C.D. v. Alabama CVS Pharmacy, L.L.C. et al

Filing 54

OPINION. Signed by Honorable Judge Myron H. Thompson on 6/15/15. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
C.D., a Minor, by and
Through her Mother and
Next Friend, Cynthia
Davenport,

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Plaintiff,
v.
COCA-COLA REFRESHMENTS
USA, INC.,
Defendant.

CIVIL ACTION NO.
2:14cv952-MHT
(WO)

OPINION
Plaintiff
through

her

defendant

C.D.,

a

mother,

Coca-Cola

six-year-old,
filed

this

Refreshments

suing
lawsuit

USA,

Inc.,

by

and

against
claiming

that a CVS Pharmacy store shelf and plastic bottles of
detergent displayed on the shelf injured her while she
was

sitting

in

a

shopping

cart.

The

removal

jurisdiction of the court has been invoked pursuant to
28

U.S.C.

§§ 1441,

1332

(diversity

of

citizenship).

Because this case involves a minor, the parties have
asked the court to approve their proposed settlement.

At a pro ami hearing, the court heard from counsel for
both parties, C.D.’s mother, and C.D.’s court-appointed
guardian ad litem. The settlement will be approved.

I.
Alabama law requires that a court hold a fairness
hearing before a minor plaintiff’s case may be settled.
Largo v. Hayes By and Through Nesbitt, 534 So. 2d 1101,
1105 (Ala. 1988).
which

must

diversity.
Cir. 2001).

be

This is a rule of substantive law,

applied

by

federal

courts

sitting

in

Burke v. Smith, 252 F.3d 1260, 1266 (11th
In order for the settlement to be binding

on the minor, the hearing must involve “‘examination or
investigation into the facts.’”

Abernathy v. Colbert

Cnty. Hosp. Bd., 388 So. 2d 1207, 1209 (Ala. 1980)
(quoting 42 Am.Jur.2d Infants § 47 (1978)).

2

II.
On the morning of April 9, 2012, C.D. was shopping
with her mother and grandmother in a CVS Pharmacy in
Montgomery, Alabama.

According to C.D.’s mother, while

they were in the store, the corner of a wood pallet,
which was being maneuvered into place by a Coca-Cola
Refreshments USA

employee, bumped a metal shelf and

tipped it over, and both the shelf and plastic bottles
of detergent displayed on the shelf injured C.D. while
she was sitting in a shopping cart.

C.D. was treated

at, and released from, a hospital emergency room. X-ray
views

of

her

head

revealed

no

fracture.

C.D.

was

treated by her primary-care doctor the day after the
incident and was released to her mother’s care.
primary

care-doctor

referred

her

to

a

The

pediatric

neurologist for further treatment “as needed.”
Following an extensive examination that included an
electroencephalogram,

the

pediatric

neurologist

determined that C.D.’s injury was minor “and that there
3

was no reason to think that there [were] any long-term
consequences from that injury.”

Sanchez Depo., (doc.

no. 46-3) at 37-38.
After

the

incident,

treatment

for

a

number

C.D.
of

received

behavioral

psychological
issues.

The

treating psychologist stated that he could not “attest
... with any degree of psychological certainty” that
C.D.’s
Pharmacy

behavioral

issues

incident.

were

Clark

caused

by

Psychological

Notes (doc. no. 47-4) at 2.

the

CVS

Associates

There is no indication

from any source uncovered during the lengthy discovery
phase of this case that C.D. will require any treatment
in the future for any issues relating to this incident.
C.D. sued Coca-Cola Refreshments USA asserting two
claims:

negligence

Refreshments USA

and

wantonness.

Coca-Cola

filed a motion for partial summary

judgment on the wantonness claim.

The court notes, for

the purposes of the issue now before the court, that
the motion is well supported by both fact and law and
likely would have been granted.
4

Coca-Cola Refreshments

USA has asserted a number of additional affirmative
defenses to C.D.’s claims and has denied liability for
the incident.
The parties propose to settle this case based on
payment by Coca-Cola Refreshments USA in the amount of
$ 19,000.00 in full satisfaction of all claims C.D. has
or

could

proposed

have

asserted

settlement,

in

this

C.D.’s

case.

counsel

Under

would

be

the
paid

$ 7,600.00 out of the settlement as an attorney’s fee.
In

addition,

out

of

the

settlement,

C.D.’s

counsel

would be paid $ 2,430.74 in reimbursement for expenses
incurred in filing and prosecuting the action.

