Appendix — St. John's Hospital v. Henry ex rel. Henry

"80-1 376 Supreme Court, U. S.

FILE D

Fes 2 8 1981

No. —

IN THE

Supreme Court of the United States

OcTORER TERM, 1990

ST. JOHN'S HOSPITAL

and DR. SHARI FITZGERALD,

Pe 7770 1 rs.

ERICA HENRY, by her Mother

and Next Friend, JANE HENRY,

, ,

Re sponde ni

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

Hucu C. Grirrin

Counsel of Record

Nancy SHAW

LORD, BISSELL & BROOK

115 South LaSalle Street

Chicago, Illinois 60603

(312) 443-9700

Attorne us for Pe fifioners

Midwe Law Printing Chicago 60611 112) 321-0220

ov

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13.

TABLE OF CONTENTS TO APPENDIX

Opinion of the Supreme Court of Illinois

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76

IN THE

Supreme Court of the United States

OcTOBEK TERM, 1990

ST. JOHN'S HOSPITAL

and DR. SHARI FITZGERALD,

Petitioners.

ERICA HENRY, by her Mother

and Next Friend, JANE HENRY,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

App. 1

APPENDIX 1

[138 III 2d 533

Erica HENRY, by her Mother and Next

Friend, Jane HENRY, Appellant,

v.

ST. JOHN’S HOSPITAL et al., Appellees.

No. 68659.

Supreme Court of Illinois.

Sept. 19, 1990.

As Modified on Denial of Rehearing

Nov. 30, 1990.

1

Justice STAMOS delivered the opinion of the court:

Plaintiff, Erica Henry, was severely injured during her

birth as a result of the negligent administration of the

drug Marcaine, an anesthetic, to her mother. Plaintiff sued

defendants St. John’s Hospital and Dr. Shari Fitzgerald

(defendants) in a medical malpractice action. Plaintiff also

sued Sterling Drug, Inc., and Breon Laboratories, Inc.

(Sterling-Breon), the manufacturers of the drug, in the

same action for failure to properly warn about the drug

and failure to contraindicate it for the usage which alleg-

edly caused plaintiff's injuries. During the trial, Sterling-

Breon filed a contribution claim against defendants, alleg-

ing that Dr. Fitzgerald had negligently administered the

drug.

The circuit court of Sangamon County found as a matter

of law that defendants had violated the standard of care

and directed a verdict as to that issue. On the issue of

causation, the jury returned a verdict against defendants

and Sterling-Breon, and assessed $10 million in compensa-

tory damages. The jury determined that defendants’ pro

App. 2

rata share of these damages was 7%, and that Sterling-

Breon was liable for 93% of the compensatory damages.

(Henry v. St. John’s Hospital (1987), 159 III. App.3d 725,

728, 111 Ill. Dec. 503. 512 N.E.2d 1044.) In a remittitur,

the trial court reduced the medical-expenses portion of

the award for compensatory damages and entered judg-

ment against defendants and Sterling-Breon for $8,511,759.

In addition, the jury returned a verdict against Sterling-

Breon for $7 million in punitive damages. 180 III. App. 3d

558, 561. 129 IIl. Dec. 537, 536 N.E.2d 221.

Plaintiffs mother, Jane Henry, brought a separate ac-

tion on her own behalf against defendants and Sterling-

Breon in which she alleged that their actions constituted

an intentional infliction of emotional distress. After the

mother’s action was dismissed on the pleadings, she ap-

pealed. Defendants and Sterling-Breon appealed plaintiff's

jury verdict. 180 III. App.3d at 562, 129 IIl. Dec. 537, 536

N.E.2d 221.

While both appeals were pending, plaintiff filed a peti-

tion for approval of minor plaintiff's settlement agreement

with Sterling-Breon and for a good-faith finding pursuant

to the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, pars.

301 through 305). The details of the settlement are in-

cluded in the appellate court opinion and need not be

repeated here. (See 180 Ill.App.3d at 562-63, 129 Ill. Dec.

537, 536 N.E.2d 221.) Nevertheless, this agreement be-

tween plaintiff and Sterling-Breon provided a monetary

settlement of both plaintiffs and her mother’s claim

against Sterling-Breon, but for a total current cash value

which was much less than the amount Sterling-Breon was

liable to pay plaintiff on the jury’s verdict. The agree-

ment specifically stated that plaintiff and her parents in-

tended to pursue their claims against defendants. (180 III.

App.3d at 562, 129 III. Dec. 537, 536 N.E.2d 221.) The

App. 3

agreement also provided for the indemnification of Ster.

ling-Breon for any claims brought by defendants against

Sterling-Breon for contribution. 180 []LApp.3d at 5638, 129

lil. Dec. 537, 536 N. E. 2d 221.

The trial court found that the settlement was in good

faith, dismissed Sterling-Breon from plaintiffs action, and

vacated the judgment against Sterling-Breon. (180 III. App.

3d at 563, 129 Ill. Dec. 537, 5% N. E. 2d 221.) The appellate

court then affirmed the judgment against defendants. Henry,

159 I. App. 3d at 735, 111 III. Dec. 503, 512 N. E. 2d 1044;

180 IH. App.ad at 563-64, 129 Ill. Dec. 537, 5% N. E. 20 221.

Plaintiff then initiated post-judgment proceedings against

defendants. Defendants responded by tendering a check

to plaintiff for the 7% of the judgment they were liable

for, plus interest, and petitioning the trial court for en-

try of judgment on the jury verdict. The trial court de-

nied defendants’ motion, holding that defendants were

jointly and severally liable for the entire jury verdict sum.

The court then held that after the settlement, the amount

of recovery had been reduced by $3.35 million, making

defendants liable for the remainder of the verdict—$5.51

million in compensatory damages, $1.53 million in interest

accrued up to that date, and any interest after that, ac-

cruing at a rate of $1,359 per day. 180 III. App.3d at 564,

129 III. Dec. 537, 536 N.E.2d 221.

Defendants appealed this judgment. The appellate court,

in reversing the trial court’s ruling, looked to the language

of the Contribution Act, which provides that where two

or more persons are subject to tort liability to the same

person for the same injury, there is a nght of contribu-

tion among them. (180 III. App. 3d at 564, 129 III. Dec. 537,

536 N.E.2d 221; Ill. Rev. Stat. 1987, ch. 70, par. Aa, see Hu.

kowski V. Lucente (1984), 104 III. 2d 317, 322, 84 III. Dec. 654,

App. 4

472 N.E.2d 791; see generally M. Polelle & B. Ottley, Illi

nois Tort Law 671-73 (1985) (discussing the Contribution

Act).) This right of contribution exists only in favor of

tortfeasors who have paid more than their pro rata share

of the common liability, and recovery is limited to the

amount they have paid in excess of their pro rata share.

III. Rev. Stat. 1987, ch. 70, par. 302(b); see Houser v. Witt

(1982), 111 IM. App.3d 123, 125, 66 Lil. Dec. 799, 443 N.E.2d

725.

The appellate court focused on section 2(c) of the Contri-

bution Act, which provides that a settlement agreement,

made in good faith with one or more persons liable in tort

arising out of the same injury, will not discharge any of

the remaining joint tortfeasors from liability unless the

agreement expressly provides for such a discharge. It fur-

ther states that the settlement will reduce the amount

the other tortfeasors owe by the amount stated in the

settlement, or the contribution actually paid, whichever

is greater. (180 Ill.App.3d at 564-65, 129 III. Dec. 537, 536

N.E.2d 221, citing Ill.Rev.Stat.1987, ch. 70, par. 302(c).)

The appellate court also noted that the Contribution Act

expressly provides that a tortfeasor who settles is dis-

charged from all liability for contribution and is not en-

titled to recover from any tortfeasor who is still liable

(180 Ill.App.3d at 565, 129 Ill. Dec. 537, 536 N.E.2d 221,

citing Ill.Rev.Stat.1987, ch. 70, pars. 302(d), (e, while it

maintained that a plaintiff's ability to recover the full

amount of the judgment from any one or more defendants

subject to liability in tort for the same injury to the same

person is not affected by the Contribution Act. 180 III.

App.3d at 565, 129 III. Dec. 537, 536 N.E.2d 221, citing

Ill. Rev. Stat. 1987, ch. 70, par. 304.

In its analysis, the appellate court first stated that the

function of a court in construing statutes is to ascertain

App. 5

and give effect to the statute’s legislative intent. (180 TIL

App.4d at 565, 129 Ill. Dec. 537, 536 N.E.2d 221, citing

Dornfeld v. Julian (1984), 104 II. 2d 261, 266, $4 III. Dec.

471, 472 N.E.2d 431.) The court then analyzed the legal

precursors and legislative history of the Contribution Act.

concluding that one of the main purposes of the Act was

to spread the liability among joint tortfeasors in propor

tion to the degree each was responsible for the injured

party's damages (180 III App. at 565-67, 129 Ill Ie. 537.

536 N.E.2d 221.) Using this as its foundation. the court

interpreted the Contribution Act as providing that an in

jured party who has reduced liability to judgment by ver

dict in an amount certain and then settles with a tort

feasor who is financially able to satisfy the entire judg

ment, has to waive the right to enforce any portion of

the judgment not corresponding to a nonsettlor’s percent

age of negligence against any non-settling tortfeasors,

despite the Contribution Act’s maintaining an injured

party's right to hold all defendants jointly and severally

liable. 180 [ll.App.3d at 569-70, 129 III. Dec. 537. 536 N E.

2d 221.

The appellate court based much of its reasoning on Bar

tels u. City of Williston (N.D.1979), 276 N.W.2d 113. (180

Ill. App.3d at 568-69, 129 Ill. Dec. 537, 536 N. E. 2d 221 (the

court also relied on a similar case, Prudential Life Insur

ance Co. v. Moody (Ky.1985), 696 S.W.2d 503).) The Bar

tels court held that joint and several liability exists to

benefit the injured party and can be waived by a settle

ment with a single joint tortfeasor, which serves to limit

the injured party’s recovery from any remaining tort

feasors to the percentage of negligence attributed to each.

(180 Ill App. 3d at 569, 129 Ill. Dec. 537, 536 N. E. 2d 221.

citing Bartels, 276 N. W. 2d at 122.) The appellate court

found a direct correlation between the statutory language

App. 6

cited in Bartels and the Contribution Act, holding that

plaintiff waived joint and several liability and that recov-

ery from defendants was limited to the 7% amount attri-

buted to them by the jury. 180 IILApp.3d at 569-70, 129

IIl. Dec. 537, 536 N.E.2d 221.

We disagree with the appellate court’s analysis in the

case at bar and therefore reverse. Despite the many is-

sues plaintiff raises on appeal, we need only address the

appellate court’s incorrect interpretation of the Contribu-

tion Act. We hold that an injured party does not waive

the right to enforce a judgment against a jointly and sev-

erally liable tortfeasor by settling with another joint tort-

feasor.

We find that the appellate court has misapplied the

basic principles of statutory interpretation in the case at

bar. We agree that this court, when it interprets statutes,

has a duty to determine the intent of the legislature when

enacting the statute in question and to enforce that in-

tent. (Faheem-El v. Klincar (1988), 123 III. 2d 291, 297-98,

122 Ill. Dec. 809, 527 N.E.2d 307.) However, the rules of

statutory construction require us to first look to the stat-

utory language itself as the best indication of the intent

of the drafters (County of DuPage v. Graham, Anderson,

Probst & White, Inc. (1985), 109 III. 2d 143, 151, 92 Ill. Dee.

833, 485 N.E.2d 1076; People v. Robinson (1982), 89 III. 2d

469, 475, 60 Ill. Dec. 632, 433 N.E.2d 674), and where the

intent can be ascertained from the statute’s language, it

will be given effect without resorting to other aids for

construction (Robinson, 89 III. 2d at 475, 60 IIl. Dec. 632,

433 N.E.2d 674). When interpreting a statute, we must

give the language of the statute its plain and ordinary

meaning. Maloney v. Bower (1986), 113 IM. 2d 473, 479, 101

Ill. Dec. 594, 498 N.E.2d 1102.

App. 7

The appellate court did attempt to give the language of

section 3 of the Contribution Act its plain and ordinary

meaning when it endeavored to define the term “amount.”

(180 Il. App.3d at 567, 129 Ill. Dec. 5387, 536 N.E.2d 221.)

The pertinent part of section 3 states:

“Amount of Contribution. The pro rata share of

each tortfeasor shall be determined in accordance

with his relative culpability. However, no person shall

be required to contribute te one seeking contribution

an amount greater than his pro rata share unless the

obligation of one or more of the joint tortfeasors is

uncollectable. In that event, the remaining tortfeasors

shall share the —_ portions of the uncollectable

obligation in accorc > with their pro rata liability.”

(Emphasis added.) Ill.Rev.Stat.1987, ch. 70, par. 303.

While the appellate court's analysis of the legislative his-

tory surrounding the Contribution Act was all correct. it

is irrelevant. (See Village of Carpentersville u. Pollution

Control Board (1990), 135 Il. 2d 463, 469-70. 142 Ill. Dec.

S48, 553 N.E.2d 362.) The plain language of section 3

states that no party is required to contribute more than

that party’s pro rata share to one seeking contribution.

The right of contribution contemplated by this statute

exists among joint tortfeasors, not between tortfeasors

and the parties they injure. (See Ill. Rev.Stat.1987, ch. 70,

pars. 302(a), (b).) Section 4 of the Contribution Act ex.

pressly states that a plaintiffs right to recover the full

amount of a judgment from any single defendant is not

affected by the provisions of the Act. (Ill. Rev. Stat. 1987.

ch. 70, par. 304.) Sections Ac) and Ad) explain the only

way a defendant can escape joint and several liability un-

der the Act—a release, or covenant not to sue or not to

enforce judgment of that tortfeasor’s liability, which a

plaintiff gives in good faith. However, section 2(c) further

explains that the liability of the remaining tortfeasors is

App. 8

reduced only to the extent of any amount stated in the

release or covenant, or in the amount paid for it, which-

ever is greater. Ill. Rev. Stat. IN. ch. 70, pars. Me. (d).

