Of the Southern District of New York, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 07-1868

 07-2005

RÍO MAR ASSOCIATES, LP, SE, ET AL.,

Defendants/Cross-Plaintiffs, Appellants,

v.

UHS OF PUERTO RICO, INC., D/B/A

HOSPITAL SAN PABLO DEL ESTE,

Cross-Defendant, Appellee, 

__________________

MYRELLA S. FIORENTINO,

Plaintiff, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, Senior U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Senior Circuit Judge,

and Keenan, Senior District Judge. *

Jennifer S. Carroll for appellants.

Gladys E. Guemarez, with whom Law Offices of Gladys E.

Guemarez was on brief, for cross-defendants, appellees.

Eric A. Tulla, with whom Rivera, Tulla & Ferrer,

Guillermo Ramos Luiña, Edward A. Moss, and Shook, Hardy & Bacon

were on brief, for plaintiff, appellee.
April 10, 2008
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SELYA, Senior Circuit Judge. The district court

bifurcated an action but, after the first-phase trial had been

completed, misinterpreted the effect of the jury's verdict. That

error prompted a series of rulings which, among other things,

foreclosed a second-phase trial. Because these rulings were

erroneous and prejudiced substantial rights, we reverse one order,

vacate another, and remand for further proceedings consistent with

this opinion and with Puerto Rico law governing the allocation of

damages between settling and non-settling successive tortfeasors.

I. BACKGROUND

Edward and Myrella Fiorentino sojourned from Arizona to

Puerto Rico to stay at the Westin Río Mar Beach Hotel. On December

7, 2000, while swimming in the ocean, Edward was struck by a wave

which rendered him unconscious. Following his shore-side

resuscitation by a group of vacationing doctors, lifeguards

realized that they lacked proper equipment for stabilization. When

emergency medical personnel finally arrived, they placed a

supportive collar around Edward's neck and transported him to the

Hospital San Pablo del Este (the Hospital).

Although a scan taken that same day indicated that a

cervical vertebra had been broken, the medical staff failed to

treat the fracture. In the meantime, fragments pressed on Edward's

spinal cord, causing swelling and nerve damage. Myrella had him

transferred to a hospital in Miami but, despite prompt surgical
-4-

intervention there, Edward emerged from his ordeal as a

quadriplegic.

Invoking diversity jurisdiction, 28 U.S.C. § 1332(a)(1),

the Fiorentinos filed suit in the United States District Court for

the District of Puerto Rico against the hotel and the entity that

owned it (collectively, the Hotel) and against the Hospital. With

respect to the Hotel, the amended complaint alleged negligent

failure to warn of hazardous beach conditions and negligent

entrustment of beach safety to untrained and ill-equipped

lifeguards. With respect to the Hospital, the amended complaint

alleged, among other things, medical malpractice.

Edward died before trial for reasons unconnected with the

accident. His wife, as personal representative of his estate and

in her own behalf, pressed forward with the suit (accordingly, we

henceforth refer to her singularly as the plaintiff). Meanwhile,

the Hotel and the Hospital filed cross-claims against each other.

See Fed. R. Civ. P. 13(g).

As trial approached, the Hospital settled with the

plaintiff for $1,400,000, and the district court granted a motion

to dismiss the amended complaint as to that defendant. The Hotel's

cross-claim remained pending. The court proceeded effectively to

bifurcate what remained of the action, reserving the cross-claim

for a separate trial.
-5-

Before the first-phase trial commenced, the Hotel moved

to compel disclosure of the release, settlement agreement, and

related documents (collectively, the Release) memorializing the

settlement between the plaintiff and the Hospital. The plaintiff

opposed the motion. The court did not act on the matter

immediately, and the first-phase trial got underway.

The trial itself showcased the plaintiff's claims against

the Hotel (the Hospital did not participate). At the charge

conference, the judge reiterated how he had decided to structure

the proceedings, advising the Hotel that it could "repeat against

the hospital" in the second-phase trial all claims "for any damages

that the hospital may have caused." The judge then stated:

Basically, what I have done in this case is .

