Rio Mar Associates, LP, SE v. UHS of Puerto Rico, Inc. ( 2008 )


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  •              United States Court of Appeals
    For the First Circuit
    Nos. 07-1868
    07-2005
    RÍO MAR ASSOCIATES, LP, SE, ET AL.,
    Defendants/Cross-Plaintiffs, Appellants,
    v.
    UHS OF PUERTO RICO, INC., D/B/A
    HOSPITAL SAN PABLO DEL ESTE,
    Cross-Defendant, Appellee,
    __________________
    MYRELLA S. FIORENTINO,
    Plaintiff, Appellee.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Pérez-Giménez, Senior U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Selya, Senior Circuit Judge,
    and Keenan,*Senior District Judge.
    Jennifer S. Carroll for appellants.
    Gladys E. Guemarez, with whom Law Offices of Gladys E.
    Guemarez was on brief, for cross-defendants, appellees.
    Eric A. Tulla, with whom Rivera, Tulla & Ferrer,
    Guillermo Ramos Luiña, Edward A. Moss, and Shook, Hardy & Bacon
    were on brief, for plaintiff, appellee.
    *
    Of the Southern District of New York, sitting by designation.
    April 10, 2008
    SELYA,     Senior     Circuit       Judge.    The   district    court
    bifurcated an action but, after the first-phase trial had been
    completed, misinterpreted the effect of the jury's verdict.                  That
    error prompted a series of rulings which, among other things,
    foreclosed a second-phase trial.                  Because these rulings were
    erroneous and prejudiced substantial rights, we reverse one order,
    vacate another, and remand for further proceedings consistent with
    this opinion and with Puerto Rico law governing the allocation of
    damages between settling and non-settling successive tortfeasors.
    I.   BACKGROUND
    Edward and Myrella Fiorentino sojourned from Arizona to
    Puerto Rico to stay at the Westin Río Mar Beach Hotel.                 On December
    7, 2000, while swimming in the ocean, Edward was struck by a wave
    which   rendered       him    unconscious.          Following   his    shore-side
    resuscitation     by    a    group   of    vacationing    doctors,     lifeguards
    realized that they lacked proper equipment for stabilization. When
    emergency    medical        personnel     finally    arrived,   they    placed   a
    supportive collar around Edward's neck and transported him to the
    Hospital San Pablo del Este (the Hospital).
    Although a scan taken that same day indicated that a
    cervical vertebra had been broken, the medical staff failed to
    treat the fracture. In the meantime, fragments pressed on Edward's
    spinal cord, causing swelling and nerve damage.                 Myrella had him
    transferred to a hospital in Miami but, despite prompt surgical
    -3-
    intervention      there,        Edward    emerged     from     his    ordeal    as    a
    quadriplegic.
    Invoking diversity jurisdiction, 
    28 U.S.C. § 1332
    (a)(1),
    the Fiorentinos filed suit in the United States District Court for
    the District of Puerto Rico against the hotel and the entity that
    owned it (collectively, the Hotel) and against the Hospital.                        With
    respect to the Hotel, the amended complaint alleged negligent
    failure   to     warn   of    hazardous     beach    conditions       and    negligent
    entrustment      of     beach    safety    to     untrained     and    ill-equipped
    lifeguards.      With respect to the Hospital, the amended complaint
    alleged, among other things, medical malpractice.
    Edward died before trial for reasons unconnected with the
    accident.      His wife, as personal representative of his estate and
    in her own behalf, pressed forward with the suit (accordingly, we
    henceforth refer to her singularly as the plaintiff).                       Meanwhile,
    the Hotel and the Hospital filed cross-claims against each other.
    See Fed. R. Civ. P. 13(g).
    As    trial      approached,    the     Hospital    settled      with    the
    plaintiff for $1,400,000, and the district court granted a motion
    to dismiss the amended complaint as to that defendant. The Hotel's
    cross-claim remained pending.             The court proceeded effectively to
    bifurcate what remained of the action, reserving the cross-claim
    for a separate trial.
