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I.A., By and Through His Guardian Ad Litem, Adriana Acuna v. United States of America

November 28, 2012

I.A., BY AND THROUGH HIS GUARDIAN AD LITEM, ADRIANA ACUNA, PLAINTIFF,
v.
UNITED STATES OF AMERICA,
DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER VACATING HEARING DATE OF JANUARY 7, 2013 FINDINGS AND RECOMMENDATIONS GRANTING IN PART PLAINTIFF'S MOTION TO APPROVE SETTLEMENT (Doc. 32)

The plaintiff ("I.A.") is a minor appearing in this proceeding by and through his guardian ad litem ("GAL") Adriana Acuna. Pending before the Court is an unopposed petition for approval of settlement of the minor's claims. (Doc. 32).

Having reviewed the motion and its supporting documents, the Court finds the matter suitable for decision without a hearing pursuant to Local Rule 230(g). Therefore, the matter is taken under submission, and the hearing date of January 7, 2013, is VACATED. In doing so, the Court finds there is good cause to excuse the child's attendance at a hearing due to his medical fragility.

For the following reasons, the Court recommends Plaintiff's motion for approval of the settlement be GRANTED IN PART.

I. Factual and Procedural History

Plaintiff initiated this action against the United States of America ("Defendant" or "the Government") on March 9, 2011, pursuant to the Federal Tort Claims Act arising under 28 U.S.C. § 2671. (Doc. 1). Plaintiff alleged medical malpractice and personal injuries arising from "employees 2 of federally supported medical clinics." Id. at 1. 3

According to Plaintiff, Clinica Sierra Vista was employed by Adriana Acuna "to diagnose and treat her condition of pregnancy and to do all things necessary for her care and care of her baby [I.A.], 5 including, but not limited to, pre-delivery care, the delivery, and post-delivery care." (Doc. 1 at 4-5).

Plaintiff alleged "Defendant and its agents and employees . . . negligently delivered, examined, 7 treated, cared for, diagnosed, operated upon, attended and otherwise handled and controlled the minor Plaintiff herein, thereby proximately causing injuries and damages to the minor Plaintiff, including but 9 not limited to severe neurological injuries and brain damage." Id. at 5. Specifically, Plaintiff reports Clinica Sierra Vista employees "failed to diagnose and treat neonatal alloimmune thrombocytopenia resulting in a massive intracranial hemorrhage that left Plaintiff with significant cognitive defects." (Doc. 32 at 2). As a result, "Plaintiff will require daily attendant care for the remainder of his life."

Id. Therefore, Plaintiff sought damages for past and future medical damages, as well as damages for loss of future earning and earning capacity. (Doc. 1 at 6).

On November 16, 2012, Plaintiff filed the motion now before the Court, asserting the parties reached a settlement agreement, subject to approval of the state court and District Court. (Doc. 32). Under the terms of the agreement, the Government would pay "$4,800,000, with $2,000,000 to be paid in up-front cash and $2,800,000 to purchase installment refund annuity contracts paying $4,540 monthly for the life of Isaac Acuna, increasing at 3 percent compounded annually after the first year of payments." Id. at 2. Defendant filed a notice of non-opposition to the motion on November 16, 2012. (Doc. 33).

On November 21, 2012, the Court ordered Plaintiff to file supplemental briefing in support of the motion, noting the information required under the Local Rules was not clearly identified for the Court in the moving papers. (Doc. 34). Further, the Court noted inconsistencies with the fee award request, and requested explanation regarding the relevance of the state court's approval of the action. Id. at 2. In compliance with the Court's order, Plaintiff filed the supplemental brief on November 26, 2012. (Doc. 35).

II. Settlement Approval Standards

No settlement or compromise of "a claim by or against a minor or incompetent person" is 2 effective unless it is approved by the Court. Local Rule 202(b). The purpose of requiring the Court's 3 approval is to provide an additional level of oversight to ensure that the child's interests are protected. 4

Toward this end, a party seeking approval of the settlement must disclose: 5 the age and sex of the minor, the nature of the causes of action to be settled or compromised, the facts and circumstances out of which the causes of action arose, including the time, place and persons involved, the manner in which the compromise amount . . . was determined, including such additional information as may be required to enable the Court to determine the fairness of the settlement or compromise, and, if a personal injury claim, the nature and extent of the injury with sufficient particularity to inform the Court whether the injury is temporary or permanent.

Local Rule 202(b)(2). Generally, federal courts refer to applicable state law in determining whether to approve the settlement of a minor's claims. See e.g., Walden v. Moffett, 2007 U.S. Dist. LEXIS 70507, at *6 (E.D. Cal. Sept. 20, 2007); MAP v. City of Bakersfield, 2009 U.S. Dist. LEXIS 7519, at *5 (E.D. Cal. Jan. 23, 2009); see also Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure before Trial § 15:138, p. 15-48 (2010). In California, a settlement or compromise of a claim of a minor is not enforceable without court approval. Cal. Prob. Code §§ 2504, 3600 et seq.; Cal. Code Civ. Proc. § 372 ("The guardian. . . or guardian ad litem ...


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