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A bill designed to encourage settlements in multi-defendant personal injury and wrongful death cases inched closer to passage Wednesday when the New York Senate Judiciary committee advanced the measure over the objections of the powerful state medical lobby. The measure, S2829, which is also nearing final approval in the Assembly, is strongly supported by the Office of Court Administration. It is just as firmly opposed by some “tort reform” advocates, especially the Medical Society of the State of New York. It would force the non-settling party in tort cases in which one party has settled to make a choice before trial of whether to reduce its liability by the amount of the settler’s payment or the amount of the settler’s equitable share of damages. Senate Judiciary Committee Chairman John A. DeFrancisco, a trial lawyer from Syracuse, N.Y., is carrying the bill in the upper chamber. His Assembly counterpart, Assemblywoman Helene E. Weinstein, D-Brooklyn, is sponsoring an identical measure in the lower house. The Senate is under Republican control and Democrats dominate the Assembly. The bill was introduced at the request of Chief Administrative Judge Jonathan Lippman’s Advisory Committee on Civil Practice. It seeks to remedy a problem identified by the Law Revision Committee in 1986. As it now stands, under General Obligation Law ��15-108 non-settlors can reduce their exposure by the greatest of the amount that the plaintiff accepted in settlement, the amount the plaintiff was stipulated to receive in settlement, and the “equitable share” of the settling tortfeasor’s portion of damages. The problem, according to the Judiciary, is that provision often rewards defendants for not settling while penalizing those who do. It may well benefit the non-settling party to wait and see what a jury awards because it can then reduce the award by the larger amount. Consequently, critics complain, a measure initially crafted to encourage settlements actually has had the opposite effect. The new legislation would require the non-settling party to choose before rather than after trial how to account for the settlement. “The difference is that because the non-settlor would have to make the choice before the verdict was rendered, there would be an incentive to a defendant to settle, rather than to sit back and choose the ‘best of both worlds,’ ” the Office of Court Administration said in promoting the bill. But the Medical Society said the measure contains an unacceptable glitch. It contends that the proposed legislation could result in a plaintiff’s collecting a windfall. For example, now if one of two defendants settles for, say, $80,000, and the jury awards a total of $100,000 in damages with equal liability, the non-settlor would be responsible for only $20,000. However, if the bill passes, the defendant would have to “roll the dice” ahead of time and decide whether to reduce its liability by either the amount of the verdict or the equitable share, according to the Medical Society. If the defendant chose equitable share, it is conceivable that it would pay $50,000 rather than $20,000 and the plaintiff would receive a $30,000 windfall, according to Gerald L. Conway, the Medical Society’s chief lobbyist. “Any proposal that could increase the liability costs borne by physicians and the health care system at this time is simply not sustainable,” Conway said in a memorandum in opposition to the bill. “New York physicians are being driven to the brink as a result of a civil liability adjudication system that has gone haywire.” DeFrancisco, a Republican who generally opposes limits on tort rights, said Wednesday that the bill “makes a lot of sense” and that he does not buy the argument that it amounts to “tort reform in reverse.” Two committee members, senators Dale M. Volker, R-Erie County, and Michael A.L. Balboni, R-Nassau County, opposed the measure.

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