    -4-
    Before the first-phase trial commenced, the Hotel moved
    to compel disclosure of the release, settlement agreement, and
    related documents (collectively, the Release) memorializing the
    settlement between the plaintiff and the Hospital.         The plaintiff
    opposed   the   motion.   The   court   did   not   act   on   the   matter
    immediately, and the first-phase trial got underway.
    The trial itself showcased the plaintiff's claims against
    the Hotel (the Hospital did not participate).             At the charge
    conference, the judge reiterated how he had decided to structure
    the proceedings, advising the Hotel that it could "repeat against
    the hospital" in the second-phase trial all claims "for any damages
    that the hospital may have caused."      The judge then stated:
    Basically, what I have done in this case is .
    . . a bifurcation. I have tried plaintiffs'
    causes of action against the hotel first.
    Once that is over, if there is any reason to
    go forward with [the] cross claim against the
    hospital, then we'll have another jury trial,
    and we'll go [forward with the] cross claim
    against the hospital.
    Later that day, the court charged the jury. Pertinently, the court
    instructed:
    A person who by his negligence causes
    physical   injuries    to   another  is   also
    responsible   for   any   additional  injuries
    suffered by that person as a result of the
    medical services provided to treat the
    original injuries.      Nothing precludes the
    person who caused the original injuries to
    recover from the hospital who provided the
    medical services those additional injuries
    caused by their insufficient care.
    -5-
    If you find that the [Hotel] defendants .
    . . are responsible for Mr. Fiorentino's
    accident on December 7, 2000, you must also
    determine that they are liable for all damages
    sustained by him as a consequence of the
    medical services provided to him to treat the
    physical injuries suffered at the beach of the
    Westin Río Mar Beach Hotel . . . .
    After deliberations, the jury returned a verdict in favor of the
    plaintiff in the amount of $1,844,000.
    The    district    court   subsequently          granted     the   Hotel's
    pending motion for disclosure of the Release.                   When produced, the
    settlement accord proved to be fashioned along the lines of a
    Pierringer release.      See Pierringer v. Hoger, 
    124 N.W.2d 106
    , 112
    (Wis.   1963)     (interpreting    such      a     release    as    discharging       the
    settling    defendant    entirely      and       discharging       the   non-settling
    defendant    from    responsibility          for    the      settling     defendant's
    proportionate share of liability).                  Such "proportionate share"
    releases are not uncommon.         See, e.g., McDermott v. AmCLYDE, 
    511 U.S. 202
    , 205, 217 (1994); In re Exxon Valdez, 
    229 F.3d 790
    , 797-98
    (9th Cir. 2000); Austin v. Raymark Indus., Inc., 
    841 F.2d 1184
    ,
    1188-91 (1st Cir. 1988).
    The Release purported not only to free the Hospital from
    any   and   all   further     liability      to    the    plaintiff      but   also    to
    discharge it from liability for any associated third-party claims.
    -6-
    An additional provision in the Release assured the Hospital of
    indemnification should any such claim be pressed.2
    Armed with the Release, the Hotel filed a flurry of post-
    trial motions, including a motion for a new trial, see Fed. R. Civ.
    P. 59(a), and a motion to alter or amend the verdict by, say, a
    dollar-for-dollar setoff of the settlement amount, see Fed. R. Civ.
    P. 59(e).     The district court denied both motions.     The court's
    rejection of the new trial motion is not seriously disputed on
    appeal. With respect to the Rule 59(e) motion, the court expressed
    a belief that the Hotel, in filing it, had misconstrued the import
    of the jury's verdict.     The court wrote:
    During the trial, the jury was only
    considering [the Hotel's] participation in the
    event that caused plaintiff's damages.     The
    only defendant at trial was [the Hotel]. The
    evidence that was presented pertained to [the
    Hotel's] negligence and involvement in the
    events leading to plaintiff's injury.      The
    jury was instructed to consider the damages
    only as to [the Hotel] . . . .      Therefore,
    this is not a situation of double recovery
    because the jury was only considering the
    damages as to [the Hotel].