The

proposed settlement also bears a $ 667.54 Medicaid lien
for medical treatments for C.D.
At

the

pro

court-appointed
testified

about

ami

hearing,

guardian
the

ad

C.D.’s

litem,

circumstances

and

counsel,
her

her

mother

surrounding

the

incident and C.D.’s injuries, treatment, recovery and
current
about

condition.
the

various

C.D.’s
ways

mother

she
5

further

intended

to

testified
use

the

settlement
understood

funds
and

to

benefit

approved

of

C.D.

the

and

that

settlement.

she

C.D.’s

counsel and the guardian further testified about their
understanding of the settlement and asked that it be
approved by the court.

They explained that a total of

$ 10,698.28 for the attorney’s fee and expenses and the
Medicaid lien would be subtracted from the $ 19,000.00
settlement, with the result that C.D. would receive
$ 8,301.72.

All

expressed

their

opinions

that

the

settlement is in the best interest of C.D. given the
nature of her claims and injuries and the defenses to
them.
C.D.’s

counsel

contingency-fee

also

explained

agreement

prosecuting the action.

and

the

expenses

terms

of

incurred

the
in

As stated, her counsel seek a

fee of $ 7,600.00 and reimbursement for $ 2,430.74 in
expenses.

The court finds that the fee and expenses

are reasonable under the factors set forth in Peebles
v. Miley, 439 So. 2d 137 (Ala. 1983), and that the fee
has been duly earned by counsel.
6

The representation of

C.D. required significant learning, skill and labor for
its proper discharge; her attorneys spent 40 hours on
her case; one attorney has three years of experience
practicing law and was assisted by another attorney who
has

35

attorneys

years

of

achieved

experience
a

successful

practicing
result,

law;
that

the

is,

a

favorable settlement in light of the injuries and the
significant dispute as to liability; the attorneys and
C.D.’s mother agreed to a contingency-fee arrangement,
which is customary for such cases in this jurisdiction;
and the attorneys’ time devoted to this case could have
been profitably spent on other matters.
Upon consideration of the testimony, other evidence
introduced at the pro ami hearing, and its knowledge of
the facts and circumstances of this case, the court
finds that the proposed settlement is fair, reasonable,
just, and in C.D.’s best interest and thus should be
approved.

The court is convinced that C.D.’s mother

will use the funds solely for C.D.’s benefit.

7

While

all

agree

that,

although

the

proposed

settlement, less the attorney fee and expenses, would
mean

that

settlement

C.D.
is

would
still

receive

reasonable

only
and

$ 8,301.72,
in

C.D.’s

the
best

interest, there is still the question of how the clerk
of the court should disburse the $ 8,301.72 to C.D.
The

court

will

allow,

as

explained

below,

for

an

initial and immediate payment to C.D.’s mother, for
C.D’s

exclusive

benefit,

of

$ 2,301.72,

with

yearly

payments of $ 2,000.00 for each of the following three
years.
Alabama law provides:
“(a) Any person under a duty to pay or
deliver money or personal property to
a minor may perform the duty, in
amounts
as
provided
in
this
subsection, by paying or delivering
the money or personal property to:
(1) Any person having the care and
custody of the minor and with whom the
minor resides;
(2) A guardian of the minor; or
(3) The judge of probate of the county
in which the minor resides, if a
8

resident of this state, or, if a
nonresident, to the judge of probate
or like officer of the county in which
the debtor or creditor resides.
Payments under this subsection must
not exceed $ 5,000 if paid in a single
payment, or $ 3,000 a year if paid in
a series of payments, and payments, by
any person other than a conservator or
judge, must not exceed a maximum of
$ 25,000 during the minority of the
minor ward.”
1975 Ala. Code § 26-2A-6.
Pursuant to this law, counsel for the parties and
the guardian ad litem initially proposed that C.D.’s
mother would receive an immediate payment of $ 5,000 to
be

