Personal Injury Litigation and Dismissing Fewer Than All Defendants: Managing the Gauntlet of Competing Rules

Plaintiffs regularly sue multiple or even scores of defendants. They may decide to settle or dismiss some but not all defendants for various reasons. As simple as that sounds, the decision of when and how to release defendants can be complicated and have unexpected consequences unless counsel is aware of the relevant rules and how each may affect the other. Knowledge and careful analysis are needed to manage the gauntlet of competing rules and avoid surprises.

Plaintiffs as well as the remaining defendants will want to understand whether and to what extent discovery responses of dismissed parties will be admissible against the remaining defendants and how to overcome possible hearsay objections. The answer may turn on how a particular state deals with cross-claims when a defendant is dismissed.

When some defendants settle, the remaining defendants may demand the details of the settlement. They may attack it as an unenforceable "Mary Carter Agreement." Federal Rule of Evidence 408 may block evidence of the settlement or prevent full disclosure of all facts. The timing of when dismissal becomes effective may allow or prevent claims for attorneys' fees under FRCP 54 and state law counterparts. Once dismissed, some claims could be subject to "revival" or "savings" statutes that allow the claim to be refiled, and some plaintiffs may use voluntary dismissal to create immediately appealable issues, a tactic fraught with risk.

Listen as our experienced panel guides counsel through the winding procedural path to successfully negotiating a dismissal of fewer than all defendants without unintentionally sabotaging the remaining case.

1. When and why plaintiffs might seek voluntary dismissal of fewer than all defendants
2. Traps for the unwary
   1. Admissibility of discovery responses from dismissed defendants
   2. Validity of Mary Carter Agreements
3. Dismissal under FRCP 42 and applicbility of FRCP 21
4. Preventing surprise FRCP 54 motions for attorneys' fees
5. Savings statutes and preserving or losing defenses

The panel will review these and other critical issues:

• How does dismissing some but not all defendants impact the admissibility of discovery responses from the dismissed defendants?
• What are the remaining, undismissed parties entitled to know about the settlement and how does FRCP 408 affect the answer?
• How do FRCP Rules 41 and 21 (and state versions) work together?
• Can voluntary dismissals of claims be manipulated or employed to render otherwise interlocutory issues immediately appealable?
• How important are "savings" or "revival" statutes in deciding whether to dismiss?
• What should counsel understand about FRCP 54 (and state law counterparts) when drafting stipulations of dismissal?