Therefore, when we read these statutory sections to-

gether (see Castaneda v. Human Rights Comm'n (1989),

132 mad 304, 318, 138 Ill. Dec. 270, 57 N.E.2d 437 (legis

lative intent must be determined from entire statute, not

just an isolated passage)), we find that the plain mean-

ing of the statutory language indicates that the Contribu-

tion Act does not affect a plaintiffs common law right

to collect the full amount of a judgment from any indi-

vidual tortfeasor who is jointly and severally liable for

that plaintiff's injuries. (But see Ill. Rev. Stat. IWM. ch. 110,

par. 2-1117 (altering the joint and several liability of tort-

feasors who are less than 25% responsible for the injury;

but statute was not in effect when injury in case at bar

occurred).) If a plaintiff elects to settle with one party,

the remaining tortfeasors are still jointly and severally

liable for the full amount of the judgment, less the amount

of the settlement. Thus, the trial court was correct in

holding defendants liable for the full amount of the judg-

ment minus the value of the Sterling-Breon settlement

agreement.

We also disagree with the appellate court's characteriza-

tion of the settlement agreement as acting as a waiver

of plaintiff's right to the 93% of the judgment for which

Sterling-Breon was liable. As we have already stated, the

Contribution Act creates a right of contribution among

joint tortfeasors. The language of the Act expressly ex

cludes any other party. (Ill.Rev.Stat.1987, ch. 70, pars.

ga), (b), 308 (“where 2 or more persons are subject to

liability in tort arising out of the same injury * * * there

is a right of contribution among them * * *. The right

of contribution exists only in favor of a tortfeasor r

App. 9

* * * [NJo person shall be required to contribute to one

seeking contribution an amount greater than his pro rata

share” (emphasis added)).) Also, section 4 of the Act ex-

plicitly states that a plaintiff's right to fully recover from

any one or more joint tortfeasors is not affected by the

provisions of the Act. (Ill. Rev. Stat. 1987, ch. 70, par. 304.)

We therefore find nothing in the language of the statute

to support the appellate court’s finding that a plaintiff's

settlement agreement with one joint tortfeasor acts as a

waiver of the right to jointly and severally enforce a judg-

ment under the Contribution Act.

We also find that the appellate court’s reliance on the

Bartels and Moody cases was misplaced. In Bartels, the

court interpreted a section of North Dakota’s contribu-

tien statute, which is similar to section 2(c) of our Con-

tribution Act, as having been impliedly repealed by a sub-

sequent comparative negligence statute which required the

jury to render a separate verdict as to each defendant

and apportion the damages accordingly. The Bartels court

further stated that the provision in the comparative negli-

gence statute, which provided that joint tortfeasors shall

remain jointly and severally liable, was included for the

benefit of the injured party and was waivable. Bartels,

276 N.W.2d at 121-22.

Bartels, however, is distinguishable from the case at bar.

Illinois’ comparative negligence statutes (Ill. Rev. Stat. 1987,

ch. 110, pars. 2-1116, 2-1117, 2-1118) were not in effect

when plaintiffs injuries occurred. Therefore, no subse-

quent legislative action existed in this State to help us

interpret the Contribution Act for the purposes of the

case at bar. Also, the statutory language which the ap-

pellate court quoted from Bartels was from the North

Dakota comparative negligence statute, not that State’s

contribution act. (See 180 III. App.3d at 569, 129 III. Dec.

App. 10

537, 536 N.E.2d 221; Bartels, 276 N.W.2d at 121.) It was

therefore inappropriate for the appellate court to use stat-

utory language which nullified a statute similar to our

Contribution Act in such a way as to contradict the plain

meaning of our statute.

In a similar fashion, the Moody case concerned a stat-

ute which addressed the issue of comparative negligence,

rather than contribution. Therefore, Moody is also distin-

guishable from the case at bar. Moody, 696 S.W.2d at 504.

Because the Contribution Act focuses on the rights of

joint tortfeasors, the appellate court should have focused

the waiver issue on the actions of defendants, not plain-

tiff. Defendants appear to have anticipated this, because

they claim that any attempt on their part to pursue a

contribution action against Sterling-Breon became futile

when plaintiff and Sterling-Breon entered into the settle-

ment agreement, because section 2(d) of the Contribution

Act states, “The tortfeasor who settles with a claimant

* * * is discharged from all liability for any contribution

to any other tortfeasor.” (Ill. Rev. Stat. 1987, ch. 70, par.

302(d).) Defendants argue that allowing plaintiff to effec-

tively choose the percentage of liability she will enforce

in judgment makes post-judgment settlements impossible

in cases with joint tortfeasors. They further claim that

plaintiff's interpretation of the Contribution Act actually

serves to destroy defendants’ right to pay only their pro

rata share of the judgment, because their ability to seek

contribution from Sterling-Breon was nullified by the set-

tlement and was completely out of their control. Thus,

defendants impliedly argue that they cannot be held to

have waived the right to pay only their pro rata share.

Defendants, however, mischaracterize their rights under

the Contribution Act. Defendants do not have a right to

(aaa

App. 11

have their liability limited to their pro rata share of the

judgment. Rather, section 2(b) of the Act gives them a

right of contribution if they pay more than their pro rata

share of the common liability. Section Ab) also states that

no tortfeasor is liable to make contribution for more than

his pro rata share. (Ill. Rev. Stat. 1887, ch. 70, par. 302(b).)

Thus, defendants have only a right to recoup from the

other joint tortfeasors any amount they pay to plaintiff

in excess of their own pro rata share.

However, defendants have waived any right of contribu-

tion. When there is a pending action in a personal injury

case involving joint tortfeasors, the contribution claim

should be asserted by counterclaim or by third-party claim

in that action, or else the contribution claim is barred.

(Laue u. Leifheit (1984), 105 IM. 2d 191, 195-97, In. Dec.

340, 473 N.E.2d 939.) The Laue court designed this rule

to prevent separate juries from deciding the separate is-

sues of liability to the plaintiff and the percentages of lia-

bility among the defendants—thus avoiding a multiplicity

of lawsuits and the possibility of inconsistent verdicts.

Even though the question of defendants’ right to contribu

tion is being raised on appeal, rather than in a separate

trial proceeding, we find the waiver principle equally ap-

plicable.

The Laue court's construction of section 5 of the Con

tribution Act leads us to conclude that anytime a joint

tortfeasor fails to bring his contribution claim in the orig:

inal action, any claim to contribution is thereafter a null-

ity. Section 5 states:

“Enforcement. A cause of action for contribution

among joint tortfeasors may be asserted by a sepa-

rate action before or after payment, by counterclaim

or by third-party complaint in a pending action.” (Ill.

Rev.Stat.1987, ch. 70, par. 305.)

App. 12

The Laue court interpreted the language of section 5

which provides that a contribution claim may be asserted

by a “separate action before or after payment” as cov-

ering situations where the injured party has not initi-

ated a pending lawsuit. However, where there is a pend-

ing action, the contribution claim must be asserted in

that action. (Laue, 105 III 2d at 196, 85 III. Dec. 340,

473 N.E.2d 939.) Therefore, the plain meaning of sec-

tion 5's language mandates that, unless a joint tortfeasor

brings a counterclaim or third-party claim for contribu-

tion in the original action, any claim for relief under

the Contribution Act is thereafter waived. Though the

case at bar is factually distinguishable from Laue, we

find no reason to depart from that decision’s express

holding.

Also, we must note that the appellate court has already

settled this issue. The first time this cause came before

the appellate court, that court held that the trial court

was correct in not allowing defendants to file a contribu-

tion counterclaim. The trial court determined that defen.

dants had requested leave to file the counterclaim, which

amounted to an amendment of the pleadings, at such a

late stage of the trial that to allow defendants’ request

would have prejudiced the other parties. It further noted

that the counterclaim also amounted to defendants’ rais-

ing a new issue after all parties had rested their cases.

The appellate court expressly held that the counterclaim

had not been raised in a timely fashion. (Henry, 159

Il.App.3d at 734, 111 M. Dec. 503, 512 N.E.2d 1044.) This

serves only to support our holding that by failing to pre-

serve their contribution rights in the original action, defen-

dants have effectively waived those rights.

Defendants further argue, against the requirement that

they must file a contribution claim in the original action

App. 13

in order to preserve their right to pay no more than their

pro rata share of the judgment, that the trial court’s find-

ing that the settlement agreement was in good faith was

erroneous. Specifically, defendants claim that this ruling

effectively bars them from seeking contribution and only

serves to allow plaintiff and Sterling-Breon to “gang up

on“ defendants, who were not parties to the settlement

agreement.

Section 2(d) of the Contribution Act indeed does pro-

vide that a joint tortfeasor who settles will escape liability

for contribution. (Ill.Rev.Stat.1987, ch. 70, par. 302(d).) We

need not decide, however, whether a settlement between

a joint tortfeasor and a plaintiff, entered into after a jury

has determined the amount of each joint tortfeasor’s pro

rata share of the judgment amount, which settlement

results in one joint tortfeasor’s paying substantially less

than its pro rata share while cutting off that tortfeasor’s

contribution liability to the remaining joint tortfeasors, is

a good-faith settlement under the Contribution Act. This

is because a section 2(d) discharge of contribution liabil-

ity cannot occur where the settling joint tortfeasor not

only has no contribution liability before he entered into

the settlement agreement but, because of the nonsettling

tortfeasors’ failure to preserve their contribution claim,

can have no such liability thereafter.

As we have already explained, defendants in the case

at bar failed to preserve their right to contribution from

Sterling-Breon, because they neglected to raise the contri-

bution claim in a timely fashion during the original pro-

ceeding. The doctrine of contribution among joint tort-

feasors is equitable in origin (see Skinner v. Reed-Prentice

Division Package Machinery Co. (1977), 70 III. 2d 1, 12-13,

15 IIl. Dec. 829, 374 N.E.2d 437; 18 Am.Jur.2d Contribu-

tion §§ 3 through 5 (1985)), and “equity aids the vigilant

App. 14

and not those who sleep on their rights” (Bell v. Louis-

ville & Nashville RR. R. Co. (1985), 106 III. 2d 135, 146, 88

IIl. Dec. 69, 478 N.E.2d 384, citing Flannery v. Flannery

(1943), 320 III. App. 421, 432, 51 N.E.2d 349). Defendants

had ample opportunity to alert the trial court to their in-

terests by filing a contribution claim at some point dur-

ing the original trial. This means that, at the time the

trial judge approved the settlement agreement, Sterling-

Breon could not possibly have been liable to defendants

for contribution; the right had been waived. Technically,

Sterling-Breon had no contribution liability to be discharged

at the time the “good-faith” determination was made. The

trial court’s finding that the settlement agreement was

in good faith, therefore, could not possibly be a bar to

defendants’ contribution claim against Sterling-Breon. Cf.

Ill. Rev. Stat. 1987, ch. 110, par. 2-1117 (tortfeasors who are

less than 25% responsible are only severally liable for

damages arising from negligently inflicted bodily injury;

statute not in effect at time of plaintiffs injury).

Defendants also characterize the trial court’s holding

them liable for the entire remainder of the judgment sum,

rather than for 7% of the damages as the jury deter-

mined, as an improper post-judgment reallocation of the

jury verdict. Defendants rely on this court’s decision in

Kerns v. Engelke (1979), 76 III. 2d 154, 167-70, 28 Ill. Dec.

500, 390 N.E.2d 859. In Kerns, one of three joint tort-

feasors entered into a post-judgment loan receipt agree-

ment with the plaintiff. This agreement provided for the

tortfeasor to lend money to the plaintiff for the purpose

of financing the plaintiff's appeal. This loan was to be paid

back from any money recovered from the remaining joint

tortfeasors. The Kerns court held this agreement void as

an improper assignment of a personal injury judgment to

a party who is liable for the injury. The Kerns court

App. 15

stated that this type of loan receipt agreement was proper

only if made before the liability of the multiple tortfeasors

is adjudicated. Defendants see a direct correlation between

the type of post-judgment manipulation in Kerns and the

post-judgment agreement entered into here.

We disagree. The type of loan agreement that existed

in Kerns was a remnant left from the time when contribu-

tion among joint tortfeasors was prohibited at common

law. In effect, these loan agreements allowed plaintiffs to

apportion liability among the joint tortfeasors, despite the

ban on contribution. However, at that time this court

would only uphold as valid those loan receipt agreements

which were entered into before liability was adjudicated.

This was done to allow the joint tortfeasors to use the

agreement for impeachment purposes at trial. (See Kerns,

76 III. 2d at 168-70, 28 IIl. Dec. 500, 390 N.E.2d 859, see

also Skinner, 70 IIl. 2d at 12, 15 Ill. Dec. 829, 374 N.E.2d

437.) The Kerns court also held that a post-judgment loan

receipt agreement allows a joint tortfeasor to avoid the

bar to contribution or indemnification when not entitled

to it. Kerns, 76 III. 2d at 171, 28 Ill.Dec. 500, 390 N.E.2d

859.

Thus, Kerns is wholly inapplicable to the case at bar.

The rights which the Kerns court sought to protect are

no longer an issue because our decision in Skinner,

codified by the Contribution Act, now allows for a right

of contribution among joint tortfeasors. (See M. Polelle

& B. Ottley, Illinois Tort Law 671-73 (1985).) That is, pro-

vided joint tortfeasors employ the machinery of the Con-

tribution Act, they can prevent the type of inequities

which the Kerns court decried. As we have explained

already, however, defendants have failed to follow the pro-

cedures of the Act. Therefore, defendants’ use of Kerns

to argue issues related to contribution is akin to the use

of an overturned case to support their position.

App. 16

Accordingly, we hold that plaintiff did not waive her

right to enforce judgment against defendants by settling

with another joint tortfeasor, and therefore reverse the

judgment of the appellate court. We affirm the judgment

of the circuit court of Sangamon County and hold that

defendants, by failing to file a claim for contribution dur-

ing the trial, waived their right to contribution from the

other joint tortfeasors, and, under the express terms of

the Contribution Act, are jointly and severally liable for

the entire amount of the judgment, less the amount which

Sterling-Breon paid plaintiff in settlement.

Appellate court reversed; circuit court affirmed.

Justice RYAN, dissenting:

There is something terribly wrong with the construc-

tion we have placed on the law in relation to contribu-

tion, which permits the enhancement of the obligation of

defendants St. John’s Hospital and Dr. Fitzgerald (St. John’s-

Fitzgerald) to the plaintiff from $715,559.07 to $5,511,759

through the unexplained maneuvering between plaintiff and

the drug company defendants. I must, therefore, dissent.

The jury found that defendants St. John’s Hospital and

Dr. Fitzgerald’s pro rata share of plaintiff's compensatory

damages was 7%, which, with interest to the date of

tender, amounted to $715,559.07. However, because of

plaintiff's settlement with the drug company defendants,

whose pro rata shares of the compensatory damages, as

found by the jury, totaled 93%, for substantially less than

that amount, defendants St. John’s Hospital and Dr. Fitz-

gerald have now had judgment entered against them for

$5,511,759, plus interest. Also, because the trial court

found the settlement to be in good faith under our Con-

tribution Act, as noted in the majority opinion, defendants

App. 17

St. John’s Hospital and Dr. Fitzgerald’s contribution

rights against the defendants who had settled have been

terminated.