    2
    Specifically the Release stated:
    Plaintiffs shall indemnify and hold harmless the
    settling Defendants . . . from and against all claims,
    damages, and losses arising out of any claim made by an
    entity to recover any amounts from the settling
    Defendants which arise out of the incident alleged in the
    Complaint, including any claims for medical expenses and
    any and all claims for subrogation.
    -7-
    In line with this understanding, the court entered judgment against
    the Hotel for the total amount of the verdict, denied its motion
    for a setoff, and dismissed its cross-claim.   These timely appeals
    ensued.
    II.   ANALYSIS
    Our analysis is divided into three parts.    We begin by
    addressing the district court's rulings during the proceedings that
    followed the first-phase trial.    We then canvass the case law to
    determine the proper allocation of damages between settling and
    non-settling tortfeasors in a successive tortfeasor case governed
    by Puerto Rico law.      Lastly, we turn to the remedy for the
    discerned error and furnish a roadmap for further proceedings.
    A.   The Post-Trial Rulings.
    In the final analysis, the Hotel's assignments of error
    hinge upon the contention that the district court misconstrued the
    legal import of the first-phase verdict — a misconception that it
    says tainted the post-trial rulings.    The most critical of those
    rulings was made in connection with the Rule 59(e) motion.
    Ordinarily, we review a district court's disposition of
    a Rule 59(e) motion for abuse of discretion.       See Vasapolli v.
    Rostoff, 
    39 F.3d 27
    , 36 (1st Cir. 1994).       But this is not the
    ordinary circumstance.   Where, as here, the disposition of a Rule
    59(e) motion depends entirely on a question of law, our review is
    plenary.   See Pérez v. Volvo Car Corp., 
    247 F.3d 303
    , 319 (1st Cir.
    -8-
    2001); see also Charlesbank Equity Fund II v. Blinds to Go, Inc.,
    
    370 F.3d 151
    , 158 (1st Cir. 2004) ("An error of law is, of course,
    always an abuse of discretion.").     Since the cross-claim is at
    bottom a legal claim like any other, its dismissal is examined
    under the de novo standard of review.        See Ruiz v. Bally Total
    Fitness Holding Corp., 
    496 F.3d 1
    , 5 (1st Cir. 2007); see also
    United States v. Hardage, 
    985 F.2d 1427
    , 1433 (10th Cir. 1993)
    (applying de novo standard to lower court's dismissal of cross-
    claim).
    The underlying legal question is nuanced, and it is
    understandable why the able district judge struggled with it.     We
    have the luxury of time and, after careful consideration of the
    record, we conclude that both the district court's disposition of
    the Rule 59(e) motion and its concomitant dismissal of the cross-
    claim rest upon an incorrect interpretation of the effect of the
    first-phase verdict.   We elaborate below.
    The jury instruction, quoted above, scarcely could have
    been more lucid in its exposition of an uncontroversial rule of
    Puerto Rico tort law: that tortfeasors must answer not only for the
    damages immediately caused by their own negligence but also for any
    foreseeable aggravation thereof caused by the subsequent negligence
    of others. See Corey Lanuza v. Medic Emerg. Specialties, Inc., 
    229 F. Supp. 2d 92
    , 100 (D.P.R. 2002) ("A person is responsible not
    only for those damages directly caused by his or her own negligence
    -9-
    but also for the aggravation of injuries brought about by the
    negligence of a third party in the course of providing medical
    treatment."); Merced v. Gobierno de la Capital, 
    85 D.P.R. 552
    , 556-
    57 (P.R. 1962) (same).      No one claims that this instruction is an
    incorrect statement of law, nor is there the slightest reason to
    believe that the jury did not scrupulously adhere to it.            In any
    event,     jurors    are   presumed    to    follow   the   trial   court's
    instructions.       See Richardson v. Marsh, 
    481 U.S. 200
    , 206 (1987);
    United States v. Sampson, 
    486 F.3d 13
    , 39 (1st Cir. 2007).
