                           PUBLISHED
                                            Filed: September 16, 2004

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


CHARLESTON AREA MEDICAL CENTER,         
INCORPORATED,
                Plaintiff-Appellee,
                and
ST. PAUL FIRE & MARINE INSURANCE
COMPANY,
                Intervenor-Plaintiff,
                 v.
PARKE-DAVIS, a division of Warner
Lambert; PFIZER, INCORPORATED, its               No. 02-2264
successor by merger,
             Defendants-Appellants,
                and
DANNY A. RADER, MD; TERRI MILES,
RN; JOHN/JANE DOE, MD; JANE DOE,
R.N.; JOHN/JANE DOE, Pharmacist;
JOHN/JANE DOE, Pharmacy
Technician; JOHN DOE,
Agency/Corporation,
            Third Party Defendants.
                                        
2         CHARLESTON AREA MEDICAL CENTER v. PARKE-DAVIS



CHARLESTON AREA MEDICAL CENTER,         
INCORPORATED,
               Plaintiff-Appellant,
                 and
ST. PAUL FIRE & MARINE INSURANCE
COMPANY,
                Intervenor-Plaintiff,
                  v.
PARKE-DAVIS, a division of Warner
Lambert; PFIZER, INCORPORATED, its                 No. 02-2303
successor by merger,
              Defendants-Appellees,


DANNY A. RADER, MD; TERRI MILES,
RN; JOHN/JANE DOE, MD; JANE DOE,
R.N.; JOHN/JANE DOE, Pharmacist;
JOHN/JANE DOE, Pharmacy
Technician; JOHN DOE,
Agency/Corporation,
            Third Party Defendants.
                                        

          ORDER OF CERTIFICATION TO THE
    SUPREME COURT OF APPEALS OF WEST VIRGINIA

   This is an appeal from the United States District Court for the
Northern District of West Virginia, at Wheeling. Because the resolu-
tion of the issues presented on appeal requires resolution of a question
of West Virginia law that may be determinative in the pending case,
and because it appears to us that there is no controlling West Virginia
appellate decision, constitutional provision, or statute, we request that
the following issue be decided by the Supreme Court of Appeals of
West Virginia, pursuant to West Virginia Code § 51-1A-1 et seq.
(2000).
          CHARLESTON AREA MEDICAL CENTER v. PARKE-DAVIS               3
                                   I.

                  Question of Law to be Answered

   The following question of West Virginia law may be determinative
in the pending case and is presented to the Supreme Court of Appeals
of West Virginia:

       Does the law of West Virginia allow a tortfeasor to nego-
    tiate and consummate a settlement with the injured party on
    behalf of itself, before any lawsuit is filed, which would
    benefit also another party claimed to be a second joint tort-
    feasor, and thereafter obtain a judgment against the second
    joint tortfeasor in an action for contribution, although the
    second joint tortfeasor was not a party to, not aware of, and
    had no notice of the settlement.

                                  II.

                          Statement of Facts

   On March 17, 1998, a two-year old child was admitted to the emer-
gency room of a hospital owned and operated by plaintiff Charleston
Area Medical Center, Inc. (CAMC). The child was having seizures.
The emergency room physician instructed the nursing staff to admin-
ister 150 milligrams of Cerebyx, a prescription drug used to treat sei-
zures. Cerebyx is manufactured by defendant Parke-Davis, now a
division of Pfizer, Inc.

   A nurse assisting with the child’s care obtained three vials of Cere-
byx. At the center of the label it read "50 mg PE/mL" and at the bot-
tom of the label it read "10 mL Vial." The nurse drew the entire
contents of the three vials into three separate syringes. Another nurse
administered the three syringes, containing a total of 1500 milligrams
of Cerebyx. The pre-trial order, J.A. 86, states a total of "2250 mg."
The difference in amount of the overdose is inconsequential. The
child died as a result of the overdose.

  Sometime after the child’s death, a lawyer for the child’s estate
contacted CAMC to discuss settlement. CAMC agreed to settle the
4         CHARLESTON AREA MEDICAL CENTER v. PARKE-DAVIS
claim for $2.5 million before a formal lawsuit was filed. The Circuit
Court of Kanawha County approved the settlement following a hear-
ing on July 15, 1998. Defendants Parke-Davis and Pfizer were not
present at any of the settlement negotiations or at the Circuit Court
hearing, and they were not aware of the settlement.

   CAMC then entered arbitration with St. Paul Insurance Company,
the insurer for one of the nurses. After arbitration, CAMC and St.
Paul entered into a confidential settlement agreement.

