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

December 7, 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

AMENDED 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). 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 of federally supported medical clinics." Id. at 1.

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.], 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, 2 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 4 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 6 resulting in a massive intracranial hemorrhage that left Plaintiff with significant cognitive defects." 7

(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 9 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 [I.A.], increasing at 3 percent compounded annually after the first year of payments." Id. at 2. Defendant filed a notice of non-opposition 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 in the moving papers. (Doc. 34). Further, the Court noted inconsistencies with the fee request and sought 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).

The Court found good cause to excuse Plaintiff's attendance at a hearing due to his medical fragility, and determined the matter was suitable for decision without a hearing pursuant to Local Rule 230(g). (Doc. 36). Accordingly, the matter was taken under submission, and the Court issued Findings and Recommendations that Plaintiff's motion be granted in part on November 28, 2012. Id. Plaintiff filed objections thereto on November 29, 2012. (Doc. 37). Based upon the information provided, including new costs incurred by Plaintiff's counsel, the Court withdrew the Findings and Recommendations on December 3, 2012. (Doc. 38).

II. Settlement Approval Standards

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

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