PRESENT: All the Justices
WILLIAM C. SULLIVAN, D.O.
v. Record No. 060647 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 12, 2007
ROBERTSON DRUG CO., INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge
This case is an appeal of a judgment entered in a
contribution action involving joint tortfeasors. We consider
whether the circuit court erred in instructing the jury that it
could apportion damages based on the jury’s assessment of the
degree to which a defendant’s negligence contributed to the
injuries that were the subject of the underlying tort action.
We also consider whether the circuit court erred in instructing
the jury that it could consider the reasonableness of the
settlement reached in the underlying tort action.
In 1997, David M. Hopper filed a complaint in the United
States District Court for the Western District of Virginia
against his physician, William C. Sullivan, D.O., alleging that
Dr. Sullivan improperly prescribed excess amounts of
Triamcinolone, a corticosteroid. Hopper alleged that his use of
those excessive amounts of Triamcinolone caused him to develop
severe medical conditions including Cushing’s Syndrome1 and
osteoporosis. Hopper further alleged that Dr. Sullivan failed
to monitor Hopper’s use of Triamcinolone, improperly
administered an injection of testosterone, and subjected Hopper,
a known recovering narcotics abuser, to a “foreseeable dangerous
home regime of self-administered drugs.”
In his complaint, Hopper additionally alleged that Dr.
Sullivan had written Hopper prescriptions for Cortisone,
Prednisone, and other corticosteroids and medications, and that
Dr. Sullivan had “disavowed to other health care providers
knowledge” of Hopper’s drug regimen. Hopper sought $1 million
in compensatory damages and $350,000 in punitive damages from
Dr. Sullivan. Hopper and Dr. Sullivan later entered into an
agreement settling the federal court action for the amount of
$735,000. In the agreement, Hopper released all claims he may
have had against Dr. Sullivan and against Robertson Drug and its
employees.
After the settlement, Dr. Sullivan filed the present motion
for judgment against Michael S. Robertson, a pharmacist, and
Robertson’s employer, Robertson Drug Co., Inc. (Robertson Drug),
1
Cushing’s Syndrome is a condition caused by excessive
cortisone in the body. The symptoms may include a rapid
increase in fat cells in the face, neck, and trunk, curvature of
the back caused by osteoporosis of the spine, hypertension,
diabetes, pain in the abdomen and back, and muscular wasting and
weakness. Richard Sloane, The Sloane-Dorland Annotated Medical-
Legal Dictionary 690 (1987).
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seeking contribution for Dr. Sullivan’s payment in settlement of
Hopper’s claim. In the contribution action, Dr. Sullivan
alleged that Robertson, in his individual capacity and as owner
of Robertson Drug, negligently “refilled” Hopper’s Triamcinolone
prescriptions, thereby contributing to Hopper’s injuries.
Dr. Sullivan further alleged that because Hopper could have
pursued an action for damages against Robertson and Robertson
Drug, Dr. Sullivan was authorized under Code §§ 8.01-34 and -
35.1 to pursue the contribution action. Thus, Dr. Sullivan
asserted that Robertson and Robertson Drug were indebted to Dr.
Sullivan for “their share of the total settlement paid by
Sullivan for their release.” In their grounds of defense,
Robertson and Robertson Drug denied that they caused any injury
to Hopper or were joint tortfeasors with Dr. Sullivan.
At trial, the evidence showed that Hopper initially sought
medical treatment from Dr. Sullivan for multiple injuries he
sustained in an automobile accident. In June 1993, Dr. Sullivan
provided Hopper with his first dose of Triamcinolone for “pain
management.” Hopper reported that his headaches were less
severe after the injection. Thereafter, Dr. Sullivan gave
Hopper two or three additional Triamcinolone injections between
August and September of 1993.
Dr. Sullivan also wrote Hopper a prescription for
Triamcinolone. Instead of writing “0” as the number of refills
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permitted, Dr. Sullivan circled “PRN,” which allowed Hopper to
receive unlimited “refills” for 24 months. According to Dr.
Sullivan, he did not intend to allow unlimited “refills” of the
drug because its long-term use can cause suppression of the
immune system, bone deterioration, diabetes, and weight gain.
Dr. Sullivan admitted that he acted negligently in prescribing
Triamcinolone to Hopper.
From June 1993 through July 1993, based on the prescription
written by Dr. Sullivan, Hopper obtained Triamcinolone on five
occasions from Westover Pharmacy. After Westover Pharmacy
permanently closed its business at the end of July 1993, Hopper
obtained “refills” of his prescription at Robertson Drug three
times between early August 1993 and the middle of September
1993. Robertson was the pharmacist who provided these last
three “refills” and, at that time, he had access to Westover
Pharmacy’s prescription records.