. . a bifurcation. I have tried plaintiffs'

causes of action against the hotel first.

Once that is over, if there is any reason to

go forward with [the] cross claim against the

hospital, then we'll have another jury trial,

and we'll go [forward with the] cross claim

against the hospital.

Later that day, the court charged the jury. Pertinently, the court

instructed:

A person who by his negligence causes

physical injuries to another is also

responsible for any additional injuries

suffered by that person as a result of the

medical services provided to treat the

original injuries. Nothing precludes the

person who caused the original injuries to

recover from the hospital who provided the

medical services those additional injuries

caused by their insufficient care.
-6-

If you find that the [Hotel] defendants .

. . are responsible for Mr. Fiorentino's

accident on December 7, 2000, you must also

determine that they are liable for all damages

sustained by him as a consequence of the

medical services provided to him to treat the

physical injuries suffered at the beach of the

Westin Río Mar Beach Hotel . . . .

After deliberations, the jury returned a verdict in favor of the

plaintiff in the amount of $1,844,000.

The district court subsequently granted the Hotel's

pending motion for disclosure of the Release. When produced, the

settlement accord proved to be fashioned along the lines of a

Pierringer release. See Pierringer v. Hoger, 124 N.W.2d 106, 112

(Wis. 1963) (interpreting such a release as discharging the

settling defendant entirely and discharging the non-settling

defendant from responsibility for the settling defendant's

proportionate share of liability). Such "proportionate share"

releases are not uncommon. See, e.g., McDermott v. AmCLYDE, 511

U.S. 202, 205, 217 (1994); In re Exxon Valdez, 229 F.3d 790, 797-98

(9th Cir. 2000); Austin v. Raymark Indus., Inc., 841 F.2d 1184,

1188-91 (1st Cir. 1988).

The Release purported not only to free the Hospital from

any and all further liability to the plaintiff but also to

discharge it from liability for any associated third-party claims.
Specifically the Release stated: 2

Plaintiffs shall indemnify and hold harmless the

settling Defendants . . . from and against all claims,

damages, and losses arising out of any claim made by an

entity to recover any amounts from the settling

Defendants which arise out of the incident alleged in the

Complaint, including any claims for medical expenses and

any and all claims for subrogation.

-7-

An additional provision in the Release assured the Hospital of

indemnification should any such claim be pressed.2

Armed with the Release, the Hotel filed a flurry of posttrial motions, including a motion for a new trial, see Fed. R. Civ.

P. 59(a), and a motion to alter or amend the verdict by, say, a

dollar-for-dollar setoff of the settlement amount, see Fed. R. Civ.

P. 59(e). The district court denied both motions. The court's

rejection of the new trial motion is not seriously disputed on

appeal. With respect to the Rule 59(e) motion, the court expressed

a belief that the Hotel, in filing it, had misconstrued the import

of the jury's verdict. The court wrote:

During the trial, the jury was only

considering [the Hotel's] participation in the

event that caused plaintiff's damages. The

only defendant at trial was [the Hotel]. The

evidence that was presented pertained to [the

Hotel's] negligence and involvement in the

events leading to plaintiff's injury. The

jury was instructed to consider the damages

only as to [the Hotel] . . . . Therefore,

this is not a situation of double recovery

because the jury was only considering the

damages as to [the Hotel]. 
-8-

In line with this understanding, the court entered judgment against

the Hotel for the total amount of the verdict, denied its motion

for a setoff, and dismissed its cross-claim. These timely appeals

ensued.

II. ANALYSIS

Our analysis is divided into three parts. We begin by

addressing the district court's rulings during the proceedings that

followed the first-phase trial. We then canvass the case law to

determine the proper allocation of damages between settling and

non-settling tortfeasors in a successive tortfeasor case governed

by Puerto Rico law. Lastly, we turn to the remedy for the

discerned error and furnish a roadmap for further proceedings. 