Addressing first the question of the good faith of the

settlement between the plaintiff and the drug companies,

I cannot understand why plaintiffs would settle a claim

against the drug company defendants, whose 93% pro rata

share of the verdict was nearly $8 million, for roughly

$3,350,000. As noted later, however, an examination of

the structured settlement may shed some light on this.

There is no indication that the drug companies were in-

solvent or that there was any reason that the full 93%

of the verdict, or indeed the entire verdict, could not have

been collected from the drug companies.

It appears that the settlement was entered into while

the case was pending on the first appeal, that is, the ap-

peal from the original verdict. That appeal is reported in

159 Ill.App.3d 725, 111 III. Dec. 503, 512 N.E.2d 1044. It

was noted in the appellate court’s opinion in the second

appeal (180 Ill.App.3d 558, 129 IIl. Dec. 537, 536 N.E.2d

221) that St. John’s-Fitzgerald filed objections to the set-

tlement. There is also noted in the second appeal that the

trial court found that the settlement was in good faith

and that St. John’s-Fitzgerald attempted to appeal from

the good-faith finding and the dismissal of plaintiff's ac-

tion pursuant to the agreement. The appellate court dis-

missed that appeal as not being based on a final order.

The appellate court stated, in the second appeal, that St.

John's-Fitzgerald argued, in that appeal, that the settle-

ment, if it allows for a post-judgment shifting of responsibil-

ities, is not in good faith.“ (180 Ill.App.3d at 564, 129 III.

Dec. 537, 536 N.E.2d 221.) This history is set forth in the

appellate court’s opinion in the second appeal. (180 III. App.

3d at 562-64, 129 IIl. Dec. 537, 536 N.E.2d 221.) Thus, St.

John’s-Fitzgerald objected to the settlement. The trial

nn...

App. 18

court ruled that the settlement was in good faith and an

appeal was taken from that order. The appeal was dis-

missed as not being based on a final order. The trial court

then entered judgment against St. John’s-Fitzgerald based

on the settlement agreement and the second appeal was

taken, in which the good-faith question was raised. The

case is before us on the allowance of the petition for leave

to appeal from the appellate court’s holding in the sec-

ond appeal. (It should be noted that the appeal from the

good-faith finding of the trial court which was dismissed

came between what are referred to herein as the first

and second appeals.)

In my opinion, an agreement which permits an uncon-

scionable, unexplained shifting of liability from the defen-

dants who have been found 93% responsible to the defen-

dants who were found to be only 7% responsible, and

which cuts off the right of contribution of the less re-

sponsible defendants from the more responsible defen.

dants, is not a good-faith settlement.

I fear that trial courts and the appellate court have too

casually assessed the good-faith requirement of settle-

ments between plaintiffs and one or more of several de-

fendants. In determining the good faith of a settlement,

the interests of all of the parties affected by such a settle-

ment should be considered, not just the interests or

preferences of the parties to the agreement. Settlement

agreements should not be used as an instrument of con-

spiracy to “gang up on“ a nonsettling defendant, thereby

shifting a substantial part of the liability to one not a par-

ty to the agreement. This is particularly true where, as

in this case, there has been a determination that the non-

settling defendant is much less culpable than the settling

defendant and the result of the settlement shifts the ma-

jor share of the damages to the less responsible defen-

App. 19

dant. In such a situation as we have in this case, there

should be a showing of a valid reason for such a disparate

settlement which brings about such an inequitable result.

I acknowledge that section 4 of the Contribution Act

(In. Rev. Stat. 1987, ch. 70, par. 304) makes each defendant,

regardless of the finding as to its pro rata share of re-

sponsibility, severally liable for the entire verdict. That

is all the more reason that courts should carefully pro-

tect the right of contribution of the one who is forced to

pay more than its share of the damages. The purpose of

contribution is to place the responsibility on the defen-

dant who has caused the damages, so that each tortfeasor

pays its pro rata share based on its culpability. The rea-

son for adopting contribution is to permit those who are

compelled to pay more then their share to recover from

those who have not paid their.share. The net result of

the majority's construction of the Contribution Act and

prior decisions of this court defeats the very purpose

which the adoption of contribution in this State sought

to accomplish. The reason for adopting contribution can

easily be defeated by the loose and casual handling of

settlement agreements by our courts. The majority's

handling of contribution has resulted in just as inequitable

a situation as that which existed before the adoption of

the principle of contribution among joint tortfeasors.

The majority relies upon Laue v. Leifheit (1984), 105 III.

2d 191, 85 III. Dec. 340, 473 N.E.2d 989, in holding that

St. John's-Fitzgerald waived any right to contribution by

not filing a counterclaim for contribution in the original

action. I do not agree with the majority's conclusion. |

also do not agree with this court’s holding in Laue and

filed a dissenting opinion in that case. However, I must

accept Laue as the law of this State until it is overruled,

but the facts of this case differ from those in Laue and

App. 20

I would not extend the holding in Laue to the facts of

this case. Laue involved an automobile accident in which

Leifheit and her passengers were injured. Leifheit and

her passengers sued Laue and the jury returned verdicts

in favor of the plaintiffs, but as to Leifheit, the jury found

that she was 334% negligent for comparative negligence

purposes. Laue then brought a separate suit against Leif-

heit for contribution for 334% of the damages he had paid

to the other passengers in Leifheit’s vehicle.

In our case the facts are different. Here, all parties

against whom damages are sought are parties-defendants

in this case, and the jury made the determination as to

the percentage of damages each defendant should pay by

way of contribution. That was not the case in Laue.

There, Leifheit had not been a defendant as to the claims

of the passengers in her car. No damages had been as-

sessed against her and there had been no determination

that as to the claims of her passengers she was in any

way responsible. The question sought to be litigated in

Laue was whether Leifheit was responsible for any of her

passengers’ injuries and, if so, what was the percentage

of her responsibility for contribution purposes. Those facts

have already been determined in our case. All that St. John’s-

Fitzgerald is trying to do is to collect from the drug com-

pany defendants the amount of the judgment over and

above the 7% for which the jury found St. John’s-Fitz-

gerald responsible. I would not extend the holding in Laue

to these facts.

Also, the fact that St. John’s-Fitzgerald did not timely

file a counterclaim for contribution against the drug com-

pany defendants is of no significance. The drug company

defendants had filed a counterclaim against St. John’s-Fitz-

gerald. It was therefore necessary for the jury to deter-

mine the pro rata culpability of all of the defendants in

App. 21

the same manner as if St. John’s-Fitzgerald had filed a

counterclaim for contribution against the drug company

defendants. The relative culpability of all defendants was

litigated and determined by the jury in the same manner

as it would have been had the trial court permitted St.

John’s-Fitzgerald to file a counterclaim for contribution

when it was tendered at the close of the evidence. Thus,

there is no reason to apply the holding in Laue to the

facts of this case.

The appellate court attempted to fashion the remedy

of waiver“ to give St. John’s-Fitzgerald relief. from the

inequities that have arisen by the application of Laue and

the finding of good faith as to the settlement agreement.]

fear @.at a finding that plaintiff has waived her claim

against St. John’s-Fitzgerald for any amount in excess of

7% of the compensatory damages may result in the plain-

tiffs, or at least some plaintiff in a future case to which

the waiver doctrine is applied, recovering less than the

verdict. I would prefer to hold, as indicated above, that

the settlement was not in good faith and that the holding

of Laue does not prevent the filing of a contribution ac-

tion, andgremand this case to the trial court to entertain

the contribution claim of St. John’s-Fitzgerald, which de-

fendants attempted to file at the close of the evidence.

I stated above that the structured settlement may shed

some light on the reason for plaintiffs willingness to settle

with the drug company defendants for what appears to

be substantially less than those defendants’ share of com-

pensatory damages. The plaintiff's brief, in this court,

hints that the drug company defendants used the estab-

lished law as “negotiating leverage” as a means of getting

revenge against St. John’s-Fitzgerald because of certain

animosity among the defendants that developed during the

trial. Plaintiff insists, in her brief, that she “did not work

666—

App. 22

this settlement,” but that a codefendant “who took advan-

tage of their partner in tort” was responsible for the set-

tlement. Plaintiff insists she was merely a stakeholder

with no interest in who paid.

The structured settlement computation sheet contained

in the brief reflects a guaranteed payout of $7,908,084,

very close to the amount of the drug company defendants’

93% share of the compensatory damages. The payout over

the plaintiff's life expectancy is shown to be $44,361,056.

The cost is shown to be $3 million. By use of the struc-

tured settlement, plaintiff is assured of receiving from the

drug company defendants those defendants’ pro rata share

of the compensatory damages. The life expectancy payout

will far exceed both the compensatory and punitive dam-

ages awarded by the jury. Since the settlement only cost

$3 million by virtue of the several liability aspect of our

contribution law, plaintiff can collect over $5 million more

from the other defendants, thereby, in effect, enhancing

plaintiff's recovery about $5 million above that awarded

by the jury. In view of the effect of the structured set-

tlement, I cannot accept plaintiff's protestations of in-

nocence or the assertion that the settlement was all the

drug company defendants’ idea.

For the reasons stated herein, I dissent from the

holding of the majority.

App. 23

APPENDIX 2

[180 In. App. 3d 558]

ERICA HENRY, by her Mother and Next Friend, Jane

Henry, Plaintiff-Appellee, v. ST. JOHN’S HOSPITAL et

al., Defendants (St. John’s Hospital et al.,

Defendants-Appellants).

Fourth District No. 4-88-0491

Reversed and remanded.

Opinion filed March 17, 1989.—

Rehearing denied April 13, 1989.

X * X X *

Appeal from the Circuit Court of Sangamon County; the

Hon. Richard J. Cadagin, Judge, presiding.

XE * * X *

PRESIDING JUSTICE MeCULLOCUGH delivered the

opinion of the court:

St. John's Hospital and Dr. Shari Fitzgerald (St. John's-

Fitzgerald) appeal a trial court order finding them liable

to plaintiff for 85,511,759, plus interest. This amount is

the balance of a compensatory damages award resulting

from a combined medical malpractice, products liability

action brought by plaintiff, who settled after judgment

with one group of defendants.

St. John’s-Fitzgerald argues: (1) the trial court’s ruling

is contrary to the jury verdict in the personal injury ac-

tion; (2) the ruling is contrary to the purposes of “An Act

in relation to contribution among joint tortfeasors“ (Con-

tribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.);

(3) plaintiff waived her right to joint and several liability

by settling with Sterling Drug, Inc., and Breon Labora-

tories, Inc. (Sterling-Breon); (4) judicial estoppel precludes

App. 24

plaintiff from recovering the portion of the judgment at-

tributable to Sterling-Breon from St. John’s-Fitzgerald;

and (5) the trial court erred in fixing the amount of post-

judgment interest and determining setoff.

We reverse and remand.

Plaintiff was severely injured during birth as the result

of the administration of Marcaine, an anesthetic, to her

mother. Plaintiff sued St. John’s-Fitzgerald alleging Fitz-

gerald negligently administered the drug without proper

authority. She also sued Sterling-Breon for failure to prop-

erly warn about the drug and alleging a failure to contra-

indicate it for use in paracervical blocks prior to the time

of plaintiff's injury. Sterling-Breon filed a contribution claim

against St. John’s-Fitzgerald, in which they alleged Fitz-

gerald was negligent in administering the drug. The jury

returned a verdict against all defendants and assessed

their pro rata share of the compensatory damages. It

found Sterling-Breon had a 93% pro rata share of plain-

tiffs damages and St. John’s-Fitzgerald a 7% share. It

assessed a total of $10 million in compensatory damages,

$1.5 million of which was for medical expenses. The ver-

dict form stated:

We, the jury, find for the plaintiff and against the

following defendants and determine their pro rata share

of compensatory damages in the following amounts:

/x/ Sterling Drug, Inc. 46.5%

/x/ Breon Laboratories, Inc. 46.5%

/x/ St. John’s Hospital/

Dr. Shari Fitzgerald 7 %

TOTAL 100 %

* * *

Disability 86,000,000. 00

Disfigurement 81.000, 000.00

Pain and Suffering $1,500,000.00

Medical Expenses $1,500,000.00"

App. 25

The jury was told to put an “x” in the box beside the

name of the defendant it found liable. Subsequently, the

trial court reduced the award for medical expenses to

$11,759 and entered judgment against all defendants for

$8,511,759. The jury also returned a verdict finding Ster-

ling-Breon liable for $7 million in punitive damages.

Plaintiff's mother, Jane Henry, brought an individual ac-

tion against all defendants, in which she alleged their ac-

tions constituted an intentional infliction of emotional dis-

tress. Jane Henry’s action was dismissed on the pleadings.

St. John’s-Fitzgerald and Sterling-Breon appealed the jury

verdict for plaintiff. Jane Henry appealed the dismissal

of her individual action.

On May 19, 1987, while the appeals were pending, plain-

tiff filed a petition for approval of minor's settlement and

for a good-faith finding pursuant to the Contribution Act.

The settlement stated:

1. In consideration of the payment as described

and provided for in paragraphs 5(b) and 5%) hereof,

the sufficiency of which is hereby acknowledged, and

other good and valuable consideration, the undersigned

*** hereby unconditionally release, acquit and forever

discharge Breon Laboratories Inc. and Sterling Drug

Inc. *** of and from any and all obligations, claims,

debts, demands, covenants, contracts, promises, agree-

ments, liabilities, controversies, costs, expenses, inter-

est, attorneys’ fees, actions or causes of actions ***

including but not limited to the claims and matters

set forth in the action entitled ERICA HENRY, by

her mother and next friend, JANE HENRY V. ST.

JOHN’S HOSPITAL, BRBON LABORATORIES,

INC., DR. THOMAS O’HERN, STERLING DRUG,

INC., AND DR. SHARI FITZGERALD, No. &83-L-

395, in the Circuit Court of the Seventh Judicial Cir-

cuit, Sangamon County, Illinois (Judge Richard J.

Cadigan presiding) (‘pending action’).”

App. 26

Paragraph 2 provided for the release of Jane Henry’s

action for $350,000. Paragraph 3 of the release provided

that simultaneously with and as “‘material consideration

for the execution of this Agreement” and as a condition

precedent to the payment of obligations by Sterling-Breon,

counsel for plaintiff, plaintiff's mother, and Sterling-Breon

would execute and file a stipulation dismissing the pend-

ing action with prejudice and vacating the judgment out-

standing against Sterling-Breon.