The jury heard conflicting testimony on the issue whether
Robertson’s conduct constituted a breach of the standard of care
applicable to pharmacists. Edgar R. Gonzales, who qualified as
an expert in pharmacology, testified that because of the drug’s
serious long-term effects, Robertson breached the standard of
care for pharmacists by supplying the additional Triamcinolone
without contacting Dr. Sullivan. In contrast, Timothy W. Lucas,
who also qualified as an expert in pharmacology, testified that
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Robertson did not breach the standard of care for pharmacists by
failing to contact Dr. Sullivan before “refilling” Hopper’s
prescription.
The evidence further revealed that in the middle of
September 1993, Hopper became ill, was admitted to a hospital
for 20 days, and was diagnosed as having Cushing’s Syndrome. In
1995, Dr. Eugene J. Barrett began treating Hopper for Cushing’s
Syndrome, osteoporosis, and several other related problems,
including a compression back fracture, a rib fracture, and a
risk of spinal collapse. Dr. Barrett attributed these
conditions to Hopper’s overuse of corticosteroids.
Dr. Barrett could not identify any specific condition as
being caused solely by a particular steroid prescribed by Dr.
Sullivan. However, Dr. Barrett concluded that Hopper’s use of
Triamcinolone was the dominant, contributing factor in his
development of Cushing’s Syndrome and osteoporosis, and that
each injection of that drug had a cumulative effect.
At the close of Dr. Sullivan’s evidence, Robertson and
Robertson Drug (collectively, Robertson) moved to strike the
evidence, arguing that Dr. Sullivan was required to apportion
the damages and quantify Robertson’s share of the injury because
Dr. Sullivan was responsible for a “big measure” of Hopper’s
injury, while Robertson was only responsible for a “very small
area” of damages. Robertson argued that Dr. Sullivan’s
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settlement did not reflect such an apportionment, and further
noted that neither Dr. Barrett nor Gonzales was able to
apportion the amount of damage attributable to the actions of
either Dr. Sullivan or Robertson. The circuit court denied
Robertson’s motion, stating that the jury should decide what
damages, if any, Robertson caused.
At the close of all the evidence, Dr. Sullivan argued that
he was entitled to judgment as a matter of law on the issue of
reasonableness of the settlement, arguing that Robertson had
failed to present any evidence to rebut the presumption that the
settlement was reasonable. The circuit court denied Dr.
Sullivan’s request.
Over Dr. Sullivan’s objections, the circuit court gave the
following jury instructions:
Instruction A:
The Court instructs the jury that where there is damage
from several causes, for a portion of which the defendants
cannot be held liable, a plaintiff must present evidence
that will show within a reasonable degree of certainty the
share of the damages for which the defendants are
responsible. If the plaintiff fails to do so, then he
cannot recover for that item.
Instruction O:
The Court instructs the jury that on the issue of damages
if you find [both Robertson and Robertson’s Drug were]
negligent, and their negligence was a proximate cause of
David Hopper’s injuries, which were the basis of his
lawsuit and settlement with Dr. Sullivan, then you shall
determine how much of the amount of that settlement is
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related to negligence of [the] Robertson[s] and apportion
that amongst all the wrongdoers on a pro-rata basis.
Instruction 13:
The Court instructs the jury that there is a presumption
that the $735,000.00 settlement made by Dr. Sullivan is
reasonable, that the defendants are not bound by the
compromise settlement since they were not a party to the
settlement, and that the burden of proof is upon the
defendants to prove that compromise settlement was
unreasonable and excessive.
The jury returned a verdict in favor of Dr. Sullivan,
awarding him damages in the amount of $73,500. Dr. Sullivan
made a motion to set aside the verdict, arguing that because the
jury decided that Dr. Sullivan and Robertson were joint
tortfeasors, Robertson was required to pay half the $735,000
settlement. The circuit court denied the motion and entered
final judgment in accordance with the jury verdict. Dr.
Sullivan appeals.
Dr. Sullivan argues that the circuit court erred in giving
Jury Instructions A and O, which permitted the jury to apportion
the amount of damages based on the jury’s assessment of
Robertson’s degree of negligence in causing Hopper’s injury.
Dr. Sullivan maintains that Hopper’s injuries were not
susceptible to apportionment because the evidence showed that
his injuries were indivisible. Thus, Dr. Sullivan contends that
Robertson was a joint tortfeasor who was equally liable for half
the damages caused by his concurrent negligence and that the
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circuit court should have instructed the jury that if it
returned a verdict in Dr. Sullivan’s favor, the jury must award
him $367,500.
In response, Robertson argues that Jury Instructions A and
O were correct based on the evidence presented. Robertson
asserts that the evidence showed that Hopper suffered multiple
divisible injuries, some of which were caused solely by Dr.