    The district court's explanation of how the instruction
    functioned, quoted above, was accurate.               The court, however,
    appears to have misconceived the import of the ensuing verdict.
    Applying the instruction to the facts of this case, the verdict
    must be presumed to have encompassed all the damages caused by both
    the Hotel and the Hospital.      But the district court seems to have
    construed this fact as equivalent to a finding that the Hospital
    bore no responsibility for any part of those damages.          That is not
    correct.
    Seeking to avoid the inevitable result of this reasoning,
    the appellees asseverate that the Hotel failed to interpose a
    timely objection to the instruction, see Fed. R. Civ. P. 51(d)(2),
    and that, therefore, the claim of error is forfeit. The appellees'
    premise is sound — no such contemporaneous objection was lodged —
    but the conclusion that the appellees draw is insupportable.
    -10-
    The Hotel has not challenged the instruction itself
    (indeed, as we have said, no party has identified any flaw in the
    instruction).     The challenge here concerns the district court's
    interpretation of the effect of that instruction — no more and no
    less.   That interpretation did not emerge until after the first-
    phase verdict had been returned.
    In such a situation, demanding that a party object at the
    conclusion of the charge in order to preserve its rights would be
    tantamount   to   demanding   that   a   party   anticipate   a   future
    hermeneutic misstep on the part of the trial court.       The law does
    not require parties to possess that degree of clairvoyance.         Cf.
    United States v. Ladd, 
    885 F.2d 954
    , 961 (1st Cir. 1989) (remarking
    that "robes and gavels are the tools of a jurist's trade — not tea
    leaves or crystal balls").
    In an effort to dilute the force of the district court's
    interpretive bevue, the appellees emphasize a number of facts (such
    as expert testimony that Edward's fracture was so severe that it
    might have rendered him a quadriplegic even if he had received the
    best of care thereafter) suggesting that the jury might have
    concluded that the Hotel was to be held responsible only for the
    direct consequences of its own negligence.       Taken to its logical
    conclusion, this argument suggests that the jury might have awarded
    $1,844,000 even while excluding from the amount awarded any damages
    flowing from shortcomings in Edward's care at the Hospital.
    -11-
    That is not enough to render the court's error harmless.
    The possibility that the jury could have followed such a path, as
    opposed to persuasive evidence that the jury actually did so, is
    insufficient to overcome the Hotel's presumptive right to pursue
    its cross-claim and motion for setoff.              See United States v.
    Carney,   
    387 F.3d 436
    ,   449   (6th   Cir.    2004)   (observing   that
    "speculation, conjecture, empty hypothesizing, creative guesswork,
    and wishful thinking" are insufficient to overcome presumption);
    Breeden v. ABF Freight Sys., Inc., 
    115 F.3d 749
    , 753-54 (10th Cir.
    1997) (holding in multiple defendant tort context that presumption
    was not overcome by mere speculation that jury ignored specific
    instruction).
    To say more on this point would be supererogatory.            We
    conclude that the district court erred as a matter of law in its
    assessment of the effect of its own instruction and, thus, erred in
    its interpretation of what the first-phase verdict signified.
    Under the instruction as given, the award encompassed both the
    damages attributable to the Hotel's beachfront negligence and the
    aggravating     damages   attributable     to     the   Hospital's   alleged
    malpractice. Consequently, the district court erred in foreclosing
    further litigation; the Hotel was entitled to some process by which
    it could test how the plaintiff's total damages — $1,844,000 —
    should be allocated as between it and the Hospital.            The district
    -12-
    court should not have denied the Rule 59(e) motion or dismissed the
    cross-claim without pursuing that inquiry.
