses herein, do not describe with particularity what information is being
sought, are disproportionate to the case and/or would cause the Court to engage
in long and protracted satellite litigation of little or no benefit.
(3) Deposition topics listed pursuant to subpoena duces tecum [Dkt.
No. 34-2, p. 2].
Most of these topics are irrelevant and/or improper. For example, Topics
1 and 2 concern the reasonableness of the settlement between BNSF and the
Estate. For the reasons set forth above, this is not an issue in this contribution
action. Topic No. 3 has been answered by the settlement itself. City of Tucson,
798 P.2d at 379 (“common liability” under UCATA is established “either by
verdict or through settlement.”). Many of the topics concern the issues that will
be determined by the factfinder at trial. Thus, discovery here is limited to Topic
Nos. 9, 10, 11. However, exploration of these topics may be unproductive until
after the parties have exchanged expert reports.
(4) Discovery Topics Listed in Han’s Discovery Brief [Dkt. No. 34].
Han lists eight areas of discovery he seeks to pursue. The Court addresses
each below:
(a) The reasonableness of and the basis for the settlement of the Creek
County lawsuit (in the language of the state court, “how and why the
settlement was reached” and the “reasonableness of the settlement”).

26 

Ruling: For the reasons set forth in detail above, the reasonableness of
the settlement sum is not at issue. Han has conceded this point. Thus,
discovery on this question is not relevant to the claims and defenses as
presented to this Court. Furthermore, discovery into how the settlement
was reached invades the confidentiality of the settlement process and is
improper. See Fed.R.Evid. 408.
(b) The allocation of fault (pro rata share) and liability for the settlement
amount paid to the Estate, as between or among BNSF and any other
potential tortfeasor. This necessarily includes an assessment of the
potential liability of BNSF and any other potential tortfeasor for Detre’s
injuries and death.
Ruling: The allocations of fault and of liability are the key issues for the
factfinder. In this case, BNSF and Han are alleged to have played different
roles in the ultimate injury suffered by plaintiff.
When different parties cause different portions of an injury, the
factfinder has two tasks of apportionment. It must ascertain
who caused what portion of the injury, and it must determine
the relative culpability of the parties…. This involves
apportioning the loss both by causation and by percentages of
responsibility.
Restatement (Third) of Torts: Apportionment Liab. §7, Comment e (2000).
Discovery on the issues of fault and culpability is appropriate;
however, this discovery should be focused on the facts of how the
underlying collision occurred, Detre’s injuries caused by that collision, the
27 

damages flowing from those injuries, Han’s role (if any) in aggravating
Detre’s condition, and the causal link between Han’s treatment of Detre
and her death.
(c) The alleged basis for the punitive damages claim against BNSF in the
Creek County lawsuit.
Ruling: For the reasons set forth above, discovery into a punitive damage
claim in the underlying action is irrelevant to the issues herein. The
UCATA requires that the settlement entered into by a settling tortfeasor
and the plaintiff be “reasonable” and in good faith. Han may explore the
facts surrounding the September 2004 accident and facts pertaining to
safety at the subject railroad crossing from September 1, 2002. This
information may provide context for the duty owed by BNSF to Detre and
the breach of that duty, for purposes of allocation of proportionate shares
of fault. This information can be derived from the facts, not from
deposition of the subjective thoughts of BNSF personnel.
(d) The facts known or assumed by BNSF’s negotiators regarding responsibility
for Detre’s injuries and death in negotiating the settlement in the Creek
County lawsuit.
Ruling: This discovery is improper. It would invade the confidentiality
of the mediation process and would undermine a key objective of UCATA
– the encouragement of settlements. Han may explore the cause of the

28 

2004 collision and Detre’s resulting injuries, but this should be focused on
the facts of the matter, not the subjective thoughts of BNSF’s settlement
negotiators.
(e) Why Han was not notified of the potential settlement of the Creek
County lawsuit and was not given an opportunity to participate in the
negotiations.
Ruling: For the reasons set forth above, this information is irrelevant to
the claims/defenses presented herein.
(f) What transpired at the mediation on August 9, 2010.
Ruling: This discovery is also irrelevant and improper and would
undermine the purpose of UCATA to encourage settlements of lawsuits.
(g) The drafting and negotiation of the Settlement Agreement, including how
Han came to be included in the Settlement Agreement and Release.
Ruling: Han is entitled to see all communications between BNSF and the
Estate, as well as drafts of the Settlement Agreement; however, depositions
and other such discovery of the persons who attended the mediation and
negotiated the settlement will not be permitted.
(h) The meaning and interpretation of the language in the Settlement
Agreement purporting to release Han.

