Contribution claim denied

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A contribution claim against a co-defendant is barred by the doctrine of issue preclusion, if the co-defendant has been granted summary judgment, the Wisconsin Supreme Court held on March 23.

The estate of Frank P. Rille filed a malpractice action against a doctor and pharmacy, alleging the doctor was negligent in prescribing too many drugs, and the pharmacy was negligent for supplying them.

The pharmacy moved for summary judgment, because the plaintiff had no expert witness. The doctor did not object to summary judgment being granted, vis-à-vis the plaintiff and the pharmacy, as long as her rights to seek contribution from the pharmacy were not affected.

The circuit court signed an order, proposed by the doctor, stating that the order “is no way intended to affect the rights of other parties to pursue claims under appropriate statutory and/or case law.”

The court also gave the doctor time to conduct discovery and name experts. The doctor did secure experts, and filed a cross-claim against the pharmacy, seeking contribution and/or indemnity.

Nevertheless, when the pharmacy moved to dismiss on the ground of issue preclusion, the circuit court granted the motion, holding that the doctrine barred the contribution claim.

The doctor appealed, and the Supreme Court accepted certification from the court of appeals. The court affirmed in a decision by Chief Justice Shirley S. Abrahamson. Justice David T. Prosser Jr. dissented, and Justice Jon P. Wilcox did not participate.

After concluding that the summary judgment was a valid judgment that was “actually litigated,” the court held that it would not be fundamentally unfair to invoke the doctrine of issue preclusion, relying on the court of appeals’ decision in Precision Erecting v. M & I Marshall & Ilsley Bank, G.A.P., Inc., 224 Wis.2d 288, 592 N.W.2d 5 (Ct.App.1998).

In Precision Erecting, the court held that, if a party does not appear and object to a summary judgment motion, the court may hold all parties in the action to the judgment as a matter of issue preclusion.

The doctor argued that Precision Erecting was distinguishable, because she did “appear and object,” but the court disagreed.

The court acknowledged that she “appeared,” and asked the court to reserve her contribution claim.

However, the court found this insufficient to actually reserve the claim.

The court reasoned, “She could have, however, objected to or challenged Osco Drug’s motion for summary judgment on the merits. She did not. Dr. Galbraith could have secured her own expert witnesses and filed expert reports establishing Osco Drug’s negligence. She did not. Dr. Galbraith could have demonstrated a triable issue of material fact, proving to the circuit court that summary judgment in favor of Osco Drug was not appropriate as a matter of law. She did not. Dr. Galbraith could have moved for a continuance pursuant to Wis. Stat. § 802.08(4) to gain more time to conduct depositions or obtain affidavits necessary to challenge a motion for summary judgment on the merits. She did not. She took none of these steps and offers no explanation for her failure to do so other than that she is not required to file a third-party complaint for contribution in the original tort action.”

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The court concluded that the doctor’s mere request that the dismissal of the pharmacist be without prejudice to her is “not the legal opposition envisioned by Precision Erecting.”

Accordingly, after finding that none of the five fairness factors enunciated in Michelle T. v. Crozier, 173 Wis.2d 681, 689, 495 N.W.2d 327 (1993), militated against issue preclusion, the court held the doctor’s claim for contribution barred.

Justice Prosser dissented on several grounds.

Prosser concluded that the language of the summary judgment order, which was proposed by the doctor and signed by the circuit court, meant that the order did not have issue preclusive effect.

Prosser also concluded that the doctor did in fact “appear and object,” as contemplated in Precision Erecting.

Finally, Prosser objected on policy grounds, concluding that the majority opinion will enable gamesmanship by plaintiffs.

Prosser wrote, “The majority … is giving plaintiffs the opportunity to sit back and allow codefendants to bloody each other and make the case for them. Plaintiffs can name as many defendants as they would like, and when any of the defendants file a summary judgment motion, the plaintiffs can sit back and let the codefendants fight to keep each other in the game.”

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David Ziemer can be reached by email.