Neylon v. Zabel ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
VICTORIA NEYLON,
Plaintiff,
V. C.A. No. N17C-10-368 JRJ
DAVID ZABEL, M.D. and ZABEL
PLASTIC & RECONSTRUCTIVE
SURGERY,
Defendants.
MEMORANDUM OPINION
Date Submitted: January 17, 2020
Date Decided: October 23, 2020
Upon Defendants David Zabel, M.D. and Zabel Plastic & Reconstructive
Surgery’s Motion for Summary Judgment, or Alternatively Motion in Limine to
Submit to the Jury Questions of Joint Tortfeasor Liability and Judgment Credit:
DENIED.
Upon Plaintiff Victoria Neylon’s Motion in Limine to Preclude the Introduction of,
Reference to, and/or Mention of Plaintiff’s Prior Lawsuit and Settlement:
GRANTED.
James P. Hall, Esquire, Phillips Goldman McLaughlin & Hall P.A., 1200 North
Broom Street, Wilmington, Delaware 19806, Attorney for Plaintiff.
Gregory S. McKee, Esquire and Katherine J. Sullivan, Esquire (argued), Wharton
Levin Ehrmantraut & Klein, P.A., 300 Delaware Avenue, Suite 1110, Wilmington,
Delaware 19801, Attorneys for Defendants.
Jurden, P.J.
I. INTRODUCTION
This medical negligence claim stems from injuries Plaintiff Victoria Neylon
allegedly sustained as a result of Defendants David Zabel, M.D. and Zabel Plastic &
Reconstructive Surgery’s (collectively “Defendants”) failure to properly diagnose
and treat a severe post-operative infection in Neylon’s left leg, ankle, and Achilles
tendon, which ultimately resulted in the removal of the Achilles tendon and
permanent scarring and disfigurement. Defendants have moved for summary
judgment, arguing that they are relieved of any liability due to a release executed in
connection with a settlement Neylon reached in a separate personal injury action not
involving Defendants.’ In the alternative, Defendants move in limine to submit the
question of joint tortfeasor liability to the jury and to limit Neylon’s potential
recovery in this case based on her previously settled personal injury action.” In
opposition, Neylon moves in limine to exclude all evidence relating to the prior
personal injury action, arguing the admission of such evidence is irrelevant and
would confuse or mislead the jury.
' Defendants David Zabel, M.D. and Zabel Plastic & Reconstructive Surgery’s Motion for
Summary Judgment, or Alternatively Motion in Limine to Submit to the Jury Questions of Joint
Tortfeasor Liability and Judgment Credit (“Defs. Mot. Summ. J.”), (Trans. ID. 64319113).
2 Id. FF 21-22.
3 Plaintiff's Response in Opposition to Defendants David Zabel, M.D. and Zabel Plastic &
Reconstructive Surgery’s Motion for Summary Judgment, or Alternatively Motion in Limine to
Submit to the Jury Questions of Joint Tortfeasor Liability and Judgment Credit (“Pl. Resp.”),
(Trans. ID. 64458358); Plaintiff Victoria Neylon’s Motion in Limine to Preclude the Introduction
of, Reference to, and/or Mention of Plaintiff's Prior Lawsuit and Settlement (Pl. Mot. Lim.),
(Trans. ID. 64319398).
For the reasons explained below, Defendants’ Motion for Summary
Judgment, or Alternatively Motion in Limine to Submit to the Jury Questions of
Joint Tortfeasor Liability and Judgment Credit is DENIED. Plaintiff Victoria
Neylon’s Motion in Limine to Preclude the Introduction of, Reference to, and/or
Mention of Plaintiff's Prior Lawsuit and Settlement is GRANTED.
ll. BACKGROUND
On June 18, 2015, a piece of flagstone from Neylon’s newly installed patio
became dislodged and struck her left heel, causing a laceration and severing her
Achilles tendon.* On March 3, 2017, Neylon filed a personal injury action (the “PI
Action”) against the company that constructed the patio-Johnston & Associates
Land & Water Creations, Inc. (“Johnston”)—-to recover damages for the laceration
and severed left Achilles tendon proximately caused by Johnston’s allegedly
negligent construction of the patio.” The parties reached a settlement agreement and
executed a release (the “Release”), and the PI Action was dismissed in August 2018.°
The Release expressly excludes all the claims asserted against the Defendants in this
medical negligence action.’ Specifically, the Release states, in pertinent part:
This Release does not release, discharge, dismiss and/or extinguish
claims for past, present, or future medical bills and lost wages,
compensation for pain and suffering, disfigurement and permanent
* Compl. § 7 (hereinafter “Zabel Compl.”), (Trans. ID. 61299029).
