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Backer v. United States

United States District Court, E.D. California

February 19, 2015

JERIAH BACKER and Z.B., by and through his Guardian ad Litem, JERIAH BACKER, Plaintiffs,
v.
UNITED STATES OF AMERICA, and DOES 1 through 10, inclusive, Defendants.

ORDER GRANTING STIPULATED PETITION FOR APPROVAL OF SETTLEMENT AND COMPROMISE OF MINOR'S CLAIMS (ECF No. 39)

GARY S. AUSTIN, Magistrate Judge.

I. INTRODUCTION

Plaintiff Z.B. is a minor in this action (the "Minor"). Pending before the Court is a Petition for Minor's Compromise filed on January 20, 2015 by Jeriah Backer, guardian ad litem for the Minor ("Petitioner"). The Court has reviewed the Petition and its supporting papers and, for the reasons discussed below, ORDERS that the petition be GRANTED and the settlement APPROVED.

II. BACKGROUND

A. Facts

This case arises out of the death of Craig Backer, the Minor's father, who died after receiving medical services from the Department of Veteran's Affairs (the "VA"). In April 2005, Backer was treated at a VA medical clinic in Los Angeles for a sudden and total loss of hearing in his left ear. A physician placed a note in Backer's medical record indicating that he should receive an MRI to rule out a tumor as the cause of the hearing loss. However, no MRI was taken. Two years later, in June 2007, Backer received a CT scan which revealed a large brain tumor. The tumor would later be determined to have been the cause for Backer's hearing loss.

Backer was admitted to the West LA VA Medical Center and underwent a lengthy surgery in which approximately 95% of the tumor was removed. Backer suffered severe complications in the course of surgery and was hospitalized in an ICU for over 4 months. After release from the ICU he remained hospitalized for an additional 3 months for inpatient rehabilitation. When he was released from the hospital Backer returned home with a permanent tracheotomy and gastric feeding tube. He could not speak, open his mouth, or swallow, and required 24-hour care. He was hospitalized for complications multiple times until 2010, when he contracted pneumonia and died.

Petitioner and Minor asserted a medical malpractice claim against the United States of America. Complaint, ECF No. 3. The United States filed a motion to dismiss the Complaint on February 11, 2014 under Federal Rule of Civil Procedure 12(b)(7). Motion to Dismiss, ECF No. 18. That motion was denied on August 29, 2014. Order Denying Motion to Dismiss, ECF No. 31. On November 6, 2014, the parties indicated that they wished to settle the action. Notice of Settlement, ECF No. 33. The gross settlement amount to be divided between Petitioner and the Minor is $300, 000. Stipulated Petition for Approval of Minor's Compromise 3 (the "Petition"), ECF No. 39.

B. The Petition

Petitioners request a total settlement of $100, 000. Twenty-five percent (25%), or $25, 000, of this amount is to be awarded as attorneys' fees.[1] Petition 3, 6. The remainder of the Minor's settlement proceeds ($75, 000) will be placed in an annuity with the Prudential Insurance Company of America. The annuity will make six disbursements: an annual payment of $10, 636.25 for five years beginning on the Minor's eighteenth birthday and a final payment of $75, 000 on November 20, 2035.[2] The Petition also includes a short description of the terms of counsel's compensation, as well as an explanation of the factors that affected the amount and apportionment of the settlement.

III. DISCUSSION

District courts have a duty to "safeguard the interests of litigants who are minors." Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011). When litigants who are minors settle a case, this duty requires the Court to "conduct its own inquiry to determine whether the settlement serves the best interests of the minor." Id., quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978). The duty to safeguard the interests of minors in settlement has been codified in this Court's Local Rule 202, which provides, in pertinent part:

(b) Settlement. No claim by... a minor... may be settled or compromised absent an order by the Court approving ...

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