Setoff (complicated but important)

Brief (to the extent possible) Facts: In Thornton v. Garcini, et. al., the plaintiff brought lawsuit against a hospital, a physician and nurses for wrongful death, survival and negligent infliction of emotional distress in relation to the death of her son during child birth and the circumstances of delivery. A jury found the physician and the nurses not liable on all claims, but ruled against the hospital on plaintiff's emotional distress claim and awarded the plaintiff $175,000. The plaintiff filed a post trial motion challenging the jury's verdict. While the motion was pending, the plaintiff settled with the nurses and the hospital for all of the claims for $175,000. The settlement agreement specifically stated that the settlement would not effect the plaintiff's claim against the physician. The plaintiff's post trial motion proceeded against the physician and eventually the appellate court ordered a new trial against the physician. After a second trial, a jury found in favor of the physician on the wrong death and survival claims, but found the physician liable for negligent infliction of emotional distress and awarded the plaintiff $700,000. The physician sought a setoff for $175,000, and the trial court denied that request. The Third District Appellate Court agreed with the trial court.

Holding/Reasoning: The physician was not entitled to a $175,000 setoff because the physician failed to show what portion of the $175,000 settlement was attributable to the claim for which he was held liable. In other words, the court held it was the physician's burden to show what portion of the $175,000 settlement was attributable to the emotional distress claim for which he was found liable.

Implications/Problems with the Court's Holding: I find this ruling problematic for at least a couple of reasons. First, if the physician is not a party to the settlement agreement between the plaintiff and the hospital/nurses, how can the physician meet his burden to show what portion of the settlement is attributable to the claim for which he is held liable when he has no control over the settlement agreement? Second, this decision appears to allow plaintiffs to manipulate a settlement agreement to avoid a setoff against co-defendants that choose to go to trial. In light of these problems, I strongly recommend evaluating a co-defendant's settlement agreement and perhaps seeking court intervention when indicated.