> Defs. Mot. Summ. J., Ex. A § 9 (“Johnston Compl.”); see Nylon v. Johnston & Assoc. Land &
Water Creations, Inc., C.A. No. 17C-03-446.
6 Defs. Mot. Summ. J., Ex. C (the “Release”).
Id. atl.
injuries asserted in the medical malpractice case entitled Victoria
Neylon v. David Zabel, M.D. and Zabel Plastic & Reconstructive
Surgery: C.A. No. N17C-10-368 JRJ, pending in the Superior Court in
and for New Castle, Delaware.®
In the Release, Johnston expressly denies any liability and incorporates 10 Del. C. §
6304(b).?
Neylon underwent surgery by Eric Johnson, M.D. to repair her left Achilles
tendon on June 26, 2015.!° Approximately a month later, she reinjured the tendon."!
Dr. Johnson recommended she undergo another surgery and referred her to
Defendants in order to have Dr. Zabel assist Dr. Johnson with the surgery.!? On July
30, 2015, Dr. Johnson surgically repaired the tendon, and Dr. Zabel closed the skin
at the wound site using Z Plasty Technique.'? Following this surgery, an infection
developed in Neylon’s left ankle/left Achilles tendon while she was under the post-
operative care of Dr. Zabel.'* On October 30, 2017, Neylon filed this medical
8 Id.
® Release at 1-2, 5. The Release states:
Should a claim be asserted against [Johnston], in the medical malpractice case of
Neylon v. David Zabel, et al. C.A. No. N17C-10-368 JRJ, Releasor, Victoria
Neylon will fully indemnify and hold harmless Johnston . . . to the extent the trier
of fact apportions any liability to Johnston . . . and Releasor, Victoria Neylon,
agrees she will only pursue recovery, including collection of any jury verdict and/or
Order and/or Judgment, against David Zabel, MD and Zabel Plastic Reconstruction
Surgery.
10 Zabel Compl. { 9.
Td 410
!2 Td. 411. The surgical plan was for Dr. Johnson to repair the tendon and Dr. Zabel to suture the
left ankle wound site.
13d. 914.
14 Zabel Compl. { 16.
negligence action to recover damages for the injuries she sustained as a proximate
result of Defendants’ alleged medical negligence.
Il. DISCUSSION
A. Defendants’ Motion for Summary Judgment
1. Standard of Review
Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.'© The moving
party bears the burden of establishing the non-existence of material issues of fact,!’
and the Court must view the record in the light most favorable to the non-moving
party.!8
2. Accord & Satisfaction/Double Recovery
Defendants argue that summary judgment is appropriate because the Release
“fully satisfies” Neylon’s damages stemming from the Achilles injury and thus is
tantamount to an accord and satisfaction and an impermissible double recovery.!?
The Court disagrees. A party asserting an accord and satisfaction must show:
(1) a bona fide dispute existed as to the amount owed that was based on
mutual good faith;
(2) the debtor tendered an amount to the creditor with the intent that
payment would be in total satisfaction of the debt; and
5 Id. 437.
16 Super. Ct. Civ. R. 56(c).
'7 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
18 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
1? Defs. Mot. Summ. J. Ff 3, 18.
(3) the creditor agreed to accept the payment in full satisfaction of the
debt.”°
“An accord and satisfaction is a bilateral contract.”?! A bilateral contract
consists of mutual promises made in exchange for each other by two contracting
parties.”
Defendants have not and cannot satisfy these elements, nor have they
demonstrated that they are parties to the contract at issue. The Release establishes a
contractual relationship between Neylon and Johnston—not Defendants. In fact,
Defendants are expressly excluded from the Release, and Neylon expressly reserved
her rights against them.*? Defendants cannot stand in the shoes of the settling party—
Johnston—and claim that the Release relieves them of any debt or liability to Neylon.
Defendants cannot rely on Hennegan v. Cardiology Consultants, P.A.*4 to
support their argument that the Release is an accord and satisfaction of Neylon’s
claims. Hennegan stands for the proposition that a plaintiff can pursue only one
wrongful death action for the death of another pursuant to Delaware’s Wrongful
Death Act.*? In Hennegan, the Court found that the plaintiff had already exhausted
20 Acierno v. Worthy Bros. Pipeline Corp., 693 A.2d 1066, 1068 (Del. 1997).
21 Td. at 1070.
*2 Kysor Indus. Corp. v. Margaux, Inc., 674 A.2d 889, 895 (Del. Super. Ct. 1996) (citing Williston
on Contracts § 1.23).
