 Charleston Area Medical Center, Incorporated v. Parke-Davis, a division of Warner Lambert

PUBLISHED
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. 

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 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. 
Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CA-00-132-5)
Argued: September 23, 2003
Decided: July 26, 2005
Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.
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Vacated and remanded with instructions by published per curiam
opinion.
COUNSEL
ARGUED: Diana Everett, STEPTOE & JOHNSON, P.L.L.C.,
Charleston, West Virginia, for Appellants. Shawn Patrick George,
GEORGE & LORENSEN, P.L.L.C., Charleston, West Virginia, for
Appellee. ON BRIEF: Amy M. Smith, STEPTOE & JOHNSON,
P.L.L.C., Clarksburg, West Virginia, for Appellants.
OPINION
PER CURIAM:
I.
The judgment of the District Court entered December 14, 2001,
allowed plaintiff Charleston Area Medical Center, Inc. to recover
from the defendants, Parke-Davis and Pfizer, Inc., the amount of
$1.75 million as contribution for a portion of the $2.5 million settle-
ment paid by Charleston Area Medical Center to the family of the vic-
tim. Charleston Area Medical Center, Inc. v. Parke-Davis, No. 5:00-
cv-132 (N.D. W.Va. Dec. 14, 2001).
By our order dated September 16, 2004, we referred the following
question to the Supreme Court of Appeals of West Virginia:
Does the law of West Virginia allow a tortfeasor to negoti-
ate 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.
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Charleston Area Medical Center v. Parke-Davis, 385 F.3d 418, 419
(4th Cir. 2004). The Supreme Court of Appeals of West Virginia
accepted our reference, and in its opinion dated May 11, 2005, that
court answered the question presented in the negative. We adopt that
opinion as our own. Charleston Area Medical Center, Inc. v. Parke-
Davis, ___ S.E.2d ___ (W. Va. 2005).
II.
On May 20, 2005, Charleston Area Medical Center filed its motion
in this court to dismiss the appeal in this case of Parke-Davis and
Pfizer, Inc., to which motion Parke-Davis and Pfizer filed a response
on June 6, 2005. To the response of Parke-Davis and Pfizer, Charles-
ton Area Medical Center filed a reply on June 14, 2005.
We have considered the motion to dismiss the appeal and are of
opinion it is without merit.
It is accordingly ADJUDGED and ORDERED that the said motion
to dismiss the appeal in this case shall be, and it hereby is, denied.
It is FURTHER ADJUDGED and ORDERED that the judgment of
the district court is accordingly vacated, and the case is remanded to
the district court for entry of judgment consistent with the said opin-
ion of the Supreme Court of Appeals of West Virginia.
VACATED AND REMANDED WITH INSTRUCTIONS
4 CHARLESTON AREA MEDICAL v. PARKE-DAVIS

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