Marden v. Midland, County of et al
ORDER Granting 79 Motion for Settlement Approval and Disposition of Proceeds. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SHARYL MARDEN, Personal Representative
of the Estate of JACK BRIAN MARDEN,
Hon. Thomas L. Ludington
COUNTY OF MIDLAND, a county governmental
entity; JEFFERY DEROCHER in his individual capacity;
BRIAN KEIDEL in his individual capacity;
RICHARD SPEICH in his individual capacity;
JOSHUA MICHAEL SAYLOR in his individual capacity;
RICH HARNOIS in his individual capacity;
and BRYAN KRYZANOWICZ in his individual capacity,
Defendants, jointly and severally.
JULES B. OLSMAN (P28958)
RANDY J. WALLACE (P57556)
Attorneys for Plaintiff
2684 West Eleven Mile Road
Berkley, MI 48072
PATRICK A. ASELTYNE (P23293)
ANDREW J. BREGE (P71474)
Attorneys for Defendants
822 Centennial Way, Suite 270
Lansing, MI 48917
ORDER GRANTING MOTION FOR SETTLEMENT APPROVAL AND DISPOSITION
This case arises out of the tragic death of Jack Brian Marden while in the custody of
Defendant Midland County on February 13, 2015. On December 31, 2015, Jack Marden’s wife,
Plaintiff Sharyl Marden, filed her complaint against Midland County and Captain Richard
Harnois, and numerous Midland County jail officers. Compl., ECF No. 1. Plaintiff alleged that
Defendants subjected decedent to excessive force and cruel and unusual punishment in violation
of the Fourth, Eighth, and Fourteenth Amendments to the U.S. Constitution, sought punitive
damages pursuant to 42 U.S.C. § 1983, alleged a state law claim for assault and battery, and
sought damages under the Michigan Wrongful Death Act, M.C.L. § 600.2922. Compl. at 12–17.
After the parties conducted extensive discovery, on January 19, 2017, the Midland County
Defendants and the Officer Defendants filed motions for summary judgment. ECF Nos. 49, 51.
On March 24, 2017, the Court granted summary judgment for Defendants on all counts. ECF No.
73. Plaintiff appealed on April 10, 2017. ECF No. 75.
While on appeal, after three months of negotiation, the parties entered into a settlement
agreement. Not. of Settl., ECF No. 77. The Court entered an Indicative Order Accepting Limited
Remand to Conduct Hearing on Proposed Settlement Agreement and Distribution of Proceeds.
ECF No. 78. On September 20, 2017, Plaintiff submitted a Motion to Approve Settlement of a
Claim for Wrongful Death and Allow Distribution of Proceeds. ECF No. 79. On September 21,
2017, the U.S. Court of Appeals for the Sixth Circuit remanded the case to this Court to conduct
a hearing on the proposed settlement and distribution of proceeds. ECF No. 80. The Court held
the hearing on October 4, 2017.
Plaintiff's motion to approve the distribution of the settlement proceeds was filed
pursuant to the Michigan Wrongful Death Act, M.C.L. § 600.2922. Compl. at 12. The Michigan
Wrongful Death Act requires that this Court hold a hearing and approve or reject the settlement
in this case. Id. This Court has jurisdiction to conduct the hearing and approve or reject the
settlement and the proposed distribution of proceeds. Owen v. Twp. of Redford, 2016 WL
3456922, at *2 (E.D. Mich. June 22, 2016) (citing Robinson v. Fielder, 91 F.3d 144 (6th Cir.
1996) (Table Case) (holding that district court had jurisdiction to approve or reject a wrongful
death settlement agreement and distribute proceeds under M.C.L. § 600.2922(5)–(9))). The Court
shall approve the settlement where it finds it is fair, equitable, and in the best interest of the
estate. See M.C.L. § 600.2922 (6); Owen¸ 2016 WL 3456922, at *1.
Unless waived, the original complaint, as well as notice of the hearing on settlement and
distribution of proceeds shall be served upon all interested persons, as defined in the statute.
M.C.L § 600.2922(6)(b). Interested persons include “children of the deceased’s spouse.” M.C.L.
