MEMORANDUM OPINION AND ORDER
DIANA E. MURPHY, District Judge.
This is a wrongful death action based on alleged negligence and strict liability. Plaintiff Gerald A. Trebesch is trustee for the heirs of decedent, Arthur G. Trebesch, who died following dental treatment by third-party defendant Donald Popovich on August 17, 1972. Defendant Astra Pharmaceutical Products, Inc. (Astra) is a Massachusetts corporation which manufactured a drug called xylocaine which was administered to decedent by Popovich, and it has filed a third-party claim against Dr. Popovich. Defendant Patterson Dental Company, Inc. (Patterson) is a drug distributor. Jurisdiction was alleged on the basis of diversity.
Before the court at this time are motions by plaintiff for partial summary judgment and for dismissal of defendant Patterson; defendant Astra's motions to dismiss for lack of subject matter jurisdiction and for partial summary judgment; and third-party defendant Popovich's motion to dismiss the third-party action.
Dismissal of Defendant Patterson
Astra has moved to dismiss for lack of jurisdiction, claiming incomplete diversity since plaintiff was a Minnesota citizen at the time the suit was filed, and Patterson, a Delaware corporation, has allegedly had its principal place of business in Minnesota at all times material. Plaintiff has moved to dismiss Patterson under Rule 21 of the Federal Rules of Civil Procedure,
Patterson is a dispensable party which the court may properly dismiss under Rule 21 in order to perfect its subject matter jurisdiction. Fetzer v. Cities Service Oil Co., 572 F.2d 1250 (8th Cir. 1978). The two essential tests of an indispensable party are: "(1) can relief be afforded to the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing rights of the other party?" Sandobal v. Armour and Company, 429 F.2d 249 (8th Cir. 1970). Astra has made no showing of any prejudice to itself by the dismissal of Patterson. Plaintiff has relinquished all claims against Patterson.
Because it is proper to dismiss Patterson, it is not necessary to reach the issues presented by Astra's motion to dismiss for lack of jurisdiction.
Dismissal of Third-Party Defendant Popovich
Third-party defendant Popovich seeks dismissal on the basis of a second release from plaintiff Trebesch.
The new release incorporates the original, and for $1 and "other valuable consideration," purports also to "indemnify" Popovich for any liability to Astra and to satisfy any percentage of fault allocated to Popovich at trial. At oral argument Astra did not oppose dismissal of Popovich, provided that it would not preclude a jury instruction at trial on the intent of the parties in executing the original release. Astra has also expressed concern about the validity of the second release.
Although the Minnesota Supreme Court has endorsed the use of the Pierringer-type release, allowing plaintiff to settle with one defendant, without releasing claims against others, and protecting nonsettling defendants from being required to pay a disproprotionate share of any award (Frey v. Snelgrove, 269 N.W.2d 918 (Minn.1978)), it has not specifically endorsed such a release between a plaintiff and a third-party defendant. However, the policy enunciated in Frey encouraging settlement where the parties' rights are protected would seem to be equally applicable. Unlike the situation disapproved in dicta by the Wisconsin Supreme Court in Johnson v. Heintz, 73 Wis.2d 286, 243 N.W.2d 815 (1976), the rights of the third-party plaintiff are protected here. Dismissal of Dr. Popovich will not prejudice Astra's rights to appropriate jury instructions, and Dr. Popovich's possible negligence and the intent of the release are proper matters for the jury.
Astra's concern about the validity of the second release is essentially based upon the fact that it has not been court-approved.
Plaintiff's Motion for Partial Summary Judgment
Plaintiff seeks partial summary judgment, on the basis of a previous judgment, collaterally estopping Astra from controverting its negligence in failing to file required adverse reaction reports and failing to exercise reasonable care to monitor and investigate adverse reactions to xylocaine and its manufacture of a defective product by virtue of its failure to file adverse reaction reports. Plaintiff argues that these issues were decided adversely to Astra by a jury sitting in a case in the United States District Court for the Middle District of Pennsylvania, Stanton v. Bowman, No. 73-610 (Jan. 10, 1980).
The jury there returned a special verdict which included the following questions and answers:
The jury also found that the negligence indicated by the answers to questions 9.(a), 10.(a), and 11.(a) was a substantial factor in causing the plaintiff's injuries,
It is unclear whether state or federal law governs the estoppel effect in a diversity action of issues previously adjudicated in a prior federal diversity action.
The conditions necessary for the application of collateral estoppel are: the issue is identical to one in a prior adjudication where there was a final judgment on the merits; the estopped party was a party, or in privity with a party, to the prior adjudication; and the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Oldham v. Pritchett, 599 F.2d 274, 279 (8th Cir. 1979). The finality requirement is at issue here.
Astra argues that the judgment in Stanton is not final because of pending post-trial motions made by the defense: motions for judgment notwithstanding the verdict under Rule 50(b) and for an altered judgment under Rule 59(e). On these motions Astra is challenging the jury's findings on causation.
One federal court has ruled that post-trial motions do not deprive the judgment of the requisite finality. McArdle v. Schneider, 228 F.Supp. 509 (D.Mass.1964). See Restatement of Judgments, § 41b (1942). Another view is that motions which would destroy the finality of judgment for purposes of appeal under 28 U.S.C. § 1291 should also prevent the application of estoppel effect to the judgment. See 1B Moore's Federal Practice ¶ 0.416 (1974).
In the circumstances presented on this motion it would be inappropriate for this court to grant plaintiff's motion for partial summary judgment and permit the offensive use of collateral estoppel. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Post-trial motions are pending in the federal court in the Stanton case which could affect the judgment.
Astra's Motion for Partial Summary Judgment
Astra has failed to show that there are no disputed issues of material fact as to whether it had a duty to report adverse reactions to the drug xylocaine to the FDA prior to 1971, whether there is evidence to support claims of overpromotion and false advertising, whether there is evidence to support a claim that Arthur Trebesch experienced an allergic reaction to xylocaine or the component methylparaban, and whether reports of foreign adverse experiences filed by Astra with the FDA in 1975 are relevant to this action. Its motion for partial summary judgment is therefore denied.
Accordingly, upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion for dismissal of defendant Patterson Dental Company, Inc., is granted.
2. Third-party defendant's motion to dismiss the third-party action is granted.
3. Plaintiff's motion for partial summary judgment is denied.
4. Defendant Astra's motion for partial summary judgment is denied.
5. Defendant Astra's motion to quash untimely interrogatories is granted.