Opinion
No. 97-1452-WEB
December 28, 1999
Memorandum and Order
This matter is before the court on the defendant's Motion for Reconsideration (Doc. 68) of the court's order of December 3, 1999. In that order, the court rejected the defendant's request to amend the Pretrial Order to assert as a defense the preclusive effect of a prior state court judgment.
The defendant now contends that the court based its ruling upon incomplete information about the state case. Specifically, defendant argues the court's ruling was based on three erroneous findings: that Lynette Clark Martin was not a party in the prior state action, that Lynette Clark Martin did not seek damages in the state action for any personal loss, and that no identity of claims or issues exists between the state case and this action. In support of his argument, defendant has submitted the Pretrial Order and jury instructions from the state case, which indicate that the parents of Kyler Clark, including Lynette Clark Martin, sought damages in the state action for emotional suffering arising from the wrongful death of their son Kyler Clark, which was allegedly caused by Dr. Frayser's negligence. The materials show that many of the same allegations of negligence asserted by Ms. Martin in this action were also asserted in the state case. No claim was made in the state action to recover damages for Ms. Martin's physical injuries. Ms. Martin's personal injuries form the basis of the claims in the instant action.
The state materials cited by the defendant indicate a possible defense in this action based upon the doctrine of "claim preclusion." See Jayhawk Equipment Co. v. Mentzer, 191 Ran. 57, 61, 379 P.2d 342 (1963) (a judgment bars relitigation of the same controversy, including all issues that were raised or that could have been raised in the first action). Although Ms. Martin apparently was not formally named as a plaintiff in the state action, as an heir of the deceased she was represented in the action and she sought emotional damages in that action resulting from the death of her son, which was claimed to have been caused by Dr. Frayser's negligence. The general rule is that a person who is not a party to an action but who is represented by a party is nevertheless bound by the judgment as though she were a party.See Restatement (Second) of Judgments, § 41. Thus, the fact that Ms. Martin was not formally named as a party is not necessarily determinative on the question of claim preclusion. Moreover, although Ms. Martin is now seeking different damages than she sought in the state case, under Kansas law both of these claims would likely be considered part of the same cause of action. See Marshall v. Mayflower, Inc., 817 F. Supp. 922, 925 (D. Kan. 1993) (minor's claim for personal injuries was barred where he had previously been a plaintiff in a suit for the wrongful death of his father).
The law governing who is a plaintiff in a wrongful death action in Kansas is somewhat more flexible than in other types of actions. A wrongful death action may be commenced by any heir who suffered a loss by reason of the death, and any heir who does not join as a party plaintiff but who claims to have been damaged by reason of the death shall be permitted to intervene in the action. K.S.A. § 60-1902. Additionally, heirs of the deceased may be entitled to an apportionment of the recovery regardless of whether they join or intervene in the action.
At the same time, the court notes that one of the essential elements of claim preclusion is "identity in the quality of persons for or against whom claim is made." Steele v. Guardianship Conservatorship of Crist, 251 Kan. 712, 720, 840 P.2d 1107 (1992) There may be an issue as to whether Ms. Martin is now proceeding in a different capacity than she was in the state action. See Restatement (Second) of Judgments § 36. Be that as it may, the court need not determine whether claim preclusion applies under these circumstances in view of its ruling infra.
The issue before the court, however, is not simply whether the facts suggest a possible res judicata defense. This action has been pending for over two years, and a Pretrial Order has been on file since January of 1999. At the time the Pretrial Order was entered, the defendant had not asserted res judicata as an issue or as a defense, nor did he object to the fact that Ms. Martin claimed damages against him in two separate actions both arising from the events of November 1, 1995. The Pretrial Order, which now governs the litigation, provides that it shall not be modified except by the consent of the parties "or by order of the court on its own motion to prevent manifest injustice." The issue, then, is whether it would be manifestly unjust not to permit the defendant to raise the res judicata defense at this stage of the litigation.
