by David Cosgrove
Earlier this week, a very patient judge in the federal court in St. Louis found herself ordering signatures, hearings, and discovery in a wrongful death case that had already been settled. In the case of Miess, et al v. Port City Trucking, Inc., et al (No. 4:09-cv-1124), the four plaintiffs included the mother of three children that died when a tractor trailer truck collided with the vehicle in which they were passengers. The other three plaintiffs were the fathers of the three children. The litigation between the plaintiffs and the defendant trucking company and driver settled during mediation. This initial primary mediation did not, however, resolve various issues of apportionment amongst the plaintiffs.
The Opinion (2012 WL 401 050) illustrates a reality this counsel has experienced first hand—leaving lose ends at the end of mediation with an agreement to tie them up later can be a frustrating and time-consuming misstep, albeit one that can not always be avoided. The reality is that meditations—particularly in emotionally charged financial or wrongful death cases—can be draining, if not volatile. It can be perilous to push the envelope on the nitty gritty final details after hours of mediation. Indeed, the parties may lose to fatigue and frustration their primary accord.
Luckily for the parties in this case, they had a wise judge that declined their invitation to enter a judgment between the plaintiffs and defendants until the apportionment disputes between the plaintiffs were resolved. Instead, she issued a Settlement Order, thereby retaining jurisdiction of the case. A subsequent mediation between the plaintiffs still failed to resolve all of the disputes between the plaintiffs. One must assume that to this day they are not resolved. The father-plaintiffs are seeking broad discovery from the mother regarding her medical condition and fitness to be a mother1 and an apportionment hearing is still set for next month. In sum, a case that ends at mediation might not be over. Food for thought.
1The Court, however, permitted only limited post-settlement discovery.