Sullivan. Robertson contends that, therefore, the jury was
properly instructed that Dr. Sullivan could recover only for
injuries proximately caused by the concurrent negligence of
Robertson and Dr. Sullivan, and that the jury was required to
determine what portion of the $735,000 settlement was
attributable to that concurrent negligence. We disagree with
Robertson’s arguments.
The right of contribution is based on the equitable
principle that when two or more persons are subject to a common
burden, their responsibility shall be borne equally. Nationwide
Mut. Ins. Co. v. Minnifield, 213 Va. 797, 800, 196 S.E.2d 75,
77-78 (1973); Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va.
527, 531-32, 118 S.E.2d 646, 649 (1961); Wiley N. Jackson Co. v.
City of Norfolk, 197 Va. 62, 66, 87 S.E.2d 781, 784 (1955). A
right of contribution against a joint tortfeasor lies when one
wrongdoer has paid or settled a claim not involving moral
turpitude for which other wrongdoers also are liable.
8
Minnifield, 213 Va. at 798, 196 S.E.2d at 76; Bartlett v.
Roberts Recapping, Inc., 207 Va. 789, 793, 153 S.E.2d 193, 196
(1967); Jewel Tea, 202 Va. at 532, 118 S.E.2d at 649; see Code
§ 8.01-34. The party seeking contribution has the burden of
proving that the concurring negligence of the other parties was
a proximate cause of the injury for which damages were paid.
Jewel Tea, 202 Va. at 531, 118 S.E.2d at 649.
When a contribution action is based on a settlement
agreement reached between an injured person and one tortfeasor,
the remaining tortfeasors may defend against the contribution
action on various grounds. Such defenses, which are subject to
adjudication in a contribution action, include that the settling
tortfeasor was not negligent, that the remaining tortfeasors
were not concurrently negligent with the settling tortfeasor,
that the remaining tortfeasors’ negligence was not a proximate
cause of the damages compromised, or that the settlement
agreement was unreasonable, excessive, or made in bad faith.
Id.
If separate and independent acts of negligence of two
parties directly cause a single indivisible injury to a third
person, either or both wrongdoers are responsible for the whole
injury. Maroulis v. Elliott, 207 Va. 503, 511, 151 S.E.2d 339,
345 (1966); Murray v. Smithson, 187 Va. 759, 764, 48 S.E.2d 239,
241 (1948). Thus, in determining the liability of a person
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whose concurrent negligence results in such an injury,
comparative degrees of negligence shall not be considered and
both wrongdoers are equally liable irrespective whether one may
have contributed in a greater degree to the injury. Maroulis,
207 Va. at 510, 151 S.E.2d at 344; Von Roy v. Whitescarver, 197
Va. 384, 393, 89 S.E.2d 346, 352 (1955); Murray, 187 Va. at 764,
48 S.E.2d at 241; Richmond Coca-Cola Bottling Works, Inc. v.
Andrews, 173 Va. 240, 250-51, 3 S.E.2d 419, 423 (1939).
Accordingly, each such wrongdoer is responsible for an
equal share of the amount paid in damages for a single injury.
Only when there are multiple, divisible injuries covered by a
compromise settlement is the finder of fact required to attempt
an allocation of the amount in contribution a wrongdoer must pay
for his negligent act or acts causing one or more of those
divisible injuries. See Tazewell Oil Co. v. United Virginia
Bank, 243 Va. 94, 115, 413 S.E.2d 611, 622 (1992).
In the present case, Dr. Barrett testified that the effect
of the Triamcinolone was cumulative and, therefore, it was
impossible to determine what effect any particular dose had on
Hopper. According to Dr. Barrett, Hopper’s use of Triamcinolone
was the dominant contributing factor in Hopper’s development of
Cushing’s syndrome and osteoporosis. Dr. Barrett also stated
that several of Hopper’s other conditions, including sepsis,
pneumonia, and empyema, were caused by the immunosuppressive
10
effect of the Triamcinolone. Dr. Barrett further explained that
Hopper received other corticosteroids, and stated that this
entire group of drugs, including the Triamcinolone, “all cause
the same issues when given in high doses and given repeatedly.”
By this medical testimony, which was not refuted, Dr.
Sullivan established that the cumulative effect of the doses of
Triamcinolone given to Hopper caused him an indivisible injury.
Thus, if Robertson’s actions breached the standard of care,
Robertson was liable for the whole injury to Hopper,
irrespective whether doses of that drug not supplied by
Robertson, or whether other drugs, contributed in a greater
degree to Hopper’s injury. See Maroulis, 207 Va. at 510, 151
S.E.2d at 344; Von Roy, 197 Va. at 393, 89 S.E.2d at 352;
Murray, 187 Va. at 764, 48 S.E.2d at 241; Richmond Coca-Cola
Bottling Works, 173 Va. at 250-51, 3 S.E.2d at 423.
