Henry v. St. John's Hosp.

• Decision Date: 17 March 1989
• Docket Number: No. 4-88-0491,4-88-0491
• Citation: 180 Ill.App.3d 558,536 N.E.2d 221
• Parties: , 129 Ill.Dec. 537 Erica HENRY, by her mother and next friend, Jane Henry, Plaintiff-Appellee, v. ST. JOHN'S HOSPITAL; Breon Laboratories, Inc.; Dr. Thomas O'Hern; Sterling Drug, Inc.; and Dr. Shari Fitzgerald, Defendants (St. John's Hospital and Dr. Shari Fitzgerald, Defendants- Appellants).
• Court: United States Appellate Court of Illinois

Page 221

536 N.E.2d 221

180 Ill.App.3d 558, 129 Ill.Dec. 537

Erica HENRY, by her mother and next friend, Jane Henry Plaintiff-Appellee, v. ST. JOHN'S HOSPITAL; Breon Laboratories, Inc.; Dr. Thomas O'Hern; Sterling Drug, Inc.; and Dr. Shari Fitzgerald, Defendants (St. John's Hospital and Dr. Shari Fitzgerald Defendants- Appellants).

No. 4-88-0491.

Appellate Court of Illinois,

Fourth District.

March 17, 1989.

Rehearing Denied April 13, 1989.

Graham & Graham, Springfield (Hugh Graham, III, of counsel) Pierce & Meyer, Chicago (John Meyer, of counsel), Heyl, Royster, Voelker & Allen, Peoria (Gary M. Peplow, Karen L. Kendall, of counsel), for defendants-appellants.

Cook, Shevlin, Keefe & Ysursa, Ltd., Belleville (Bruce N. Cook, of counsel), for plaintiff-appellee. Presiding Justice McCULLOUGH 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 $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 contraindicate 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 $10,000,000 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 $7,000,000 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 Court of the Seventh Judicial Circuit, Sangamon County, Illinois (Judge Richard J. Cadigan presiding) ('pending action')."

Paragraph two provided for the release of Jane Henry's action for $350,000. Paragraph three 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 pending action with prejudice and vacating the judgment outstanding against Sterling-Breon.

Paragraph five of the agreement stated that in consideration 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 million dollars in cash would be made to plaintiff's guardian. In addition, Sterling-Breon agreed to purchase an annuity from an insurance company for 1.6 million dollars. The agreement specifically 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 plaintiff 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 settlement 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 dismissed St. John's-Fitzgerald's appeal as not based upon a final order. 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 entered 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 settled as between the aforesaid parties, and this Court having reviewed the terms and condition of the Release 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 defendants 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, individually and on behalf of Erica Henry, that Breon Laboratories Inc. and Sterling Drug Inc. and all other divisions, subsidiaries and affiliates thereof are hereby dismissed from the above-captioned lawsuit with prejudice and on the merits. It is further hereby stipulated and agreed that the judgment against Sterling Drug Inc. and Breon Laboratories Inc. shall be vacated by order of the Court in the form annexed hereto. * * * "

In Henry v. St. John's Hospital (1987), 159 Ill.App.3d 725, 111 Ill.Dec. 503, 512 N.E.2d 1044, this court affirmed the jury's findings as to St. John's-Fitzgerald. 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 petition 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, 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-Fitzgerald was liable to plaintiff for $5,511,759 plus interest accrued to May 29, 1988 ($1,528,743), and accruing thereafter at a rate of $1,359 per day. The court stated the amount given to Jane Henry for settlement of her individual claim was not a setoff against the amount of the...