         SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
                       IN THE OFFICIAL REPORTERS

                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


HOUSTON BIGELOW, et al.,

                       Plaintiffs,

                       v.                            Civil Action No. 10-cv-1471 (RLW)

WASHINGTON HOSPITAL CENTER
CORPORATION, et al.,

                       Defendants.


                                     MEMORANDUM OPINION 1

       Plaintiff Houston Bigelow (“Bigelow”), in both his individual capacity and as the

personal representative of the estate of Mary Bigelow, filed this medical malpractice and

wrongful death action against Defendant Washington Hospital Center (“WHC”), as well as

Defendants Elwin Bustos, M.D. and Doris Pablo-Bustos, M.D. (the “Bustos Defendants”), based

on the medical treatment that Mary Bigelow received at WHC in September 2008. 2 Bigelow has

since reached a settlement with WHC, and WHC now seeks to be dismissed from this action,

which would leave the Bustos Defendants as the sole remaining defendants. At the same time,


1
         This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or, alternatively, to assist in any potential
future analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court
has designated this opinion as “not intended for publication,” but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion
by counsel. Cf. FED. R. APP. P. 32.1. Nonetheless, as stated in the operational handbook adopted
by our Court of Appeals, “counsel are reminded that the Court’s decision to issue an unpublished
disposition means that the Court sees no precedential value in that disposition.” D.C. Circuit
Handbook of Practice and Internal Procedures 43 (2011).
2
         Bigelow subsequently dismissed his wrongful death claim from this action, leaving only
the medical malpractice claim advanced through Count I. (Dkt. No. 61).
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         SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
                       IN THE OFFICIAL REPORTERS

the Bustos Defendants request that, following trial in this matter, the Court make a determination

as to WHC’s negligence, in order to preserve their ability to claim a pro rata credit against any

potential judgment that might be rendered against them.

       Presently before the Court are: (1) the Bustos Defendants’ Motion for Judicial

Determination of Joint Tortfeasor Status of Defendant WHC (Dkt. No. 78); (2) the Bustos

Defendants’ Motion for Leave to File an Amended Answer (Dkt. No. 79); and (3) WHC’s

Motion for Dismissal (Dkt. No. 82). Having carefully considered the parties’ respective filings,

and for the reasons set forth herein, the Court will GRANT the Bustos Defendants’ motions and

will DENY WITHOUT PREJUDICE WHC’s motion for dismissal.



                                           ANALYSIS

       The parties’ recent flurry of filings all stem from a single, albeit significant, development

in this case: Bigelow and WHC reached a settlement of Bigelow’s claims against WHC. Not

surprisingly, the terms of that settlement included an agreement that Bigelow would dismiss

WHC from this action, in exchange for payment of some amount of monetary consideration. But

to accomplish WHC’s dismissal by stipulation under Federal Rule of Civil Procedure 41(a), all

of the parties who have appeared in the action must consent and sign the stipulation, FED. R. CIV.

P. 41(a)(1)(A)(ii), and it appears that the Bustos Defendants were not willing to consent to

WHC’s dismissal—at least not until they preserve their ability to seek a pro rata offset against

any future judgment based on WHC’s potential liability as a joint tortfeasor.          The Bustos

Defendants ultimately filed a motion with the Court seeking such relief, which, in turn, led WHC

to file its own motion requesting dismissal from the case, in view of its settlement with Bigelow.

As the only remaining obstacle to WHC’s dismissal appears to be the issue of whether the Bustos


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                        IN THE OFFICIAL REPORTERS

Defendants can properly request a determination as to WHC’s liability without filing a formal

cross-claim, the Court will tackle that issue first.

        Under District of Columbia law, “if a verdict is obtained against a nonsettling tortfeasor

and it is also determined that the settling tortfeasor should contribute, the non-settling tortfeasor

is liable only for one-half of the verdict, i.e., a pro rata portion of the judgment.” Gilberg v.