Viewed in this context, Instruction A was erroneous because
it improperly suggested that Robertson could not be found liable
for the whole, indivisible injury caused by the various doses of
Triamcinolone and other medications supplied to Hopper from
different sources. This instruction further was improper
because Robertson failed to present any evidence that Hopper
suffered injuries separate and divisible from those resulting
from his use of Triamcinolone. Hopper’s various allegations in
the underlying tort action that he suffered injury resulting
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from medications other than Triamcinolone plainly were not
evidence in the present action that Hopper had sustained a
divisible injury. Thus, the record before us lacked evidence of
a separate, divisible injury for which Robertson was not liable.
We also conclude that the circuit court erred in giving
Instruction O. This instruction was erroneous because it
directed the jury to apportion damages based on the joint
tortfeasors’ relative degrees of negligence. By improperly
directing the jury to compare the negligence of the wrongdoers,
Instruction O violated the established principle that
comparative degrees of negligence are not to be considered in
determining the liability of persons whose concurrent negligence
results in an injury. Maroulis, 207 Va. at 510, 151 S.E.2d at
344; Murray, 187 Va. at 764, 48 S.E.2d at 241.
We next consider Dr. Sullivan’s argument that the circuit
court erred in allowing the jury to consider the issue whether
the settlement between Dr. Sullivan and Hopper was reasonable.
Dr. Sullivan contends that although Instruction 13 was a correct
statement of law, Robertson presented no evidence to rebut the
presumption that the settlement was reasonable and, thus, the
circuit court should not have given that instruction.
In response, Robertson argues that the circuit court did
not err in allowing the jury to consider the reasonableness of
the settlement. Robertson contends that although the settlement
12
may have been reasonable with regard to Dr. Sullivan and
Hopper’s several claims against Dr. Sullivan, the settlement was
unreasonable with regard to Robertson because it included
claims, injuries, and damages that were not the product of the
concurrent negligence of Dr. Sullivan and Robertson. We find no
merit in Robertson’s arguments.
When a tortfeasor enters into a settlement agreement with a
claimant that also releases other tortfeasors, the settling
tortfeasor is entitled to obtain contribution from the remaining
tortfeasors for reasonable amounts paid to settle the claim.
Code § 8.01-35.1. Under this statute, a fact finder may
consider the reasonableness of the settlement agreement only
with regard to the indivisible injury sustained and may not
consider, as part of the reasonableness analysis, whether the
remaining tortfeasors caused the injuries that were not the
basis for the settlement. Robertson’s argument addressing the
reasonableness of the settlement is unpersuasive because it
confuses these two concepts.
The terms of settlement of a claim constitute prima facie
evidence of reasonableness, and a defendant in a contribution
action bears the burden of producing evidence that the
compromise reached was unreasonable or excessive. See Jewel
Tea, 202 Va. at 531, 118 S.E.2d at 648-49. Thus, Robertson, as
the defendant in the contribution action, had the burden of
13
producing evidence that the settlement was unreasonable before
he was entitled to Instruction 13 submitting that issue for the
jury’s determination.
Robertson, however, failed to present any evidence
indicating that the settlement was unreasonable or excessive.2
Therefore, having failed to produce more than a scintilla of
evidence on the subject, Robertson was not entitled to have the
jury instructed on the issue of reasonableness of the
settlement. Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621,
636, 628 S.E.2d 330, 339 (2006); Schlimmer v. Poverty Hunt Club,
268 Va. 74, 78, 597 S.E.2d 43, 45 (2004); Pollins v. Jones, 263
Va. 25, 28, 557 S.E.2d 713, 714 (2002). Accordingly, we
conclude that the circuit court erred in giving Instruction 13
and in submitting that issue for the jury’s consideration.
Our holding that the circuit court improperly instructed
the jury requires us to reverse the circuit court’s judgment.
Because the circuit court’s improper instructions addressed
issues of liability as well as issues of damages, those
instructions may have exerted a material influence on the jury
in reaching its conclusions on both issues. Therefore, a new
2
Likewise, Robertson failed to present any evidence that
the settlement agreement included compensation for injuries
involving willful and wanton acts of negligence or moral
turpitude or compensation for punitive damages. Therefore, we
do not address further his argument that these alleged factors
were reflected in the settlement.
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trial on all issues is appropriate. See Wright v. Estep, 194
Va. 332, 337-38, 73 S.E.2d 371, 375 (1952); Rawle v. McIlhenny,
163 Va. 735, 750, 177 S.E.2d 214, 221 (1934).
For these reasons, we will reverse the circuit court’s
judgment and remand the case for a new trial on all issues.
Reversed and remanded.
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