STATE OF MAINE SUPERIOR COURT
Cumberland, ss.
NICHOLAS LAUDERMILK
Plaintiff
V. Civil Action Docket No. CUMSC-CV-17-0025
WELLPATH, LLC et als.
Defendants
ORDER FOR DISCOVERY
This case came before the court for a conference of counsel pursuant to M.R.
Civ. P. 26(g), with attorney Faunce for Plaintiff Nicholas Laudermilk; attorney
Hatch for Defendant Wellpath, Inc. [Wellpath]; attorneys Poulin and Rappaport
for Defendants Alvin Hall, M.D. and Surgical Pathology Consultants [collectively
"Hall/SPC"J, all participating in person and with attorney Caradonna for
Defendant Laboratory Corporation of America ["LCA"J participating by
telephone. The conference was electronically recorded.
Background
The discovery issue arises from a settlement between Plaintiff and Wellpath
that includes a "Pierringer release". See Thurston v. 3K Kamper Ko., 482 A.2d 837,
838-39 & n.1 (Me. 1984), citing Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d
106 (1963). Pursuant to their settlement, Plaintiff and Wellpath have filed a Joint Motion
to Dismiss all claims against Wellpath with prejudice and without costs. The non
settling Defendants do not oppose the Joint Motion.
The non-settling Hall/SPC Defendants have served a discovery request on
Plaintiff seeking "[a]ll documents constituting, referring or relating to any
understanding, with any other party ... which affects that party's liability to pay
damages for the injuries or losses which Claimant[] claims in this lawsuit ..."
Nov. 4, 2019 Letter from Attorney Rappaport to Attorney Faunce. It is undisputed
that the settlement documents between Plaintiff and Wellpath are within the scope
of the Hall/SPC document request to Plaintiff.
Plaintiff and Wellpath both object to the request and to any discovery of the
terms of their settlement.
At the outset of the recorded discovery conference, the court noted that Rule
26(g)(3) plainly authorizes the court to resolve the discovery dispute at or after the
Rule 26(g) conference, but also authorizes the court to convert the Rule 26(g)
procedure into the more formal motion procedure, which in this case could entail
cross-motions to compel and for protective order under Rules 37 and 26(c). After
an opportunity to confer, all parties agreed that the court could issue its ruling on
the dispute under the Rule 26(g) procedure rather than invoking the motion
procedure.
2 Ana1:ysis
Somewhat surprisingly, the question whether a non-settling defendant is
entitled to discovery of the terms of a Pierringer-type settlement between a plaintiff
and a settling co-defendant seems to not to have been addressed by the Maine
courts, although the United States District Court for the District of Maine has
directly addressed the question. See Barclay v. Gressit, '2013 U.S. Dist. LEXIS
103518 (D. Me. July '24, '2013) (Rich, Mag. J.).
The Barclay decision includes a detailed analysis of the federal courts'
handling of such requests, notes that some decisions have required a heightened
showing in order for discovery to be allowed, and determines that the federal rules
do not support any such requirement and orders disclosure. Although not bound
by Judge Rich's decision under the federal discovery rules, this court agrees with
its conclusion--that the requested documents are relevant and discoverable. The
Maine discovery rules impose heightened requirements for discovery in limited
situations, see M.R Civ. P. '26(b )(4)(B) (discovery as to experts retained for purposes
oflitigation but not expected to be called as a witness at trial only upon a showing
of exceptional circumstances). But this discovery request is not within those
limited situations, and this court is not inclined to impose any heightened
requirement where the discovery rules do not.
The Hall/SPC Defendants contend that the settlement documents are
relevant and discoverable for several different reasons. They say that the
3 settlement amount is relevant to their rights under 14 M.R.S. § 163, which calls for
the court to reduce any judgment for the plaintiff by either the amount of the
settlement or Wellpath's share of fault. They also say that they are entitled to see
the settlement documents for other reasons.
Plaintiff and Wellpath object on the grounds that the settlement and terms
thereof are not admissible in evidence; that disclosure would be prejudicial and
would also violate the confidentiality provisions of the settlement. They also
contend, in the alternative, that if the requested documents are relevant, the plain
language of 14 M.R.S. § 163 makes them relevant only ifa verdict is rendered and,
even then, only after the verdict.
Plainly, the likelihood that the terms of settlement will not be admissible at
any trial is not determinative. The essential limitation on discovery is one of
relevance, not admissibility. See M.R. Civ. P. 26(b)(l) ("Parties may obtain
discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action ..."). No issue of privilege is raised here.
There is more than one reason why the terms of the settlement between
Plaintiff and Wellpath are relevant and discoverable.