?3 Release at 1.
49008 WL 2943397 (Del. Super. Ct. July 15, 2008), aff’d, 985 A.2d 390 (Del. 2009).
*5 Id. at *2 (“[T]he Wrongful Death Act is to allow the pursuit of recovery of damages resulting
from the death of another person, but to allow such pursuit only one time. The statutes create but
one cause of action.”).
her one statutory opportunity to pursue a wrongful death action in connection with
the decedent’s death and could not circumvent the consequences of the statute by
pursuing a second wrongful death action against the defendants discharged in the
settlement release.”°
Defendants assert that Johnston considered Neylon’s subsequent injuries
allegedly caused by Defendants in the settlement negotiations that resulted in the
Release.”’ For this reason, Defendants argue the settlement amount includes
damages for all of Neylon’s injuries, including those allegedly caused by
Defendants.*® There is no support in the record for this assertion. Parties may agree
to settle a matter for a host of reasons unassociated with the actual value of the
plaintiff's claims.”? Such factors include, among other things, limits on insurance
coverage, the existence of an umbrella insurance policy, the emotional toll of
litigation, and the benefit of a prompt monetary settlement.*? Defendants are asking
the Court, in the context of a summary judgment motion, to engage in speculation.
This the Court will not do.
26 Td. at *4. The release in Hennegan unequivocally discharged and released the defendants from
whom the plaintiffs were seeking recovery. Also, the medically negligent acts in both lawsuits at
issue in Hennegan were alleged to have combined to cause one injury—the decedent’s death.
27 Defs. Mot. Summ. J. $4] 18-19.
81d.
2° See Trout v. Milton S. Hershey Med. Ctr., 572 F. Supp. 2d 591, 597 (M.D. Pa. 2008).
30 Id.
Even assuming arguendo that Johnston did consider the aggravation of
Neylon’s injuries caused by Defendants’ alleged negligence, Defendants are not
relieved of liability. The fact that a plaintiff's aggravation of injuries is considered
in a settlement negotiated with the original tortfeasor does not create a presumption
that the plaintiff's claims against the subsequent tortfeasor have been satisfied; nor
does it relieve the subsequent tortfeasor of liability.?!
In Moller v. North Shore University Hospital, the plaintiff filed a medical
malpractice action against a physician and a hospital, seeking damages for negligent
treatment and care of his injuries following a motor vehicle accident.** The plaintiff
filed a separate action against the driver in the accident, which later settled.*> The
defendants in the medical malpractice action moved for summary judgment, arguing
that the settling driver considered the plaintiff's aggravated injuries from the medical
malpractice claim as well as the original injuries in reaching its settlement, and
therefore the prior settlement constituted a satisfaction of all the plaintiffs claims,
including the aggravation claims.** The district court held that the defendant
physician and hospital were relieved of all liability because the settling driver
31 See Moller v. N. Shore Univ. Hosp., 12 F.3d 13, 14 (2d Cir. 1993).
32 Id.
33 Td. at 15 (holding that the settling defendants were 60% responsible for the plaintiff's injuries,
and therefore, that they were joint tortfeasors with the non-settling defendants).
34 Id.
considered the aggravation of the plaintiff's injuries.*> On appeal, the Second
Circuit reversed, holding that the fact that the plaintiff's aggravated injuries were
considered in the settlement with the driver did not support a conclusion that the
plaintiffs medical malpractice claims were satisfied, particularly when the
settlement did not expressly discharge the defendants and the full amount of
damages had not been determined.*° The circuit court concluded that consideration
of the plaintiff's aggravated injuries in the prior settlement did not relieve the
defendant physician and hospital of liability in the subsequent medical malpractice
action.>”
Viewing the record in the light most favorable to the non-moving party, the
Court finds the Release did not relieve Defendants of liability for their actions. The
trier of fact must determine whether Defendants’ allegedly negligent medical care
proximately caused injuries to Neylon separate from those injuries caused by
Johnston.?® Consequently, summary judgment is inappropriate because there are
35 Moller, 12 F.3d at 15. During the hearing, the driver’s insurance company testified that it
weighed the extent of the plaintiffs injuries and present disabilities when considering settlement.
