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Miguel Gonzalez, Jr., A Minor, By and v. United States of America

November 16, 2011

MIGUEL GONZALEZ, JR., A MINOR, BY AND
THROUGH HIS GUARDIAN AD LITEM, MARIA GONZALEZ, MARIA GONZALEZ AND MIGUEL GONZALEZ,
PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER FOR SUPPLEMENTAL BRIEFING

I. INTRODUCTION

On November 2, 2011, Maria Gonzales ("Petitioner"), as the court-appointed guardian ad litem of the named minor, Plaintiff Miguel Gonzalez, Jr. ("Miguel"), filed a petition to approve the proposed settlement between Miguel and the United States of America ("United States"). On November 10, 2011, Defendant County of Kern, erroneously sued in the name of its agency, Kern Medical Center, filed a statement of non-opposition to the petition for approval of the proposed settlement between Miguel and the United States. (Doc. 66.)

After reviewing the petition, the Court finds that a supplemental brief is necessary to adequately consider the fairness and reasonableness of the proposed settlement. The Petitioner is DIRECTED to file a supplemental brief on or before November 29, 2011,as set forth below. Any response to the supplemental brief that any party elects to file may be submitted on or before December 2, 2011. The hearing on the Petition is RESET to December 7, 2011, in Courtroom 7, at 9:30 a.m.

II. FACTUAL BACKGROUND

This case was originally filed on February 8, 2008, in Kern County Superior Court by Plaintiffs Miguel Gonzalez, Jr., Maria Gonzalez, and Miguel Gonzalez, Sr. (collectively, "Plaintiffs") against Kern Medical Center, Clinica Sierra Vista, Luis Lopez, M.D., Deng Fong, M.D., and Gurvir Khurana, M.D. Petitioner was appointed guardian ad litem for Miguel. According to Petitioner, it was thereafter discovered that Defendant Clinica Sierra Vista and Defendant Luis Lopez, M.D., were deemed employees of the Public Health Services pursuant to the provisions of the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233 and therefore subject to the Federal Tort Claims Act ("FTCA"), codified at 28 U.S.C. §§ 2671-2680. (Doc. 64, 2:15-18.)

On March 18, 2009, Plaintiffs filed a complaint in this Court pursuant to the FTCAagainst the United States and simultaneously proceeded in state court against the remaining defendants. On September 17, 2009, Plaintiffs filed a First Amended Complaint naming the state-court defendants, Kern Medical Center and Gurvir Khurana, M.D.,*fn1 in this action and dismissed the state-court action in its entirety. (See Doc. 64, 2:18-24.)

Plaintiffs' claims arise from the events occurring on the date of Miguel's birth, August 1, 2007, at the Kern Medical Center. Miguel's birth resulted in a prolonged period of head entrapment and hypoxia and acidosis. Upon birth, Miguel required full resuscitation and was admitted to the Neonatal Intensive Care Unit. He was hospitalized for 41 days, and was later diagnosed with global developmental delay and cerebral palsy. Currently, Miguel is able to walk, but with poor balance. (Doc. 64, 4:23.) He is severely mentally impaired, and he is not able to speak. He will require assistance in all activities of daily living throughout his life. (Doc. 64, 4:23-25.)

III. DISCUSSION

The "Petition for Compromise of the Claim of Minor Miguel Gonzalez" has two essential parts. Petitioner, Miguel's guardian ad litem, requests that the settlement be approved and that, as part of the approval, the Court issue an order establishing a special needs trust for Miguel such that certain settlement proceeds may be paid into the trust. Thus, the two components of the petition are considered below.

A. The Settlement Between Minor Miguel Gonzalez, Jr. and the United States

As a derivative of Federal Rule of Civil Procedure 17(c), district courts have a special duty to safeguard the interests of litigants who are minors. Rule 17(c) provides, in pertinent part, that a district court "must appoint a guardian ad litem -- or issue another appropriate order -- to protect a minor or incompetent person who is unrepresented in an action." Fed. R. Civ. P. 17(c). In the context of proposed settlements in suits involving minor plaintiffs, the district court's special duty requires it to "'conduct its own inquiry to determine whether the settlement serves the best interests of the minor.'" Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978)).

In Robidoux, the United States Court of Appeals for the Ninth Circuit provided specific guidance "on how to conduct this independent inquiry." Robidoux, 638 F.3d at 1181. While the Ninth Circuit noted that district courts have typically applied state law and the local rules governing the award of attorney's fees to make the reasonableness and fairness determination, the court held that "this approach places an undue emphasis on the amount of attorney's fees provided for in a settlement, instead of focusing on the net recovery of the minor plaintiffs under the proposed agreement." Id. The Ninth Circuit held that, instead, district courts should "limit the scope of their review to the question whether the net amount distributed to each minor plaintiff in the settlement is fair and reasonable, in light of the facts of the case, the minor's specific claim, and recovery in similar cases." Id. at 1181-82. Further, fairness of each minor plaintiff's net recovery should be evaluated "without regard to the proportion of the total settlement value designated for adult co-plaintiffs or plaintiffs' counsel -- whose interests the district court has no special duty to safeguard." Id. at 1182 (citing Dacanay, 573 F.2d at 1078).

The Eastern District of California has issued Local Rules ("L.R.") that govern the procedure for submitting requests for approval of a proposed settlement or compromise of a minor. In actions in which a minor is represented by an appointed representative where the United States courts have exclusive jurisdiction, "the motion for approval of a proposed settlement or ...


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