successor by merger v. Danny A. Rader, Md

PUBLISHED
FILED: January 8, 2004
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,
v.
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. 
ORDER OF CERTIFICATION TO THE
SUPREME COURT OF APPEALS OF WEST VIRGINIA
This is an appeal from the United States District Court for the
Northern District of West Virginia, at Wheeling. Because the resolu-
tion of the issues presented on appeal requires resolution of a question
of West Virginia law that may be determinative in the pending case,
and because it appears to us that there is no controlling West Virginia
appellate decision, constitutional provision, or statute, we request that
the following issue be decided by the Supreme Court of Appeals of
West Virginia, pursuant to West Virginia Code § 51-1A-1 et seq.
(2000).
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I.
Question of Law to be Answered
The following question of West Virginia law may be determinative
in the pending case and is presented to the Supreme Court of Appeals
of West Virginia:
Does the law of West Virginia allow a tortfeasor to nego-
tiate 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.
II.
Statement of Facts
On March 17, 1998, a two-year old child was admitted to the emer-
gency room of a hospital owned and operated by plaintiff Charleston
Area Medical Center, Inc. (CAMC). The child was having seizures.
The emergency room physician instructed the nursing staff to admin-
ister 150 milligrams of Cerebyx, a prescription drug used to treat sei-
zures. Cerebyx is manufactured by defendant Parke-Davis, now a
division of Pfizer, Inc.
A nurse assisting with the child’s care obtained three vials of Cere-
byx. At the center of the label it read "50 mg PE/mL" and at the bot-
tom of the label it read "10 mL Vial." The nurse drew the entire
contents of the three vials into three separate syringes. Another nurse
administered the three syringes, containing a total of 1500 milligrams
of Cerebyx. The pre-trial order, J.A. 86, states a total of "2250 mg."
The difference in amount of the overdose is inconsequential. The
child died as a result of the overdose.
Sometime after the child’s death, a lawyer for the child’s estate
contacted CAMC to discuss settlement. CAMC agreed to settle the
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claim for $2.5 million before a formal lawsuit was filed. The Circuit
Court of Kanawha County approved the settlement following a hear-
ing on July 15, 1998. Defendants Parke-Davis and Pfizer were not
present at any of the settlement negotiations or at the Circuit Court
hearing, and they were not aware of the settlement. The settlement
agreement between the child’s estate and CAMC releases all joint
tortfeasors from liability for the child’s death. This last fact is not
found in the record but CAMC’s attorney stated this in oral argument.
CAMC then entered arbitration with St. Paul Insurance Company,
the insurer for one of the nurses. After arbitration, CAMC and St.
Paul entered into a confidential settlement agreement.
On July 13, 2000, CAMC filed a complaint against Parke-Davis
and Pfizer in the Circuit Court of Marshall County, alleging that the
Cerebyx label was misleading and defective. CAMC asserted a num-
ber of claims, including a claim for contribution on account of the
$2.5 million paid to the family of the child. On August 15, 2000, the
defendants removed the case to the United States District Court for
the Northern District of West Virginia. The defendants moved to dis-
miss the contribution claim, arguing that contribution was barred
under Howell v. Luckey, 518 S.E.2d 873 (W. Va. 1999). CAMC
argued that Howell did not apply because no suit was ever filed in this
case and therefore the defendants could not have been joined as third-
party defendants. The district court denied the motion and the case
proceeded to trial.
On December 3, 2001, a jury returned a verdict for CAMC. The
jury awarded damages of $1.75 million. The jury also assigned fault,
finding Parke-Davis 70% at fault and the nurses at CAMC 30% at
fault. The district court entered its order on December 14, 2001, in
favor of CAMC and against Pfizer and Parke-Davis in the amount of
$1.75 million, on account of contribution for a part of the $2.5 million
settlement paid by CAMC to the family of the child, which was
reduced by a credit of $875,000.00
Defendants Parke-Davis and Pfizer argue on appeal that the district
court erred because, on these facts, an action for contribution was not
available to CAMC under West Virginia law.
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III.
We acknowledge that, pursuant to West Virginia Code § 51-1A-
6(a)(3) (2000), the Supreme Court of Appeals of West Virginia may
reformulate the question of law presented.
The names and addresses of counsel of record are as follows:
Parke-Davis, a division of Warner Lambert,
and Pfizer, Inc., its successor by merger:
Diana Everett
Amy Marie Smith
Steptoe & Johnson PLLC
Bank One Center
P.O. Box 2190
Clarksburg, WV 26302
Charleston Area Medical Center:
Shawn Patrick George
George & Lorsensen PLLC
1526 Kanawha Boulevard, East
Charleston, WV 25311
Let the clerk forward a copy of this order, under the official seal
of this court, to the Supreme Court of Appeals of West Virginia and
thereafter forward to the Supreme Court of Appeals of West Virginia
such additional papers as that court may require, including, but not
exclusively, the record in this case, or any portion thereof, or copies
of the same.
With the concurrences of Judge WILKINSON and Judge NIE-
MEYER.
H.E. Widener, Jr.
United States Circuit Judge
Presiding
For the Court
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