Id.
36 Id. at 14.
37 Td. at 14, 16. Under New York’s General Obligations Law, any award of damages against the
defendant physician and hospital required a set off to reflect the plaintiff's prior settlement because
the settling driver was determined to be a joint tortfeasor with the physician and hospital. Jd.
38 See Voyles v. Corwin, 441 A.2d 381 (Pa. Super. Ct. 1982) (holding that it is a question for jury
to determine whether the severity of plaintiff's injuries could have been avoided if the defendant
physicians performed proper medical care, and if the jury finds that the injuries would not have
been so severe, then the defendant physicians would be liable only for the injuries attributable to
their medical negligence).
genuine issues of material fact in dispute. Therefore Defendants’ Motion for
Summary Judgment is DENIED.
B. Parties’ Motions in Limine
1. Introduction
In the alternative, Defendants move in limine to submit the questions of joint
tortfeasor liability and judgment credit to the jury.*? Defendants argue Johnston and
Defendants are joint tortfeasors and the jury must determine joint tortfeasor liability
between them.*° In addition, Defendants claim they are entitled to a judgment credit
against Neylon’s settlement with Johnston."!
Further, Defendants argue that the jury should be allowed to consider the
following facts: (1) Neylon filed the PI Action for the same injuries asserted against
Defendants, (2) Neylon received a settlement for those claimed injuries, and (3) the
amount of the settlement in the PI Action.7 Neylon also moves in Limine, seeking
to exclude all evidence relating to the PI Action, including the Release, arguing that
the evidence is irrelevant to the present action because Defendants and Johnston are
not joint tortfeasors; therefore, Defendants are not entitled to a set off, and admission
of such evidence would confuse and/or mislead the jury.”
3° Defs. Mot. Summ. J.
“° Defs. Mot. Summ. J. § 21.
1 Id. 23.
2 Id. § 22.
43 P], Mot. Lim. 4 8.
10
The Court will first address whether the question of joint tortfeasor liability
should be submitted to the jury and whether Defendants are entitled to a judgment
credit.
2. Joint Tortfeasor Liability
Delaware Uniform Contribution Law defines “joint tortfeasor” as “two or
more persons jointly or severally liable in tort for the same injury to person or
property, whether or not judgment has been recovered against all or some of them.”“*
In Weber v. Medical Center of Delaware, Inc., the Court held that a tortfeasor who
causes injuries to an individual and a physician who subsequently commits
malpractice treating those injuries are not joint tortfeasors for purposes of the
Uniform Contribution Among Tortfeasors Act.* In Weber, the plaintiffs sued the
Medical Center of Delaware and Dr. Mansoory for negligent treatment and care of
the injuries that Mr. Weber sustained in a motor vehicle accident.*° Dr. Mansoory
attempted to file a third-party complaint against the driver of the vehicle that struck
Mr. Weber so that the jury could determine joint tortfeasor liability among the driver
and Dr. Mansoory.’’ The Court in Weber found two Pennsylvania Superior Court
cases persuasive in determining whether the driver and the defendants were joint
44 10 Del. C. § 6301.
“8 Weber v. Medical Center of Delaware, Inc., 1994 WL 233925 (Del. Super. Ct. Apr. 26, 1994).
“6 Td. at *1.
‘7 Id. The plaintiffs originally sued the driver alleging negligent operation of a motor vehicle. The
lawsuit was later settled and a released was executed. Importantly, the release did not contain an
admission of liability by the driver nor did it incorporate the language of 10 Del. C. § 6304(b).
11
tortfeasors.** In Lasprogata v. Qualls, the Pennsylvania Superior Court held that a
tortfeasor who originally causes an injury and a physician who subsequently
aggravates or causes a new injury are not joint tortfeasors.*? There, the court
explained:
The acts of the original wrongdoer and the negligent physician are
severable as to time, neither having the opportunity to guard against the
other’s acts, and each breaching a different duty owed to the injured
plaintiff. While they are two active tortfeasors, they are not actually
acting ‘jointly’ when using that term in the strict sense.*°
In Harka v. Nabati, the Pennsylvania Superior Court, relying on Lasprogata, held
that the original tortfeasor and the allegedly negligent physician were not joint
tortfeasors because: (1) they owed different duties to the injured person, (2) the
evidence to be used against each other was clearly different, (3) there was little
identity of facts as to time or place of injury, (4) neither had the opportunity to guard
against the other’s acts, and (5) while similar allegations were set forth in the
complaints, the nature of the actions against the tortfeasors were unquestionably
different.°! Relying on these cases, the Court in Weber held that the driver and the
defendants were not joint tortfeasors because the time, place, and nature of the
injuries caused by the driver differed from those allegedly caused by the
“8 Weber, 1994 WL 233925, at *2, see Lasprogata v. Qualls, 397 A.2d 803 (Pa. Super. Ct. 1979),
Harka v. Nabati, 487 A.2d 432 (Pa. Super. Ct. 1985).