A. The Post-Trial Rulings.

In the final analysis, the Hotel's assignments of error

hinge upon the contention that the district court misconstrued the

legal import of the first-phase verdict — a misconception that it

says tainted the post-trial rulings. The most critical of those

rulings was made in connection with the Rule 59(e) motion. 

Ordinarily, we review a district court's disposition of

a Rule 59(e) motion for abuse of discretion. See Vasapolli v.

Rostoff, 39 F.3d 27, 36 (1st Cir. 1994). But this is not the

ordinary circumstance. Where, as here, the disposition of a Rule

59(e) motion depends entirely on a question of law, our review is

plenary. See Pérez v. Volvo Car Corp., 247 F.3d 303, 319 (1st Cir.
-9-

2001); see also Charlesbank Equity Fund II v. Blinds to Go, Inc.,

370 F.3d 151, 158 (1st Cir. 2004) ("An error of law is, of course,

always an abuse of discretion."). Since the cross-claim is at

bottom a legal claim like any other, its dismissal is examined

under the de novo standard of review. See Ruiz v. Bally Total

Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007); see also

United States v. Hardage, 985 F.2d 1427, 1433 (10th Cir. 1993)

(applying de novo standard to lower court's dismissal of crossclaim).

The underlying legal question is nuanced, and it is

understandable why the able district judge struggled with it. We

have the luxury of time and, after careful consideration of the

record, we conclude that both the district court's disposition of

the Rule 59(e) motion and its concomitant dismissal of the crossclaim rest upon an incorrect interpretation of the effect of the

first-phase verdict. We elaborate below. 

The jury instruction, quoted above, scarcely could have

been more lucid in its exposition of an uncontroversial rule of

Puerto Rico tort law: that tortfeasors must answer not only for the

damages immediately caused by their own negligence but also for any

foreseeable aggravation thereof caused by the subsequent negligence

of others. See Corey Lanuza v. Medic Emerg. Specialties, Inc., 229

F. Supp. 2d 92, 100 (D.P.R. 2002) ("A person is responsible not

only for those damages directly caused by his or her own negligence
-10-

but also for the aggravation of injuries brought about by the

negligence of a third party in the course of providing medical

treatment."); Merced v. Gobierno de la Capital, 85 D.P.R. 552, 556-

57 (P.R. 1962) (same). No one claims that this instruction is an

incorrect statement of law, nor is there the slightest reason to

believe that the jury did not scrupulously adhere to it. In any

event, jurors are presumed to follow the trial court's

instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987);

United States v. Sampson, 486 F.3d 13, 39 (1st Cir. 2007). 

The district court's explanation of how the instruction

functioned, quoted above, was accurate. The court, however,

appears to have misconceived the import of the ensuing verdict.

Applying the instruction to the facts of this case, the verdict

must be presumed to have encompassed all the damages caused by both

the Hotel and the Hospital. But the district court seems to have

construed this fact as equivalent to a finding that the Hospital

bore no responsibility for any part of those damages. That is not

correct.

Seeking to avoid the inevitable result of this reasoning,

the appellees asseverate that the Hotel failed to interpose a

timely objection to the instruction, see Fed. R. Civ. P. 51(d)(2),

and that, therefore, the claim of error is forfeit. The appellees'

premise is sound — no such contemporaneous objection was lodged —

but the conclusion that the appellees draw is insupportable.
-11-

The Hotel has not challenged the instruction itself

(indeed, as we have said, no party has identified any flaw in the

instruction). The challenge here concerns the district court's

interpretation of the effect of that instruction — no more and no

less. That interpretation did not emerge until after the firstphase verdict had been returned.

In such a situation, demanding that a party object at the

conclusion of the charge in order to preserve its rights would be

tantamount to demanding that a party anticipate a future

hermeneutic misstep on the part of the trial court. The law does

not require parties to possess that degree of clairvoyance. Cf.

United States v. Ladd, 885 F.2d 954, 961 (1st Cir. 1989) (remarking

that "robes and gavels are the tools of a jurist's trade — not tea

leaves or crystal balls").