MetLife, Inc., 734 F. Supp. 2d 5, 7-8 (D.D.C. 2010) (citing Martello v. Hawley, 300 F.2d 721,

724 (D.C. Cir. 1962)). 3 To this end, the D.C. Court of Appeals has explained that non-settling

defendants can preserve and safeguard their claim for a pro rata credit in one of two ways—“by

asserting a cross-claim for contribution . . . or an equivalent request for a determination by the

jury of the settling defendants’ negligence.” Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 188

(D.C. 1990) (emphasis added).       This latter approach is precisely what the Bustos Defendants

propose here.     Notably, WHC—the settling defendant in this case—does not oppose this

approach and “takes no position” with respect to the Bustos Defendants’ requested relief. (Dkt.

No. 81 at 2). Bigelow, on the other hand, argues that the Bustos Defendants cannot proceed in

this fashion, but should instead be required to file a cross-claim or a third-party claim for

contribution against WHC. (See Dkt. No. 84). The Court disagrees.

        It is well settled that “a defendant need not have filed a crossclaim against the settling

defendant to preserve the right to a pro rata credit as long as the jury determines the liability of

the settling party.”    District of Columbia v. Shannon, 696 A.2d 1359, 1367 (D.C. 1997)

(emphasis added). Stated differently, “provided a plaintiff has adequate notice[,] a special

interrogatory requesting the jury to determine the liability of a settling defendant will suffice to

3
       This type of pro rata offset or reduction is sometimes referred to as a “Martello credit.”
On the other hand, if “a trier of fact has exonerated the settling defendant, only pro tanto (the
amount of the settlement) reduction is available.” Hall v. General Motors Corp., 647 F.2d 175,
184 (D.C. 1980) (citing Snowden v. D.C. Transit Sys., 454 F.2d 1047 (D.C. Cir. 1971)).
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         SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
                       IN THE OFFICIAL REPORTERS

preserve a nonsettling defendant’s pro rata credit for the settler’s imputed share of the jury’s

assessment of total liability.” Id.; see also Paul v. Bier, 758 A.2d 40, 45 (D.C. 2000). To require

otherwise, and to force a non-settling defendant to bring a settling defendant back into a lawsuit

through a cross-claim, “would seriously undermine the incentive of parties to settle their claims.”

Gilberg, 734 F. Supp. 2d at 8; Farmer v. Mt. Vernon Realty, Inc., 720 F. Supp. 223, 225 (D.D.C.

1989). Such is the case here. In settling with Bigelow, WHC “bought its peace.” Martello, 300

F.2d at 724. Forcing the Bustos Defendants to now file a cross-claim against WHC to preserve

their right to a pro rata credit on any future liability determination, as Bigelow urges, would

substantially prejudice WHC—which would be forced to expend substantial time and expense in

continuing to defend against claims it has settled—and would seriously undermine the important

public policy favoring the efficient settlement of claims.

       Bigelow’s remaining arguments are equally unconvincing.           First, Bigelow points to

similar malpractice case being litigated by his attorneys, in which the non-settling defendant filed

a cross-claim against the settling defendant to preserve its right to a contribution claim. But

simply because that defendant chose to proceed by way of a cross-claim—in lieu of requesting a

determination by the jury of the settling defendant’s negligence—does not mean that the Bustos

Defendants cannot opt to proceed differently and pursue that alternative approach here.

Additionally, Bigelow suggests that he will be prejudiced if the Bustos Defendants are not

required to file a cross-claim because he was never informed in discovery that they contended

WHC was a joint tortfeasor. (Dkt. No. 84 at 5). But Bigelow’s Amended Complaint itself

expressly alleges that WHC and the Bustos Defendants are “liable to him jointly and severally,”

(Am. Compl. at ¶ 40), which tends to undermine the notion that he is now somehow surprised

by this development. In any event, given the procedural posture of this case, permitting Bustos


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         SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
                       IN THE OFFICIAL REPORTERS

Defendants to ultimately submit the question of WHC’s potential joint liability to the trier of fact

will not prejudice Bigelow. Magistrate Judge Robinson recently extended the discovery period

as between Bigelow and the Bustos Defendants through April 2013, (see Dkt. No. 76), which

will allow Bigelow and/or the Bustos Defendants to conduct any additional discovery they

believe might be necessary in light of these developments. In addition, since no trial date has

been set, the parties will have ample opportunity to tailor their claims and defenses accordingly.

