The following papers numbered 1 to 3 read on this motion duly submitted on November 4, 2019. Papers Numbered ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED 1 ANSWERING AFFIDAVIT AND EXHIBITS 2 REPLY AFFIDAVIT AND EXHIBITS 3 Upon the Foregoing Cited Papers, the Decision/order in this Motion Is as Follows: According to plaintiff, this medical malpractice action arose in August 2012, when defendants improperly administered the antibiotic, Vancomycin, to treat an MRSA infection that developed in her left knee following arthroscopy surgery. In February 2017, plaintiff settled with and discontinued this action against defendant, Vassar Brothers Hospital. Now, by order to show cause, defendants, Russel G. Tigges and Orthopedic Associates of Dutchess County, P.C. (Orthopedic Associates), seek to compel plaintiff or Vassar Brothers Hospital to disclose the terms of the settlement agreement.1 In opposition, plaintiff states that the settling parties agreed to keep the terms of the settlement agreement confidential, and that they are only obligated to disclosure the settlement amount after a verdict is rendered against Mr. Tigges and/or Orthopedic Associates. According to Mr. Tigges and Orthopedic Associates, they seek this “information to determine what evidence to submit during the trial of the case, in particular whether to put in a case against the hospital and the infectious disease consult, Dr. Feinstein.” They go on to allege that “[i]f the settlement seems small given the plaintiff’s injuries, then in light of the provisions of Gen. Oblig. Law 15-108(a), the non-settling defendants will want to introduce evidence of Dr. Feinstein’s negligence…[i]f the settlement appears close to the full value of the case, it will be enough for the non-settling defendants to fend off the claims against them, and challenge the severity of the injuries claimed.” Settlement agreements are highly favored because a negotiated compromise of any dispute avoids potentially costly, time-consuming litigation, and since the courts could not function if every dispute resulted in a trial, a settlement helps preserve scarce judicial resources. (Hallock v. State of NY, 64 NY2d 224 [1984]; Denburg v. Parker, 82 NY2d 375 [1993].) There is also a societal benefit in recognizing the autonomy of parties to shape their own solution to a controversy rather than having one judicially imposed. (Denburg, 82 NY2d 375.) Lastly, it is recognized that under certain circumstances, confidentiality is necessary in order to protect the litigants and/or encourage a fair resolution. (In re NY County Data Entry v. A.B. Dick Co., 162 Misc 2d 263 [Sup Ct, NY County 1994], affd 222 AD2d 381 [1st Dept 1995].) The court must now weigh these principals against the rights of those defendants that are not privy to the instant settlement agreement. A non-settling defendant may be (emphasis added) entitled to discovery of a confidential settlement between plaintiff and settling defendant(s) if the terms of the settlement are material and necessary to the defense of an action. (CPLR §3101(a); Allen v. Crowell-Collier, 21 NY2d 403 [1968].) However, the term material and necessary is not intended to address a defendant’s desire to obtain the settlement information with the express goal of using it as some form of trial strategy. For example, in the action entitled In re NY County, (222 AD2d 381), the First Department held that the desire to use the settlement information to assess a defendant’s maximum exposure, or to determine whether to settle or continue the litigation, are not considered material and necessary to the defense of the action to warrant usurping the confidentiality of the agreement. On the other hand, a different conclusion was reached by the First Department in Osowski v. AMEC, (69 AD3d 99 [2009]), which was a construction accident case. In Osowski, the defendant, AMEC, commenced a third-party action against its subcontractor, DCM, and some time during the litigation, plaintiff and AMEC settled and entered into a confidential settlement agreement. The First Department determined that DCM was entitled to disclosure of the confidential settlement agreement given that at the commencement of the construction project, AMEC and DCM were enrolled in an insurance program that included a waiver-of-subrogation provision. And without disclosure, DCM could not determine whether the waiver-of-subrogation provision was triggered so as to warrant dismissal of the third-party action. A slightly modified result was reached by the First Department in Mahoney v. Turner, (61 AD3d 101 [2009]), which involved another construction accident case. In Mahoney, a confidential settlement agreement was entered into between plaintiff and two of the defendants, Turner (general contractor) and FDA (site owner). Earlier in the litigation, these two defendants had commenced a third-party action against defendant, Williams, a subcontractor. Williams sought disclosure of the confidential settlement agreement out of concern that Turner and FDA were improperly colluding. Williams contended, and Turner and FDA did not dispute, that these two defendants were planning to continue participating in the underlying trial between plaintiff and Williams. The First Department was concerned with the uncertainty about whether Turner and FDA planed to participate in the trial, and if they did, the reason for their continued participation, and whether this could result in prejudice to Williams. To address these concerns, the First Department limited the disclosure to an in camera inspection of the confidential settlement agreement by the Supreme Court. In their request for the instant settlement agreement, Mr. Tigges and Orthopedic Associates make reference to section 15 — 108(a) of the General Obligations Law (GOL). GOL §15-108(a) provides that when a plaintiff settles with one of the defendants, plaintiff’s recovery against the remaining defendants is reduced by the greater of the amount paid in the settlement or the settling defendant’s equitable share of fault as apportioned by the jury (emphasis added). The aforementioned statute obligates the disclosure of the confidential agreement’s settlement amount, but only after a verdict is rendered against Mr. Tigges and/or Orthopedic Associates to determine post-verdict apportionment. (Matter of Steam Pipe Explosion, 128 AD3d 493 [1st Dept 2015].) Mr. Tigges and Orthopedic Associates allege that they are entitled to this information now because if the settlement amount “seems small given the plaintiff’s injuries,” then they will introduce at trial evidence of Dr. Feinstein’s (infectious disease consult) negligence. They further allege that if the settlement appears close to the full value of the case, then at trial they may just challenge the severity of the injuries claimed. It appears that in making this argument, Mr. Tigges and Orthopedic Associates are of the opinion that Vassar Brothers Hospital’s fault or the severity of plaintiff’s injury can somehow be determined by the settlement amount. This is pure speculation and amounts to nothing more than trial strategy, and is insufficient to qualify as material and necessary to the defense of the action to warrant disclosure of the instant settlement agreement. (In re NY County, 222 AD2d 381.) Therefore, based on the aforementioned, the order to show cause by Mr. Tigges and Orthopedic Associates is denied. Plaintiffs are directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court. Dated: December 6, 2019