Paragraph 5 of the agreement stated that in considera-

tion for the release, Sterling-Breon would make a cash

payment to Jane Henry and Thomas Henry in settlement

of Jane’s individual action. Further, a payment of $1.4 mil-

lion in cash would be made to plaintiff's guardian. In ad-

dition, Sterling-Breon agreed to purchase an annuity from

an insurance company for $1.6 million. The agreement spe-

cifically stated plaintiff and her parents intended to pursue

their claim against St. John’s-Fitzgerald. Plaintiff and her

parents agreed to indemnify Sterling-Breon from any claims

brought by St. John's- Fitzgerald on any theory including

contribution. The agreement further provided that if plain-

tiff or her parents succeeded in recovering any monies

from St. John’s-Fitzgerald, the money would be placed in

an escrow account until St. John’s-Fitzgerald had exhausted

all attempts to recover any amount from Sterling-Breon.

If St. John’s-Fitzgerald received a judgment against

Sterling-Breon, the escrow account would be applied to

the obligation.

St. John’s-Fitzgerald filed objections to the settlement.

However, on May 27, 1987, the trial court found the set-

tlement was in good faith. St. John’s-Fitzgerald filed a

notice of appeal from the good-faith finding and dismissal

of plaintiff's action against Sterling-Breon. This court dis-

missed St. John’s-Fitzgerald’s appeal as not based upon

.

App. 27

a final appeal. On July 8, 1987, this court dismissed

Sterling-Breon’s original appeal. On July 13, 1987, the trial

court dismissed Sterling-Breon from plaintiff's action and

vacated the judgment against them. The trial court en-

tered the following order:

“The Court having been advised by counsel for

plaintiffs and for defendants Breon-Laboratories Inc.

and Sterling Drug Inc. that this action has been set-

tled as between the aforesaid parties and this Court

having reviewed the terms and condition of the Re-

lease and Settlement Agreement and the stipulation

of dismissal:

It is, therefore, ordered that the within action be

and the same hereby is dismissed as against defen-

dants Breon Laboratories Inc., Sterling Drug Inc. and

other divisions, subsidiaries and affiliates thereof with

prejudice and on the merits and the judgment entered

in this action against Breon Laboratories and Sterling

Drug Inc. be and the same hereby is vacated.”’

Plaintiff stipulated to the dismissal of Sterling-Breon

from the lawsuit and the vacation of the judgment against

them. They stated:

“It is hereby stipulated and agreed by and between

the undersigned counsel for Breon Laboratories Inc.

and Sterling Drug Inc., and for Jane Henry, individ-

ually and on behalf of Erica Henry, that Breon Lab-

oratories Inc. and Sterling Drug Inc. and all other

divisions, subsidiaries and affiliates thereof are hereby

dismissed from the above-captioned lawsuit with pre)-

udice and on the merits. It is further hereby stipu-

lated and agreed that the judgment against Sterling

Drug Inc. and Breon Laboratories Inc. shall be va-

e by order of the Court in the form annexed

ereto.“

In Henry v. St. John’s Hospital (1987), 159 III. App. 3d

725, 512 N.E.2d 1044, this court affirmed the jury’s find-

ings as to St. John’s-Fitzgerald.

*

App. 28

On March 11, 1988, plaintiff filed a citation to discover

St. John’s Hospital’s assets. On April 4, 1988, St. John’s-

Fitzgerald tendered a check for $715,559.09 to plaintiff.

This represented the 7% amount plus interest to that

date. On May 6, 1988, St. John’s-Fitzgerald filed a peti-

tion for entry of judgment on the jury verdict. Plaintiff

objected.

After a hearing, on July 8, 1988, the trial court denied

St. John’s-Fitzgerald’s motion, and found they were jointly

and severally liable for the verdict as of January 21, 1986.

The court stated interest accrued as of that date. The

court further found that after the settlement, the amount

of recovery was reduced by $3,350,000. St. John’s-Fitz-

gerald was liable to plaintiff for $5,511,759 plus interest

accrued to May 29, 1988 ($1,528,743), and accruing there-

after at a rate of $1,359 per day. The court stated the

amount given to Jane Henry for settlement of her indi-

vidual claim was not a setoff against the amount of the

judgment due on plaintiff's claim.

In the instant case, St. John’s-Fitzgerald initially argues

the imposition of the balance of the compensatory damage

award against it is contrary to the jury verdict, contrary

to the language of this court, contrary to the equitable

principles behind the Contribution Act, and in effect, al-

lows plaintiff to change the jury’s assessment of relative

degrees of fault. St. John’s-Fitzgerald next argues that

the settlement, if it allows for a post-judgment shifting

of responsibilities, is not in good faith.

Plaintiff contends St. John’s-Fitzgerald is, in essence,

contesting joint and several liability, which has been up-

held in courts in Illinois. Plaintiff argues that St. John’s-

Fitzgerald's remedy should have been a timely contribu-

tion claim against Sterling-Breon. Secondly, plaintiff con-

App. 29

tends St. John’s-Fitzgerald cannot contest good faith at

this time.

Section 2(a) of the Contribution Act provides that where

two or more persons are subject to liability in tort to the

same person arising out of the same injury, there is a

right of contribution among them. (Ill. Rev. Stat. 1987,

ch. 70, par. 302(a).) Section 2(b) of the Contribution Act

states contribution exists only in favor of a tortfeasor who

has paid more than his pro rata share of the common lia-

bility. The tortfeasor’s total recovery is limited by the

amount he pays in excess of his share. III. Rev. Stat. 1987,

ch. 70, par. 302(b).

Section 2(c) of the Contribution Act states:

‘When a release or covenant not to sue or not to

enforce judgment is given in good faith to one or

more persons liable in tort arising out of the same

injury or the same wrongful death, it does not dis-

charge any of the other tortfeasors from liability for

the injury or wrongful death unless its terms so pro-

vide but it reduces the recovery on any claim against

the others to the extent of any amount stated in the

release or the covenant, or in the amount of the con-

sideration actually paid for it, whichever is greater.”

(Ill. Rev. Stat. 1987, ch. 70, par. 302(c).)

The Contribution Act further provides that a tortfeasor

who settles pursuant to section 2(c) is discharged from

all liability for contribution and precluded from seeking

contribution from a nonsettling tortfeasor. (Ill. Rev. Stat.

1987, ch. 70, pars. 302(d), (e).) Section 4 of the Contribu-

tion Act states:

“Rights of Plaintiff Unaffected. A plaintiff's right

to recover the full amount of his judgment from any

one or more defendants subject to liability in tort for

the same injury to person or property, or for wrong-

ful death, is not affected by the provisions of this

Act.” Ill. Rev. Stat. 1987, ch. 70, par. 304.

——

App. 30

The function of the court in construing statutes is to

ascertain and give effect to the intention of the legislature

in enacting the statute. (Dornfeld v. Julian (1984), 104 Ill.

2d 261, 266, 472 N.E.2d 431, 432.) In ascertaining intent,

the court will look at the entire statute. It will not inter-

pret the statute in a fashien which would render portions

of it void. The court presumes the General Assembly did

not intend absurdity, injustice, or inconvenience. (Harris

v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489

N.E.2d 1374.) The language of a statute will be given its

ordinary meaning.

The Contribution Act has two major purposes. It encour-

ages settlements and it provides for contribution among

joint tortfeasors. (Lowe v. Norfolk & Western Ry. Co.

(1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) The Contribu-

tion Act codifies and expands principles first stated in

Skinner v. Reed-Prentice Division Package Machinery Co.

(1978), 70 III. 2d 1, 13, 374 N.E.2d 437, 442. The Skinner

court stated that it saw no valid reason for the continua-

tion of a rule prohibiting contribution among joint tort-

feasors. It noted with approval statements by Dean Pros-

ser in which he stated there was an obvious lack of justice

in a rule which permits the entire burden of a loss to be

shouldered by one tortfeasor based upon plaintiff's whim,

spite, or collusion or a successfuly levy of execution. Skin-

ner, 70 Ill. 2d at 13, 374 N.E.2d at 442, citing W. Pros-

ser, Torts §50, at 307 (4th ed. 1971).

The purpose of the Contribution Act in eliminating in-

equity between joint tortfeasors is further established by

the legislative history of the Act. Senator Berman in dis-

cussing the statute noted its purpose was to bring equity

to an otherwise inequitable situation. It allowed everyone

to participate according to their fault in any accident. (81st

Ill. Gen. Assem., Senate Proceedings, May 14, 1979, at 175-

reread

App. 31

76 (statements of Senator Berman) (Senate Bill 308).) Rep-

resentative Daniels stated the bill allowed for contribu-

tion of monetary damages by people that are responsible

for a negligent action. Those people would normally be

joined in the lawsuit; however, Daniels noted that under

the current law when a judgment was rendered it was

rendered against all of them and not spread out in exact

and precise amounts. Daniels stated:

“What this Bill does is allow for the contribution be-

tween responsible parties as to varying degrees of

the judgment action or how much they may owe. It’s

a codification of the Skinner versus Reed decision out

of the Illinois Supreme Court, and it adds other pro-

visions which we think will make it more beneficial

for current law.“ 81st III. Gen. Assem., House Pro-

ceedings, June 14, 1979, at 18 (statements of Repre-

sentative Daniels) (Senate Bill 308).

At common law, all joint tortfeasors were jointly and

severally liable for the whole of plaintiff's damages. Plain-

tiff could elect who he would recover from. (Coney v.

J.L.G. Industries, Inc. (1983), 97 III. 2d 104, 454 N.E.2d

197.) A release of one joint tortfeasor at common law re-

leased all joint tortfeasors. (See generally Clear-Vu Pack-

aging, Inc. v. National Union Fire Insurance Co. (1982),

105 Ill. App. 3d 671, 434 N.E.2d 365.) The rationale behind

the rule was that only one recovery could be had for a

single injury. See Clear-Vu, 105 Ill. App. 3d 671, 434

N.E.2d 365, citing Manthei v. Heimerdinger (1947), 332

III. App. 335, 75 N.E.2d 132.

In Alsup v. Firestone Tire & Rubber Co. (1984), 101

Ill. 2d 196, 200-01, 461 N.E.2d 361, 363-64, the court stated

that one of the purposes behind the Contribution Act was

to eliminate the rule that the release of one joint tort-

feasor released all. The court noted that it believed the

legislature intended that a release pursuant to section 2(c)

Leeann emmesenetenssaienetill

App. 32

of the Contribution Act would not discharge joint tort-

feasors from liability to the plaintiff unless they were spe-

cifically named in the release. Implicit in the Alsup court’s

analysis of section 2(c) of the Contribution Act is that a

plaintiff's settlement affects his rights to recover damages

from the nonsettling tortfeasors.

The Contribution Act also distributes the loss among

the joint tortfeasors for plaintiff's injury. As a predicate

to application of the Contribution Act, the defendants

must be jointly liable to the plaintiff for the same injury.

(Ill. Rev. Stat. 1987, ch. 70, par. 302(a).) The Contribu-

tion Act states that the plaintiffs right to recover the

full amount of his judgment from any one or mcce of the

defendants subject to liability in tort is not affected by

the Act. III. Rev. Stat. 1987, ch. 70, par. 304.

In Coney, the court held that the doctrine of joint and

several liability for a plaintiff's injury was not eliminated

by the adoption of comparative negligence. The court

noted the language of section 4 of the Contribution Act

and the language of section 3 of the Contribution Act as

support for its view that the legislature intended to re-

tain joint and several liability. Joint and several liability

for many injuries has been eliminated by statute in IIli-

nois. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1117.) The ef-

fect of this statutory change on the Contribution Act has

ot been litigated. The statutory changes, however, oc-

curred after accrual of the instant case and, therefore,

would not be relevant to this appeal.

We have found no Illinois cases addressing post- judgment

settlements pursuant to the Contribution Act. In the in-

stant case, plaintiff settled her compensatory damages

claim against Sterling-Breon after judgment. The value

of the compensatory damages claim against Sterling-Breon

App. 33

was 93% of the $8,511,497 award at the time of the set-

tlement. Additionally, a punitive damages award was va-

cated. Since the release provided that the entire liability

of Sterling-Breon was extinguished and referenced a spe-

cific cause number in which liability was fixed by judg-

ment, plaintiff's recovery should be reduced by the full

proportional liability of Sterling-Breon.

“Amount” is defined as “(t]he whole effect, substance,

import, result, or significance. The sum of principal and

interest.” (Black’s Law Dictionary 76 (5th ed. 1979).) It is

logical that an amount can be stated numerically or by

the use of terms such as all liability, entire claim,”

“all claim,” and “partial liability.”” A claim“ is defined

as a cause of action, demand for money, payment, or right

to payment, whether or not liquidated or reduced to judg-

ment. Black’s Law Dictionary 224 (5th ed. 1979).

We agree that the comparative negligence concepts and

the Contribution Act do not affect a plaintiff's “right” to

hold defendants jointly and severally liable for his injuries.

However, after a plaintiff has reduced liability to judg-

ment by jury verdict to an amount certain and elects to

settle with a tortfeasor who is financially capable of satis-

fying the entire judgment, he waives his right to enforce

that portion of the judgment against the nonsettling tort-

feasor.

Interpreting the release in the instant case to reduce

the plaintiff's recovery by the damages already assessed

against Sterling-Breon in the trial action comports with

the purpose of the Contribution Act. The dollar amount

of the released claim is established here and the release

specifically includes a release of any claim under the cause

of action establishing the judgment amount. If the amount

of the claim were not readily determinable, as in a pre-

App. 34

judgment settlement, the dollar amount stated in the re-

lease would control.

In Coney, the court held comparative negligence did not

require abandonent of joint and several liability, especially

where a nonnegligent plaintiff is involved. The court noted

protection of plaintiffs as a primary reason for retaining

the doctrine after abrogation of the doctrine of contribu-

tory negligence. It stated one indivisible injury was in-

volved, and as between an innocent plaintiff and a negli-

gent but insolvent joint tortfeasor, abandonment of joint

and several liability would force plaintiff to bear the loss.

The court was concerned that elimination of joint and sev-

eral liability would seriously impair and injure plaintiff's

ability to recover adequate compensation for his injuries.