Counsel for the defendant explained that res judicata was not asserted in the Pretrial Order because at the time of the pretrial conference there was not yet a final judgment in the state case. In Joseph Mfg. Co. v. Olympic Fire Corp., 986 F.2d 416 (1Oth Cir. 1993), the court rejected a similar argument, stating:
Nothing in Rule 16 prevents a party from identifying a potentially controlling legal principle simply because it is inchoate at the time the pretrial order is drafted. [Defendant's] counsel knew of the existing state action and its potential effect upon the parties prior to the entry of the federal pretrial order; therefore his failure to timely raise the defense cuts deeply against his claim of manifest injustice. Indeed, "if the evidence or issue was within the knowledge of the party seeking modification [of the pretrial order] at the time of the [pretrial] conference or if modification would place a great burden on the opposing party, then it may not be allowed." [cite omitted]Id. at 420. The court noted that had the defendant raised the potential of a preclusion defense at the pretrial conference, the plaintiffs could have taken steps to protect their interests. Id. at 419. Likewise, in the instant case the defendant waited two years after the suit was filed to raise any question of claim preclusion. The issue was raised only after the state suit had proceeded to judgment and well after entry of the Pretrial Order in this case. Had the defendant raised a timely objection to the prosecution of two separate actions, Ms. Martin could have protected her interests by bringing all of her claims in the state proceeding. Under these circumstances, the court concludes that the defendant's proposed amendment to the Pretrial Order is not required to prevent manifest injustice.
The defendant has pointed out that the Full Faith and Credit statute, 28 U.S.C. § 1738, requires this court to give preclusive effect to the state court judgment if the courts of the State of Kansas would do so. According to Joseph Mfg., however, the issue at hand is controlled by federal law governing amendment of pretrial orders. Nevertheless, it should be noted that Kansas courts have recognized that the rule against claim splitting is an affirmative defense that may be waived if not asserted in a clear and timely manner. In Todd v. Central Petroleum Co., 155 Kan. 249, 124 P.2d 704 (1942), where the plaintiff filed two separate actions seeking different damages arising out of the same cause of action, the Kansas Supreme Court held that the defendant waived any objection to the splitting of the claim by permitting one action to proceed to judgment before raising a res judicata defense. Noting that the defendant had waited two years after initiation of the suit to object, the Court stated: "If a party to an action seeks the benefit of the rule against splitting a single cause of action, he must claim its benefit on the institution of a second or unnecessary action at an early stage of the proceedings, otherwise he will waive his right to its benefit." Id., 124 P.2d at 707. Thus, the court rejects defendant's argument that it would be manifestly unjust not to permit him to assert claim preclusion as a defense.
The court also rejects the defendant's argument that he should be permitted to amend the Pretrial Order to assert collateral estoppel, or "issue preclusion." Specifically, defendant argues that "the issue of Dr. Frayser's negligence was actually litigated in the prior case and the jury found him not to have been at fault," and thus "issue preclusion bars litigation of an essential element of plaintiff's case." Def. Mot. at 6 n. 1. Collateral estoppel will bar a party from relitigating the same issue in a second action. One of the elements of the doctrine, however, is that the issue litigated must have been determined and necessary to support the judgment. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 751 P.2d 122, 128 (1988). In the state action, the court apparently instructed the jury using the standard PIK instruction on "fault," which states that "a party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which claim is made." PIK NO. 105.01. So defined, the term includes both the element of negligence and the element of causation. Thus, the jury's finding that Dr. Frayser was not at fault does not necessarily mean it found he was not negligent. The verdict and judgment could have been based on a finding that Dr. Frayser's actions, regardless of whether they were negligent, did not cause the death of Kyler Clark. As such, the court cannot say that the jury necessarily decided the issues of negligence asserted by Ms. Martin in this action with respect to her personal injuries.
Conclusion.
The defendant's Motion for Reconsideration (Doc. 68) is DENIED. IT IS SO ORDERED this 28th day of December, 1999, at Wichita, Ks.