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03/17/89 Erica Henry, By Her Mother v. St. John's Hospital Et Al.

March 17, 1989

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)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

536 N.E.2d 221, 180 Ill. App. 3d 558, 129 Ill. Dec. 537 1989.IL.341

Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, J., concurs. JUSTICE GREEN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

St. John's Hospital and Dr. Shari Fitzgerald (St. John's-Fitzgerald) appeal a trial court order finding them liable to plaintiff for $5,511,759, 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 action; (2) the ruling is contrary to the purposes of "An Act in relation to contribution among joint tortfeasors" (Contribution 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 Laboratories, Inc. (Sterling-Breon); (4) judicial estoppel precludes plaintiff from recovering the portion of the judgment attributable 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 Fitzgerald negligently administered the drug without proper authority. She also sued Sterling-Breon for failure to properly 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 Fitzgerald 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 plaintiff's 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 verdict 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 $6,000,000,00

Disfigurement $1,000,000.00

Pain and Suffering $1,500,000.00

Medical Expenses $1,500,000.00"

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

Plaintiff's mother, Jane Henry, brought an individual action against all defendants, in which she alleged their actions constituted an intentional infliction of emotional distress. 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, plaintiff 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(c) 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, agreements, liabilities, controversies, costs, expenses, interest, 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, BREON LABORATORIES, INC., DR. THOMAS O'HERN, STERLING DRUG, INC., AND DR. SHARI FITZGERALD, No. 83 -- L -- 395, in the Circuit

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 ...


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