Kelly on Malpractice

In Cox v. Nestle USA, Inc., 2008 WL 4443266 (W.D.Tenn.), plaintiffs brought a products liability action stemming from a permanent brain injury suffered by a child after being diagnosed with meningitis and brain abscesses caused by a coliform bacteria. The plaintiffs alleged that the child was infected with after consuming Nestle’s Good Start Supreme Soy and Supreme Milk products. Nestle asserted in its fourth affirmative defense that:

[t]he injuries, damages, and losses alleged in the Complaint, none being admitted, were caused in whole or in part by the negligence of plaintiffs and/or others over whom Nestle exercised no control, had no opportunity to anticipate or right to control, and with whom Nestle had no legal relationship by which liability could be attributed to it because of the actions of plaintiffs and/or others, which by comparison was far greater than any conduct alleged as to Nestle. Nestle relies upon and invokes the doctrine of modified comparative fault and reserves the right to amend this Answer to name other potentially responsible parties as discovery continues.

Plaintiffs filed a motion requesting that the district court impose a deadline for Nestle to assert its comparative fault defense by identifying other potentially responsible parties or, alternatively, that the court strike the comparative fault defense for insufficiency. Plaintiffs argued that under Federal Rule of Civil Procedure 16(b), the court may in its discretion impose a deadline for Nestle to name other potentially responsible parties. They also argued that the court should strike Nestle’s affirmative defense of comparative fault under Federal Rule of Civil Procedure 12(f) if Nestle does not amend its answer or supplement its interrogatory responses to identify the names of others who may be at fault.

The magistrate denied the plaintiffs’ motion. The magistrate reasoned that an assertion of comparative fault may be proper, even though it does not name a third party, if it provides reasonable notice of a third party’s potential fault. Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032, 1038 (M.D.Tenn.1996). Reasonable notice coupled with discovery should allow a plaintiff to determine the third party’s identity. Soper, 923 F.Supp. at 1038; see also Kizziah v. Fire Mgmt. Sys., No. 1:04 CV 374, 2006 WL 218026, at *2 (E.D.Tenn. Jan.27, 2006). Moreover, after a defendant asserts an affirmative defense of comparative fault, it is incumbent upon the plaintiff to conduct discovery or take other appropriate action to identify the third party. Kizziah, 2006 WL 218026 at *10.

The magistrate further found that Nestle’s comparative fault defense was sufficient. See Kizziah, 2006 WL 218026 at *2 (finding that defendant’s answer raising affirmative defense of comparative fault but not mentioning a third party by name was sufficient to properly assert the defense); Soper, 923 F.Supp. at 1038 (finding an answer stating, among other things, that “the plaintiff’s damages are the proximate result of his negligence as well as the negligence and/or intentional misconduct of a third party over whom the defendant had no control” adequately pled an affirmative defense of comparative fault). Although Nestle did not identify any third parties by name, the magistrate determined that its defense adequately put the plaintiffs on notice that third parties may be at fault.

In addition, in response to interrogatory 2 which was served upon Nestle on August 23, 2007 and which asked for the names of persons or entities who may be liable in negligence for the claims asserted by plaintiffs, Nestle responded as follows, “Nestle USA states that potentially responsible parties include health care providers, care-givers, and people involved in the care and treatment of the infant.” Finally, the Court held that the identities of the child’s health care providers, care-givers, and people involved in her care and treatment were known by plaintiffs or are obtainable by plaintiffs through discovery.

This decision is troubling decision on many levels. It thwarts the primary purpose of comparative fault: to identify other tortfeasors to whom fault should be apportioned. It unfairly puts the burden squarely on the plaintiff to prove the defendant’s comparative fault defense. It risks the statute of repose defense by non-parties who may not be named until much later in the litigation. Finally, it enables the defendant to “hide the ball” until such time as the defendant is ready to disclose the identity, if ever.

Fortunately, this is a products laibility case in a federal jurisdiction. It is unclear how the new Medical Malpractice Act of 2008 would affect a similar issue in a circuit court. Nevertheless, beware of it.

You can leave a response, or trackback from your own site.