(Coney, 97 Ill. 2d at 121-22, 454 N.E.2d at 205.) The ef-

fect of Coney, has been partially overruled by section

2-1118 of the Illinois Code of Civil Procedure, which pro-

vides for joint and several liability in cases where a defen-

dant’s negligence is 25% or less than that assessed to the

other parties including the plaintiff. Ill. Rev. Stat. 1987,

ch. 110, par. 2-1118.

Section 4 of the Contribution Act specifically states a

plaintiff's rights“ to recover the full amount of his judg-

ment from one or more of the defendants is not affected

by the provisions of the Contribution Act. (Ill. Rev. Stat.

1987, ch. 70, par. 304.) Several States retain joint and

several liability, some have legislatively restructured or

eliminated it, and some have judicially eliminated the doc-

trine. See Walt Disney World Co. v. Wood (Fla. 1987),

515 So. 2d 198, for a discussion of the treatment of joint

and several liability by the various States.

Few States have addressed a situation similar to that

presented in the instant case. Among those that have,

App. 35

however, one State has held that apportionment of judg-

ment applies te limit the judgment when there is an ac-

tive assertion of a claim against a joint tortfeasor. (Pru-

dential Life Insurance Co. v. Moody (Ky. 1985), 696

S.W.2d 503.) In Bartels v. City of Williston (N.D. 1979),

276 N.W.2d 113, the court held that Bartels, who settled

with a joint tortfeasor and released him waived his right

to hold the remaining defendants jointly and severally

liable for the entire amount of the award. The Bartels

court analyzed the laws of Wisconsin and Minnesota in

construing the effect of a release of liability. It held that

the judgment award should be reduced by the proportion-

ate liability of the person who settled.

A waiver occurs when a party intentionally relinquishes

a known right, either expressly or by conduct inconsis-

tent with an intent to enforce the right. (Sexton v. Smith

(1986), 112 Ill. 2d 187, 492 N.E.2d 1284; Whalen v. K mart

Corp. (1988), 166 Ill. App. 3d 339, 343, 519 N.E.2d 991,

994; Harris v. Faultfinders, Inc. (1981), 103 Ill. App. 3d

785, 431 N.E.2d 1205.) Waiver is an equitable doctrine in-

voked to further the interests of justice whenever a party

initially relinquishes a known right. Mollihan v. Stephany

(1977), 52 Ill. App. 3d 1034, 368 N.E.2d 465.

Here, the judgment as to Sterling-Breon was vacated

by the court pursuant to the stipulation of plaintiff and

Sterling-Breon. By entering the settlement and release,

plaintiff gave up her known right to enforce that part of

the verdict attributable to Sterling-Breon against the

nonsettling defendants.

In Bartels, the court found that joint and several liabil-

ity as stated in its statute existed to benefit the injured

party and could be waived. Bartels gave a general release

to a joint tortfeasor, which released the tortfeasor from

any contribution act. The Bartels court stated:

App. 36

“We also conclude that the a r— in

§9-10-07, NDCC, ‘provided, however, that each shall

remain jointly and severally liable for the whole award’

is for the benefit of the injured party and can be waived.

The general release given to Hackney constituted

a general release for all of his liabilities present and

future, including contributions either specifically or

by construction, and as a settling tort-feasor he is

excluded as a party from any further action against

any of the remaining nonsettling tort-feasors. Bartels’

(plaintiff's) recovery the nonsettling tort-feasors is

limited to the percentage of negligence attributable to

- the remaining nonsettling tort-feasors as may be de-

termined by the court or the jury, as the case may be.

In this instance, John Bartels, the plaintiff, through

the release, waived the following underscored language

of §9-10-07, NDCC:

When there are two or more persons who are

jointly liable, contributions to awards shall be

in proportion to the percentage of the negli-

gence attributable to each; „ however,

that each shall remain jointly and severally li-

able for the whole award.’ (E is added by

Bartels court.) (Bartels, 276 N.W.2d at 122.)

Section 4 of the Contribution Act provides for the reten-

tion of joint and several liability, which is a right benefit-

ting the plaintiff. We find the right to jointly and severally

enforce judgment under the Contribution Act is waived

by a plaintiff who acts to cause vacatur of a judgment

as to a primarily liable joint tortfeasor pursuant to a set-

tlement.

St. John’s-Fitzgerald next argues that principles of judi-

cial estoppel should apply in the instant case to preclude

plaintiff from assuming « different position than she held

in the trial court. The doctrine of judicial estoppel states

that when a party assumes one position in a legal pro-

PP . nee

App. 37

ceeding, that party is estopped from assuming a contrary

position in a subsequent legal proceeding. (Department of

Transportation v. Coe (1983), 112 Ill. App. 3d 506, 509-10,

445 N.E.2d 506, 507-08.) This doctrine is inapplicable in

the instant case, which involves supplemental proceedings.

St. John’s-Fitzgerald next argues the trial court erred

in assessing post-judgment interest. In light of our find-

ing that the release reduced plaintiff's recovery by the

amount of the compensatory damages award recoverable

against Sterling-Breon, we agree. We need not address

St. John’s-Fitzgerald’s contentions. We note, however,

that the record does not support St. John’s-Fitzgerald’s

argument concerning setoff. Jane Henry filed a separate

lawsuit against St. John’s-Fitzgerald and Sterling-Breon.

The appeal of the dismissal of that suit was pending at

the time of the settlement, which clearly delineated the

two lawsuits involved. Jane Henry’s settlement was dis-

tinct from plaintiff's settlement. No setoff would, thus,

be available in plaintiffs action.

For the above reasons, we reverse and remand.

Reversed and remanded.

SPITZ, J., concurs.

JUSTICE GREEN, dissenting:

I agree with the majority in their well-expressed state-

ment of the purposes of the Contribution Act (Ill. Rev.

Stat. 1987, ch. 70, par. 302(a).) I also share their concern

which arises because the judgment on appeal is not con-

sistent with the purposes of the Contribution Act. How-

ever, I must dissent from decision of the majority because

in attempting to be fair to St. John’s-Fitzgerald and con-

sistent with the purposes of the Contribution Act, the

App. 38

decision (1) is unfair to plaintiff; (2) violates the express

terms of the Contribution Act; and (3) is contrary to prec-

edent binding upon us.

The majority treat the act of plaintiff in settling with

Sterling-Breon after judgment and pending appeal as a

waiver of any liability owed by St. John’s-Fitzgerald be-

yond 7% of the amount of the joint and several judgment

entered on the jury verdict for compensatory damages as

modified by the circuit court. The majority correctly points

out that section 2(c) of the Contribution Act states that

when a release “ is given in good faith to one [joint

tortfeasor], it does not discharge any of the other tort-

feasors“ unless so stated but reduces recovery against

others by the amount paid. (Ill. Rev. Stat. 1987, ch. 70,

par. 302(c).) The majority does not maintain the settle-

ment was not in good faith nor does the majority take

the position that the settlement fully released St. John's-

Fitzgerald, as would have been the case prior to the Con-

tribution Act, and might well be the case if the settle-

ment was not in good faith.

Rather, the majority relies on the cases of Bartels v.

City of Williston (N.D. 1979), 276 N.W.2d 113, and Pru-

dential Life Insurance Co. v. Moody (Ky. 1985), 696 S. W.

2d 503, in support of their theory. The Bartels court con-

strued a statute concerning contribution, very similar to

ours, in the context of a statute on comparative negligence

which provided in tort cases for the jury to render sepa-

rate verdicts as to each defendant, fixing damages in pro-

portion to the fault of that defendant, but also stated the

liability of the defendants was joint and several. The court

concluded that based upon the construction given to the

comparative negligence statute by the State from which

it was adopted, in cases where one of the tortfeasors has

settled with the plaintiff, the amount of judgment even-

App. 39

tually awarded is reduced, not by the amount of the set-

tlement but by the percentage of fault found by the trier

of fact to be attributable to the settling tortfeasor. That

rule was held to prevail over a position in the legislation

regarding compensation which stated, as does section 2(c)

of the Contribution Act, that the judgment is reduced by

the amount obtained from the release. Prudential concerned

the operation of a comparative negligence statute which

limited joint liability of joint tortfeasors to that for costs.

Subject to the provisions of sections 2-1116, 2-1117, and

2-1118 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch.

110, pars. 2-1116, 2-1117, 2-1118), which were not in force

at times pertinent here and would not be applicable to these

facts, the statutory format in Illinois is to spread fault

in most tort cases proportionately among tortfeasors in-

directly through third-party action and cross-complaints

under the Contribution Act rather than through directly

apportioning the liability of each tortfeasor to the injured

party. All tortfeasors remain jointly and severally liable

to the injured party. (Coney v. J.L.G. Industries, Inc.

(1983), 97 Ill. 2d 104, 454 N.E.2d 197.) There is no stat-

utory provision or common law rule similar to that in

Bartels whereby the proportion of liability of each defen-

dant to the plaintiff is directly determined.

The Contribution Act, indirectly, achieves ultimate pro-

portionate responsibility unless a joint tortfeasor is insol-

vent. The post-judgment settlement pending appeal is not

what destroyed proportionality here. The majority does

not dispute that plaintiff could have sought satisfaction

of its entire judgment for compensatory damages from St.

John’s-Fitzgerald and the latter could not have prevented

them from doing so nor could St. John's-Fitzgerald have

obtained any contribution from Sterling-Breon. Proportion-

ate ultimate financial responsibility was defeated here be-

App. 40

cause, unfortunately, St. John’s-Fitzgerald failed to file a

timely claim for contribution. In late 1984, the supreme

court held in Laue v. Leifheit (1984), 105 IIl. 2d 191, 473

N.E.2d 939, that if a tort action is brought, alleged tort-

feasors seeking contribution from others must join their

claims for contribution in the tort action. This was not

always done previously. In the short time span involved

here, filing a claim for contribution was overlooked by St.

John's-Fitzgerald until after the evidence had been pre-

sented in the trial on the merits and the circuit court

ruled the request was untimely and denied it. Had St.

John's-Fitzgerald timely made such a claim, it could have

required Sterling-Breon to reimburse it to the extent St.

John's-Fitzgerald had paid plaintiff more than St. John’s-

Fitzgerald’s proportionate share of the joint and several

judgment.

St. John’s-Fitzgerald rightfully calls our attention to the

confusion and ambiguity in the record here. The form of

the verdict could be taken to indicate that separate judg-

ments in separate amounts were being entered as to the

several defendants. In our opinion, modified upon denial

of petition for rehearing in the underlying case, we con-

cluded with the following statement:

“Therefore, we affirm the jury verdict less the court-

ordered remittitur as to medical expenses and affirm

St. John'’s-Fitzgerald’s — — for 7% thereof.“

(Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d

725, 735, 512 N.E.2d 1044, 1050.)

This also could be taken to indicate we affirmed the judg-

ment against St. John’s-Fitzgerald only to the extent of

7% of the amount of the compensatory damages. How-

ever, despite the foregoing, in view of the undisputed con-

tinued existence of the rule of joint and several liability

as applied to the situation here, where there was no con-

App. 41

tention of ‘negligence attributable to plaintiff, the foregoing

can only be construed to consist of the award of a joint

and several judgment for the compensatory damages as

modified and an affirmance of the same. Sterling-Breon

had filed cross-complaints against St. John’s-Fitzgerald for

contribution, and the fixing of degrees of fault among the

various defendants can be attributed to those claims.

In summary, I conclude: (1) under common law prece-

dent, the liability of all defendants to plaintiff was joint

and several and she could look to any one of them for

satisfaction of the judgment rendered; (2) under section

2(c) of the Contribution Act, any good-faith settlement

with one or more of the defendants reduces the liability

of other defendants to her only in the amount of the set-

tlement; (3) neither statute nor case law precedent changes

the operation of the foregoing principles because the settle-

ment was made pending appeal from an existing judgment;

and (4) any fairness to St. John’s-Fitzgerald, awarded them

by the majority because of their unfortunate predicament,

results in corresponding unfairness to plaintiff, who was

entitled to rely on existing law in settling with Sterling-

Breon. Accordingly, I would affirm the judgment of the

circuit court.

App. 42

APPENDIX 3

(159 III. App. 3d 725]

ERICA HENRY, by her Mother and Next Friend, Jane

Henry, Plaintiff-Appellee, v. ST. JOHN’S HOSPITAL et

al., Defendants-Appellants, and (Breon Laboratories, Inc.,

et al., Defendants-Appellees; Thomas O’Hern, Defendant).

Fourth District No. 4-86-0604

Judgment affirmed.

Opinion filed August 24, 1987.—Modified on

denial of rehearing September 29, 1987.

* * * X *

Appeal from the Circuit Court of Sangamon County; the

Hon. Richard J. Cadagin, Judge, presiding.

XR * * * *

JUSTICE MeCULLOUGH delivered the opinion of the

court:

Defendants St. John’s Hospital and Dr. Shari Fitzgerald

(St. John’s-Fitzgerald) appeal a jury finding in plaintiffs

favor in her medical malpractice action. St. John's-Fitz-

gerald argues the trial court erred: in its rulings on di-

rected verdict and judgment notwithstanding the verdict

with regard to them; in denying St. John's-Fitzgerald's

motion to dismiss a counterclaim; in denying St. John’s-

Fitzgerald’s motion to file a counterclaim; and in instruct-

ing the jury. St. John’s-Fitzgerald also argues the com-

pensatory damages award was excessive.

We affirm.

The genesis of this action is a medical malpractice-

products liability claim brought by plaintiff, a minor. Plain-

tiff has cerebral palsy. Prior to her birth, her mother was

App. 43

given two paracervical blocks using the drug Marcaine

(bupivacaine). The first paracervical block was adminis-

tered by her physician, Dr. Thomas O’Hern. The second

paracervical block was administered by a hospital resident,

Fitzgerald. Immediately after administration of the second

paracervical block, plaintiff suffered an episode of brady-

cardia (abnormally slow fetal heartbeat), which lasted until

her birth. Plaintiff sued O’Hern, Fitzgerald, the manufac-

turer and distributor of Marcaine, and St. John’s Hospital

on a cheory of respondeat superior.

The trial court directed a verdict in favor of O’Hern.

The court found as a matter of law that Fitzgerald and

thus, St. John’s Hospital, violated the standard of care

and directed a verdict as to that issue. The court left open

the causation issue. The jury returned a verdict against

the resident, the hospital, the manufacturer of the drug,

and the distributor of the drug. It assessed $10 million

in compensatory damages. The compensatory damages

award was apportioned between the parties, with St.

John's-Fitzgerald responsible for 7% of the award. Subse-

quently, the trial court reduced the medical expenses por-

tion of the compensatory damages award to $11,759. The

products liability defendants settled. Only the facts neces-

sary to a determination of the issues raised by St. John's-

Fitzgerald will be addressed.

