26 F.3d 1224 (2nd Cir. 1994), 1124, Andrulonis v. United States

Docket Nº:1124, Dockets 93-6228, 93-6272 and 93-6274.
Citation:26 F.3d 1224
Party Name:Joanna ANDRULONIS, Individually and as Conservator of the Property of Jerome Andrulonis, Plaintiff-Appellant-Cross-Appellee, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellee-Cross-Appellant, Glatt GmbH; Wisconsin Alumni Research Foundation, Inc.; Warf Institute, Inc.; Raltech Scientific Services; Ralston Purina Company; Eli Lil
Case Date:June 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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26 F.3d 1224 (2nd Cir. 1994)

Joanna ANDRULONIS, Individually and as Conservator of the

Property of Jerome Andrulonis,



UNITED STATES of America, Defendant-Third-Party


Glatt GmbH; Wisconsin Alumni Research Foundation, Inc.;

Warf Institute, Inc.; Raltech Scientific Services; Ralston

Purina Company; Eli Lilly Company; John L. Thompson and

Sons and Company; Glatt Air Techniques, Inc., Defendants,

New York State Department of Health, Third-Party


No. 1124, Dockets 93-6228, 93-6272 and 93-6274.

United States Court of Appeals, Second Circuit

June 1, 1994

Argued March 14, 1994.

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Randall J. Ezick, Albany, NY (Paul H. Schop, Roemer & Featherstonhaugh, P.C., of counsel), for plaintiff-appellant-cross-appellee Joanna Andrulonis.

William G. Cole, Dept. of Justice, Washington, DC (Gary L. Sharpe, U.S. Atty., Frank W. Hunger, Asst. Atty. Gen., Robert S. Greenspan, Appellate Staff Civ. Div., Dept. of Justice, of counsel), for defendant-third-party plaintiff-appellee-cross-appellant U.S.

Michael S. Buskus, Asst. Atty. Gen., Albany, NY (Robert Abrams, Atty. Gen., State of NY, Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., of counsel), for third-party defendant-appellee-cross-appellant New York State Dept. of Health.

Before: WALKER, McLAUGHLIN and RONEY, [*] Circuit Judges.

McLAUGHLIN, Circuit Judge:

Seventeen years ago, rabies ravaged the brain of an aspiring young scientist when he was exposed to a highly concentrated strain of the virus in a preventable laboratory accident. For the past fourteen years, the ensuing negligence case has meandered through the federal judicial system, traveling from the trial court to the United States Supreme Court and back again, stopping each way before our Court. On this third occasion, we hope to lay this tragic case to rest by resolving the final disputed issue in this case, namely, the parties' rights to post-judgment interest.

This case essentially involves two lawsuits tried for convenience under one roof: a negligence claim brought by the scientist's wife, Joanna Andrulonis, against the United States Government (the "Government") under the Federal Tort Claims Act ("FTCA"); and a third-party claim for contribution brought by the Government against the New York State Department of Health ("NYSDOH") under New York law. Following a bench trial in the Northern District of New York, the district court (Howard G. Munson, Senior District Judge ) entered judgment in favor of Andrulonis on her negligence claim, and in favor of the Government on its contribution claim. An appeal was taken.

After this Court affirmed the trial court's judgment in most respects, see Andrulonis v. United States, 924 F.2d 1210 (2d Cir.1991), vacated, New York State Dep't of Health v. Andrulonis, --- U.S. ----, 112 S.Ct. 39, 116 L.Ed.2d 18 (1991), and reinstated, Andrulonis v. United States, 952 F.2d 652 (2d Cir.1991), and cert. denied, --- U.S. ----, 112 S.Ct. 2992, 120 L.Ed.2d 869 (1992), the district court entered a second amended judgment, incorporating a settlement agreement reached after the appeal. The second amended judgment included awards of postjudgment interest to both the plaintiff and United States as third-party plaintiff, but it permitted the parties to apply to the district court for additional awards of interest. Not surprisingly, there were motions for additional

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postjudgment interest and the district court's rulings were reduced to yet a third amended judgment, from which all parties now appeal.

For the reasons that follow, we affirm in part, reverse in part, and remand.


In the late 1970s, the United States Center for Disease Control ("CDC") joined with the NYSDOH in a massive effort to immunize wildlife from rabies. At the time, Jerome Andrulonis was a 34-year-old senior bacteriologist employed by the NYSDOH. Andrulonis worked under the direct supervision of Dr. John G. Debbie at the State's Griffin Laboratory near Albany, New York.

