E.J. v. United States of America

Filing 71

STIPULATION AND ORDER for Compromise Settlement and Release filed by Cinthia Elkins, Guthrie Cortland Medical Center, Kelly Hirsch, Regional Medical Practice, P.C.. [The stay of this case is now lifted]. Signed by U.S. District Judge Glenn T Suddaby on 3/27/2024. (sal )

Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

an Infant, by Parent and Natural Guardian,
KERRI JONES;
Plaintiffs,
STIPULATION
Case No.: 5:21-cv-00327-TJM-ML

-vUNITED STATES OF AMERICA;
CINTHIA ELKINS, M.D., PHD;
REGIONAL MEDICAL PRACTICE, P.C.;
GUTHRIE CORTLAND MEDICAL CENTER;
KELLY HIRSCH, PNP, FNP, IBCLC,
Defendants.

STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE
It is hereby stipulated by and between the undersigned Plaintiff (meaning any person other than
the Defendant(s), the parties' attorney(s) and the settlement broker, signing this agreement waiving and
releasing claims, whether or not a party to this civil action)„ and the Defendant(s), Cinthia Elkins, M.D.,
PHD; Guthrie Cortland Medical Center, including its agents, servants, and employees, and; Kelly
Hirsch, PNP, FNP, IBCLC, collectively "the Defendants," by and through their respective attorneys, as
follows:
1.

The parties to this Stipulation for Compromise Settlement and Release (hereinafter

"Stipulation") do hereby agree to settle and compromise each and every claim of any kind, whether
known or unknown, including claims for wrongful death, arising directly or indirectly from the acts or
omissions that gave rise to the above-captions action under the terms and conditions set forth in this
Stipulation.

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Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 2 of 8

2.

This Stipulation is not, is in no way intended to be and should not be construed as an

admission of liability or fault on the part of the Defendants , and their agents, servants or employees, and
it is specifically denied that they are liable to the Plaintiffs. This settlement is entered into by all parties
for the purpose of compromising disputed claims and avoiding the expenses and risks of further
litigation.
3.

In consideration for the Plaintiffs' agreement to accept the terms and conditions of this

settlement in full settlement, satisfaction, and release of their past, present, and future claims arising out
of the subject matter of this action, the Defendants agree to pay the cash sums set forth below in
Paragraph 3.a. and to purchase the annuity contract(s) described below in Paragraph 3.b.
a.

Within three business days after counsel for the Defendants receives (1) this Stipulation

signed by all parties to said document; (2) the Social Security numbers or tax identification numbers of
Plaintiffs and their attorneys; (3) a fully executed waiver and release by each private individual, of any
and all past and present claims or liens for reimbursement or payment any private individual may have
from any benefits or payments made by them to or on behalf of Infant EM J

arising out of the

subject matter of this action, if any; (4) a court order approving the settlement on behalf of Infant EM
J,

and; (5) a final determination by the New York Medical Indemnity Fund (hereinafter "Fund") that

EMI .1= is enrolled in the Fund and that the Fund will pay Infant's future medical care costs,
Defendants will make payment in the amount of $3,200,000 as follows:
(i)

Defendants will fund an annuity in the amount of $1,000,000 and the remaining

amount of $2,1000,000 will be issued to DeFrancisco & Falgiatano Law Firm
DeFrancisco & Falgiatano Law Firm will issue a check in the amount of Five Hundred
Thirty Four Thousand Eight Hundred Seventy dollars and Eighteen cents ($534,870.18) to fund the
EMI JIM Supplemental Needs Trust; Five Hundred Thousand Dollars ($500,000.00) (hereinafter

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Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 3 of 8

"Upfront Cash") made payable to Kerri Jones, and delivered to the United States Attorney's Office for
the Northern District of New York to hold until Plaintiffs' attorney has filed a motion with the United
States District Court for the Northern District of New York to dismiss this action in its entirety with
prejudice as to the United States only, with each party to bear its own costs, expenses, and fees.
ii.

Pay to an annuity company(ies), with an A+ or better New York approved Life

Company, the sum of One Million Dollars ($1,000,000.00) to purchase the annuity contract described in
paragraph 3.b. below.
b.

