Case information

Civil procedure — Negligence action — Multiple defendants — Some defendants settled — Burden to prove liability of settling defendants — Whether, in context of agreement like that made in Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W. 2d 106 (1963), endorsed in Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 S.C.R. 623, non-settling defendant can be assigned persuasive burden of proof against settling defendant in relation to non-settling defendant’s alleged liability — Whether persuasive burden was imposed on non-settling defendant here — Whether Pierringer agreement can justifiably disadvantage non-settling defendant’s right to defend through trial.<br>

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The infant respondent, Alexander MacNeil, suffers from congenital hypothyroidism which resulted in neurological damage. The damage would have been minimized by early treatment, but neither his family nor his family doctor were notified that a routine test showed an abnormal level of thyroid stimulating hormone. The neonatologist at the birth hospital had developed a practice of reviewing test results due to concerns about the hospitals’ notification processes. In this case, he believed that a notation beside the abnormal result indicated that the family had been notified. The infant MacNeil, by his litigation guardian, (collectively, the “MacNeils”) sued the birth hospital, the testing hospital, and the neonatologist. A month before trial, the hospitals settled. The settlement agreement extinguished the claim against the settling defendants and left the remaining defendant responsible for only his proportionate share, if any, of the loss: Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W. 2d 106 (1963); Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 S.C.R. 623. The trier of fact was required to apportion fault between all defendants if the remaining defendant was found negligent. Here, the neonatologist was the only remaining defendant. The MacNeils’ argued that, having voluntarily taken steps to address the notification problem, the neonatologist had not acted appropriately upon receiving an abnormal result. The neonatologist relied on failures by the hospitals.

After repeated discussions of the proper way to address the matter, the trial judge instructed the jury that the hospitals had settled with the MacNeils, but that the MacNeils still had to prove that each hospital was negligent. She assigned no burden to the neonatologist. The MacNeils’ counsel objected to the characterization of the burden, saying that the MacNeils had no case to prove against the hospitals as the claims brought against them had been resolved by settlement agreement. After a brief deliberation, the jury found no liability on the part of the neonatologist. The Court of Appeal allowed the MacNeils’ appeal.