Expanding the DeBenedetto Disclosure Requirement in Multi-Defendant Civil Cases

/by

Mark A. Abramson and Kevin F. Dugan
I. Introduction:
The standard Structuring Conference Order form available on the Superior Court’s website includes a deadline for the defendants to disclose the identity of every unnamed party to whom they intend to seek an apportionment of fault pursuant to DeBenedetto v. CLD Consulting Engineers, Inc. In multi-defendant medical negligence cases, we believe that the DeBenedetto disclosure deadline should not only apply to unnamed parties, but should also apply to named parties so that each defendant must expressly state whether or not he intends to blame another defendant. This prevents defendants in such cases from waiting for co-defendants to settle out of the case before pointing the finger at them.

II. DeBenedetto Disclosures Must Apply to Both Named Parties and Unnamed Parties:
As we all know, Nilsson v. Bierman and DeBenedetto gave civil defendants in this state something they never had before – the right to ask the jury to apportion fault to someone who is not present at trial to defend himself. But our Supreme Court has recognized that that right comes with certain responsibilities. A defendant who wants to apportion fault to someone else bears the burdens of persuasion and proof. In this way, a defendant seeking to take advantage of DeBenedetto “essentially becomes another plaintiff . . .”
Just as it would be unfair to allow a plaintiff alleging fault on the part of another to hide his intention until trial, it is similarly unfair to allow a defendant to remain silent about his intention to seek a DeBenedetto apportionment. Accordingly, the Superior Court has included a DeBenedetto disclosure deadline in the Structuring Conference Order form available on its website. The form currently states: “If defendant claims that unnamed parties are at fault (see DeBenedetto v. CLD Consulting Engineers Inc., 153 N.H. 793 (2006)), defendant shall disclose the identity of every such party and the basis of the allegation of fault no later than _____.”
The creation of a deadline for the disclosure of nonparties is certainly important because it allows the plaintiff to amend the writ of summons to add them to the case if they are not immune from suit. However, in multi-defendant medical negligence cases it is also necessary for the plaintiffs to know which named defendants are being blamed by another named defendant and the bases for such allegations of fault. That is so because settlement agreements are often reached with some but not all defendants and the non-settling defendants may ask the jury to apportion fault to the defendants who settled and were released before trial.
That was the situation in Goudreault v. Kleeman where the plaintiff sued three doctors and then settled with two before trial. The jury then apportioned the majority of the fault to the settling doctors. Before deciding whether to settle with some but not all of the defendants, the plaintiffs must know whether the jury will be allowed to consider the settling defendants’ fault.
We recently had a case in which the existence of a DeBenedetto disclosure deadline applicable to parties proved to be very important. In Sevigny v. Quesada, we amended the standard form at the structuring conference so it included the following language: “Pursuant to DeBenedetto v. CLD case, defendants shall disclose by 7.15.08 the identity of every person or party alleged to be at fault and the basis therefor.” Judge McGuire approved the structuring conference order that included this handwritten amendment and the case proceeded through discovery. The DeBenedetto deadline passed without any of the defendants disclosing an intent to blame anyone else. Accordingly, we agreed to settle with one of defendants and continue with the case against another. We then withdrew the medical experts we had disclosed to testify against the settling defendant.
As the trial date approached, counsel for the non-settling defendant sought to videotape the trial testimony of our withdrawn experts in an attempt to create evidence to support a DeBenedetto apportionment of fault to the settling defendant. We refused to produce our withdrawn experts and the non-settling defendant filed a motion to compel their videotaped testimony. We objected, asked the Court to enforce the DeBenedetto disclosure deadline, and emphasized that we would not have settled with the settling defendant if the non-settling defendant had complied with the deadline and stated an intent to blame his co-defendant. The matter was submitted to Judge Mangones for a ruling.
Judge Mangones noted that the Structuring Conference Order signed by Judge McGuire “required that [the non-settling defendant] identify ‘every individual’ alleged to be at fault for the plaintiffs’ injuries, even if such individuals were parties to the litigation.” He then wrote that the non-settling defendant did not identify any such individuals prior to the disclosure deadline and had not alleged sufficient cause for not doing so. Lastly, he recognized that the plaintiffs would be prejudiced by allowing the non-settling party to seek a DeBenedetto apportionment against the settling defendant because the plaintiffs had relied on the absence of a DeBenedetto disclosure when they decided to resolve their claims against the settling doctor. Accordingly, he not only denied the non-settling defendant’s motion to compel testimony from our withdrawn experts, he also held that the non-settling defendant was barred from presenting evidence of fault relative to any other person or party at trial.