The Defendants will purchase an annuity contract to pay EM MI Supplemental Needs Trust
, 2019) the sum of $3,924.80 per month for life and guaranteed for 40 years beginning

(DOB:

July 1, 2024 with the last guaranteed payment on June 1, 2064 Plaintiffs has confirmed the date of birth
for EM J

.

In the event that the total purchase price of the annuity contract has changed by the date of
purchase, the annuity payments set forth in this Paragraph 3.b shall be adjusted either upward or
downward so the purchase price of the annuity contract shall be neither more nor less than One Million
Dollars ($1,000,000.00).
Upon the death of EMI JM, any payments remaining during the period certain shall be paid
to the Estate of EM ,IM or to a person designated by EM MI during their lifetime, provided that
any such designation shall be done on a form acceptable to, and subject to the approval of, the annuity
company and the Defendants.
Plaintiffs and Plaintiffs' guardians, heirs, executors, administrators, and assigns do hereby agree
to (1) maintain with the annuity company and the Defendants a current mailing address, (2) notify the
annuity company and the Defendants of the death of EM JMI within ten (10) days of death, and (3)

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Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 4 of 8

provide the annuity company and the Defendants with a certified death certificate within thirty (30) days
of death.
4.

In consideration of the Defendants agreeing to settle this action on the terms and

conditions set forth herein, the Plaintiffs and Plaintiffs' guardians, heirs, executors, administrators, and
assigns hereby agree to:
a.

Accept the terms and conditions of this settlement, including the payment of the

sums set forth above in Paragraph 3.a and the purchase of the annuity contract set forth above in
Paragraph 3.b, in full settlement, satisfaction, and release of any and all claims, demands, rights, and
causes of action of any kind, whether known or unknown, including any future claims for survival or
wrongful death, and any claims for fees, interest, costs, and expenses, arising from, and by reason of,
any and all known and unknown, foreseen and unforeseen, bodily and personal injuries, including the
death of E

.TM, or damage to property, and the consequences thereof, which the Plaintiffs or their

heirs, executors, administrators, or assigns may have or hereafter acquire against the Defendants on
account of the subject matter of that gave rise to the above-captioned action.
b.

Reimburse, indemnify, and hold harmless the Defendants from and against any

and all claims, causes of action, liens, rights, or subrogated or contribution interests (whether such
claims, causes of action, liens, rights, subrogated interests, or contribution interests sound in tort,
contract, or statute) incident to, or resulting or arising from, the acts or omissions that gave rise to the
above-captioned action, including claims or causes of action for wrongful death.
c.

Pay or resolve any and all past, present, and future liens and past, present, and

future claims for payment or reimbursement, including any past, present, and future liens or claims for
payment or reimbursement by any individual or entity, including an insurance company, Medicaid, and
Medicare, arising from the injuries that are the subject matter of this action. Plaintiffs and their heirs,

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Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 5 of 8

executors, administrators, or assigns further agree to satisfy or resolve any and all known claims for
payment/reimbursement and liens arising from the injuries that are the subject matter of this action
before their attorneys distribute to the Plaintiffs any portion of the Upfront Cash paid pursuant to
Paragraph 3.a.(1) above. The Plaintiffs further agree that, no later than ninety (90) days from the date the
Defendants have paid the Settlement Amount, their attorney shall provide to the Defendants evidence
that each claim or lien has been satisfied or resolved and that all lienholders and claimholders have
waived and released all such liens and claims. The evidence required by the terms of this paragraph may
be satisfied by a letter from Plaintiffs' attorney representing to counsel for the Defendants that each such
lien or claim has been satisfied or resolved and that all lienholders and claimholders have waived and
released such liens and claims.
d.

Obtain a final determination by the Fund that EM ill

is covered by said Fund

and that her future medical care costs will be paid by the Fund. In furtherance of this agreement,
Plaintiffs and their successors, heirs, executors, administrators, and assigns do hereby further agree to
enrollment in the Fund by submitting a complete and accurate application for enrollment and any other
documentation or information required for enrollment and by signing any documentation required for
enrollment. In the event EM Allis enrolled and accepted in the Fund, the Plaintiffs and their
successors, heirs, executors, administrators, and assigns do hereby further agree that they will submit
any documentation or information, and sign any documentation, required to maintain her enrollment in
the Fund. In addition, in seeking Court approval of this settlement on behalf of EM ..1, Plaintiffs
and their successors, heirs, executors, administrators, and assigns do hereby stipulate and agree to
request that the Court find and hold that EM .TM has sustained a "birth-related neurological injury;"
that they is a "qualified plaintiff' as defined under N.Y. Pub. Health L. §§ 2999-(h)(1) and (h)(4); and
that they is therefore eligible for enrollment in the Fund. Plaintiffs and their successors, heirs, executors,