In an effort to dilute the force of the district court's

interpretive bevue, the appellees emphasize a number of facts (such

as expert testimony that Edward's fracture was so severe that it

might have rendered him a quadriplegic even if he had received the

best of care thereafter) suggesting that the jury might have

concluded that the Hotel was to be held responsible only for the

direct consequences of its own negligence. Taken to its logical

conclusion, this argument suggests that the jury might have awarded

$1,844,000 even while excluding from the amount awarded any damages

flowing from shortcomings in Edward's care at the Hospital.
-12-

That is not enough to render the court's error harmless.

The possibility that the jury could have followed such a path, as

opposed to persuasive evidence that the jury actually did so, is

insufficient to overcome the Hotel's presumptive right to pursue

its cross-claim and motion for setoff. See United States v.

Carney, 387 F.3d 436, 449 (6th Cir. 2004) (observing that

"speculation, conjecture, empty hypothesizing, creative guesswork,

and wishful thinking" are insufficient to overcome presumption);

Breeden v. ABF Freight Sys., Inc., 115 F.3d 749, 753-54 (10th Cir.

1997) (holding in multiple defendant tort context that presumption

was not overcome by mere speculation that jury ignored specific

instruction).

To say more on this point would be supererogatory. We

conclude that the district court erred as a matter of law in its

assessment of the effect of its own instruction and, thus, erred in

its interpretation of what the first-phase verdict signified.

Under the instruction as given, the award encompassed both the

damages attributable to the Hotel's beachfront negligence and the

aggravating damages attributable to the Hospital's alleged

malpractice. Consequently, the district court erred in foreclosing

further litigation; the Hotel was entitled to some process by which

it could test how the plaintiff's total damages — $1,844,000 —

should be allocated as between it and the Hospital. The district
-13-

court should not have denied the Rule 59(e) motion or dismissed the

cross-claim without pursuing that inquiry.

 B. Allocation of Damages.

The Release, by its terms, purports to free the Hospital

from any further obligations arising out of Edward's injuries. A

question nonetheless remains as to its overall effect. The

plaintiff and the Hospital cannot by contracting between themselves

deny a third party rights that the third party (here, the Hotel)

enjoys under the law. We must, therefore, go beyond the four

corners of the Release in order to determine the rights of the

parties inter sese.

Simply put, the pivotal question here concerns the

allocation of damages as between settling and non-settling

tortfeasors in a successive tortfeasor case. Because this is an

action brought under diversity jurisdiction, the appropriate rule

must be gleaned from Puerto Rico law, not federal law. See

Villarini-García v. Hosp. del Maestro, 112 F.3d 5, 8 (1st Cir.

1997).

The protagonists recommend different models for the rule

of decision. The appellees contend that the Hotel's right of

contribution is limited to that proportion of the award (if any)

that can be attributed to the Hospital's negligence. See Austin,

841 F.2d at 1190 (collecting cases adhering to this "proportionate

share" view). The Hotel argues instead that there should be a
-14-

dollar-for-dollar setoff of the settlement amount ($1,400,000)

against the verdict amount ($1,844,000), thus limiting its

responsibility to the balance ($444,000). See, e.g., Brown v.

United States, 838 F.2d 1157, 1161-62 (11th Cir. 1988) (applying

dollar-for-dollar setoff paradigm); In re Piper Aircraft, 792 F.

Supp. 1189, 1194 (N.D. Cal. 1992) (same). Some jurisdictions

dictate this choice by statute. See, e.g., Neb. Rev. Stat. § 25-

21, 185.11 (1992) (codifying "proportionate share" rule); N.Y. Gen.

Oblig. § 15-108(a) (McKinney 2008) (entitling non-settling

defendant to a setoff equal to the settlement amount or the

settling defendant's equitable share of liability, whichever proves

greater). Puerto Rico has not enacted such a statute, so our task

is to make an informed prophecy as to which of these rules the

Puerto Rico Supreme Court would probably choose in a successive

tortfeasor situation. See Blinzler v. Marriott Int'l, Inc., 81

F.3d 1148, 1151 (1st Cir. 1996). 