“° Lasprogata, 397 A.2d at 805 (emphasis added and citations omitted).
50 Id.
5! Harka, 487 A.2d at 434.
12
defendants.» The Court found that the plaintiff could recover for two separate
injuries and that the defendants were responsible for those injuries proximately
caused by their alleged negligent conduct.*
Similarly, in Voyles v. Corwin,™ the plaintiff sustained severe injuries to his
leg when his motorcycle collided with a motor vehicle.°> After the accident, he was
treated by the defendant physicians, and his leg was eventually amputated.°° The
plaintiff settled his claim against the negligent driver and signed a release.*’ Later,
the plaintiff sued his treating physicians.°? The physicians argued the driver was a
joint tortfeasor.°? The Pennsylvania Superior Court disagreed, holding that the
physicians could be held liable for the portion of the injury that resulted from their
negligence. The Pennsylvania Superior Court explained:
It may be, as the physicians suggest, that the loss of [the plaintiffs] leg
was an unavoidable consequence of the harm [the defendant motorist]
did him, no matter what the physicians did or should have done. Should
a jury so find, the physicians would not be liable to [the plaintiff]. It
52 Weber, 1994 WL 233925, at *2. The Court in Weber recognized that a plaintiff could,
theoretically, recover from two tortfeasors for the same injury. (Theoretically, this could occur
because plaintiff has previously settled with [the original tortfeasor], which settlement could have
included a sum to compensate plaintiff for the original injuries and whatever new or additional
injuries resulted from the allegedly negligent medical care.”).
53 Id.
*4 Voyles v. Corwin, 441 A.2d 381 (Pa. Super. Ct. 1982).
5 Id. at 382.
56 Id
°7 Id. The release stated the sums paid were “in full satisfaction and extinguishment of all claims .
. and causes of action arising out of any damage or loss, direct or indirect, of bodily injuries
sustained” as a result of the motor vehicle accident.
8 Voyles, 441 A.2d at 382.
59 Td
6° Id. at 383.
13
may also be that proper medical care would have resulted in [the
plaintiff's] injuries not being so severe. Should a jury so find, the
physicians would be liable to [the plaintiff] for that portion — but only
that portion — of [the plaintiffs] injuries attributable to their
negligence.®!
In the case, sub judice, Defendants and Johnston are not joint tortfeasors. The
medical negligence claim against Defendants differs legally and factually from the
personal injury action against Johnston. Defendants, a licensed physician and a
medical center, and Johnston, a landscape design company, owed different duties to
Neylon. The time, place, and nature of the injuries allegedly caused by Defendants
differ from those allegedly caused by Johnston. Defendants argue that Weber is
inapplicable to the facts in this case because Neylon presented the same evidence
against Johnston and Defendants and, therefore, Neylon seeks to recover for the
same injury. The Court disagrees. There is no question that the injuries alleged
against Defendants are tangentially related to the injury that formed the basis of the
settlement with Johnston.” It does not follow from this, however, that Neylon
sought to recover for the same injury from both Johnston and Defendants.
As Neylon asserts, the prior action against Johnston alleged an injury resulting
in a laceration in her left ankle and severance of her left Achilles tendon.® In the
61 Id.
°2 Compare Zabel Compl., with Johnston Compl.
63 Plaintiff readily concedes this point. D.I. 136 at 8.
6 DI. 136 at 8.
14
present action, Neylon seeks to recover for an infection in her left ankle, left leg, and
left Achilles tendon, necessitating the removal of her Achilles tendon, all of which
allegedly resulted from the surgery and post-operative care that Defendants
performed to treat the initial injury, not from the initial injury itself. Neylon did not
seek to recover for the “loss of her left Achilles tendon” in the PI Action against
Johnston, as she does now from Defendants. Defendants offer no support from the
record for their argument that Neylon is attempting to recover for the same injury,
aside from noting that Neylon used three of the same expert reports as evidence in
both actions. This assertion falls markedly short of showing that Neylon made
identical allegations against Johnston and Defendants.