One reason is that the non-settling Defendants need to know the terms of
settlement in order to exercise intelligently their statutory right to have the terms
of settlement factored into any final judgment in the case. See 14 M.R.S. §§ 156,
163. Sections 156 and 163 give a non-settling defendant the right to elect between
4 either having the amount of the settlement deducted from the judgment or having
an amount corresponding to the settling defendant's degree of fault as determined
by the jury deducted from the judgment. What form the reduction takes depends
on whether the jury is asked to allocate fault among the settling and non-settling
defendants. A non-settling defendant has the right "through the use of special
interrogatories to request of the jury the percentage of fault contributed by each
defendant." 14 M.RS. § 156. Section 163 describes the procedure as follows:
With regard to a settlement in which the plaintiff has entered into an agreement that precludes the plaintiff from collecting against remaining parties that portion of any damages attributable to the settling defendant's share of responsibility, the judge shall reduce the plaintiffs judgment by either the amount determined at trial to be attributable to the settling defendant's share of responsibility, if any was found, or, if no such finding is made, by the value of the consideration given to the plaintiff for the settlement. 14 M.R.S. § 163.
Plaintiff and Wellpath point out that, under the plain language of 14 M.R.S.
§ 163, the court is to inquire into settlement by a defendant only after the verdict,
and therefore that the requested discovery should at least be deferred until after
the jury verdict, if it is not denied. The phraseology of section 163 provides some
support for their argument. See 14 M.R.S. § 163 ("After the jury has returned its
verdict, the trial judge shall inquire of the attorneys for the parties whether such a
settlement or release has occurred. If such settlement or release has occurred, the
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STATE OF MAINE SUPERIOR COURT
Cumberland, ss.
NICHOLAS LAUDERMILK
Plaintiff
V. Civil Action Docket No. CUMSC-CV-17-0025
WELLPATH, LLC et als.
Defendants
ORDER FOR DISCOVERY
This case came before the court for a conference of counsel pursuant to M.R.
Civ. P. 26(g), with attorney Faunce for Plaintiff Nicholas Laudermilk; attorney
Hatch for Defendant Wellpath, Inc. [Wellpath]; attorneys Poulin and Rappaport
for Defendants Alvin Hall, M.D. and Surgical Pathology Consultants [collectively
"Hall/SPC"J, all participating in person and with attorney Caradonna for
Defendant Laboratory Corporation of America ["LCA"J participating by
telephone. The conference was electronically recorded.
Background
The discovery issue arises from a settlement between Plaintiff and Wellpath
that includes a "Pierringer release". See Thurston v. 3K Kamper Ko., 482 A.2d 837,
838-39 & n.1 (Me. 1984), citing Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d
106 (1963). Pursuant to their settlement, Plaintiff and Wellpath have filed a Joint Motion
to Dismiss all claims against Wellpath with prejudice and without costs. The non
settling Defendants do not oppose the Joint Motion.
The non-settling Hall/SPC Defendants have served a discovery request on
Plaintiff seeking "[a]ll documents constituting, referring or relating to any
understanding, with any other party ... which affects that party's liability to pay
damages for the injuries or losses which Claimant[] claims in this lawsuit ..."
Nov. 4, 2019 Letter from Attorney Rappaport to Attorney Faunce. It is undisputed
that the settlement documents between Plaintiff and Wellpath are within the scope
of the Hall/SPC document request to Plaintiff.
Plaintiff and Wellpath both object to the request and to any discovery of the
terms of their settlement.
At the outset of the recorded discovery conference, the court noted that Rule
26(g)(3) plainly authorizes the court to resolve the discovery dispute at or after the
Rule 26(g) conference, but also authorizes the court to convert the Rule 26(g)
procedure into the more formal motion procedure, which in this case could entail
cross-motions to compel and for protective order under Rules 37 and 26(c). After
an opportunity to confer, all parties agreed that the court could issue its ruling on
the dispute under the Rule 26(g) procedure rather than invoking the motion
procedure.
2 Ana1:ysis
Somewhat surprisingly, the question whether a non-settling defendant is
entitled to discovery of the terms of a Pierringer-type settlement between a plaintiff
and a settling co-defendant seems to not to have been addressed by the Maine
courts, although the United States District Court for the District of Maine has
directly addressed the question. See Barclay v. Gressit, '2013 U.S. Dist. LEXIS
103518 (D. Me. July '24, '2013) (Rich, Mag. J.).
The Barclay decision includes a detailed analysis of the federal courts'
handling of such requests, notes that some decisions have required a heightened
showing in order for discovery to be allowed, and determines that the federal rules
do not support any such requirement and orders disclosure. Although not bound
by Judge Rich's decision under the federal discovery rules, this court agrees with
its conclusion--that the requested documents are relevant and discoverable. The
Maine discovery rules impose heightened requirements for discovery in limited
situations, see M.R Civ. P. '26(b )(4)(B) (discovery as to experts retained for purposes
oflitigation but not expected to be called as a witness at trial only upon a showing
of exceptional circumstances). But this discovery request is not within those
limited situations, and this court is not inclined to impose any heightened
requirement where the discovery rules do not.
The Hall/SPC Defendants contend that the settlement documents are
relevant and discoverable for several different reasons. They say that the
3 settlement amount is relevant to their rights under 14 M.R.S. § 163, which calls for
the court to reduce any judgment for the plaintiff by either the amount of the
settlement or Wellpath's share of fault. They also say that they are entitled to see
the settlement documents for other reasons.