   On July 13, 2000, CAMC filed a complaint against Parke-Davis
and Pfizer in the Circuit Court of Marshall County, alleging that the
Cerebyx label was misleading and defective. CAMC asserted a num-
ber of claims, including a claim for contribution on account of the
$2.5 million paid to the family of the child. On August 15, 2000, the
defendants removed the case to the United States District Court for
the Northern District of West Virginia. The defendants moved to dis-
miss the contribution claim, arguing that contribution was barred
under Howell v. Luckey, 518 S.E.2d 873 (W. Va. 1999). CAMC
argued that Howell did not apply because no suit was ever filed in this
case and therefore the defendants could not have been joined as third-
party defendants. The district court denied the motion and the case
proceeded to trial.

   On December 3, 2001, a jury returned a verdict for CAMC. The
jury awarded damages of $1.75 million. The jury also assigned fault,
finding Parke-Davis 70% at fault and the nurses at CAMC 30% at
fault. The district court entered its order on December 14, 2001, in
favor of CAMC and against Pfizer and Parke-Davis in the amount of
$1.75 million, on account of contribution for a part of the $2.5 million
settlement paid by CAMC to the family of the child, which was
reduced by a credit of $875,000.00

   Following the appeal of Parke-Davis and Pfizer from the said order
of the district court of December 14, 2001, we referred the question
stated in Part I of this order to the Supreme Court of Appeals of West
Virginia, stating in that order that "the settlement agreement between
the child’s estate and CAMC releases all joint tort feasors from liabil-
ity for the child’s death" and that "this last fact was not found in the
record but CAMC’s attorney stated this in oral arguement." Upon
          CHARLESTON AREA MEDICAL CENTER v. PARKE-DAVIS                  5
objection by Parke-Davis and Pfizer to that statement, and with leave
of the Supreme Court of Appeals of West Virginia, we remanded the
case to the district court "with instructions that it inquire into and take
all necessary action in order to ascertain which persons, firms or cor-
porations were released from liability on account of the death of said
infant by the order of the circuit court of Kanawha County, entered
July 15, 1998."

   After making such inquiry, the district court made its findings in
writing, which are part of the record in this case, which findings con-
cluded that:

     . . . the parties released because of the settlement agreement
     and release dated July 15, 1998 by Circuit Court of Kana-
     wha County are St. Paul Fire & Marine Insurance Company,
     Critical Care Nursing, Inc., Patricia Gravely, and Charleston
     Area Medical Center as well as those additional parties
     identified in the settlement agreement and release as . . .
     ‘Releasees’ past, present, and future officers, directors,
     stockholders, attorneys, attorneys-in-fact, agents, servants,
     representatives, employees, subsidiaries, affiliates, member
     companies, partners, predecessors and successors in interest,
     and assigns and all other persons, firms or corporations with
     whom any of the former have been, are now, or may hereaf-
     ter be affiliated’ which group does not include the defen-
     dants.

  The "defendants" referred to at the end of the district court’s just-
quoted order do not include Parke-Davis and Pfizer.

  Defendants Parke-Davis and Pfizer argue on appeal that the district
court erred because, on these facts, an action for contribution was not
available to CAMC under West Virginia law.

                                   III.

   We acknowledge that, pursuant to West Virginia Code § 51-1A-
6(a)(3) (2000), the Supreme Court of Appeals of West Virginia may
reformulate the question of law presented.
6         CHARLESTON AREA MEDICAL CENTER v. PARKE-DAVIS
    The names and addresses of counsel of record are as follows:

Parke-Davis, a division of Warner Lambert,
and Pfizer, Inc., its successor by merger:

Diana Everett
Amy Marie Smith
Steptoe & Johnson PLLC
Bank One Center
P.O. Box 2190
Clarksburg, WV 26302

Charleston Area Medical Center:

Shawn Patrick George
George & Lorsensen PLLC
1526 Kanawha Boulevard, East
Charleston, WV 25311

   Let the clerk forward a copy of this order, under the official seal
of this court, to the Supreme Court of Appeals of West Virginia and
thereafter forward to the Supreme Court of Appeals of West Virginia
such additional papers as that court may require, including, but not
exclusively, the record in this case, or any portion thereof, or copies
of the same.

 With the concurrences of Judge WILKINSON and Judge NIE-
MEYER.

                                                /s/ H.E. Widener, Jr.
                                                    H.E. Widener, Jr.
                                          United States Circuit Judge
                                                            Presiding
                                                        For the Court