29 

Ruling: Han contends that there is an ambiguity in the Release
concerning his liability. The Release releases and forever discharges BNSF
from:
any and all claims and liabilities of every kind and nature
which have arisen or which may hereafter arise, together with
all other damages of any nature whatsoever resulting from the
collision between a train and a vehicle which occurred in Creek
County, Oklahoma, on or about the 1st day of September
2004…. This Agreement includes all damages, past, present or
future resulting from said accident…. Claimants understand
that this release covers all incidents and damages, expenses and
future consequences of this accident. Claimants further
covenant and agree that they will never institute any further
suit, action at law or otherwise against the Railroad, its parent
company, its successor companies, nor institute or prosecute or
in any way aid in the institution or prosecution of any claim,
demand, action or cause of action of whatever kind, arising from
the aforesaid collision.
[BNSF0021]. The Release further provides: “Claimants also fully and
specifically release Patrick Han, M.D., Jamie Kay Detre’s treating physician,
from any and all claims and liabilities of any kind or nature, whether or
not heretofore asserted or otherwise known, to the same extent that
Defendants are released in this document.” [Id.]
Han contends that the Release is ambiguous as to him, because it
releases him only to the extent that BNSF is released and that BNSF is
released only as to damages resulting from the train collision. The Court
sees no such ambiguity. The Release clearly releases Han and BNSF from
all liability from Detre’s injuries flowing from the 2004 train accident.

30 

This would include the CCF that Detre suffered and which apparently led
to her death in August 2006. The Release covers “all damages, past,
present or future” resulting from the 2004 accident, and recites that it
includes “all incidents, damages, expenses and future consequences of this
accident.” [BNSF 0021-21]. The language constitutes a full release of Han
for all such damages as well.
“In Oklahoma, the cardinal rule in contract interpretation is to
determine and give effect to the intent of the parties.” In re Kaufman, 37
P.3d 845, 853 (Okla. 2001). When contract provisions are clear, consistent,
and unambiguous, courts look to the plain and ordinary meaning of the
language to determine and give effect to the parties' intent. Dodson v. St.
Paul Ins. Co., 812 P.2d 372, 376–77 (Okla. 1991); 15 O.S. 2011, §§ 152, 154,
160. “When a contract is reduced to writing, the intention of the parties
is to be ascertained from the writing alone, if possible….” Okla. Stat. tit.
15 § 155. The Court sees no ambiguity in the language of the Release;
therefore, the requested discovery is irrelevant.
V
DISCOVERY PLAN GOING FORWARD
To provide guidance to the parties, the Court proposes that the following
discovery proceed:
Completion of the Rule 30(b)(6) deposition of Kamalah Minor,
within the limits discussed above.

31 

Discovery regarding the factual bases for BNSF’s assertions:
- that it and Han are jointly responsible for Detre’s death;
- that Detre died “as a direct result” of Han’s negligence;
- that Han treated Detre in a negligent manner;
- that BNSF’s role in Detre’s death was “limited”;
- that the 2004 crossing collision “played some part” in
causing Detre’s injuries and death;
- that the 2004 crossing collision was causally related to
Detre’s CCF;
- that the $1 million settlement sum “far exceeded” BNSF’s
liability for Detre’s personal injuries and death.
- BNSF’s position as to the direct and indirect causes of Detre’s
death;
- BNSF’s position as to the proportionate fault of BNSF and
Han in causing Detre’s injuries and death;
Discovery regarding drafts of the Settlement Agreements between
BNSF and the Estate.
This plan does not preclude appropriate depositions and discovery of the
Estate concerning the events surrounding the 2004 collision, Detre’s personal
injury damages, damages resulting from Detre’s death, and the like. Again, the
focus in discovery should be the facts surrounding the 2004 collision (and
events from September 1, 2002, concerning the railroad crossing at issue), the
facts indicating that BNSF and Han are jointly responsible for Detre’s death, facts
regarding causation of Detre’s death (including, whether there is any causal
connection between Han’s treatment of Detre and her death), and facts regarding
the appropriate allocation of fault for Detre’s death as between Han and BNSF.10

Han has indicated that there may be other healthcare providers that
should be included as joint tortfeasors with BNSF and Han. The Scheduling
Order [Dkt. No. 30] provides that motions to join additional parties are to be
filed by February 17, 2015. [Id. at ¶ 2].
10

32 

DATED this 28th day of January 2015.

33