Parker Scheer Successfully Challenges Defendants’ Motion to Compel Plaintiffs to Reveal Settlement Terms

On Sept. 23, 2004, Suffolk Superior Court Judge Mitchell J. Sikora, Jr., ruled that plaintiffs with civil tort claims against a defendant pharmaceutical manufacturer and a defendant physician and nurse, should not be compelled to disclose to the defendant physician and nurse the terms of a proposed settlement agreement reached between the plaintiffs and the defendant pharmaceutical manufacturer, prior to the issuance of a jury verdict.

The relevant facts are as follows: in October of 1997 the plaintiffs received intravenous administration of chemical compounds under the care and supervision of the defendant physician and nurse. The chemical compounds administered by the defendant nurse were manufactured and distributed by the defendant pharmaceutical manufacturer. Shortly after receiving their infusions, both men became violently ill, and were subsequently diagnosed with blood-borne staphylococcus aureus, a potentially life-threatening bacterial infection. Both men were hospitalized and underwent lengthy antibiotic therapy regimens, resulting in a range of injuries of varying degree and duration.

Tests on the vials containing the tainted chemical compounds, performed at the request of the defendant physician, revealed the presence of staphylococcus aureus. Both plaintiffs received infusions at the defendant’s clinic on different days, but from the same multi-use vials.

Following a lengthy period of litigation, the plaintiffs and the defendant pharmaceutical manufacturer agreed to participate in mediation. The defendant physician and nurse, along with the corporate entity that employed them, declined to participate in the mediation. It is worth noting that while counsel for the corporate clinic had asserted cross-claims against the defendant pharmaceutical manufacturer, counsel for the defendant physician and nurse did not assert such cross-claims.

As a result of the mediation session held between the plaintiffs and the pharmaceutical manufacturer, a settlement agreement was reached, calling for payment of an undisclosed sum to each plaintiff in exchange for a release of all claims by the plaintiffs against the manufacturer.

Shortly thereafter, plaintiffs’ counsel circulated Plaintiffs’ Motion for Entry of Separate and Final Judgment among all party defendants seeking their assent. Counsel for the defendant physician and nurse refused to assent to the motion unless and until the plaintiffs disclosed all of the material terms of the proposed settlement with the pharmaceutical manufacturer. Plaintiffs’ counsel declined the defendants’ request on the grounds that the defendant physician and nurse (1) in the absence of a pending cross-claim against the defendant pharmaceutical manufacturer, lacked standing to challenge the allowance of the proposed Motion for Entry of Separate and Final Judgment; and (2) should not be entitled to learn of the amount of the proposed settlement for the purposes of set-off until after trial when the issue of set-off would become relevant.

In granting the plaintiffs’ Motion for Entry of Separate and Final Judgment, and denying the defendants’ motion to compel the plaintiffs to disclose to the defendant physician and nurse the terms of the settlement with the defendant pharmaceutical manufacturer, Judge Sikora wrote:

“The terms of the settlement between the plaintiffs and those dismissed parties shall be accessible to all parties after any verdict so as to prevent double recovery and to enable any necessary proper set-off or adjustments between the defendants. The opposing co-defendants have articulated only speculative grounds for opposition. Post verdict disclosure of the settlement terms will protect their interests. The co-defendants had their opportunities (a) to assert cross-claims; and (b) to participate in comprehensive mediation.”

Eric J. Parker, who represents both plaintiffs, opposed the defendants’ motion to compel disclosure of the settlement terms with the co-defendants, on the grounds that the defendants’ medical insurer was simply attempting to gain an unfair advantage in future settlement negotiations. Plaintiffs’ counsel argued that while the defendant would certainly be entitled to learn precisely how much a co-defendant paid the plaintiffs to settle their case, that information should not be available to the non-settling defendant(s) until a jury verdict in favor of the plaintiffs is reached. For it is only when a verdict is reached in favor of a plaintiff that the issue of “set-off” even becomes relevant.

