St Clair et al v. Nellcor Puritan Bennett LLC et al

Filing 80

ORDER setting a Final Settlement Approval Hearing on 4/30/12 at 2:00 p.m. ORDER that Plaintiffs' counsel must prepare and file a motion for approval of settlement and attorneys' fees and litigation expenses under seal on or before 4/6/12. O RDER that Defendant and its insurance company must file a Notice of Deposit and deposit the entire settlement funds on or before 4/6/12. ORDER vacating the final pretrial conference set for 4/30/12 and the jury trial scheduled to commence on 5/7/12 (see attached pdf for complete information). Signed by Magistrate Judge Lawrence O Anderson on 3/12/12. (TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Lisa St. Clair and Richard Poulin,) individually and as parents and guardians) ) of H.P., their minor child, ) ) Plaintiffs, ) ) vs. ) ) ) Nellcor Puritan Bennett LLC, ) ) Defendant. ) No. CV-10-1275-PHX-LOA ORDER 15 The Court received an emailed letter, signed by the parties’ counsel, advising that the 16 parties participated in a successful mediation on February 29, 2012, and settled this case. 17 A district court must independently investigate and evaluate any compromise or 18 settlement of a minor’s claims to assure itself that the minor’s interests are protected, even 19 if the settlement has been recommended or negotiated by the minor’s parent or guardian ad 20 litem. Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983). 21 On the Court’s own motion, after informally consulting with both counsel for a 22 mutually agreeable date and time, and consistent with a district court’s “special duty” to 23 conduct its own inquiry to determine whether the settlement serves the best interests of H.P., 24 a minor, the Court will set a final settlement approval hearing. K.T. v. Ramos, 2012 WL 25 443732 (D.Ariz. February 13, 2012) (quoting Robidoux v. Rosengren, 638 F.3d 1177, 1181 26 (9th Cir. 2011)). 27 28 1 2 IT IS ORDERED setting a Final Settlement Approval Hearing before the undersigned Magistrate Judge on Monday, April 30, 2012 at 2:00 p.m. 3 IT IS FURTHER ORDERED that Plaintiffs’ counsel and Plaintiffs Lisa St. Clair 4 and Richard Poulin must be physically present at the Final Settlement Approval Hearing. 5 Counsel for H.P. must be prepared to answer the Court’s questions why the parties’ 6 settlement for the agreed-upon amounts for H.P. and her parents are in the minor’s best 7 interests, why the Court should approve the settlement, and why counsels’ fees and expenses 8 are reasonable and appropriate, and how H.P.’s money will be managed in her best interests 9 in the future. The minor is invited, but not required, to attend the Final Settlement Approval 10 Hearing. 11 IT IS FURTHER ORDERED that Plaintiffs’ counsel must prepare and file a motion 12 for approval of settlement and attorneys’ fees and litigation expenses under seal on or before 13 Friday, April 6, 2012, which sets forth with specificity the following: 14 15 1. the total amount and exact division of the settlement funds amongst the Plaintiffs in present value; 16 2. a detailed discussion of the reasonableness of Plaintiffs’ requested attorneys’ fees 17 and litigation expenses, including a discussion of the eight factors to consider in determining 18 the reasonableness of attorneys’ fees pursuant to Ethical Rule (“ER”) 1.5, Arizona Rules of 19 Professional Conduct. See, Matter of Conservatorship of Fallers, 181 Ariz. 227, 889 P.2d 20 20 (Az.Ct.App. 1994); In re Guardianship of Sleeth, 226 Ariz. 171, 244 P.3d 1169 21 (Az.Ct.App. 2010); see also, Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 186 (Tenn. 22 2011) (“[w]e hold that no single factor found within [ER] 1.5 merits special emphasis over 23 the other factors in determining a reasonable fee in cases involving a minor, and we decline 24 to add other factors. Instead, the trial court may conclude that certain factors merit greater 25 weight under the unique circumstances of a particular case”). Plaintiffs’ counsel shall 26 provide as exhibits a complete copy of Plaintiffs’ fee agreement and an affidavit of 27 Plaintiffs’ counsel, containing the information required by LRCiv 54.2(c), (d)(2), (3)- (4)(A)- 28 -2- 1 (D), and (5)(e)(1)-(31). 2 3 3. how Plaintiffs’ fees and costs will be fairly apportioned among his three clients; and 4 4. Plaintiffs’ proposed plan to establish a Maricopa County Superior Court 5 guardianship for H.P. and appointment of an appropriate guardian pursuant to A.R.S. § 14- 6 5311 to, among others, authorize and approve H.P.’s necessary medical, surgical or other 7 professional care and treatment, purchase of durable medical goods, A.R.S. § 14-5209(B)- 8 (C); give consents or approvals necessary for H.P.’s care, comfort and maintenance, A.R.S. 9 § 14-5312(A)-(B); protect, monitor, and preserve H.P.’s net res of the settlement funds and 10 other property2; and perform such other procedural and substantive duties in H.P.’s best 11 interests as allowed by Arizona law. 12 IT IS FURTHER ORDERED that Defendant and its insurance company must file 13 a Notice of Deposit and deposit the entire settlement funds into the District of Arizona’s 14 Court Registry Investment System (“CRIS”3) on or before Friday, April 6, 2012. See, 15 LRCiv 67.1. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 If Plaintiffs’ counsel did not keep track of his time because he represents Plaintiffs on a contingency fee basis only, Plaintiffs’ counsel shall provide his best estimate of the time he/they spent working on the case as if counsel were paid on an hourly basis. 2 “Guardians have the duty to make broad care decisions for the wards in their care and are required to care for their wards’ personal effects, including their [property].” In re Conservatorship for Geake, 2008 WL 2352481, * 2 (Az.Ct.App. June 5, 2008) (citing A.R.S. §§ 14-5209, -5312 (2005)). 3 Under the federal CRIS program, money deposited in every district court case is pooled with the money on deposit with the Treasury, with a credit back to all district courts with funds in CRIS, which is used to purchase Government Account Series securities through the Bureau of Public Debt. See 28 U.S.C. §§ 2041, 2045; Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1308 n. 5 (9th Cir. 1990). CRIS operates on a weekly cycle tied to a Thursday maturity date of these securities. CRIS will deduct a 10% fee from the amount of interest earned weekly. The 10% fee covers the cost to the court of managing the investments. See, § 920.50, Registry Fees, Guide to Judiciary Policy, Vol. 13, Ch. 9; LRCiv 67.1(c). -3- 1 IT IS FURTHER ORDERED vacating the final pretrial conference set for 2 Monday, April 30, 2012 and the jury trial scheduled to commence on Monday, May 7, 2012. 3 Dated this 12th day of March, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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