Photo of Stephen McConnell

This week saw the birthdays of two folks who were sort of prominent in our youth.  First, Uri Geller, the Israeli ‘psychic’, turned 71.  He showed up on our tv constantly in the 1970s and 80s, bending spoons with his mind.  Was this guy on the level? Can you read our mind and discern our opinion on that score?  A court once ordered Geller to refund an audience member’s money and pay costs, finding that Geller’s feats of telepathy … weren’t.   Also this week, the great film director George Roy Hill would have reached the ripe old age of 96, had he not inconveniently passed away in 2002.  We remember Hill fondly for a pair of movies he directed that starred Paul Newman and Robert Redford:  Butch Cassidy and the Sundance Kid (1969) and The Sting (1973).  The latter ruled the Academy Awards its year, receiving ten nominations and winning seven, including Best Picture, as well as a Best Director nod for Hill.  Besides boasting a stellar cast (Robert Shaw played the villain), The Sting was blessed with intricate plotting – how to con a crook out of his money without his even knowing he had been conned – and a bouncy (though somewhat anachronistic) ragtime score by Marvin Hamlisch.  With all its virtues, The Sting did feel a bit overlong, which led to our single favorite all time film critic witticism: “Oh Sting, where is thy death?”

For some reason, today we have scams on our mind.

And thus we turn to the case of Eastman v. Biomet, Inc., 2017 WL 5257130 (N.D. Ind. Nov. 9, 2017).  The plaintiff had alleged injuries from a metal-on-metal hip implant.  He entered into a master settlement agreement that provided a procedure for categorizing case values.  He signed a release and received $25,000, which the release said constituted full payment.   End of story, right?  Well, as in The Sting, we have a false ending.  For the plaintiff made a few modifications in the release he signed.  These were just little stylistic flourishes, mind you, such as changing “binding” to “nonbinding,” “irrevocable” to “revocable,” and moving the governing law from Indiana to Arkansas.  Having improved the release in those minor ways, the plaintiff deposited the check, waited a decent interval, and then filed another lawsuit versus the defendant, seeking the difference between the $25,000 and what he thought he should have received in settlement.

This subsequent lawsuit was filed pro se, so at least we can say that no lawyer played a role in rigging this unpleasant exercise.  Both (!) parties moved for summary judgment.  And because the world is round(ash), gravity makes things fall down, the Patriots (sigh – what’s today’s theme again?) are once again headed for the Super Bowl, and the Judge was a sentient being, the defendant won and the plaintiff lost.  One cannot settle a case and eat it too.  Or something like that.  The court was plainly irked with the plaintiff for “secretly modifying” the release and changing three words “surreptitiously.”  We do not know the details as to how the paperwork was handled, so it is hard to see how the changes were secret.  Wasn’t the signed release sent to someone?  Be that as it may, there is something undeniably improper about pocketing settlement money and then filing another lawsuit on the same claim.

The Eastman plaintiff claimed that he had merely “conditionally signed” the release.  He agreed in principle with the defendant that he should receive some money.  So far so good. The remaining dispute was confined to the trivial issue of how much.  Under this rationale, settlements are astonishingly easy.  It’s a wonder that our courts are clogged with so many unsettled cases. Perhaps this clever plaintiff has discovered a way to thin out the civil dockets.

Here, the plaintiff had a beef with the defendant over the categorization of his injury.  The defense reduced the plaintiff’s award based upon evidence of an alternative cause for the implant failure. The plaintiff disagreed with said reduction.  What to do about such a disagreement?  The folks who drafted the master settlement agreement were sufficiently farsighted to provide for a mediation process for resolving such disputes.  But rather than avail himself of that mediation process, the plaintiff simply changed a few words in the release and took the money.  That, it turns out, is not quite kosher.  One cannot seize the benefits of a settlement whilst rejecting the annoying bits. The defendant never agreed to any of the plaintiff’s editorial innovations.  Clearly, no defendant would enter into the one-way ratchet sort of deal that the plaintiff favored.  The plaintiff had the choice to enter into the settlement and mediate, or proceed to trial on the merits.  His preferred hybrid of take-some-money-and-still-litigate was not on offer.

If there is one thing we have learned over our years in litigation, it is this: courts like settlements.  Twice in our career we have won motions to enforce settlements.  We have never lost such a motion, nor ever heard of anyone else losing such a motion.  The Eastman plaintiff’s maneuvers posed a threat to the settlement process in that case, and, for that matter, that entire form of settlement in other cases.  Consequently, it is unsurprising that he lost.  The court granted summary judgment in favor of the defendant.  The plaintiff’s maneuvers also were an insult to fair-dealing – period.  Movies are one thing, but in real life, we root against an attempted sting.