§15.18A Evidence of Settlement with One Party at Trial Involving Other Defendant
The Case: Cullum v. Baptist Hospital, Inc., No. M2009-01980-COA-R3-CV, 2011 WL 553768 (Tenn. Ct. App. Feb. 16, 2011).
The Basic Facts: In this medical malpractice case, plaintiffs settled with doctor and went to trial against the hospital. Defendant hospital sought to introduce evidence of the settlement at trial.
The Bottom Line:
“Plaintiffs contend that Tenn. Code Ann. § 29-11-105(b)FN7 precludes admission of any evidence regarding Dr. Mackey’s settlement and that, consequently, the trial court erred when it allowed information of Dr. Mackey’s settlement to come before the jury. This statute, however, is part of the Uniform Contribution Among Tortfeasors Act and was intended to apply in cases in which two tortfeasors are ‘jointly or severally liable in tort for the same injury to person or property or for the same wrongful death,’ but ‘judgment has not been recovered against all or any of them,’ and one such tortfeasor ‘has paid more than the proportionate share of the shared liability.’ Tenn. Code Ann. § 29-11-102. We agree with the Sixth Circuit Court of Appeals that Tenn. Code Ann. § 29-11-105 ‘was rendered obsolete in 1992 by Tennessee’s adoption of a system of comparative fault.’ Bass v. Janney Montgomery Scott, Inc., 210 F.3d 577, 591 (6th Cir. 2000) (citing McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)). Instead, Tenn. R. Evid. 408, concerning compromise and offers of compromise, governs the admission of evidence of the settlement.
“Tenn. R. Evid. 408 allows evidence of a settlement agreement to be admitted for the purpose of proving bias or prejudice of a witness, but not for the purpose of proving liability. Plaintiffs complain that the fact that Dr. Mackey had settled with them was mentioned by counsel for Defendants at various points during the trial to argue that Dr. Mackey was liable. We have reviewed the citations to the record and agree that the many of the references by counsel for Defendants to Dr. Mackey’s settlement were inappropriate and contrary to Rule 408 inasmuch as they were not made to show bias on the part of Dr. Mackey.FN8 We caution counsel on remand to limit references to Plaintiffs’ settlement with Dr. Mackey to those uses permissible under Rule 408. See also Tenn. R. Evid. 616.
FN7 Tenn. Code Ann. §29-11-105(b) states:
(b) No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater.”2011 WL 553768 at *4.
FN8 For instance, one reference to the settlement, which occurred during voir dire was as follows:
. . . And I want you to assume at that time, the plaintiffs took the position that Dr. Mackey was responsible for the damages to the child, and that Dr. Mackey was negligent.
Let me ask you first: If the plaintiffs take that position and file – everybody understands a lawsuit is a serious matter. If the plaintiffs take that position, shouldn’t they continue to take that position throughout the lawsuit?
Anybody think its [sic] okay to just change, especially after the doctor settled, that you’re going to change your theory? Anybody believe that’s appropriate.
* * *
Do you think its [sic] appropriate to change your theory once you’ve settled with another party? Anybody believe that’s appropriate?
* * *
Now, if the plaintiffs file a lawsuit and allege that the physician was negligent. And that that negligence caused the injury. And that injury caused certain damages. And if they settle their case with the physician, is it appropriate for the hospital, in defending its nurses, to say, hold it, you blamed the physician, and the jury ought to be able to consider whether or not the physician was the one that caused it, as you alleged in your lawsuit, and as you settled.”
Id. at *5.