The case law is less than transparently clear. One

potentially useful precedent, much touted by the Hotel, is our

decision in Villarini-García. There, we interpreted Puerto Rico

law as favoring a dollar-for-dollar setoff in a case concerning

vicarious liability. See Villarini-García, 112 F.3d at 8. In that

context, a dollar-for-dollar setoff rule makes perfect sense; after

all, when one tortfeasor is vicariously liable for the actions of

another, the same damages are by definition attributed to each of
-15-

the two tortfeasors and the prevention of a double recovery is a

paramount concern. See id.

Another potentially useful precedent, much touted by the

appellees, is the Puerto Rico Supreme Court's decision in Szendrey

v. Hospicare, 158 D.P.R. 648 (P.R. 2003). There, the court

endorsed the concept of proportionate share setoffs in a case

involving joint tortfeasors, one of whom had obtained a Pierringer

release prior to trial. See id. at 657; see also Toledo v. Hosp.

Nuestra Señora de la Guadalupe, 167 D.P.R. ___, ___, 2006 TSPR 47,

2006 JTS 56 at 1115-17 (P.R. 2006) (reaffirming the Szendrey

approach). 

None of these cases directly controls the situation at

hand. Here, we are confronted with a multiple tortfeasor scenario

that does not fall precisely under either the rubric of vicarious

liability or that of joint tortfeasor liability. Unlike VillariniGarcía, in which the defendants' liability arose from the same

conduct (one was vicariously liable for the other's acts and

omissions through a master-servant relationship), the Hotel and the

Hospital are each alleged to have been guilty of independently

tortious conduct. And unlike Szendrey, in which each of the two

joint tortfeasors directly contributed to the same harm, the harms

for which the Hotel and the Hospital are allegedly responsible

overlap, but they are not congruent; while the Hotel became liable

for the entire bundle of harms (that is, its negligence made it
-16-

liable not only for the damages flowing immediately therefrom but

also for whatever damages were caused by the Hospital's

independently tortious conduct), the Hospital never became liable

under any theory for the entire bundle of harms (that is, it never

became liable for the pre-hospitalization damages attributable

exclusively to the Hotel's antecedent negligence). 

This imbalance, which results from the operation of a

special tort rule dealing with the aggravation of injuries, is

important. Both commentators and judges have recognized the

distinctive nature of this type of situation and have labeled

parties like the Hotel and the Hospital "independent" or

"successive" tortfeasors, thus distinguishing them from gardenvariety joint tortfeasors. See, e.g., 6 Jerome H. Nates et al.,

Damages in Tort Actions § 51.03[1][d] (2007); see also McInnis v.

A.M.F., Inc., 765 F.2d 240, 250 n.10 (1st Cir. 1985). It is,

therefore, apparent that successive tortfeasor liability is

doctrinally distinct from joint tortfeasor liability. 

We have considered these differences and have studied the

two alternative approaches to possible setoffs. We believe that

the Puerto Rico Supreme Court would be more likely to employ

Szendrey's proportionate share rule in a successive tortfeasor

case. Our reasons are threefold. 

In the first place, the analogue to a joint tortfeasor

situation is a persuasive one. Easily separable and
-17-

distinguishable tortious acts may be attributed to each tortfeasor.

See generally W. Page Keeton et al., Prosser and Keeton on Torts §

52, at 352 (5th ed. 1984). Where successive tortfeasors are

concerned, however, the initial tortfeasor is, under certain

circumstances, accountable for tortious conduct of the later

tortfeasor in order "to ensure that a victim of negligence is not

left without recourse due to the inability to set apart the origin

of the damages or to prove medical malpractice." Corey Lanuza, 229

F. Supp. 2d at 101 (citing Merced, 85 D.P.R. at 557-58). A

Pierringer release executed with the second tortfeasor dissolves

this concern and molds the successive tortfeasor situation into one

strongly resembling a joint tortfeasor situation in which a

Pierringer release is in play (that is, each defendant is

ultimately responsible only for its proportionate share of the

overall damages). See Austin, 841 F.2d at 1191; Szendrey, 158

D.P.R. at 658-59. The distinctions that exist between successive

tortfeasors and tortfeasors who are linked only by principles of

vicarious liability are, at one and the same time, much more stark

and much less easily resolved.