Plaintiff's mother, Jane Henry, entered St. John’s Hos-

pital for the induction of labor. Her pregnancy had been

uncomplicated; however, O’Hern testified that he was con-

cerned she might reach a post- mature state. O’Hern at-

tached an external fetal monitor, which showed a good

fetal heart variability and rate. He then started a drug

to induce labor. At 10:30 a. m., O’Hern attached an inter-

nal fetal monitor and administered 8 cc’s of Marcaine bi-

laterally at the 3 o’clock and 9 o'clock positions. After

App. 44

completing the paracervical block, he observed the fetal

heart monitor for 15 minutes, during which time the fetal

heart rate and beat variability were unchanged. O’Hern

left and went to his office.

Jane Henry testified the paracervical block provided

some relief but the relief lasted only 10 to 15 minutes.

Fitzgerald administered the second block. Fitzgerald tes-

tified that she was a first-year resident at St. John’s Hos-

pital doing her first rotation in obstetrics when she ad-

ministered a second paracervical block to Jane Henry at

11 a.m. It took her 10 minutes to complete the procedure,

which she performed using a method she had been taught.

She injected 6 cc’s of Marcaine on the left side, and al-

though she filled the syringe to 4 to 5 cc’s for the right

side, she lost a lot of the drug prior to injection.

O’Hern was called back to the hospital and told brady-

cardia had developed. Plaintiff, Erica, had lapsed into

severe bradycardia for at least five minutes prior to

O’Hern’s return. Bradycardia is evidence of fetal distress.

If sudden and prolonged, it may be evidence of fetal as-

phyxia. Additionally, bradycardia can cause asphyxia.

O’Hern was told that,a repeat block had been given at

11:10 a.m. O’Hern stated that he had seldom seen severe

bradycardia but the effect of anesthesia is dose-related.

The labor flow charts indicated that Jane Henry was given

an additional 6 cc’s of Marcaine per side. He did not au-

thorize the second block and would not have administered

6 ce’s per side in addition to the previous dosage within 30

minutes of the initial dose. O’Hern stated that he would

not have given a repeat block on both sides because the

nursing notes indicate that the patient complained of pain

only on her left side. However, the determination of when

a repeat block is necessary is a matter of judgment, and

one may be appropriate within 30 minutes.

App. 45

O’Hern further stated it is not acceptable practice in

the Springfield medical community for a second paracer-

vical block to be given without authorization from the at-

tending physician. O’Hern admitted wide variations in

maximum dosage amounts are recommended in medical

literature.

Dr. John Marty, a partner of Dr. O’Hern who had also

treated Jane Henry, stated only the attending physician

has the authority to authorize a repeated paracervical

block. He would wait 90 minutes prior to repeating the

block. Neither O’Hern nor Marty authorized the second

paracervical block. It was not accepted medical practice

for a repeat block to be given within one-half hour of the

first paracervical block, absent authorization. After the

first block in the instant case, the fetal heart rate was

good. Thirteen and one-half minutes after the second

block, the fetal heart rate dropped drastically, and fetal

heart-beat variability decreased markedly. Marty testified

that the bradycardia occurred precisely where he would

expect it to occur if it were from the Marcaine.

Michael Gast, a board-certified obstetrician, testified for

the drug company and distributor. In his opinion, it was

below the standard of care for a resident to administer

a paracervical block absent prior consultation with a senior

physician. He also questioned the method and amount of

Marcaine given during the second paracervical block.

Ernest Ertmoed, the chief obstetrical resident at St.

John’s Hospital and a clinical assistant professor, testified

that a reblock would be equal to a full dosage of Mar-

caine, between 8 and 10 cc’s on each side. A supplemen-

tal paracervical block would be a few cc’s of Marcaine,

usually no more than one-half of the first dosage given.

While it would be unusual for a resident to administer

a full reblock without consultation, it is not unusual for

i .àͥr

App. 46

residents to administer supplemental paracervical blocks

without prior consultation with the attending physician.

Ertmoed further testified that it was in accord with the

standard of care for a resident physician in Springfield

to give a supplemental paracervical block of up to one-

half of the original dosage absent prior authorization. He

admitted, however, that more than one-half of the original

dose was given in the instant case.

Fitzgerald testified that she did not talk to O’Hern prior

to administering the second paracervical block. She agreed

that nursing notes stated she gave 6 cc’s of Marcaine on

each side. After plaintiff's birth, Fitzgerald amended the

nursing notes to show a lesser dosage. Ordinarily, a physi-

cian does not write on the labor flow chart or amend nurs-

ing notes.

Erica Henry, plaintiff, was not breathing when born and

was placed in a high-risk nursery. She remained in the

nursery for several days. Dr. Thomas Cisezk, a board-

certified pediatrician and neonatologist, discussed the pos-

sibility of long term neurological damage with Erica's

parents, prior to her discharge. Cisezk stated that based

upon Erica’s condition immediately after birth, she suf-

fered a period of oxygen deprivation and respiratory dis-

tress secondary to asphyxia. There is no specific test per-

formable immediately after birth which will relate whether

an infant has suffered brain damage. At 24 months, Erica

was diagnosed as having severe cerebral palsy and psycho-

motor retardation because of severe asphyxia.

Cisezk stated that Erica had permanent neurological

damage. Based on a reasonable degree of medical certain-

ty, it is likely that the perinatal asphyxia was related to

the bradycardia prior to delivery. The asphyxia, absent

a predisposition for cerebral palsy, was likely related to

App. 47

the developmental delay. Erica will require future long-

term care.

Suzanne Miller, a board-certified pediatrician and neurol-

ogist, examined and treated Erica. Her preliminary diag-

nosis was that Erica suffered encephalopathy (cerebral

palsy) due to perinatal hypoxia. Static encephalopathy im-

plies that a single insult occurred at a specific time which

led to the child not receiving full neurological function.

Miller did not believe any evidence of congenital brain

malfunction existed. She suspected the second paracervical

block caused the injury, but admitted that she was specu-

lating because she had not examined the child immediately

after her birth.

O’Hern testified that it was reasonably likely the

bradycardia was related to the second paracervical block.

The depressed state of the child at birth was very likely

related to the bradycardia. The fetus showed no signs of

distress until after the second paracervical block. Marty

testified that after the first paracervical block, the fetal

heart monitor tracing showed good beat and beat variabil-

ity, which indicated an intact central nervous system.

After the second paracervical block, the beat and beat

variability dropped, indicating fetal asphyxia.

Ira Bergman, 2 board-certified pediatrician and neurolo-

gist, stated that in his opinion the events surrounding

Erica’s birth did not cause her cerebral palsy. He believed

the cerebral palsy was a congenital problem with neurons.

Gast stated residents frequently give paracervical blocks

and depending on the level of the resident, on occasion

give them without specific authorization. No more than

50 mg’s of Marcaine should be given in a 90-minute period.

Gast admitted that if Fitzgerald started the second para-

cervical block and finished it at 11:10, the heart tracing

nnn

App. 48

showed the onset of bradycardia in a time frame which

he would expect it if caused by the Marcaine.

to Fitzgerald’s conduct. Secondly, St. John's- Fitzgerald

A directed verdict or judgment notwithstanding the ver-

dict is proper only in those cases in which all of the evi-

dence, when viewed in its aspect most favorable to the

opponent, so overwhelmingly favors movant that no con-

trary verdict based on that evidence could ever stand.

(Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328

N.E.2d 301, 305; Pedrick v. Peoria & Eastern R. R. Co.

(1967), 37 Ill. 2d 494, 200 N.E.2d 504; Lebrecht v. Tuli

(1985), 130 III. App. 3d 457, 473 N. E. 20 1322.) In medical

negligence actions, plaintiff must establish the appropriate

standard of care. Then, plaintiff must establish by affir-

mative evidence that defendant's conduct violated that

standard of care and that defendant's lack of skill or care

caused harm to plaintiff. (Walski v. Tiesenga (1978), 72

III. 2d 249, 256, 381 N.E.2d 279, 282.) Expert testimony

is usually needed to establish these elements; however,

App. 49

a defendant doctor's testimony may be used to establish

these elements. Metz v. Fairbury Hospital (1983), 118 In.

App. 3d 1093, 455 N.E.2d 1096.

In the instant case, the record supports St. John’s-Fitz-

gerald’s contention that the standard of care and Fitz-

gerald’s violation of the standard of care were not estab-

lished as to the time of administration, dosage amount,

and technique. However, O Hern. Marty, and Gast stated

that it was a violation of the standard of care for a resi-

dent to administer a repeat block without consultation

with the attending or a more senior physician. It is not

disputed that Fitzgerald gave more than a supplemental

paracervical block in the instant case. Gast admitted that

residents do administer paracervical blocks. However, he

felt consultation was necessary prior to administering this

dosage of Marcaine. Ertmoed stated that administration

of a supplemental paracervical block by a resident without

prior authorization was customary and complied with the

standard of care. However, he defined a supplemental

block as one containing up to one-half of the initial dosage

and admitted that Fitzgerald administered more than a

supplemental dosage in the instant case.

Considering the evidence most favorable to Fitzgerald,

all of the expert testimony stated her conduct was con-

trary to the standard of care. St. John's Hospital's liability

was predicated on the employment relationship between

it and Fitzgerald. Therefore, the trial court was correct

in entering a directed verdict on this issue.

St. John’s-Fitzgerald next argues that the trial court

erred in denying its motion for directed verdict at the

close of plaintiff's case. It argues plaintiff failed to pre-

sent any evidence that Fitzgerald's actions caused the

bradycardia, resultant hypoxia, and injury.

*

tes

111 HEAL Wil

111155 THEE

HIATT HH

Sd 394, 475 N.E.2d 639.)

A brief review of the evidence is necessary.

tified that plaintiff suffered

of

caused the injury

a

App. 50

Plaintiff has the burden of proving that defendant's ac.

asphy ua.

that the

stated

difficulty.

child her

that

related

that the

Gast and

started

caused

effects

is one

testimony

was

argues that

judgment

The

of a

the

No

AL: 4244

Hah l aul 12

HEEL HHA

tions more probably than not

v. Brenner (1985), 131 Il. App.

HHH 117

Z. C

App. 51

ing the jury. As affirmative defenses, the products liability

defendants alleged plaintiff's injuries were also caused by

the conduct of other people. They alleged in a counter-

claim that Fitzgerald negligently administered the second

paracervical block, assumed the risk of using Marcaine,

and misused the drug. After the close of the evidence,

St. John's-Fitzgerald moved to file a contribution counter-

claim against the drug manufacturer and distributor. The

court denied the motion as untimely.

St. John’s-Fitzgerald argues assumption of the risk is

not a valid defense in a failure to adequately warn prod-

ucts liability case since one cannot assume an unknown

risk, the trial court erred in failing to dismiss the claim

for failure to state a cause of action, and a party who

is engaged in wilful and wanton behavior should not be

able to seek contribution.

The contentions raised by St. John's-Fitzgerald were re-

cently addressed in J. I. Case Co. v. McCartin-McAuliffe

Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447. The

codefendant. Here, the counterclaims included allegations

of negligence, assumption of the risk, and misuse as a

basis of contribution. The trial court did not err in deny-

ing the motion to dismiss.

St. John's-Fitzgerald argues the trial court erred in de-

nying its motion to file a counterclaim for contribution

against the drug manufacturer and distributor. The mo-

tion was made after the close of all evidence and prior

to the instruction conference. The allowance of a motion

te amend a pleading is addressed to the sound discretion

of the trial court. (Taylor v. City of Beardstown (1986),

App. 52

142 Ill. App. 3d 584, 491 N.E.2d 803; Morris v. City of

Chicago (1985), 130 Ill. App. 3d 740, 474 N.E.2d 1274.)

Amendments during trial should not ordinarily be permit-

ted if the amendments concern matters which the pleader

knew of at the time of the original pleading. The prej-

udice and surprise of the other party should also be con-

sidered. 130 Ill. App. 3d 740, 474 N.E.2d 1274.

Here, the amendment raised a new issue after the par-

ties had rested their cases. The drug manufacturer and

distributor would not have had an opportunity to present

evidence rebutting the issues raised in St. John's-Fitz

gerald’s proposed contribution counterclaim. St. John’s-

Fitzgerald knew of a possible contribution action through-

out. We find that the trial court did not abuse its discretion

in denying the motion, as it was not raised in a timely

fashion.

The verdict form in the instant case did not contain a

separate finding on the contribution counterclaim of the

drug manufacturer and distributor. St. John's-Fitzgerald

argues this was error. We do not agree. It is only when

the comparative negligence of plaintiff and the contribu-

tion counterclaims among defendants are raised in the

same cause and the jury must return separate verdicts

on the claims. See generally Ogg v. Coast Catamaran

Corp. (1986), 141 Ill. App. 3d 383, 490 N.E.2d 111.

Finally, St. John’s-Fitzgerald argues the jury's verdict

was influenced by passion and prejudice and was so large

as to shock the conscience of the court. The ascertain-

ment and assessment of damages are questions of fact

peculiarly within the province of the jury. Reviewing

courts must be reluctant to interfere with the discretion

of the jury, and the determination of damages will not

be disturbed on appeal unless it is obviously the result

ee

App. 53

of passion or prejudice, or is clearly excessive. An award

is considered excessive if it falls outside the necessarily

penses. Medical bills are not conclusive as to the ap

propriate size of a verdict. (Ludgin v. John Hancock

Mutual Life Insurance Co. (1986), 145 lil. App. 3d 703,

495 N.E.2d 1237.) Considering the nature of the injuries

in the instant case, we cannot say that the damages award

is 80 large as to shock judicial conscience. Therefore, we

affirm the jury verdict less the court-ordered remittitur

as to medical expenses and affirm St. John's-Fitzgerald’s

responsibility for 7% thereof.

For the above reasons, we affirm the trial court.

Affirmed.

SPITZ, P.J., and GREEN, J., concur.

1201 S. Sth St.

Springfield, IL. 62703

No. 68659—Erica Henry. etc. t, v. St. John's

Hospital, et al. Appeal. Appellate

Court, Fourth District.

The Supreme Court today DENIED the petition for re-

hearing in the above entitled cause.

Opinion modified on denial of rehearing.

The mandate of this Court will issue to the appropriate

Court and/or Cireuit Court or other agency on

December 10, 1990.

