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M.W. v. Safeway, Inc.

United States District Court, W.D. Washington, Seattle

September 19, 2019

M.W. (Minor Child), HAJA SILLAH, DEMBO WAGGEH, Plaintiffs,
v.
SAFEWAY, INC., Defendant.

          ORDER APPROVING MINOR SETTLEMENT

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Supplemental Stipulated Motion for Approval of Minor Settlement of Plaintiffs Haja Sillah, Dembo Waggeh and minor son, M.W., and Defendant Safeway, Inc. Dkt. 60. The motion is based on the parties’ prior Stipulated Motion with attached exhibits (Dkt. 49), supporting declarations (Dkts. 50 and 51), and the Independent Counsel’s Report on Adequacy of the Minor Settlement (Dkt. 59). The parties stipulated to the assignment of this motion for approval of the minor settlement to a United States Magistrate Judge. Dkt. 48. This matter was assigned to the undersigned for that purpose on July 24, 2019.

         The undersigned deferred ruling on the reasonableness of the parties’ proposed settlement pending appointment of independent counsel pursuant to LCR 17. Dkt. 52. On July 31, 2019, Attorney Justo Gonzalez of Stokes Lawrence, P.S. was appointed as pro bono counsel for M.W. pursuant to LCR 17(c) to investigate the adequacy of the settlement under Washington state law and provide the Court with a report prepared pursuant to Washington Superior Court Special Proceedings Rule (“SPR”) 98.16W(e). Dkt. 56. On August 1, 2019, Mr. Gonzalez and his colleague, Amy Alexander, (hereinafter “Independent Counsel”) entered a notice of appearance on behalf of M.W. Dkt. 57. On September 16, 2019, they filed a report recommending approval of the settlement stipulated to by the parties. Dkt. 59. As pro bono counsel, they have not requested fees or costs. Id., ¶ 14.

         Based on the parties’ stipulated facts, the report of Independent Counsel, and remaining record, the Court concludes the proposed minor settlement is reasonable and in the best interests of M.W.

         DISCUSSION

         A. Court’s Duty to Safeguard Interests of Minors

         “District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), to safeguard the interests of litigants who are minors.” This duty includes conducting “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)); see also Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983) (“a court must independently investigate and evaluate any compromise or settlement of a minor’s claims to assure itself that the minor’s interests are protected, even if the settlement has been recommended or negotiated by the minor’s parent or guardian ad litem”). When considering whether to approve a proposed settlement of federal claims involving minors, the Court must consider whether the settlement is fair and reasonable in light of the facts and specific claims at issue and recoveries in similar cases, but without regard to the fee the adult plaintiffs agreed to pay plaintiff’s counsel. Id. at 1181-82. However, where only state claims are involved, the typical practice of district courts in this Circuit is to apply state law when evaluating the proposed settlement. Robidoux, 638 F.3d at 1181 (“In the district courts in the Circuit, the typical practice has been to apply state law and local rules governing the award of attorney’s fees . . . .”).

         Defendants removed this case from state court based on the Court’s diversity jurisdiction and Plaintiffs allege only state law claims for personal injuries based on negligence and breach of duty of care. Dkt. 8; Dkt. 8-3, pp. 1-4. As there are no federal claims before the Court, the Court looks to Washington state law to determine the fairness of the proposed settlement. “Under Washington law[, ] parents may not settle or release a child’s claim without prior court approval.” Scott v. Pac. W. Mountain Resort, 834 P.2d 6, 11 (Wash. 1992); SPR 98.16W(a) (“[T]he court shall determine the adequacy of the proposed settlement on behalf of [an unemancipated minor] and reject or approve it.” Washington law also provides for the appointment of a settlement guardian ad litem to assist the court in determining the adequacy of the proposed settlement, ” and to “conduct an investigation and file a written report with the court recommending approval and final disposition . . . .” SPR 98.16W(c). The settlement guardian ad litem’s report shall be “in depth appropriate to the magnitude of injuries and settlement” and shall include a discussion regarding expenses and fees for which payment is requested.” SPR 98.16W(e)(12).

         After reviewing discovery and medical records, interviewing M.W.’s mother, and researching comparable damages awards, Independent Counsel recommends approval of the proposed settlement form, documents, and amounts. The recommendation is based on their analysis of the potential liability of all persons and entities, the medical records reflecting the difficulty of proving causality, medical expenses incurred, and settlement amounts in cases with similar evidence and damages. Dkt. 59. Based on the stipulated facts and the report of Independent Counsel as outlined below, the Court agrees that the proposed settlement is reasonable and in the best interests of the minor child, M.W.

         B. The Proposed Settlement

         Plaintiffs agree to release all claims against Safeway arising out of their Complaint in exchange for $12, 000, an amount which includes payment of attorney fees and costs and subrogation to the insurer. Dkt. 49-2. The proposed distribution is as follows: $296 to Equian/Molina in subrogation, $6, 679.23 to Plaintiffs’ counsel George Luhrs for fees and costs, and the remainder, $5, 024.77 in trust to M.W. Dkt. 49-6. Independent Counsel confirms that the distributions to Mr. Luhrs and Equian are supported by appropriate documentation and each distribution appears reasonable in amount. Dkt. 49-4 (letters and statements from Equian and Molina); Dkt 49-5 (itemized costs); Dkt 49-3 (contingent fee agreement). The remaining amount, $5, 024.77, will be distributed to a blocked account for M.W., payable to M.W. after he turns 18 years old. Dkt. 51, p. 4. M.W.’s parents released their claims for damages. Dkt. 51, p. 4.

         C. Stipulated Facts and Report of Independent Counsel

         In March 2015, when M.W. was three years old, he was with his mother in the parking lot of the Rainier Valley Safeway when an employee, who was pushing multiple shopping carts, “negligently caused shopping carts to strike M.W.” Dkt. 8-3, ¶ 7. At the time, M.W.’s mother was loading groceries in the car, and her five children were nearby. Dkt. 59, ¶ 3. Plaintiffs claimed personal injuries to M.W. and loss of parental consortium damages. Defendant denied these assertions. Plaintiff M.W. and his parents sued defendant in King County Superior Court and Defendant removed the case to this Court on the basis of diversity. Dkt. 8-1 (Redacted Amended Complaint); Dkt. 8 (Redacted Notice of Removal).

         Plaintiffs claim that the alleged injury, which consisted of one or two blows to M.W.’s head from one or two shopping carts, resulted in the primary complaint that M.W. suffered headaches. However, medical evidence linking the blow or blows to headaches or any other condition was debatable due to other potential medical causes. After reviewing photos of the shopping cart, school and medical records, and the depositions of M.W.’s mother and father, defense expert Lauren L. Plawner, M.D., Board Certified Neurologist, concluded that the medical evidence did not support a probable medical causal relation between the alleged blows and the headaches or other conditions. Dkt. 49, Exhibit 1 (“The Plawner Report”). Dr. Plawner identified the primary alternate cause of M.W.’s headaches as his diagnosis of sagittal ...


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