In addition, Neylon’s burden of proving damages here is different than it was
in the PI Action. Here, Neylon must prove that the extent of her injuries would not
have been so severe had Defendants adhered to the proper standard of care.
Accordingly, the Court will not submit the question of joint tortfeasor liability to the
jury.
6 Id, at 8.23.
15
3. Judgment Credit / Collateral Source Rule
Because Johnston and Defendants are not joint tortfeasors, the Delaware
Uniform Contribution Law does not apply. Therefore, the Defendants are not
entitled to a pro tanto credit.°’
Contrary to Defendants’ argument, the collateral source rule is applicable
here. “The collateral source doctrine is predicated upon the theory that a tortfeasor
has no interest in, and no right to benefit from, monies received by the injured person
from sources unconnected with the [tort-feasor].”°® As the Delaware Supreme Court
decided in Medical Center of Delaware, Inc. v. Mullins, “the collateral source rule
provides that ‘a tortfeasor has no right to any mitigation of damages because of
payments or compensation received by the injured person from an independent
source.’”® The Delaware Supreme Court held that, under the collateral source rule,
in the absence of a determination that the settling defendant is a joint tortfeasor, the
non-settling defendant has no right to a credit because the payment by the settling
66 The Delaware Uniform Contribution Law is applicable to joint tortfeasors only. See 10 Del. C.
§ 3404(a); see also Med. Ctr. of Del. v. Mullins, 637 A.2d 6, 7 (Del. 1994) (“Under the Delaware
Uniform Contribution Law, in all cases where a settling ‘joint tort-feasor’ has been released from
liability to make contribution to a judgment, any remaining non-settling joint tort-feasors are
entitled to a reduction of the judgment by the greater of the amount of the consideration paid for
the release or the pro rata share of fault attributed to the settling tort-feasor who was released.”).
67 Td. at 10 (citing Yarrington v. Thornburg, 205 A.2d 1 (Del. 1964)).
68 7d. (alterations in original and internal quotations omitted) (quoting Yarrington, 205 A.2d at 2).
6° Id. (quoting Yarrington, 205 A.2d at 2).
16
defendant constitutes compensation from an independent source.” Here, the
payment by Johnston to Neylon constitutes compensation from an independent
source, so, pursuant to the collateral source rule, Defendants are not entitled to a
credit.
4. Exclusion of Evidence
Because this Court finds that Defendants and Johnston are not joint
tortfeasors, and the collateral source rule does apply to this action, Neylon’s
Motion in Limine to exclude all evidence relating to the PI Action, including the
Release, is granted. Defendants rely on Evans v. John Crane, Inc.,”' for the
proposition that evidence of the PI Action must be allowed in the present action
because Defendants share joint tortfeasor status with Johnston.”? The Evans
decision makes clear, however, that when the collateral source rule does apply,
evidence regarding payment made to a plaintiff from collateral sources is generally
prohibited due to the potential for prejudice.”? For the reasons stated, because the
collateral source rule applies to this action, evidence regarding Neylon’s settlement
with Johnston will be excluded.
171d. (“[T]he collateral source rule resolves what may be competing equities in favor of the
innocent injured plaintiff receiving a windfall, rather than an admitted or adjudged tort-feasor
bearing less than the full cost of his or her negligent conduct.”).
712019 WL 5457101 (D. Del. Oct. 24, 2019).
? Tn Evans v. John Crane, Inc., the court denied plaintiffs motion to exclude evidence of a prior
action and settlement because the defendant shared joint tortfeasor status with the settling third-
party.
® Evans, 2019 WL 5457101, at *1.
17
IV. CONCLUSION
For the forgoing reasons, the Court finds that: (1) the Release does not
discharge and/or relieve Defendants of liability for the claims asserted against them
in this medical negligence action, (2) Defendants and Johnston are not joint
tortfeasors, and (3) Defendants do not have a right to a judgment credit because the
payment by Johnston to Neylon is inadmissible under the collateral source rule.
Consequently, Defendants’ Motion for Summary Judgment, or Alternatively
Motion in Limine to Submit to the Jury Questions of Joint Tortfeasor Liability and
Judgment Credit is DENIED. Plaintiff's Motion in Limine to Preclude the
Introduction of, Reference to, and/or Mention of Plaintiff's Prior Lawsuit and
Settlement is GRANTED.
IT IS SO ORDERED.
R. Jurden, President Judge
cc: Prothonotary
18