Opinion
9109-05871; CA A78884
Argued and submitted July 15, 1994
Reversed and remanded October 26, 1994 Petition for review denied January 24, 1995 ( 320 Or. 507)
Appeal from Circuit Court, Multnomah County.
James R. Ellis, Judge.
Timothy J. Vanagas argued the cause for appellants. With him on the briefs were Michael S. Evans, Michael C. Zusman and Grenley, Rotenberg, Laskowski, Evans Bragg, P.C.
Janet M. Schroer argued the cause for respondents. With her on the brief were Mary K. VanderWeele and Hoffman, Hart Wagner.
Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.
LEESON, J.
Reversed and remanded.
Plaintiff appeals from a judgment for physician defendants in a medical malpractice action, assigning error to the admission of evidence of a prior settlement between plaintiff and defendant hospital. We reverse.
In Holger v. Irish, 316 Or. 402, 414, 851 P.2d 1122 (1993), the Supreme Court held that usually "it is not proper to inform the jury concerning a plaintiff's remedies or potential remedies against persons who are not parties in the dispute that the jury is to decide, unless that information has independent relevance." See also Pounds v. Holy Rosary Medical Center, 127 Or. App. 221, 872 P.2d 437, rev den 32 Or. 109 (1994).
Defendants contend that Holger and Pounds are not dispositive, because neither of those cases "addressed whether settlement information is prejudicial to a jury's consideration of liability." (Emphasis supplied.) They argue that, although settlement information could be prejudicial on the issue of damages, the jury did not reach the damages issue in this case and the settlement information therefore was harmless. We disagree. In Holger and Pounds, as in this case, evidence of settlement was admitted at trial, the juries returned verdicts finding defendants not liable, and the juries never reached the issue of damages. The settlement information in both cases was held to be prejudicial and to lack independent relevance.
Holger and Pounds stand for the proposition that settlement information is not admissible unless it has independent relevance to the issue of damages or liability. Defendants do not argue that any of the multiple references to settlement in this case had independent relevance to the issue of liability.
The trial court referred to the settlement during jury selection, before the taking of evidence, and again while instructing the jury on the law. Defense counsel referred to the settlement twice during opening argument, and ended his closing argument by saying.
"In fact, I'm going to remind you that from the evidence that you have heard, [plaintiff's counsel] had all of these large numbers in mind when he settled with [the hospital]. And I'm sure he didn't forget that. Thank you."
Reversed and remanded.