§ 600.2922(3)(b). The statute outlines the procedure an interested person must follow to make a
claim for damages, and notes that failure to do so constitutes a waiver of their interest in the
proceeds. M.C.L. § 600.2922 (4)(b)–(d).
Decedent was survived by his wife Sharyl Marden who has two adult children from a
previous marriage, Cherie Ann Kerns, and Bradley Joseph Schank. Mot. at 3, ECF No. 79.
Pursuant to statute, Ms. Kerns and Mr. Schank are interested persons eligible to make a claim for
damages. M.C.L. § 600.2922(3)(b). As required by statute, Ms. Kerns and Mr. Schank were
provided notice of the filing of the complaint for wrongful death on February 11, 2016, which
advised them of their right to make a claim, the procedure for doing so, and that failure to do so
will bar their right to recover. Supp. Br. at 2, ECF No. 83; M.C.L. § 600.2922(4)(b)–(d). Neither
Ms. Kerns nor Mr. Schank made a claim. Pursuant to statute, Ms. Kerns and Mr. Schank were
also provided notice of the hearing on settlement approval and distribution of proceeds. Id. at 3.
Neither party attended the hearing. Thus, they waived their interests by failing to make a claim or
attend the hearing. M.C.L. § 600.2922 (4)(b)–(d), (7).
After considering the record, the proposed settlement, and testimony provided at the
hearing on settlement approval, the Court finds that the proposed settlement award of $500,000
is fair, reasonable, and in the best interest of decedent’s estate. The Court has also considered the
contingent fee agreement between Plaintiff and her counsel. Aff. of Jules Olsman, Ex. 2,
(Contingent Fee Agreement), ECF No. 83-2. The Court finds that the contingency fee award of
$138,213.84, amounting to 1/3 of the net recovery after deducting costs of $85,358.47, is
reasonable, supported by the record, and compliant with MCR 8.121. Plaintiff’s counsel has
provided the Court with an itemized report of the costs incurred in this case. The Court has
reviewed the cost itemization in camera and finds that the costs incurred in this case are
Medicare and Blue Cross Blue Shield of Michigan have asserted claims for $17,737.65
and $454.40, respectively. Plaintiff’s counsel intends to negotiate these liens and expects to settle
the Medicare lien for an amount between $10,000 and $12,000, and the Blue Cross lien for $300.
Accordingly, Plaintiff’s counsel proposes to deposit the full amount of these claims in an interest
bearing account pending resolution of these claims.
Accordingly, it is ORDERED that the Motion for Settlement Approval, ECF No. 79, is
GRANTED and the settlement in the amount of Five Hundred Thousand ($500,000.00) Dollars
It is further ORDERED that Defendants tender the full and complete amount of the
settlement proceeds in this matter to Plaintiff’s counsel within seven (7) days of this Court’s
approval of the settlement of this case. The check shall be made payable to “Sharyl Marden,
Personal Representative of the Estate of Jack Brian Marden, and OLSMAN MacKENZIE &
WALLACE, P.C.” Defendants shall not include any lienholders as payees on the settlement
It is further ORDERED that the attorney fee in the amount of $138,213.84 is hereby
It is further ORDERED that costs in the amount of $85,358.47 are hereby approved;
It is further ORDERED that Olsman MacKenzie & Wallace, P.C. hold $17,737.65 in an
interest bearing account pending resolution of the Medicare lien in this matter;
It is further ORDERED that Olsman MacKenzie & Wallace, P.C. hold $454.40 in an
interest bearing account pending resolution of the Blue Cross Blue Shield of Michigan lien in
It is further ORDERED that Jack Brian Marden, deceased, did not sustain conscious pain
and suffering prior to his death on February 13, 2015;
It is further ORDERED that the proceeds available for distribution at this time, as well as
any proceeds that may remain once the liens in this matter are resolved, be distributed as follows:
Medicare Reimbursement Escrow
Blue Cross/Blue Shield Reimbursement Escrow
Cherie Ann Kerns
Bradley Joseph Schanck
It is further ORDERED that this Court shall retain jurisdiction over payment of the
It is further ORDERED that the above matter be dismissed with prejudice and without
costs and that the case be closed.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 11, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 11, 2017.
KELLY WINSLOW, Case Manager
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