App. 55

APPENDIX 5

Verdict of the Jury

We, the Jury, find for the plaintiff and against the follow-

ing defendants and determine their pro-rata share of com-

pensatory damages in the following amounts:

* Sterling Drug Inc. 416.5%

% Breon Laboratories, Inc. 46.5%

* St. John's Hospital / Dr. Shari Fitzgerald 7.0

"TOTAL 100.0%

(You should mark an “x” in the box next to the name

of each defendant you find against--the shares of the de-

fendant or defendants must add ~ to 100%. Any defen-

dant you find for must have a “0” share.)

We, the Jury, find for the plaintiff and assess compen-

satory damages as follows:

Disability $ 6,000,000.00

Disfigurement $ 1,000,000.00

Pain & Suffering $ 1,500,000.00

Medical Expenses $ 1,500,000.00

TOTAL $10,000,000.00

[Signatures of Jurors omitted in printing]

App. 56

Correspondence from Circuit Court Judge

(dated 8/18/86)

Re: H v. St. John’s, et al.

. No. L-395

Gentlemen:

The following docket entry was entered in the above-

entitled cause this date:

“Defendant's Post-trial Motion allowed to the extent

that the jury verdict of $1,500,000 for medical expenses

is reduced to 22 thereby grant:

the sum

judgment for the the Plaintiff and a apna the —

22 for the sum of $8,511,759

Seamseopn. Denied tn il ——Eüä

App. 57

Docket Entry Sheet

(in the Circuit Court)

Re: H v. St. John’s, et al.

No. 83-1995

121-86 Jury retires to deliberate at 1:30 P.M.

Jury returns in open court at &10 P.M. with

their verdicts as follows:

We, the jury, find for the plaintiff and against

the following defendants and determine their

pro-rata share of compensatory damages in the

following amounts:

Sterling Drug, Inc. 46.5%

Breon Laboratories, Inc. 46.5%

St. John's Hospital/Dr.

Shari Fitzgerald 7.0%

100.0%

Disability $ 6,000,000.00

Disfigurement $ 1,000,000.00

Pain & Suffering $ 1,500,000.00

Medical Expenses $ 1500 00

TOTAL $10,000,000.00

8-18-86

5-27-87

App. 58

Defendant's post-trial motion allowed to the ex-

tent that the jury verdict of $1,500,000 for medi-

cal expenses is reduced to the sum of $11,759,000,

thereby granting judgment for the plaintiff and

against the defendants for the sum of $8,511,759,

for compensatory damages. Denied in all other

respects. Cause stricken. RJC/DJC

Present Bruce Cook, Rich Wilderson, Alex De-

Saint Phalle, Alfred LaBarre, and Gal George

Kenney. Cause comes on for hearing on Presen-

tation of Settlement Order between Plaintiff and

Sterling Drug. Special and Limited Appearance

to Object to Object to Jurisdiction filed by St.

John's Hospital and Shari Fitzgerald argued and

denied. Witness sworn: evidence heard. Court

finds settlement to be a good faith settlement

and approves same. RJC/dje BJD.

App. 59

APPENDIX 6

Filed October 3, 1986)

IN THE

CIRCUIT COURT OF THE SEVENTH JUDICIAL

CIRCUIT, SANGAMON COUNTY, ILLINOIS

No. S. L395

ERICA HENRY, by her mother and next friend, JANE

HENRY, Plaintiffs.

V.

ST. JOHN'S HOSPITAL; BREON LABORATORIES, INC.;

DR. THOMAS O HERRN. STERLING DRUG, INC.; and DR.

SHARI FITZGERALD, a

APPEAL BOND

St. John’s Hospital of the Hospital Sisters of the Third

Order of St. Francis, an Illinois not-for-profit corporation,

and St. John's Hospital of the Hospital Sisters of the

Third Order of St. Francis, an Illinois not-for-profit cor-

poration, on behalf of Dr. Shari Fitzgerald, as principals,

and The Travelers Indemnity Company, as surety, are

held and firmly bound unto Erica Henry, by her mother

and next friend, Jane Henry, plaintiffs, in the sum of SIX

HUNDRED TWENTY FIVE THOUSAND AND NO/100

DOLLARS ($625,000.00) lawful money of the United States

of America, for the payment of which sum we bind our-

selves, our heirs, executors, administrators, successors and

assigns, jointly and severally.

The need for this Appeal Bond arises out of the appeal

by St. John’s Hospital and Dr. Shari Fitzgerald, Defen-

App. 60

dants, of final judgments ente ed in the above case by

828

in

missed. This Appeal Bond shall be cancelled if St. John’s

Hospital and Dr. Shari Fitzgerald comply with this com

Principals:

ST. JOHN’S HOSPITAL OF THE HOSPITAL.

SISTERS OF THE THIRD ORDER OF ST.

FRANCIS, an Illinois not-for-profit

corporation,

*

RY:

* ä —— — ———— — — —

Exec. Vice President

ST. JOHN’S HOSPITAL OF THE HOSPITAL.

SISTERS OF THE THIRD ORDER OF ST.

Cee Saat of Dr. war

on ;

Fitzgerald,

RY:

* — ä ——— —— — — — — ~ — —

Surety:

THE TRAVELER'S INDEMNITY COMPANY,

BY: 1

Ita: Attorney in Fact

Dated: October 3, 1986

App. 61

APPENDIX 7

Special and Limited Appearance to. Object to Jurisdiction

(Or, in the Alternative, To Object to Settlement)

(Filed on 5/27/87 in the Ilinois Circuit Court)

Re: n

No. GL

SPECIAL & LIMITED APPEARANCE

TO OBJECT TO JURISDICTION

4. There is no provision in the law of this state for a

App. 62

Breon would be extremely prejudicial to these defendants

and constitutes a conspiracy to restrain the constitutional

and statutory right of action by these defendants against

Sterling and Breon for their previously determined willful

and wanton and grossly negligent conduct in the produc-

tion, distribution and sale of Marcaine.

6. There is likewise, no economic justification for this

purported settlement for less than the full amount pres-

ently owing and (for which a bond has been posted) and

in view of the net worth of Sterling Drug, which at the

time of trial was testified to be in excess of $900,000,000.

The acceptance by plaintiff of anything less than the full

judgment against Sterling would indicate an acceptance

of the amount in lieu of the 93% of the comparative dam-

age judgment (and the entire punitive damage judgment)

and any further attempt to collect any portion of the 93%

would be void. Plaintiffs acceptance of the $3,350,000 set-

tlement shall constitute the entire pro rata share of Ster-

ling-Breon’s 93% percent of the total judgment. St. John’s

Hospital-Dr. Fitzgerald's relative share of fault as found

by the jury of 7% remains intact and they share no re-

sponsibility for any greater portion due to any acts of

Sterling-Breon and plaintiff. ““No tort feasor is liable to

make contribution beyond his prorata share of the com-

mon liability, Ch. 70, §301(b).

7. This court has previously heard extensive post trial

motions by defendants including Sterling and Breon, which

were vigorously opposed by plaintiff seeking, among other

things, a reduction in the damage awards. This court

denied those motions and thus those actions constitute the

law of the case. This court cannot now explicitly or im-

plicitly alter the damage awards and particularly not with

the potential prejudice of these defendants, St. John's

Qe

App. 63

Hospital and Dr. Shari Fitzgerald. This court has also

earlier approved St. John’s Hospital bond in the amount

of $600,000 indicating again a recognition of the 7% rela-

tive culpability of St. John’s and Dr. Fitzgerald as found

by the jury. Any attempt to alter the jury's decision in

that regard is a flagrant violation of the constitutional

rights of these defendants to trial by jury as well as a

blatant attempted misuse of the contribution act.

8. A settling tort feasor is not entitled to contribution

from another tort feasor whose liability is not extinguished

by the settlement. Ch. 70%, §302(e). Yet this exact pro-

hibition could be violated if the petition herein is approved

and if the verdicts are affirmed, and an attempt is made

to recover more than the 7% verdict from St. John's-Dr.

Fitzgerald. That scenario would effectively permit Sterl.

ing to shift its liability to St. John’s, in violation of the

Contribution Act and a violating of their right to a jury

trial (R. 2893-2897).

[Signature and Proof of Service omitted in printing]

Petition for Instructions

(filed on 6-29-87 in the Illinois Appellate

Court, Fourth District)

Re: Henry v. St. John’s, et al.

No. 4-86-0604

No. 4-86-0610

PETITION FOR INSTRUCTIONS

settlement was made in good faith by the parties hereto,

These appellants filed on May 27, 1987, a special

and limited appearance to object to the jurisdiction of the

Trial Court, and alternatively, to object to the good faith

. On May 28, 1987, the Honorable Richard J.

App. 65

settlement with one defendant or group of defendants for

less than their pro rata share should prima facie satisfy

that entire pro rata share (i.e., leaving the sole remain-

ing liability to plaintiff being 7%, or $595,000.00; the re-

maining 98% being eliminated by the plaintiff's voluntary

choice to accept $3,000,000.00 in lieu of some $16,405,000.00).

Acceptance by plaintiff of anything less than the full judg-

ment against Sterling (particularly in view of the wilful

and wanton findings) would indicate a willing acceptance

of that amount in lieu of the 93% of the damage award

and any further attempt to collect any portion of that 93%

by plaintiff would be void. St. John’s Hospital and Dr.

Fitzgerald, having been found by the jury to be 7% at

fault, share no responsibility for any greater proportion,

for to do so would be an imposition of the responsibility

of Sterling and Breon upon these appellants’ in contraven-

tion of the jury’s verdict, and due solely to the collusion

between the plaintiff and defendants, Sterling and Breon.

Should this case be retried, following a reversal on ap-

peal, the now court authorized indemnity of Sterling and

Breon by plaintiff would purportedly preclude these ap-

pellants” constitutional and statutory rights to file counter

claims against Sterling and Breon for contribution or other-

wise, and would be extremely prejudicial to these defen-

dants, and creates a conspiracy to restrain the constitu-

tional, statuté*y and common law rights of action by these

defendants against Sterling and Breon for their previously

determined wilful and wanton grossly negligent conduct

in the production, distribution and sale of Marcaine.

App. 66

Order Denying Petition for Instructions

(entered on 7/15/87 in the

Illinois Appellate Court, Fourth District)

Re: Henry v. St. John’s, et al.

No. 4-87-0433

(Sangamon Co. 83 L 395)

(Letterhead Of)

State of Illinois

APPELLATE COURT

Fourth District

Supreme Court Building

Springfield 62706

Appellants’ “Suggestion to the Court” overruled.

Rule entered July S. 1987 enforced. APPEAL DIS.

MISSED.

(R. C2914)

App. 67

Order Dismissing and Vacating Judgment

As To Sterling/Breon (entered on 7/13/87 in the

Illinois Circuit Court)

Re: H v. St. John's, et al.

No. 831-395

ORDER DISMISSING AND

VACATING JUDGMENT

Court having been advised by counsel for plaintiffs

and for defendants Breon Laboratories Inc. and Sterling

Drug Inc. that this action has been settled as between

the aforesaid parties, and this Court having reviewed the

terms and conditions of the Release and Settlement

Agreement and Stipulation of Dismissal:

It is, therefore, ordered that the within action be and

the same hereby is dismissed as against defendants Breon

Laboratories Inc., Sterling Drug Inc. and all other divi-

sions, subsidiaries and affiliates thereof with prejudice and

on the merits and the judgment entered in this action

against Breon Laboratories and Sterling Drug Inc. be and

the same hereby is vacated. Each party shall bear its own

costs and attorneys’ fees.

* Richard J. Cadigan

Circuit Judge

Dated: July 13, 1987 (R. C2911)

Re: Henry v. St. John's et al.

Fourth District No. 4-86-0604

The verdict form shown at Appendix A of these defen-

dants original brief in this Court, clearly indicates that

the jury is to “determine their pro rata share of com-

pensatory damages in the following amounts:”. The jury,

of course, entered a seven per cent (7%) finding for St.

John’s Hospital Dr. Fitzgerald, and this Court, in its opin-

ion, has acknowledged and affirmed that finding at Page 2.

Should the Court deny this Petition, we assume that

it is taken for granted that the judgment, insofar as it

is relates to this St. John’s Hospital, is $595,823.13 (7%

of $8,511,759.00), given the jury verdict finding this St.

John's Hospital Dr. Fitzgerald of a seven per cent (7%)

ibility.

Our conclusion, therefore, is that to say that the ver-

dict as to St. John’s, is $10,011,759.00, less the reduction

of $1,500,000.00, and now reduced by the settlement of

$3,350,000.00, or some $6,000,000.00, is to do violence to

the Contribution Act and is a construction which is con-

trary to one of the basic tenets of the United States and

State of Illinois Constitutions that a person or party shall

have a right to present his claim in a recognized forum

for resolution and that right is fundamental to our due

process considerations of the Fourteenth Amendment of

the U. S Constitution. This right to present a claim is one

App. 69

which cannot be cut back on or eliminated either by stat-

utory implementation or by judicial construction. The point

is well made in Brinkerhoff-Faris Trust v. Walter O. Hill

281 U.S. 673 (1929), where a tax collector attempted un-

successfully to refuse repayment of an inappropriate tax

collection regarding bank stock shares.

The court there sai! that it is a fundamental concern

to our Constitutional mandates that the plaintiff “be ac-

corded due process in the primary sense—whether it has

had an opportunity to present its case and be heard in

its support”. “Undoubtedly, the state court had the power

to construe the statute dealing with the State Tax Com-

mission, . . But while it is for the state courts to deter-

mine the adjective, as well as the substantive law of the

state, they must, in so doing, accord the parties due proc:

ess of law.”

“Whether acting through its judiciary or through its

legislature, a state may not deprive a person of all ex.

isting remedies for the enforcement of a right, which the

state has no power to destroy, unless there is, or was.

afforded to him some real opportunity to protect it“.

Brinkerhoff at Page 681-682.

That Supreme Court said that a party has a right to

present his position. This right is of constitutional dimen-

sions. Here, this jury has determined that St. John's

Hospital has only a seven per cent (7%) responsibility in

this matter.

The point we make, then, is even the slightest sugyes-

tion that the verdict, and consequently the judgment,

against this St. John’s Hospital, is anything other than

4 $595,823.13 is obviously a construction in violation of

St. John's Hospital's due process considerations, and more

expressly so than in Brinkerhoff (where the court held

that a person has a right to present a claim) because here

App. 70

the jury has actually determined the exact scope of the

hospital's interest in this situation.

os 8. = @ &

Should this Court deny this petition for rehearing, it

is respectfully requested that the Court clarify its opin-

ion regarding the relative fault of St. John's Hospital and

the judgment to be entered by the Trial Court. These

defendants submit that this Court has acknowledged the

seven per cent (7%) responsibility of St. John’s/Dr. Fitz.

gerald, and if the Court denied this motion, it is requested

that this Court order that judgment be entered in that

amount. (See also these defendants’ Appeal Bond approved

by the Trial Court in the amount of $625,000.00 [$525,999.00

plus potential Interest) (R. C2842).