Plaintiff and Wellpath object on the grounds that the settlement and terms
thereof are not admissible in evidence; that disclosure would be prejudicial and
would also violate the confidentiality provisions of the settlement. They also
contend, in the alternative, that if the requested documents are relevant, the plain
language of 14 M.R.S. § 163 makes them relevant only ifa verdict is rendered and,
even then, only after the verdict.
Plainly, the likelihood that the terms of settlement will not be admissible at
any trial is not determinative. The essential limitation on discovery is one of
relevance, not admissibility. See M.R. Civ. P. 26(b)(l) ("Parties may obtain
discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action ..."). No issue of privilege is raised here.
There is more than one reason why the terms of the settlement between
Plaintiff and Wellpath are relevant and discoverable.
One reason is that the non-settling Defendants need to know the terms of
settlement in order to exercise intelligently their statutory right to have the terms
of settlement factored into any final judgment in the case. See 14 M.R.S. §§ 156,
163. Sections 156 and 163 give a non-settling defendant the right to elect between
4 either having the amount of the settlement deducted from the judgment or having
an amount corresponding to the settling defendant's degree of fault as determined
by the jury deducted from the judgment. What form the reduction takes depends
on whether the jury is asked to allocate fault among the settling and non-settling
defendants. A non-settling defendant has the right "through the use of special
interrogatories to request of the jury the percentage of fault contributed by each
defendant." 14 M.RS. § 156. Section 163 describes the procedure as follows:
With regard to a settlement in which the plaintiff has entered into an agreement that precludes the plaintiff from collecting against remaining parties that portion of any damages attributable to the settling defendant's share of responsibility, the judge shall reduce the plaintiffs judgment by either the amount determined at trial to be attributable to the settling defendant's share of responsibility, if any was found, or, if no such finding is made, by the value of the consideration given to the plaintiff for the settlement. 14 M.R.S. § 163.
Plaintiff and Wellpath point out that, under the plain language of 14 M.R.S.
§ 163, the court is to inquire into settlement by a defendant only after the verdict,
and therefore that the requested discovery should at least be deferred until after
the jury verdict, if it is not denied. The phraseology of section 163 provides some
support for their argument. See 14 M.R.S. § 163 ("After the jury has returned its
verdict, the trial judge shall inquire of the attorneys for the parties whether such a
settlement or release has occurred. If such settlement or release has occurred, the
trial judge shall reduce the verdict by an amount equal to the settlement with or
the consideration for the release of the other persons.") (emphasis added).
5 However, this provision predates the 2000 revisions to sections 156 and 163
that were intended specifically to address Pierringer settlements. See Me. Pub. L.
2000, ch. 633. Despite the just-quoted carryover language, those revisions make
it necessary for a non-settling defendant to decide, before the case goes to the jury,
which type of reduction to elect. Thus, the premise that any disclosure of the
settlement amount can be deferred until after verdict is simply not consistent with
a non-settling defendant's rights under the statute. To make an intelligent choice
between a reduction based on the settlement amount and a reduction based on the
settling defendant's degree of fault as determined by the jury, a non-settling
defendant needs to know the amount of the settlement.'
A second justification for giving the non-settling Defendants access, not only
to the amount of the settlement, but also to the settlement documents, is that
sometimes settlement terms do include agreements or covenants affecting trial and
also affecting a non-settling defendant's liability.
The Hall/SPC Defendants want to see the settlement documents for both of
those purposes, and the court agrees that both purposes are relevant. On the other
hand, the Plaintiff and Wellpath are entitled to the protections of a confidentiality
1 A very low settlement amount, compared with the settling defendant's likely degree of fault and the total value of the plaintiffs cause of action, presumably dictates asking the jury to determine the degree of fault of all defendants (including that of the settling defendant), whereas a high settlement amount, compared with the likely degree of fault of the settlement defendant in light of the total value of the plaintiffs cause ofaction, presumably would justify deducting the settlement amount from the judgment.
6 order. Also, the court sees no reason why the non-settling Defendants need to have
a copy of the settlement documents unless they can show a need for obtaining a
copy, so at least initially, their access to the settlement documents should be on a
review basis.
IT IS HEREBY ORDERED:
1. Plaintiff and Defendants shall confer and attempt to agree on the
terms of a confidentiality order, consistent with the foregoing, pursuant to which
the disclosures required by this Order shall be made. A further conference of
counsel will be convened in the event of a disagreement as to the terms of a
confidentiality order.
2. Within 20 days after the court's approval of a confidentiality order,
Plaintiff shall disclose to the requesting Defendants the amount of any settlement
with Wellpath.
3. Within 20 days after the court's approval of a confidentiality order,
Plaintiff shall provide the attorneys for the requesting Defendants the opportunity
to review and take notes on a complete and unredacted set of any and all documents
reflecting or relating to Plaintiffs settlement with Wellpath.
4. Defendants shall not be entitled to copies of any documents reflecting
or relating to Plaintiffs settlement with Wellpath, except by further order. If
Defendants seek copies they are authorized to file a motion to compel production.
7 Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate
this Order by reference in the docket.
Dated November 27, 2019 A. M. Horton, Justice