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Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 6 of 8

administrators, and assigns do hereby further agree that, solely for the purpose of EM .11.1
enrollment in the Fund, the Settlement Amount of $8,200,000.00 to be paid by the Defendants pursuant
to this Stipulation shall be for non-Fund damages (i.e., past medical expenses, pain and suffering, lost
earnings) and that the anticipated Fund damages (i.e., future medical expenses) shall be Four Million
One Hundred Thousand Dollars ($4,100,000.00). Plaintiffs and their successors, heirs, executors,
administrators, and assigns further agree to provide the Defendants with a copy of Fund's written
determination within ten (10) business days of the determination. In the event the Fund does not accept
EM .TM for enrollment and coverage, Plaintiffs and their successors, heirs, executors,
administrators, and assigns further agree to appeal or request a review of the Fund's determination, to
the extent such rights of appeal or review are available under the law.
5.

This compromise settlement is specifically subject to each of the following conditions:

a. The parties must agree in writing to the terms, conditions, and requirements of this Stipulation. The
parties stipulate and agree that the Stipulation and the compromise settlement are null and void in the
event the parties cannot agree on the terms, conditions, and requirements of this Stipulation. The terms,
conditions, and requirements of this Stipulation are not severable and the failure to agree, fulfill, or
comply with any term, condition, or requirement renders the entire Stipulation and the compromise
settlement null and void.
b.

EM J.11 must be alive at the time the annuity contract(s) described above in

Paragraph 3.b. is (are) purchased. In the event of the death of EMI Ji.

prior to the date the annuity

contract is purchased, the entire Stipulation and compromise settlement are null and void.
c. Plaintiffs must obtain, at their expense, an Order by a court of competent jurisdiction approving the
settlement on behalf of E.

J

. The terms of such Order, are a condition of this settlement.

Plaintiffs agree to obtain such Order in a timely manner: time being of the essence. Plaintiffs further

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Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 7 of 8

agree that the Defendants may void this settlement at its option in the event such approval is not
obtained in a timely manner. In the event Plaintiffs fail to obtain such court approval, the entire
Stipulation and the compromise settlement are null and void.
d.

In the event there are any currently known liens or any known claims for payment

or reimbursement, including any liens or claims by Medicaid or Medicare, arising out of the subject
matter that gave rise to the above-captioned action, whether disputed as legally valid or not, Plaintiffs
must obtain a release and waiver from any State, private entity, or private individual who claims to have
such lien or claim. For purposes of this Stipulation, such lien or claim includes but is not limited to, a
claim or cause of action for reimbursement for any payments made to or on behalf of the Plaintiffs or a
claim or cause of action for reimbursement for any goods or services provided or furnished to or on
behalf of the Plaintiff
6.

The parties shall keep the terms, amount, and fact of such agreement, set

forth in this Settlement confidential. The parties will not disclose any information
concerning this Settlement to any person, party or entity other than their attorneys,
accountants, tax advisors, immediate family members, or others with a need to know
based on representing the legal or financial interests of the undersigned. Notwithstanding
the above, it is expressly agreed that the parties may state in response to inquiries that
the litigation between the parties has been resolved;

7.

It is contemplated that this Stipulation may be executed in several counterparts, with a

separate signature page for each party. All such counterparts and signature pages, together, shall be
deemed to be one document.
WHEREAS, the parties accept the terms of this Stipulation for Compromise Settlement and
Release as of the dates written below:

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Case 5:21-cv-00327-GTS-ML Document 69 Filed 03/25/24 Page 8 of 8

Executed this ?‘,

day of AP*

, 2024.

BY:
_ G. Jot _son, Esq.
Smith Sovik Kendrick & Sugnet, PC
Attorneys for Guthrie Defendants

By:
Charles L. Falgiatano, sq.
DeFrancisco & Falgiatano Law Firm
Attorneys for Plaintiff

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3/27/2024