Sevigny demonstrates why it is necessary for DeBenedetto disclosures to apply not only to nonparties but to one defendant’s assertion of fault against another defendant. If a defendant is not required to disclose his intention to blame another defendant and the bases for his assertion of fault, the plaintiff is deprived of critical information that will shape the way he conducts further discovery, the way he considers settlement opportunities, and the way he tries the case. At the same time, the blaming defendant is given the distinct advantage of withholding his criticisms until trial. As Judge Mangones emphasized in his Sevigny order, this result is contrary to New Hampshire’s long standing belief that “justice is best served by a system that reduces surprise at trial by giving both parties the maximum amount of information.”
We have been successful in obtaining DeBenedetto disclosure deadlines applicable to both parties and nonparties in several other recent cases:
* Sadler v. Daniel : Judge Mangones approved a Scheduling Stipulation stating “Pursuant to DeBenedetto v. CLD Consulting Engineers, Inc., defendants shall disclosure (sic) by a date no later than their expert disclosure, the identity of every person or party alleged to be at fault, the basis of the allegation of fault, and the witnesses defendant intends to call to establish fault, including experts.”
* Schindler v. Montanaro : Judge McHugh approved a Scheduling Stipulation stating “Pursuant to DeBenedetto v. CLD Consulting Engineers, Inc., defendants shall disclose by a date no later than their expert disclosure, the identity of every person or party alleged to be at fault, the basis of the allegation of fault, and the witnesses defendant intends to call to establish fault, including experts.”
* Wolczko v. Profetto and Horan v. Giakovis-Sterling : Judge Barry approved Structuring Conference Orders stating “If defendant claims that named or unnamed parties are at fault (see DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793 (2006)), defendant shall disclose the identity of every such party and the basis of the allegation of fault no later than Defendants’ Expert Disclosure Deadline. Plaintiff shall then have 60 days from the date of disclosure to amend the initiating pleading. The failure to specifically, in writing, identify every such party claimed to be at fault and the specific bases therefore (sic), will result in preclusion of such party from the verdict form. It is an inadequate disclosure to merely refer to the plaintiffs’ experts as a DeBenedetto disclosure.”
* Castleberry v. Lewis : Judge Houran approved a Structuring Conference Order stating “If defendant claims that named or unnamed parties are at fault (see DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793 (2006)), defendant shall disclose the identity of every such party and the basis of the allegation of fault no later than Defendants’ Expert Disclosure Deadline. Plaintiff shall then have 60 days from the date of disclosure to amend the initiating pleading.”
* Ramsdell v. Frisbie Memorial Hospital : Judge Wageling approved a Structuring Conference Order stating: “If a defendant claims that named or unnamed persons or entities are at fault (see DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793 (2006)), that defendant shall disclose the identity of every such person or entity and the bases of the allegation of fault no later than 7/1/10. Plaintiff shall then have 60 days from the date of disclosure to amend the initiating pleading. The failure to specifically, in writing, identify every such person or entity claimed to be at fault and the specific bases therefore (sic), will result in preclusion of such person or entity from the verdict form. It is an inadequate disclosure to merely refer to another party’s experts as a DeBenedetto disclosure.”
III. Conclusion:
A DeBenedetto disclosure requirement that applies to allegations of fault on the part of both named parties and unnamed parties is necessary to prevent defendants in multi-defendant medical negligence suits from making eleventh hour allegations of fault and from waiting for co-defendants to settle out of the case before pointing the finger at them. We urge the Superior Court to replace the existing DeBenedetto disclosure language in its standard Structuring Conference Order form with the language Judge Wageling approved in the Ramsdell case. Unless and until that happens, plaintiff’s counsel in multi-defendant cases should request an amendment to the standard form.
ENDNOTES
153 N.H. 793 (2006).
150 N.H. 393 (2003).
See Goudreault v. Kleeman, 158 N.H. 236, 256 (2009).
Id.
http://www.courts.state.nh.us/forms/nhjb-2384-s.pdf.
See supra Note 3.
Id., 158 N.H. at 244.
No. 07-C-422, Hillsborough County Superior Court, Northern District.
Id., August 26, 2009 Order at 7.
Id.
Id.
Id. at 7-8.
Id. at 4 (quoting Figlioli v. R.J. Moreau Co., Inc., 151 N.H. 618, 626 (2005)).
No. 08-C-402, Merrimack County Superior Court.
No. 08-C-1129, Rockingham County Superior Court.
No. 09-C-326, Hillsborough County Superior Court, Southern District.
No. 09-C-130, Hillsborough County Superior Court, Southern District.
No. 212-2009-CV-082, Carroll County Superior Court.
No. 219-2009-CV-00441, Strafford County Superior Court.

Kevin Dugan
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