Simply put, the Bustos Defendants’ motion provides Bigelow with more than fair notice that

they intend to seek a pro rata credit against any potential verdict, thereby obviating any potential

prejudice toward Bigelow. See Washington, 579 A.2d at 188 (“[A] plaintiff facing possible

application of a Martello credit should have fair notice that the non-settling defendant plans to

seek a pro rata reduction of the verdict on the ground that his settling counterparts were

negligent, and an opportunity to build a rebuttal case.”).

       Accordingly, in the event that the jury ultimately finds the Bustos Defendants liable in

this case, the Court grants the Bustos Defendants’ request to have the jury also determine,

through a special verdict form, whether WHC should also be found liable. 4

       The Bustos Defendants also seek leave to amend their Answer to expressly assert an

additional affirmative defense: that they “assert that the Defendants named in Plaintiffs’

Amended Complaint are joint tortfeasors and, in the event of a jury verdict for the Plaintiffs and

against one or more of them, [the Bustos Defendants] reserve the right to seek a pro rata

reduction upon settlement by any Defendant.” (Dkt. No. 79 at 2). Under Federal Rule of Civil

Procedure 15(a), leave to amend should be “freely given” absent “any apparent or declared


4
        While the Bustos Defendants actually request a “judicial determination” as to WHC’s
joint tortfeasor status, the Court believes that the question is more properly decided by a jury
than by the Court.
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         SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
                       IN THE OFFICIAL REPORTERS

reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis,

371 U.S. 178, 182 (1962); see also Davis v. Liberty Mutual Ins. Co., 276 U.S. App. D.C. 394,

871 F.2d 1134, 1136-37 (D.C. Cir. 1989) (“It is common ground that Rule 15 embodies a

generally favorable policy toward amendments.”).        Bigelow does not expressly oppose the

Bustos Defendants’ request to amend, and even if the Court were to construe Bigelow’s earlier

arguments as an opposition to the Bustos Defendants’ motion to amend as well, those arguments

are unconvincing for the reasons already stated. Accordingly, the Court will permit the Bustos

Defendants to amend their Answer to assert their additional affirmative defense.

       With those issues resolved, only WHC’s motion to dismiss remains. However, the Court

expects that its resolution of the above issues should enable the parties to overcome their present

impasse in reaching a stipulation for WHC’s dismissal from this case under Federal Rule 41(a). 5

At this juncture, therefore, the Court will deny WHC’s motion without prejudice. The parties are

directed to further meet and confer, and to submit, by no later than January 4, 2013, either: (a) a

stipulation dismissing WHC from this action, or (b) a joint status report summarizing any

remaining impediments to such an outcome.




5
        According to WHC, the Bustos Defendants would not consent to WHC’s dismissal “until
such time that that the joint tortfeasor status was resolved as to Washington Hospital Center.”
(Dkt. No. 82 at 2). Similarly, in his “Opposition” to WHC’s Motion to Dismiss, Bigelow
asserted that WHC’s dismissal was premature because the Court should rule on the Bustos
Defendants’ motion before dismissing WHC as a settling defendant. (See Dkt. No. 86).
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        SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION
                      IN THE OFFICIAL REPORTERS

                                    CONCLUSION

      For the foregoing reasons, the Bustos Defendants’ Motion for a Determination of WHC’s

Joint Tortfeasor Status and Motion for Leave to File an Amended Answer are GRANTED, and

WHC’s Motion to Dismiss is DENIED WITHOUT PREJUDICE. An Order accompanies this

Memorandum Opinion.
                                                               Digitally signed by Judge Robert L.
                                                               Wilkins
                                                               DN: cn=Judge Robert L. Wilkins,
                                                               o=U.S. District Court,
Date: December 21, 2012                                        ou=Chambers of Honorable Robert
                                                               L. Wilkins,
                                                               email=RW@dc.uscourt.gov, c=US
                                                               Date: 2012.12.21 17:55:19 -05'00'



                                                ROBERT L. WILKINS
                                                United States District Judge




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