“Rather than having to step up to the plate and contribute fairly towards a global settlement with the plaintiffs, the medical insurer in this case wants to know just how much of a buffer lies between the jury’s potential future verdict and the insurer’s checkbook,” Parker added. “If you want to see the cards, you have to call the bet.”

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About Attorney Eric J. Parker

Eric J. Parker is the Managing Partner and co-founder of the Boston-based trial firm Parker Scheer LLP, with offices in Massachusetts and Nevada. Mr. Parker has 20 years of active experience as one of Massachusetts’ leading civil trial lawyers, and holds the highest peer-review rating awarded to any attorney for professional skill and ethics. Mr. Parker is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America), as well as the American, Massachusetts and Boston Bar Associations. Mr. Parker is an elected member of the American Board of Trial Advocates (ABOTA; Elected Vice President, Massachusetts Chapter, January 2007), and is a certified member of the Million Dollar Advocates Forum. In 2007, Mr. Parker was appointed to the Editorial Board of Massachusetts Lawyer Weekly, the leading weekly legal newspaper serving the Commonwealth of Massachusetts. Mr. Parker has been named a Massachusetts Super Lawyer by the publishers of Boston Magazine, every year since the distinction was first created. Mr. Parker's legal practice focuses on plaintiff-oriented tort litigation, including product liability, motor vehicle tort, medical and dental malpractice, premises liability claims, workplace sexual harassment and assault, aviation-related injuries, and wrongful death. Mr. Parker is a Graduate of Vassar College and received his Juris Doctor degree from Suffolk University Law School. In addition to his legal practice, Mr. Parker is also an FAA Certified Private Pilot, and was a founding member of the Board of Trustees of the Media And Technology Charter High School (MATCH) located in Boston (Chairman 2001-2005), the goal of which is to provide inner city high school students with a successful college education.

Parker Scheer LLP lawyers handle personal injury cases in Massachusetts towns including Acton, Amesbury, Amherst, Andover, Arlington, Ashburnham, Ashfield, Ashland, Athol, Attleborough, Barnstable, Barre, Bedford, Belmont, Berkley, Berlin, Bolton, Boston, Boxborough, Boxford, Boylston, Bradford, Braintree, Burlington, Buzzards Bay, Cambridge, Carlisle, Charlemont, Charlestown, Charlton, Chelmsford, Chelsea, Clinton, Concord, Danvers, Dedham, Deerfield, Dudley, Duxbury, East Longmeadow, Essex, Fall River, Fitchburg, Foxboro, Framingham, Franklin, Freetown, Gardner, Gill, Gloucester, Granby, Groveland, Hadley, Hamilton, Hanover, Haverhill, Holbrook, Holliston, Holyoke, Hopkinton, Hubbardston, Hudson, Ipswich, Kingston, Lakeville, Lancaster, Lawrence, Leominster, Lexington Lincoln, Lowell, Ludlow, Lynn, Lynnfield, Malden, Marblehead, Marlborough, Marshfield, Maynard, Melrose, Methuen, Methuen, Middleborough, Middlefield, Milford, Milton, Monterey, Nantucket, Natick, Needham, New Bedford, Newbury, Newburyport, Newton, North Attleborough, North Brookfield, Northampton, Northborough, Paxton, Peabody, Pepperell, Pittsfield, Plymouth Provincetown, Quincy, Reading, Richmond, Rockport, Rowe, Rowley, Salem, Saugus, Sherborn, Southbridge, Spencer, Sterling, Stoughton, Stow, Sturbridge, Sudbury, Templeton, Topsfield, Townsend, Truro, Upton, Wakefield, Waltham, Watertown, Wayland, Wellesley, West Boylston, West Newbury Westborough, Westford, Weston, Westport, Williamstown, Wilmington, Winchendon, Winchester, Woburn, Worcester, Yarmouth. Parker Scheer also provides referral services for personal injury lawyers in states other than Massachusetts.

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