    B.    Allocation of Damages.
    The Release, by its terms, purports to free the Hospital
    from any further obligations arising out of Edward's injuries.                   A
    question   nonetheless     remains   as     to    its   overall     effect.    The
    plaintiff and the Hospital cannot by contracting between themselves
    deny a third party rights that the third party (here, the Hotel)
    enjoys under the law.        We must, therefore, go beyond the four
    corners of the Release in order to determine the rights of the
    parties inter sese.
    Simply   put,    the   pivotal        question    here   concerns   the
    allocation   of   damages    as   between         settling    and    non-settling
    tortfeasors in a successive tortfeasor case.                 Because this is an
    action brought under diversity jurisdiction, the appropriate rule
    must be gleaned from Puerto Rico law, not federal law.                         See
    Villarini-García v. Hosp. del Maestro, 
    112 F.3d 5
    , 8 (1st Cir.
    1997).
    The protagonists recommend different models for the rule
    of decision.      The appellees contend that the Hotel's right of
    contribution is limited to that proportion of the award (if any)
    that can be attributed to the Hospital's negligence.                  See Austin,
    
    841 F.2d at 1190
     (collecting cases adhering to this "proportionate
    share" view).     The Hotel argues instead that there should be a
    -13-
    dollar-for-dollar setoff of the settlement amount ($1,400,000)
    against   the    verdict   amount   ($1,844,000),     thus    limiting   its
    responsibility to the balance ($444,000).            See, e.g., Brown v.
    United States, 
    838 F.2d 1157
    , 1161-62 (11th Cir. 1988) (applying
    dollar-for-dollar setoff paradigm); In re Piper Aircraft, 
    792 F. Supp. 1189
    , 1194 (N.D. Cal. 1992) (same).             Some jurisdictions
    dictate this choice by statute.         See, e.g., 
    Neb. Rev. Stat. § 25
    -
    21, 185.11 (1992) (codifying "proportionate share" rule); 
    N.Y. Gen. Oblig. § 15-108
    (a)   (McKinney     2008)   (entitling    non-settling
    defendant to a setoff equal to the settlement amount or the
    settling defendant's equitable share of liability, whichever proves
    greater).     Puerto Rico has not enacted such a statute, so our task
    is to make an informed prophecy as to which of these rules the
    Puerto Rico Supreme Court would probably choose in a successive
    tortfeasor situation.       See Blinzler v. Marriott Int'l, Inc., 
    81 F.3d 1148
    , 1151 (1st Cir. 1996).
    The case law is less than transparently clear.             One
    potentially useful precedent, much touted by the Hotel, is our
    decision in Villarini-García.          There, we interpreted Puerto Rico
    law as favoring a dollar-for-dollar setoff in a case concerning
    vicarious liability. See Villarini-García, 
    112 F.3d at 8
    . In that
    context, a dollar-for-dollar setoff rule makes perfect sense; after
    all, when one tortfeasor is vicariously liable for the actions of
    another, the same damages are by definition attributed to each of
    -14-
    the two tortfeasors and the prevention of a double recovery is a
    paramount concern.   See 
    id.
    Another potentially useful precedent, much touted by the
    appellees, is the Puerto Rico Supreme Court's decision in Szendrey
    v. Hospicare, 
    158 D.P.R. 648
     (P.R. 2003).        There, the court
    endorsed the concept of proportionate share setoffs in a case
    involving joint tortfeasors, one of whom had obtained a Pierringer
    release prior to trial.   See 
    id. at 657
    ; see also Toledo v. Hosp.
    Nuestra Señora de la Guadalupe, 167 D.P.R. ___, ___, 
    2006 TSPR 47
    ,
    2006 JTS 56 at 1115-17 (P.R. 2006) (reaffirming the Szendrey
    approach).