used

$ 3,301.72

for

C.D.’s

kept

by

benefit,
the

clerk

with
of

the

the

remaining

court

until

six-year-old C.D. reached her majority, that is, 19.
The

problem

the

court

and

counsel

saw

with

proposal was that the interest the $ 3,301.72

this
would

earn would be de minimus and that, after such a lengthy
delay in release, there might even be court management
costs, further reducing the modest award.
the

parties

discussed,

and
9

the

Counsel for

guardian

strongly

recommended, the court remand this case to state court
so that that court could manage the funds perhaps more
to the benefit of C.D., but all agreed that a remand
would

likely

proceedings,

result
and

in

also

a

redoing

there

is

of

pro

ami

guarantee

no

the

the

state-court judge would reach a result different from
that of this court.
guardian

also

Counsel for the parties and the

explained

that

a

probate-court

conservatorship was not feasible, because the cost of
the

conservatorship

involved.

Counsel

would
for

the

eat

up

the

parties,

at

small

amount

the

court’s

suggestion and over the guardian’s objection, finally
agreed that periodic payments of $ 3,000 or less per
year, which is allowed by the above statute, would be
best for C.D.

The court agrees.

The most convincing point is that, because the sum
involved is far from a bountiful future nest-egg but
rather is quite modest and of very limited financial
benefit, the sum would benefit six-year-old C.D. more
during her early and critical developmental years than
10

later in life.

The evidence reflects that C.D. has

learning problems and that her mother has very limited
means.

Now, not later, is the time that these modest

funds can have their greatest impact on C.D., that is,
while she is very young and developing and in most need
of financial help, no matter how small.
The court will therefore require that the clerk of
the court pay out the $ 8,301.72 in structured payments
to C.D.’s mother, for C.D.’s benefit, as follows: an
initial

and

immediate

payment

of

$ 2,301.72,

with

yearly payments of $ 2,000.00 for each of the following
three years.
Finally, before closing, there is the guardian ad
litem’s

fee,

which

Coca-Cola

Refreshments

USA

has

agreed to bear. The guardian seeks a fee of $ 1,100.00.
She

does

not

seek

reimbursement

for

expenses.

The

court finds that the guardian’s fee is reasonable under
the factors set forth in Peebles and that it has been
duly earned by the guardian.

The position required

significant learning, skill, and labor for its proper
11

discharge; the guardian spent eight hours on the case;
she

has

18

years

of

experience

practicing

law;

the

result for C.D. is favorable in light of the injuries
and the significant dispute as to liability; the fee of
$

1,100.00

is

customary

jurisdiction; and the

for

such

cases

in

this

guardian devoted time on this

matter that could have been profitably spent on other
matters.
Indeed, the guardian ad litem's performance in this
case

has

been

exceptional.

While

the

court

did

not

accept her suggestion that part of the sum to be paid
out to CD's mother (for use on CD) should be kept until
CD reaches majority, her suggestion reflected detailed
and thoughtful consideration. Rarely, if ever, has a
guardian ad litem, to this court's knowledge, acted so
independently

and

thoroughly,

qualities

attend all guardians' appointments.

***

12

that

should

The

court

will

enter

an

appropriate

judgment

requiring the settlement of $ 19,000.00 to be paid into
the court and then disbursed as follows:

Paid to:

Amount:

Gathings Law, for attorney
fees ($ 7,600.00) and
expenses ($ 2,430.74)
Gathings Law, to be paid to
Medicaid on C.D.’s behalf
Cynthia Davenport, on
C.D.’s behalf (“first
payment”)
Cynthia Davenport, one year
from date of first payment
Cynthia Davenport, two
years from date of first
payment
Cynthia Davenport, three
years from date of first
payment
Total

$ 10,030.74
$ 667.54
$ 2,301.72
$ 2,000.00
$ 2,000.00
$ 2,000.00
$ 19,000.00

The court will also require that Coca-Cola Refreshments
USA pay the guardian ad litem’s fee of $ 1,100.00.
DONE, this the 15th day of June, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE