The plaintiffs further contend that if any reduction is proper, it is limited to 50%, the pro-rata share of Pfizer in a set of joint tortfeasors of Pfizer and the United States, since the United States still has all possible contribution rights against the Montgomery County Medical Society.
The Court notes that plaintiffs have not argued that the reduction, if any, should be limited to one-third because the pro-rata share of Pfizer in the set of joint tortfeasors urged by the government, namely, Pfizer, the United States, and Montgomery County Medical Society, is one-third, but the Court raises the issue for reasons of symmetry.
Pennsylvania adopted the 1939 draft of the Uniform Contribution Among Tortfeasors Act in 1951 with some modifications. This act is not one which has had wide acceptance. The National Conference of Commissioners on Uniform State Laws takes the position that eleven states have adopted acts close enough to be called the 1939 act as of this writing.
But there is great variation among these states in the modifications made to the original draft. Resistance to the form of the 1939 draft led the National Conference to withdraw it in 1955 and issue a new draft.
One of the main provisions of the 1939 draft to which various commentators and state legislators objected which led to the 1955 revision was § 5 which is 12 P.S. § 2085.
The major objections to § 5 turned around the concept of a "pro-rata share" and the difficulty of determining in advance of a final trial exactly how big the set of joint tortfeasors is, and therefore what Plaintiff is giving up by settlement. This was thought to discourage possible settlements very greatly. The "pro-rata share" concept had been inserted in the 1939 draft to protect one joint tortfeasor from being the target of collusion and having his contribution rights cut off by a low settlement with another favored joint tortfeasor. Without the "pro-rata share" proviso, the target tortfeasor would get a reduction of only the low settlement consideration and lose his contribution rights to boot. However, by 1955, the National Conference had found that the pro-rata share language created more problems than it solved, and the 1955 draft therefore took a different approach to protecting target defendants from collusion while encouraging settlements. The 1955 draft provided, basically, for complete discharge of a settling defendant and reduction only by the consideration paid, providing the settlement was "in good faith", i.e. reasonable and not collusive. (See § 4, 1955 draft, Uniform Contribution Among Tortfeasors Act, and Commissioners' note thereto).
While the "pro-rata share" concept gave most jurisdictions some problems, the status of the settling defendant as a joint tortfeasor for purposes of figuring the set of joint tortfeasors and the pro-rata share under § 4 of the Act (12 P.S. § 2085) was assumed in all jurisdictions but two: Maryland and Pennsylvania. The rule in Pennsylvania was clearly established in the 1956 case of Davis v. Miller, 385 Pa. 348, 123 A. 2d 422. If a plaintiff settles with a person and a joint tortfeasor's release is given, that person may not be sued by any other person for contribution. However, if a second person is sued by plaintiff, the settling party may be brought on the record for the purposes of having the trier of fact determine whether the settler was in fact a joint tortfeasor. Unless the settler is found to be a joint tortfeasor by a competent trier of fact in a proceeding to which he is a party before the entry of a judgment against the non-settling party, the party who previously settled is not taken to be a joint tortfeasor for purposes of 12 P.S. § 2085, and the party against whom judgment is entered has no right to have the judgment reduced as a result of the release, nor can he then sue the settling party for contribution. In response to cries that the plaintiff is unjustly enriched by a double recovery, the answer has been that there is no one with legal standing to raise the issue. The judgment tortfeasor may in fact be the sole tortfeasor, and totally liable, and therefore not have standing to benefit from the claimed unjust enrichment. Not having moved to bring in the settling party, he has waived all forums in which he might establish his right to benefit, and therefore cannot raise the unjust enrichment argument after trial to benefit himself. Similarly, the settler, in buying his peace, has waived any rights he might have to claim plaintiff was unjustly enriched by his payment, even though he was not in fact a tortfeasor. Thus, no one has standing to raise the unjust enrichment issue because all have deprived themselves by their own actions of any forum in which to prove that the unjust part of the enrichment was at their expense.
It is difficult to say what the effect of Pennsylvania's rather strange approach to this section of the Uniform Act has had on settlements in Pennsylvania under this Act. It discourages settlements in that settlers cannot be sure they won't end up having to be in court even though their liability is discharged.
It may on the other hand, encourage settlements in that plaintiffs may still hope to settle with a defendant whose involvement is weak, then prove his lack of liability and recover twice. Undoubtedly, the Pennsylvania approach is not judicially economical, as it renders the trial of issues necessary which other states need not try. The Pennsylvania approach has been strongly criticized. See Note, Joint Tortfeasors, 106 U. Pa. L.R. 311 (1957). Yet it is perfectly clear that it is still the law of Pennsylvania. Davis v. Miller, supra; Long v. Thomasberger, 14 Pa. Dist. & Co. R. 2d 30 (C.P. Cambria Co. Pa., 1958); Brown v. Pittsburgh, 409 Pa. 357, 186 A. 2d 399 (1962); Eckels v. Klieger, 205 Pa. Super. 526, 210 A. 2d 899 (1965); Cox v. Owen, 34 Pa. Dist. & Co. R. 2d 793 (C.P. Mont. Co., 1965). See also Blanchard v. Wilt, 410 Pa. 356, 188 A. 2d 722 (1963) (dictum).
In Mazer v. Lipshutz, 360 F.2d 275 (1966), the Third Circuit dealt with the issue quite directly and comprehensively and, although critical of the Pennsylvania construction of the language of § 2085, said:
"[All] the parties are entitled to the full benefit of the ruling state law. That law firmly holds that if the defense desired that the hospital peace payment be deducted from any plaintiff's verdict as the sum paid by a joint tortfeasor, the hospital should have been joined as a defendant and its tortfeasor liability fixed under the explicit Pennsylvania law. If that doctrine needs to be changed the matter should be called to the attention of the Pennsylvania legislature. We are bound to function in this type of litigation under the state law as it now exists."
So is this Court in this case bound to function under state law as it now exists. Pennsylvania law is determinative and binding on both parties to this case under the Federal Tort Claims Act [See this Court's previous opinion in Griffin v. United States, 351 F. Supp. 10 (1973)]. The law of Pennsylvania has not changed since Mazer v. Lipschutz. If the United States wished to benefit from the terms of the joint tortfeasor's release between Pfizer and plaintiffs, it was necessary under Pennsylvania law for the United States to join Pfizer as a third party defendant for purposes of determining Pfizer's joint tortfeasor status in fact. This was not done. There has been no judicial determination of Pfizer's joint tortfeasor status. It is true that the release agreement between Pfizer and plaintiffs specifies that the judgment is to be reduced by Pfizer's pro-rata share without the necessity of determining Pfizer's actual joint tortfeasor status "in any action in which the said Pfizer is or may be a defendant or third party defendant." This clause was clearly intended not to come into play until Pfizer was actually made a party to such action, however, as it was given to free Pfizer from the necessity "to remain a party on the record." (emphasis supplied) The United States is not a third party beneficiary of this clause, as it is clearly intended to benefit Pfizer only, under the narrow circumstance of its being joined. Even if Pfizer had been joined, the United States would have no enforceable interest in this clause absent reliance or its entry on the record by stipulation, and Pfizer might properly have agreed to release plaintiffs from the clause even after joinder. And the United States cannot claim any reliance on this agreement in any way here, not only because it does not by its terms apply until Pfizer is made a party, but also because the United States admittedly did not know of the exact language of the release until after trial, but only that there was, generally, a joint tortfeasor's release. The United States is entitled to no reduction in the amount of the award to plaintiffs in this case under 12 P.S. § 2085 or any other section of Pennsylvania law.
The Court notes in passing that this rationale would be as applicable to the status of the Montgomery County Medical Society as it is to Pfizer, if the original release specifically included the Montgomery County Medical Society. However, this Court is of the opinion that the original release affected Pfizer only, and that any rights of contribution the United States may have had or now have against the Montgomery County Medical Society are unaffected by it.