The U.S. Court of Appeals for the Tenth Circuit has a warning for defendants who are the subject of multi-defendant litigation: “Beware: When a fellow litigant settles on the eve of trial, you can’t bank on the right to claim surprise and rewrite your case from top to bottom.”
That is, in an age when virtually all cases settle in part or in whole – many just days or weeks before trial – no one can claim they are caught off-guard when that happens, even if it leaves one or two defendants to contend with greater liability while others have settled with plaintiff for a lesser amount in exchange for being excused as a defendant.
That’s what happened in the case of Monfore v. Phillips, which originated in Oklahoma.
This was a medical malpractice/wrongful death claim in which it was asserted defendants acted negligently in missing a diagnosis and failing to warn patient of the seriousness of his health condition. (He had gone to the hospital with neck pain, and left with antibiotics. Although doctors had diagnosed him with a serious form of cancer that required immediate treatment, that message was, by a series of errors, not relayed to him before he left the hospital.) By the time the patient learned of his cancer diagnosis, a full year had passed and the condition had become untreatable and terminal. Following his death, his widow filed a lawsuit against numerous defendants, including the one at issue here.
Throughout the many phases of litigation and up until the eve of trial, defendants all presented a united front, pooling their resources, tapping the same expert witnesses and making sure none placed blame on the others. Then just before trial, plaintiff settled out-of-court with all plaintiffs except defendant Phillips.
Defendant stated he was stunned by this revelation, and asked the court for more time to rework his trial strategy. The previous strategy had involved continuing on this united front with all the other defendants. Now suddenly, he was left to stand trial alone. He wanted the opportunity to cultivate witnesses, gather evidence and formulate a different narrative, one that would pin the blame for what happened on his former co-defendants.
However, the trial court denied this request. The trial had been on schedule for two years, and the court refused to grant more time.
Plaintiff was successful in her claim, with jurors finding the doctor defendant solely liable for what happened and apportioning him $1 million in damages.
He later appealed on the grounds trial court abused its discretion by refusing to grant him more time. But in a pointed affirmation of the lower court’s findings, the 11th Circuit wrote that such an eleventh-hour move by his co-defendants could not have been considered a surprise. This kind of last-minute partial settlement agreement happens all the time in civil litigation. In fact, there is great incentive in multi-party litigation to band together initially, and then break ranks in the end in order to settle cheaply and leave the others on the hook for the bulk of plaintiff’s damages. Our Broward injury lawyers know this strategy well, and are experienced at using it to our advantage.
Further, while the trial court could have allowed him more time, it was not mandated to do so.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Monfore v. Phillips, Feb. 10, 2015, U.S. Court of Appeals for the Tenth Circuit
More Blog Entries:
Ruiz v. Victory Props. – Child Injury Lawsuit to Proceed, Jan. 31, 2015, Broward Medical Malpractice Lawyer Blog