Witt v. American Airlines, Inc.
Filing
135
District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting in part and denying in part 124 Motion to Enforce Settlement. (Castles, Martin)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
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DIANE WITT,
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Plaintiff,
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v.
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AMERICAN AIRLINES, INC., )
Defendant.
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)
______________________________)
Civil Action No. 14-40161-TSH
HILLMAN, D.J.
MEMORANDUM OF DECISION AND ORDER
September 19, 2018
Introduction
The Plaintiff, Diane Witt (“Witt”), has brought this action against American Airlines, Inc.,
(“American”) seeking monetary damages for injuries she alleges that she sustained due to exposure
to cold air while seated near the exit door of an aircraft. The complaint in this matter was filed in
this court on November 4, 2014. From the institution of the lawsuit in 2014, until May of 2017,
the Plaintiff was represented by Attorney Joseph Musacchio. On May 26, 2017, I allowed Attorney
Musacchio to withdraw from his representation of Witt, due to “fundamental and irreconcilable
differences . . . concerning the recommended course of action.” Witt was given three months to
find new counsel. In September 2017, at a status conference, Witt informed the court that she had
not retained new counsel. I set a deadline of November 16, 2017, for the filing of dispositive
motions and a date of December 14, 2017, for a hearing on any dispositive motions filed.
American filed a timely motion for summary judgment. On December 1, 2017, new local counsel,
David Murphy, filed an appearance for Witt and Alexandra M. Wisner filed a motion to Appear
Pro Hac Vice (Docket No. 74).1 New counsel requested a six month extension in order to
familiarize herself with the file and respond to American’s motion for summary judgment. I
granted Plaintiff’s new counsel an extension to February 9, 2018, to respond to American’s motion
for summary judgment.
After holding a hearing on the motion for summary judgment, I allowed the negligence
case to proceed. I also set an expert discovery deadline, as well as a trial date. Witt identified
Dr. Kawashari as her expert on the issue of causation. After taking Dr. Kawashari’s deposition,
American filed a motion to strike his testimony and for an entry of judgment. That motion was
based on deposition testimony by Dr. Kawashari that he could not provide an opinion that Witt
suffered any injury as a result of her asserted exposure to cold air during the flight in question.
Dr. Kawashari further indicated that he did not intend to testify at trial and could not provide any
causation opinion to a reasonable degree of medical certainty.
American’s motion to strike Dr. Kawashari’s testimony stimulated settlement
discussions. Those discussions were memorialized in an email from counsel for American to
Plaintiff’s counsel on June 13, 2018;
I am running out to a meeting but wanted to get back to you. I have been informed
$15,000 is firm (together with acceptable release) and that the settlement must happen
promptly before more costs are incurred. This really needs to get done this week and
certainly before any further hearing for the experts have to spend any more time
preparing for deposition.
1
Attorney Wisner’s motion to appear pro hac vice was allowed and she filed her appearance on December
20, 2017. Attorney Murphy filed a withdrawal of appearance om June 26, 2018.
2
Witt’s counsel responded on June 14, 2018:“Thanks for getting back to me. Ms. Witt accepts the
settlement offer of $15,000. Please send the proposed release when you can.”
On July 10, 2018, Witt’s counsel, Attorney Wisner, informed American that Witt didn’t
want to go through with the settlement and she would be seeking to withdraw. Attorney Wisner
then filed a motion to withdraw with the Court. See Mot. Of Counsel For The Pl. Diane Witt
Seeking Leave To Withdraw As Her Attorney (Docket No. 123)(“Motion to Withdraw”). After a
hearing on the Motion to Withdraw, at which counsel for Witt, and Witt both testified, I granted
the motion. Thereafter, American filed Def. American Airlines, Inc.’s Mot. To Enforce
Settlement Agreement And For Award Of Costs and Atty’s Fees (Docket No. 124)(“Motion to
Enforce Settlement”). On August 1, 2018, Witt filed a Motion invoking [her] constitutional
right to legal counsel and a freeze of the case until legal counsel is obtained (Docket No. 132).
In her motion, Witt stated that she did not receive a copy of American’s Motion to Enforce
Settlement until earlier that week.
On August 3, 2018, a hearing was held on the Motion to Enforce Settlement. Witt
appeared at the hearing and argued against granting the motion. She requested, and was granted,
additional time to file a written opposition. On August 22, 2018, Witt filed her response. For the
reasons set forth below, American’s Motion to Enforce Settlement Agreement is granted.
Accordingly, Witt’s motion seeking the right to obtain new counsel will be denied, as moot.
Discussion
I find that a binding settlement agreement was reached in the amount of $15,000. All
parties were represented by counsel who had actual, and apparent authority to act on their behalf.
Hubbard v. Peairs 24 Mass. App. Ct. 372, 377, (1989). “Policy favors the enforcement of
settlement agreements so as to hold people to the contracts they make and to avoid costly and
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time consuming litigation.” Hansen v. Rhode Islands Only 24 Hour Truck and Auto Plaza, Inc.
962 F. 2d 311, 315 (D.Mass. 2013. “An enforceable settlement agreement arises in
Massachusetts when all of the parties to be bound mutually assent to all material terms even if
those terms are not memorialized in a final writing.” Bistany v. PNC Bank, N.A., 585 F Supp.2d
179, 182 (D.Mass. 2018). I find that in this case, the settlement terms were clearly defined and
the parties evidenced willingness to be bound by them.
American also seeks fees and costs alleging that Witt has acted in bad faith. American
points to the fact that Witt has had two sets of attorneys withdraw from this case, both citing
irreconcilable differences. Moreover, the matter was unnecessarily protracted and delayed by the
Plaintiff putting forth an expert who had no supportive opinion. I agree with American that Witt
repeatedly delayed the proceedings resulting in significant costs to the Court, the Defendant and
her own counsel. Although it is a close call, I do not find that her conduct warrants an assessment
of costs and attorneys’ fees and therefore, am denying American’s request for the same.
Conclusion
Def. American Airlines, Inc.’s Mot. To Enforce Settlement Agreement And For Award Of
Costs and Atty’s Fees (Docket No. 124) is granted in part and denied in part.
In accordance with the foregoing discussion, I grant so much of American’s motion that
seeks an order enforcing the settlement agreement and order American to proffer an appropriate
release to Witt on or before September 25, 2018. Witt shall have until October 12, 2018, to
execute that release and return it to counsel for American. If the release is not received by
American’s counsel by the close of business on October 12, 2018, it will be deemed executed on
that date. On or after October 22, 2018, but no later than October 29, 2018, American shall
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forward a check in the amount of $15,000 to Ms. Witt at the mailing address on record.2 This
case is dismissed.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE
2
I am setting this date in the event that Witt elects to appeal this Order— should that occur, the parties will
remain in their present positions pending disposition of the appeal. If Witt signs a release and returns it to American
prior to October 22, 2018, then American, at its discretion, may forward payment to Witt at an earlier date.
Additionally, the parties’ may agree to have the payment made electronically directly to Witt’s bank account, or by
some other mutually agreeable method.
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