    None of these cases directly controls the situation at
    hand.   Here, we are confronted with a multiple tortfeasor scenario
    that does not fall precisely under either the rubric of vicarious
    liability or that of joint tortfeasor liability. Unlike Villarini-
    García, in which the defendants' liability arose from the same
    conduct (one was vicariously liable for the other's acts and
    omissions through a master-servant relationship), the Hotel and the
    Hospital are each alleged to have been guilty of independently
    tortious conduct.    And unlike Szendrey, in which each of the two
    joint tortfeasors directly contributed to the same harm, the harms
    for which the Hotel and the Hospital are allegedly responsible
    overlap, but they are not congruent; while the Hotel became liable
    for the entire bundle of harms (that is, its negligence made it
    -15-
    liable not only for the damages flowing immediately therefrom but
    also    for    whatever     damages      were    caused   by    the   Hospital's
    independently tortious conduct), the Hospital never became liable
    under any theory for the entire bundle of harms (that is, it never
    became liable for the pre-hospitalization damages attributable
    exclusively to the Hotel's antecedent negligence).
    This imbalance, which results from the operation of a
    special tort rule dealing with the aggravation of injuries, is
    important.         Both commentators and judges have recognized the
    distinctive nature of this type of situation and have labeled
    parties     like    the    Hotel   and    the    Hospital      "independent"   or
    "successive" tortfeasors, thus distinguishing them from garden-
    variety joint tortfeasors.         See, e.g., 6 Jerome H. Nates et al.,
    Damages in Tort Actions § 51.03[1][d] (2007); see also McInnis v.
    A.M.F., Inc., 
    765 F.2d 240
    , 250 n.10 (1st Cir. 1985).                    It is,
    therefore,      apparent    that   successive      tortfeasor      liability   is
    doctrinally distinct from joint tortfeasor liability.
    We have considered these differences and have studied the
    two alternative approaches to possible setoffs.                 We believe that
    the Puerto Rico Supreme Court would be more likely to employ
    Szendrey's proportionate share rule in a successive tortfeasor
    case.   Our reasons are threefold.
    In the first place, the analogue to a joint tortfeasor
    situation      is    a    persuasive      one.       Easily      separable     and
    -16-
    distinguishable tortious acts may be attributed to each tortfeasor.
    See generally W. Page Keeton et al., Prosser and Keeton on Torts §
    52, at 352 (5th ed. 1984).                Where successive tortfeasors are
    concerned,   however,    the    initial      tortfeasor     is,    under   certain
    circumstances,   accountable        for    tortious    conduct     of   the   later
    tortfeasor in order "to ensure that a victim of negligence is not
    left without recourse due to the inability to set apart the origin
    of the damages or to prove medical malpractice." Corey Lanuza, 
    229 F. Supp. 2d at
    101 (citing Merced, 85 D.P.R. at 557-58).                           A
    Pierringer release executed with the second tortfeasor dissolves
    this concern and molds the successive tortfeasor situation into one
    strongly   resembling    a   joint    tortfeasor       situation     in    which   a
    Pierringer   release    is     in   play    (that     is,   each   defendant       is
    ultimately responsible only for its proportionate share of the
    overall damages).       See Austin, 
    841 F.2d at 1191
    ; Szendrey, 158
    D.P.R. at 658-59.      The distinctions that exist between successive
    tortfeasors and tortfeasors who are linked only by principles of
    vicarious liability are, at one and the same time, much more stark
    and much less easily resolved.
    Our two remaining reasons can be succinctly stated.
    Fairly read, Szendrey seems to us to represent the default rule
    under Puerto Rico law, which recognizes the settling parties'
    intent as controlling.       See Szendrey, 158 D.P.R. at 657-58 ("This
    intention [to release the settling defendant from all liability] .
    -17-
    . . does not affect the cause of action asserted against the other
    codefendants . . . insofar as it was so expressly agreed.")
    (official translation, slip op. at 6).
    Finally, Villarini-García was decided in 1997.            In our
    view, its reasoning has been colored, informed, and to some extent
    limited by the later decision in Szendrey.          In this regard, it is
    especially noteworthy that the Villarini-García court's focus on
    the Puerto Rico courts' "general hostility to double recovery,"
    
    112 F.3d at 8
    , has been blurred by the Puerto Rico Supreme Court's
    subsequent selection of a proportionate setoff rule for joint
    tortfeasor cases despite the fact that, under this rule, plaintiffs
    might   sometimes   receive   more    (or   less)   than   full    and    fair
    compensation for their injuries.      See Szendrey, 158 D.P.R. at 658-
    59; see also Toledo, 167 D.P.R. at ___, 
    2006 TSPR 47
    , 2006 JTS 56
    at 1115-17 (affirming Szendrey).
    These reasons lead us to conclude that in all likelihood
    the Puerto Rico Supreme Court would find no meaningful difference
    between   successive   tortfeasors    and   joint   tortfeasors     for   the
    purpose of determining setoffs. Confirmation of this intuition can
    be found in the fact that courts elsewhere tend to treat Pierringer
    releases the same, whether the tortfeasors in question are joint or
    successive.   Compare, e.g., Stueve v. Am. Honda Motors Co., 
    457 F. Supp. 740
    , 748-49 (D. Kan. 1978) (applying proportionate setoff in
    successive    tortfeasor   context,   after   execution    of     Pierringer
    -18-
    release), and Hansen v. Crown Controls Corp., 
    512 N.W.2d 509
    , 513
    n.2, 514 (Wis. Ct. App. 1993) (similar), vacated in part on other
    grounds, 
    519 N.W.2d 346
    , 346 (Wis. 1994), with, e.g., Nagunst v. W.
    Union Tel. Co., 
    76 F.R.D. 631
    , 634-35 (D. Kan. 1977) (applying
    proportionate setoff in joint tortfeasor context, after execution
    of Pierringer release), and Johnson v. Misericordia Cmty. Hosp.,
    
    301 N.W.2d 156
    , 158 (Wis. 1981) (similar).         Legislatures have
    tended to do the same.    See, e.g., 
    Iowa Code Ann. § 668.7
     (West
    2007) (providing for proportionate setoff of settlements without
    distinguishing between joint and successive tortfeasors); 
    Ky. Rev. Stat. Ann. § 411.182
     (West 2008) (similar); 
    Neb. Rev. Stat. § 25
    -
    21, 185.11 (similar).    We hold, therefore, that the proportionate
    share rule delineated in Szendrey applies in this case.
    C.   The Remedy.
    The appellees attempt to avert a remand by suggesting
    that even if the Hotel arguably may have been entitled to a
    proportionate setoff, it waived that entitlement by not objecting
    to bifurcation and not requesting a special verdict apportioning
    damages as among the defendants.    The Hotel responds that the law
    of the case doctrine provides it shelter because, unless and until
    overruled on appeal, "a legal decision made at one stage of a
    criminal or civil case constitutes the law of the case throughout
    the pendency of the litigation."        Flibotte v. Pa. Truck Lines,
    Inc., 
    131 F.3d 21
    , 25 (1st Cir. 1997).
    -19-
    The Hotel has the better of this argument.       The Hospital
    was not represented at the first-phase trial and the district court
    explicitly ruled that the Hotel would be entitled to pursue its
    cross-claim after the conclusion of the first-phase trial.3               The
    bifurcation order was well within the encincture of the district
    court's discretion.       See, e.g., Lisa v. Fournier Marine Corp., 
    866 F.2d 530
    , 531 (1st Cir. 1989); Gonzalez-Marin v. Equitable Life
    Assur. Soc., 
    845 F.2d 1140
    , 1145 (1st Cir. 1988); see also Charles
    Alan Wright et al., Federal Practice and Procedure § 2388, at 113-
    19 (3d ed. 2008).           Accordingly,     the Hotel had no basis for
    objecting to the bifurcation order — let alone an obligation to
    object to it.
    Given the circumstances that obtained, the Hotel was
    entitled to rely on the district court's stated intention to try
    the issues of relative fault among the defendants in a second-phase
    trial.        That obviated any need either to object to the jury
    instructions or to lobby for a special verdict.              Cf. Williams v.
    Runyon, 
    130 F.3d 568
    , 573 (3d Cir. 1997) (finding reversible error
    when       court   at   start   of   trial    ruled   that   exhaustion   of
    administrative remedies was not at issue and in reliance on that
    ruling plaintiff presented no evidence concerning that issue, only
    for court to reverse its original ruling post-trial and hold that
    exhaustion was essential).
    3
    Indeed, the court told the jury as much.
    -20-
    The appellees have a fallback position: they ruminate,
    with little elaboration, that remand would be improper because
    Szendrey bars separate contribution suits. This musing elevates
    hope over reason.
    The    Szendrey   court   made   no   sweeping   prohibition   of
    contribution actions but, rather, restricted its holding to a
    specific procedural situation. See Szendrey, 158 D.P.R. at 658-59.
    Although the court did find a particular contribution suit barred,
    bifurcation was never at issue.        We decline to read Szendrey so
    expansively as to prohibit a federal court from bifurcating a claim
    for contribution and trying that claim separately.4          Accordingly,
    we hold that the Hotel is entitled to a trial on its cross-claim
    against the Hospital.
    A few observations about the trial on the cross-claim may
    prove helpful.    First, the parties have a right to trial by jury.5
    See In re N-500L Cases, 
    691 F.2d 15
    , 21 (1st Cir. 1982).          Second,
    4
    In view of this conclusion, we have no need to decide whether
    a prohibition against bifurcation would be preempted by a federal
    court's explicit authority to bifurcate trials. See Fed. R. Civ.
    P. 42(b); Hydrite Chem. Co. v. Calumet Lubrics. Co., 
    47 F.3d 887
    ,
    890-91 (7th Cir. 1995); Moss v. Associated Transp., Inc., 
    344 F.2d 25
    -27 (6th Cir. 1965) (holding that Rule 42(b) preempts Tennessee
    law guaranteeing right to try all facts at the same time before one
    jury); see generally Hanna v. Plumer, 
    380 U.S. 460
    , 463-74 (1965)
    (establishing test to determine whether a given Federal Rule of
    Civil Procedure preempts state law).
    5
    Questions as to the plaintiff's responsibility under the
    terms of the Release to defend and hold the Hospital harmless, see
    supra note 1, are beyond the scope of this opinion. Consequently,
    we take no view as to any such matter.
    -21-
    in mandating a trial to fix the proportionate shares of the Hotel
    and the Hospital, respectively, we do not eliminate the possibility
    that the Hotel may prove to be entitled to something approaching a
    dollar-for-dollar setoff.    That depends on the jury's subsequent
    verdict.   Third, should the Hotel's proportionate share of damages
    be determined to be less than $444,000 (the difference between the
    jury's award in the first-phase trial and the amount of the
    settlement negotiated by the Hospital), the Hotel would have a
    right to pay that lesser amount in full satisfaction of its
    proportionate share.
    We need go no further.   Although the Hotel has appealed
    from the denial of its motion for new trial, it has offered no
    developed argumentation in support of that appeal and, thus, the
    jury verdict must stand.     The district court's other post-trial
    rulings, however, were premised on a fundamental misconception of
    the effect of that verdict.     To correct the ensuing errors, we
    reverse the dismissal of the Hotel's cross-claim and vacate the
    denial of its Rule 59(e) motion.       On remand, we suggest that the
    district court hold the latter motion (which, at bottom, requests
    a setoff) in abeyance pending resolution of the cross-claim.
    Affirmed in part, reversed in part, vacated in part, and remanded.
    Costs shall be taxed in favor of the appellants as against the
    cross-defendant, appellee.
    -22-