In March 1977, Dr. George M. Baer of the CDC prepared a powerful strain of the rabies virus and delivered it to Dr. Debbie for use in experiments to be conducted principally by Andrulonis. During such an experiment, Andrulonis was exposed to the potent strain when the virus escaped from the machine he was operating. Tragically, Andrulonis contracted rabies. While he survived, he suffered permanent brain damage.

In 1979, Joanna Andrulonis, individually and as conservator of her husband's property, sued the Government under the FTCA, alleging that her husband contracted the disease due, in large part, to the negligence of Drs. Baer and Debbie. Also named in the suit were a number of non-governmental defendants, including Eli Lilly & Company/John L. Thompson and Sons ("Lilly/Thompson"), the makers of a rabies vaccine that failed to protect Andrulonis. Although New York's Workers' Compensation law precluded Andrulonis from suing the NYSDOH directly, the Government impleaded the NYSDOH for contribution. Andrulonis ultimately settled with all defendants except the NYSDOH and the Government.

Following a bench trial, Judge Munson found the NYSDOH, the Government and Lilly/Thompson liable for $5,978,409.00 in damages. He apportioned liability at 65 percent for the NYSDOH, 30 percent for the Government and 5 percent for Lilly/Thompson. 1 Andrulonis, 724 F.Supp. at 1509. On October 18, 1989, the district court entered a single judgment incorporating both (1) Andrulonis's judgment against the Government (the "primary judgment"), and (2) the Government's judgment against the NYSDOH (the "contribution judgment"). 2 As required by law, Andrulonis filed a transcript of that judgment with the United States Comptroller General on November 7, 1989. See 31 U.S.C. Sec. 1304(a)(2).

The NYSDOH and the Government then appealed the district court's judgment to this Court. We affirmed Judge Munson's decision in most respects, but reversed and remanded for a recalculation of damages. See Andrulonis v. United States, 924 F.2d 1210 (2d Cir.1991). Specifically, we directed Judge Munson to recalculate the amount of set-off against the judgment to which the NYSDOH and the Government were entitled in light of the settlements entered into between Andrulonis and the non-governmental defendants. The mandate on our decision (the "first mandate of affirmance") issued March 12, 1991. The mandate did not contain instructions to the district court regarding the allowance of postjudgment interest, however. Cf. Fed.R.App.P. 37.

The NYSDOH then petitioned the United States Supreme Court for a writ of certiorari. Notably, the Government did not file a certiorari petition on its own behalf, but it filed a brief supporting the NYSDOH. It was the Government's position that this case did not present a "suitable vehicle" for Supreme Court review of the FTCA because

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the case involved "relatively unusual and complicated facts." Brief for the United States as Respondent in Support of Petitioner ("Government's Brief") at 7. Instead, the Government's Brief urged the Supreme Court to grant the NYSDOH's petition, vacate our judgment, and remand the case for reconsideration in light of the Court's then-recent FTCA decision in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).

In a memorandum decision, the Supreme Court granted the relief requested by the Government: it summarily vacated our judgment and remanded the case for further consideration in light of Gaubert. See New York State Dep't of Health v. Andrulonis, --- U.S. ----, 112 S.Ct. 39, 116 L.Ed.2d 18 (1991). Following the Supreme Court's decision, this Court entered an order vacating the first mandate of affirmance.

On remand, we reconsidered the Government's liability, but concluded that Gaubert did not undermine our earlier decision. See Andrulonis v. United States, 952 F.2d 652 (2d Cir.1991). Accordingly, we reinstated our earlier opinion, which had affirmed in part, and reversed and remanded in part. The mandate on our second decision (the "second mandate of affirmance") issued February 14, 1992. Again, the mandate did not instruct the district court regarding postjudgment interest.

When the case finally arrived back in the district court, the parties entered into a comprehensive settlement agreement that resolved the remanded damages issue. Under the settlement, the parties agreed to the entry of an amended judgment that would (1) reduce Andrulonis's primary judgment to $5,357,240.00, and (2) reduce the Government's contribution judgment to $3,665,480.00 (a sum equal to 68.42 percent of the primary judgment).

In addition, the settlement partially resolved a dispute that had arisen regarding postjudgment interest. Under the settlement, the Government agreed to pay Andrulonis $600,023.00 in postjudgment interest on the primary judgment, calculated from the date the transcript of judgment was filed with the Comptroller General (November 7, 1989) through the day before the first mandate of affirmance (March 11, 1991). See 31 U.S.C. Sec. 1304(b)(1)(A). In the apparent belief that it was liable to the Government for a pro rata share of the postjudgment interest that the Government owed Andrulonis, the NYSDOH agreed to pay the Government $410,542.00 (68.42 percent of the $600,023.00 interest) in addition to its proportionate share of the primary judgment. That amount was characterized in the settlement as...

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