App. 71

APPENDIX 10

to Section 2-1401, Chapter 110

(filed on 5/6/88 in the Illinois Circuit Court)

Re: H v. St. John's, et al.

No. L-395

... On June 29, 1987, these defendants, St. John's Hos

pital and Dr. Shari Fitzgerald, filed their Petition for In-

structions of the Court objecting to the proposed settle-

ment on the basis that the thought may be that plaintiff

was going to later claim that the jury verdict remained

intact in full as to these defendants, St. John's Hospital

and Dr. Shari Fitzgerald, notwithstanding the jury ver-

dict regarding apportionment and notwithstanding the set-

tlement with Breon Laboratories, Inc. and Sterling Drug.

Inc. This Petition for Instruction was filed in No. 4-86-

0605 and 4-86-0610.

„on July 8, 1987, the Appellate Court denied the

Petition for Instruction filed by St. John's Hospital and

Dr. Shari Fitzgerald.

eft „„

Thereafter, the opinion was filed by the Appellate Court

on August 24, 1987, in Docket No. 4-86-0604. There are

specific findings in that opinion, at Page 2, for example,

dealing with the issues of apportionment “The compen-

satory damages award was apportioned between the par-

ties with St. John’s-Fitzgerald responsible for 7% of the

award.”

————————

App. 72

A Petition for Rehearing was filed by St. John's Hos

pital and Dr. Shari Fitzgerald.

The Appellate Court denied the Petition for Rehearing.

However, it is noted that Page 14 of the opinion was

modified to read as follows:

“Therefore, we affirm the jury verdict, less the

court ordered remittitur as to medical expenses and

affirm St. John's-Fitzgerald's responsibility for 7%

thereof. For the above reasons, we affirm the trial

court.“

.

That these defendants, St. John's Hospital and Dr. Shari

Fitzgerald, state that the jury verdict in the above en-

titled matter . . was a finding of the jury that these

defendants, St. John's Hospital and Dr. Shari Fitzgerald,

has responsibility in the amount of 7% of the verdict.

WHEREFORE, these defendants, St. John’s Hospital

and Dr. Shari Fitzgerald, pray this court determine that

its total responsibility in favor of the plaintiff is in the

sum of $715,559.09, which sum constitutes 7% of the judg-

ment, or $595,812.13, together with interest thereon at

the rate of 9% thereon from January 21, 1986. And fur-

ther, that these plaintiffs be directed to execute a release

of the judgment in favor of this St. John’s Hospital and

Dr. Shari Fitzgerald, upon receipt of that sum, and fail-

ing that, that an officer of this court be duly authorized

by this court to execute said release, and judgment in

favor of this St. John’s Hospital and Dr. Shari Fitzgerald

in the above entitled matter.

In the alternative, these defendants, St. John's Hospital

and Dr. Shari Fitzgerald, state that to hold otherwise than

App. 73

as provided in... this Petition for Entry of Judgment

Pursuant to Jury Verdict or in the Alternative Relief from

Judgment Pursuant to Section 2-1401, Chapter 110 is to

result in an unconstitutional taking of the property of

these defendants, St. John's Hospital and Dr. Shari Fitz.

gerald, contrary to the due process provisions of the lth

Amendment of the United States Constitution and corre-

sponding provision of the Illinois Constitution.

That the claim for contribution is a cause of action, a

property interest whose dimensions have been fixed by

the jury which has determined responsibilities in the

relative portions of 7% and 93% of the total loss. That

this cause of action, as now reduced to verdict, is one

which cannot be abridged without running afoul of the due

process provisions of the 14th Amendment of the United

States Constitution and of the Illinois Constitution.

This petition is being brought in this manner to request

that the court follow its ministerial duty of entering judg-

ment in accordance with the jury verdict, or in the alter.

native, that it grant relief in accordance with Chapter 110,

Section 2-1401 (the successor to the writ of error. coram

nobis, and coram vobis) inasmuch as this is appropriate

form of relief sought under that section of the act where

relief is not otherwise available.

„that this type of settlement attempts to eliminate

the cause of action created by this Contribution Act to

implement the various rights and interests created by this

Contribution Act in violation of the due process provisions

of the 14th Amendment of the United States Constitution

and the Illinois Constitution. (R. C2945-2963),

App. 74

APPENDIX 11

Order Denying Petition for Entry of Judgment

(Entered on June 9, 1988 in the

Illinois Circuit Court)

Re: Henry v. St. John’s, et al.

No. IJ. 395

ORDER

The Court having reviewed the motions of the parties,

finds as follows:

The Court denies defendant, St. John's Hospital's mo-

tion to modify or reform the jury verdict. The Court finds

that St. John’s Hospital is jointly and severally liable for

$8,511,759 as of January 21, 1986, and interest starts ac.

cruing thereon from that date.

The Court calculates the judgment and interest owing

as of May 29, 1988, as follows:

rr 85.511.759. 00

Interest 1/21/86 to 5/28/87 (492 days

@ $2,099 per day) ))): 1,032,708.00

Interest 5/28/87 to 5/29/88 ($1,359 per

. 496,035.00

App. 75

On the Court's own motion, plaintiff is ordered to re

frain from any collection proceedings for 30 days after

entry of-this order.

DATED This 8 day of June, 1988,

ENTER:

„ Ricuwarp J. Capacin

JUDGE

App. 76

APPENDIX 12

grief of

St. John's Hospital and Dr. Shari Fitzgerald

(filed in the Illinois Appellate Court,

Fourth Judicial District)

Re: Henry v. St. John’s, et al.

Fourth District No. 4-88-0409

In this case the plaintiff is attempting to revise the

jury's verdict and reallocate the proportionate shares,

thereby forcing one defendant to pay an amount greater

than its pro rata share of the whole. To allow the plain-

tiff to settle after verdict with the most culpable defen-

dant and then proceed against the least culpable defen-

dant for the full amount of the judgment is inconsistent

with the Contribution Act and violates established and

fundamental principles of fairness and equity.

> a ae ae

The plaintiff is urging a result which is virtually the

opposite of the position taken by her counsel at trial and

the verdict of the jury. We submit that such a result

would promote uncertainty, increase gamesmanship and

lessen public confidence in the judicial system—exactly the

IIA ee ee

Such a result would be grossly unfair, and would be in

consistent with the aims of justice and the spirit of the

due process provisions of the Illinois Constitution and the

14th Amendment of the United States Constitution.

WHEREFORE, the defendant, St. John's Hospital and

Dr. Shari Fitzgerald respectfully pray for this court to

enter an order reversing the order of the trial court and

entering a judgment in favor of the plaintiffs and against

the defendants in the amount of 7%, plus interest through

April 4, 1988, and for such other relief as this Court

deems just.

Fitzgerald

(filed in the Illinois Supreme Court)

Re: H v. St. John’s, et al.

No. 68659

This Petition for Rehearing should be granted because:

(1) this Court has seriously misapprehended the facts; (2)

this post-judgment settlement, contrary o the jury's ap-

portionment, is not in good faith; (3) this decision is direct-

ly contrary to the public policy considerations underlying

the Contribution Act; and (4) constitutional due process

considerations preclude the mequitable result the Court

has reached in this case. Because of these inherent flaws

in this Cours opinion, defendants respectfully request

this Court to allow rehearing in order to reconsider their

decision.

V. CONSTITUTIONAL CONSIDERATIONS REQUIRE A

REHEARING.

Simply stated, the defendants have been denied the fun-

damental Due Process right guaranteed by the Fourteenth

Amendment of the U.S. Constitution, as well as by the

Illinois Constitution, to a trial by jury.

This case was not tried on the basis of the rule that

each joint tort-feasor is responsible in full for the entire

damages of plaintiff. Plaintiff offered the jury instruction

requiring apportionment and all agreed that instruction

was appropriate (C. 2512). Neither the plaintiff nor any

other party offered I. F. I. (Civil) 41.04 instructing the jury

that their verdict must be one single sum rather than an

allocated verdict.

App. 78

The jury was clearly instructed on the apportionment

principles and rendered its findings in reliance of its in

structions, one finding being that St. John's Hospital was

7% responsible. When the trial court fails to follow the

jury verdict, and rather increases the verdict from 7%

to more than Mr, from the sum of $715,000 te $5,511,758,

without the consent of the party affected, an attempt to

dy so is violative of constitutional guarantee of a trial by

jury.

The situation in the instant case is similar te that of

Koltz v. Jahaaske and Reker, Alz In. App. G23, 38 N.E2d

Ma (lach Two plaintiffs, George Koltz, the driver, and

Louise Koltz, a passenger, recovered for injuries suffered

at the hands of defendant, Jahaaske, a driver of the other

vehicle and Lawrence Reher, the tavern keeper, who sold

alcohol to Jahaaske. These defendants were sued as joint

tort-feasor. The jury returned four verdicts:

(a) Louise Koltz against Jahaaske, $15,000;

(b) George Koltz against Jahaaske, $4,000;

teh Louise Koltz against Reber. $500,

id) George Koltz against Reber. $500.

App. 79

affected by such increase or decrease would be

dative of the constitutional ranty of trial by

Koltz v. Jahaaske and Reher. 312 Ill. App. 623,

N20 973 (1942) (Emphasis added).

Here, too, the action of the court in increasing the ver

diet against St. John's contrary to the jury's determina.

tien ix vielative of the constitutional guarantee of trial by

jury.

The function of the jury was to fix the damages as to

St. John's Hospital, which it did. Plaintiff chose to instruct

the jury om apportionment (C. 2512). The jury followed

these instructions. This plaintiff chose not to instruct on.

her to argue te the jury, the applicability of the joint tort.

feasor rule, Le., that each joint tort-feasor is responsible

to plaintiff in full (I. P. I. Civil 41.04).

Based upon the small amount of negligence attributed

to St. John's, and the complete absence of punitive dam

ages, it is probable that the jury would have returned

# not guilty verdict in favor of St. John's when faced with

the possibility that St. John's could bear the entire burden

for the primarily culpable defendant. It is without doubt

that the jury never contemplated the result now reached

by the Court in this case.

The United States Supreme Court in Dimick , Schiedt.

298 US. 474, 79 L.Ed. 603, 55 S. Ct. 296 (1935) used the

same analysis. The actions of the trial court resulted in

the denial of the constitutional right to a trial by jury

where the trial court granted an additur. increasing the

Jury verdict from $500 to $1,500. The United States Su.

preme Court stated:

. . [The power to conditionally increase the verdict

jury not follow as a necessary corollary from

the power to conditionally decrease lit. . (Where!

me jury has ever passed on the increased amount.

2

App sO

the practice has no precedent according to the

rules of common law.

.. « Maintenance of the jury as a fact-finding bendy

is of such importance and occupies so firm a place

in our history and jurisprudence that any seeming

curtailment of the right to a jury trial should be seru

tinized with the utmost care. (citation omitted)

The controlling distinction between the power of the

court and that of the jury is that the — ix the

power to determine the law and the latter to deter

mine the facts. In dealing with questions like the one

now under consideration, that distinction must be

borne steadily in mind.. When, therefore, the trial

court here found that the damages awarded by the

jury were so inadequate as to entitle plaintiff to a

new trial, how can it be held, with any semblance of

reason, that that court, with the consent of the defen.

dant only, may, by assessing an additional amount

of damages, bring the constitutional right of the

plaintiff to a jury trial to an end in respect of a mat

ter of fact which no jury has ever passed upon either

explicitly or by implication? To so hold is obvious.

ly to — the plaintiff to forego his constitutional

right to the verdict of a jury and accept ‘an assess.

ment partly made by a jury which has acted improp-

erly, and partly by a tribunal which has no power

fo assess." hay added) Dimick v. Schiedt, 292

U.S. 474, . 79 I. Ed. 608, 55 8. Ct. 296 (1935).

When the parties present to a jury the factual issues they

are to resolve, including apportionment, instruct the jury

ax to the consequences of their findings regarding relative

fault, and the jury speaks to those issues, their findings

are final and should not be disturbed; to simply rearrange

that verdict is to deny to this litigant its fundamental

right to a trial by jury.

The care with which jury verdicts are to be handled

~to insure that their intent is effectuated is found in an

App. *1

other early U.S. Supreme Court case. Washington Gas

Light Co. lumen, V72 US. SH. 4 I. Ea u 19 Sy

205 (le,

That court stated:

At any rate, the jury has never been called upon te

render a verdict against a sole defendant, while

it may be said that, whether against one or against

all the defendants, the plaintiff suffers the <ame dam

age, and should be entitled to a verdict for the <ame

sum, still the question arises whether a jury, in .

ing upon the several liability of the individual fen

dant, would give a verdict of the same amount as

it would if both the other defendants remained We

cannot say it would, and as the jury has never ren-

dered a verdict against Mr. Leetch indivvdually and

solely, and as the case ia one where damages are so

largely in the sole discretion Of the jury, we think

„ unjust and im fo permit this verdict to stand

against: Leetch me while we set it aside as against

the other defendants. (Emphasis added). Wash ington

Gas-Light v. Lansden, 172 US. fl. 43 I. Ed. 343.

19 S.Ct. 206 (len,

The only reason for the jury instructions is to frame

the issues and to announce the principles of law applicable

to the case in order to assure proper resolution by the

jury. Warnes v. Champaign County Seed Co. 5 Ul. App

2d 151, 156, 124 N.E.2d 695 (3d Dist. 1955). This jury was

clearly and unequivocally instructed on the applicable prin

ciples of law, including the fact that the jury was to ap-

portion responsibility between the defendants according

to their relative degree of fault. The resolution of the is.

sues as determined by the verdict should be given its in.

tended force and effect. For this Court, subsequent to and

contrary to the verdict, to sanction the alteration of the

jury's findings is an unconstitutional denial of these defen.

dants’ right to a trial by jury.

App. sf

The purpose of the Contribution Act is to achieve equity

among joint tort-feasers. If one looks only to the language

of the statute, as the Court has here, the statute is un-

constitutional as applied. In order to avoid reaching an

unconstitutional result, it is then necessary to reexamine

the statute in light of its intended purpose. When the

statute is examined im light of its intended purpose, the

necessary conclusion must be that the General Assembly