Our two remaining reasons can be succinctly stated.

Fairly read, Szendrey seems to us to represent the default rule

under Puerto Rico law, which recognizes the settling parties'

intent as controlling. See Szendrey, 158 D.P.R. at 657-58 ("This

intention [to release the settling defendant from all liability] .
-18-

. . does not affect the cause of action asserted against the other

codefendants . . . insofar as it was so expressly agreed.")

(official translation, slip op. at 6).

Finally, Villarini-García was decided in 1997. In our

view, its reasoning has been colored, informed, and to some extent

limited by the later decision in Szendrey. In this regard, it is

especially noteworthy that the Villarini-García court's focus on

the Puerto Rico courts' "general hostility to double recovery,"

112 F.3d at 8, has been blurred by the Puerto Rico Supreme Court's

subsequent selection of a proportionate setoff rule for joint

tortfeasor cases despite the fact that, under this rule, plaintiffs

might sometimes receive more (or less) than full and fair

compensation for their injuries. See Szendrey, 158 D.P.R. at 658-

59; see also Toledo, 167 D.P.R. at ___, 2006 TSPR 47, 2006 JTS 56

at 1115-17 (affirming Szendrey).

These reasons lead us to conclude that in all likelihood

the Puerto Rico Supreme Court would find no meaningful difference

between successive tortfeasors and joint tortfeasors for the

purpose of determining setoffs. Confirmation of this intuition can

be found in the fact that courts elsewhere tend to treat Pierringer

releases the same, whether the tortfeasors in question are joint or

successive. Compare, e.g., Stueve v. Am. Honda Motors Co., 457 F.

Supp. 740, 748-49 (D. Kan. 1978) (applying proportionate setoff in

successive tortfeasor context, after execution of Pierringer
-19-

release), and Hansen v. Crown Controls Corp., 512 N.W.2d 509, 513

n.2, 514 (Wis. Ct. App. 1993) (similar), vacated in part on other

grounds, 519 N.W.2d 346, 346 (Wis. 1994), with, e.g., Nagunst v. W.

Union Tel. Co., 76 F.R.D. 631, 634-35 (D. Kan. 1977) (applying

proportionate setoff in joint tortfeasor context, after execution

of Pierringer release), and Johnson v. Misericordia Cmty. Hosp.,

301 N.W.2d 156, 158 (Wis. 1981) (similar). Legislatures have

tended to do the same. See, e.g., Iowa Code Ann. § 668.7 (West

2007) (providing for proportionate setoff of settlements without

distinguishing between joint and successive tortfeasors); Ky. Rev.

Stat. Ann. § 411.182 (West 2008) (similar); Neb. Rev. Stat. § 25-

21, 185.11 (similar). We hold, therefore, that the proportionate

share rule delineated in Szendrey applies in this case.

C. The Remedy.

The appellees attempt to avert a remand by suggesting

that even if the Hotel arguably may have been entitled to a

proportionate setoff, it waived that entitlement by not objecting

to bifurcation and not requesting a special verdict apportioning

damages as among the defendants. The Hotel responds that the law

of the case doctrine provides it shelter because, unless and until

overruled on appeal, "a legal decision made at one stage of a

criminal or civil case constitutes the law of the case throughout

the pendency of the litigation." Flibotte v. Pa. Truck Lines,

Inc., 131 F.3d 21, 25 (1st Cir. 1997). 
Indeed, the court told the jury as much. 3

-20-

The Hotel has the better of this argument. The Hospital

was not represented at the first-phase trial and the district court

explicitly ruled that the Hotel would be entitled to pursue its

cross-claim after the conclusion of the first-phase trial. The 3

bifurcation order was well within the encincture of the district

court's discretion. See, e.g., Lisa v. Fournier Marine Corp., 866

F.2d 530, 531 (1st Cir. 1989); Gonzalez-Marin v. Equitable Life

Assur. Soc., 845 F.2d 1140, 1145 (1st Cir. 1988); see also Charles

Alan Wright et al., Federal Practice and Procedure § 2388, at 113-

19 (3d ed. 2008). Accordingly, the Hotel had no basis for

objecting to the bifurcation order — let alone an obligation to

object to it.

Given the circumstances that obtained, the Hotel was

entitled to rely on the district court's stated intention to try

the issues of relative fault among the defendants in a second-phase

trial. That obviated any need either to object to the jury

instructions or to lobby for a special verdict. Cf. Williams v.

Runyon, 130 F.3d 568, 573 (3d Cir. 1997) (finding reversible error

when court at start of trial ruled that exhaustion of

administrative remedies was not at issue and in reliance on that

ruling plaintiff presented no evidence concerning that issue, only

for court to reverse its original ruling post-trial and hold that

exhaustion was essential).
In view of this conclusion, we have no need to decide whether 4

a prohibition against bifurcation would be preempted by a federal

court's explicit authority to bifurcate trials. See Fed. R. Civ.

P. 42(b); Hydrite Chem. Co. v. Calumet Lubrics. Co., 47 F.3d 887,

890-91 (7th Cir. 1995); Moss v. Associated Transp., Inc., 344 F.2d

25-27 (6th Cir. 1965) (holding that Rule 42(b) preempts Tennessee

law guaranteeing right to try all facts at the same time before one

jury); see generally Hanna v. Plumer, 380 U.S. 460, 463-74 (1965)

(establishing test to determine whether a given Federal Rule of

Civil Procedure preempts state law). 

Questions as to the plaintiff's responsibility under the 5

terms of the Release to defend and hold the Hospital harmless, see

supra note 1, are beyond the scope of this opinion. Consequently,

we take no view as to any such matter.

-21-

The appellees have a fallback position: they ruminate,

with little elaboration, that remand would be improper because

Szendrey bars separate contribution suits. This musing elevates

hope over reason.

The Szendrey court made no sweeping prohibition of

contribution actions but, rather, restricted its holding to a

specific procedural situation. See Szendrey, 158 D.P.R. at 658-59.

Although the court did find a particular contribution suit barred,

bifurcation was never at issue. We decline to read Szendrey so

expansively as to prohibit a federal court from bifurcating a claim

for contribution and trying that claim separately. Accordingly, 4

we hold that the Hotel is entitled to a trial on its cross-claim

against the Hospital.

A few observations about the trial on the cross-claim may

prove helpful. First, the parties have a right to trial by jury.5

See In re N-500L Cases, 691 F.2d 15, 21 (1st Cir. 1982). Second,
-22-

in mandating a trial to fix the proportionate shares of the Hotel

and the Hospital, respectively, we do not eliminate the possibility

that the Hotel may prove to be entitled to something approaching a

dollar-for-dollar setoff. That depends on the jury's subsequent

verdict. Third, should the Hotel's proportionate share of damages

be determined to be less than $444,000 (the difference between the

jury's award in the first-phase trial and the amount of the

settlement negotiated by the Hospital), the Hotel would have a

right to pay that lesser amount in full satisfaction of its

proportionate share.

We need go no further. Although the Hotel has appealed

from the denial of its motion for new trial, it has offered no

developed argumentation in support of that appeal and, thus, the

jury verdict must stand. The district court's other post-trial

rulings, however, were premised on a fundamental misconception of

the effect of that verdict. To correct the ensuing errors, we

reverse the dismissal of the Hotel's cross-claim and vacate the

denial of its Rule 59(e) motion. On remand, we suggest that the

district court hold the latter motion (which, at bottom, requests

a setoff) in abeyance pending resolution of the cross-claim.

Affirmed in part, reversed in part, vacated in part, and remanded.

Costs shall be taxed in favor of the appellants as against the

cross-defendant, appellee.