Lossiah v. United States of America

Filing 52

ORDER APPROVING MINOR SETTLEMENT re 51 MOTION for Settlement , is GRANTED, and the parties' settlement of this matter is hereby APPROVED. IT IS FURTHER ORDERED that the parties shall file a stipulation of dismissal with respect to all the Plaintiffs claims against the Defendant within 30 days of the entry of this Order. Signed by Chief Judge Martin Reidinger on 9/6/2021. (hms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL NO. 1:18-cv-00134-MR

CANDY LOSSIAH, Administratrix of
the Estate of Anthony Edward
Lossiah,

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
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________________________________ )

ORDER APPROVING
MINOR SETTLEMENT

THIS MATTER is before the Court on the Plaintiff’s Motion to Approve
Settlement [Doc. 51].
BACKGROUND
This is a wrongful death action brought pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 2761, et seq. (“FTCA”). The Plaintiff is the widow
and Administratrix of the estate of Anthony Lossiah, a police officer for the
Eastern Band of Cherokee Indians (the “EBCI”). On August 11, 2015,
Lossiah suffered a hip injury while chasing a suspect. He later suffered
complications following treatment at the Cherokee Indian Hospital. The
medical providers who treated Lossiah were employees of the United States

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Department of Health and Human Services’ (“DHHS”) Public Health Service.
Lossiah died at an Asheville hospital on October 6, 2015.
In her individual capacity, the Plaintiff filed a claim under North
Carolina’s Workers’ Compensation Act, N.C. Gen. Stat. § 97-2, et seq. On
December 8, 2016, the Plaintiff entered into a Settlement Agreement with
the EBCI on behalf of herself and her minor children, Z.E.E.L. and A.C.L.1
On May 12, 2017, the North Carolina Industrial Commission approved the
Settlement Agreement.
On May 16, 2018, the Plaintiff filed this wrongful death action on behalf
of Lossiah’s estate, alleging the same facts as the workers’ compensation
claim. [Doc. 1]. The Government moved to dismiss the action on the
grounds that the action was barred by exclusive remedy provision of the
North Carolina Workers’ Compensation Act as well as by the settlement
agreement entered with respect to the workers’ compensation claim. [Doc.
8]. The Court denied the Government’s motion [Doc. 22], and the matter
was ultimately set for a bench trial during the Court’s September 13, 2021
trial term.

1

The full names and dates of birth of the minor children are set forth in the Sealed
Addendum to Order Approving Minor Settlement, which has been entered
contemporaneously herewith.
2

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On July 26, 2021, the parties attended a mediated settlement
conference that resulted in a full and complete settlement of all issues in the
case. [Doc. 47]. Because the parties’ proposed settlement implicates the
rights and property of minor children, the Plaintiff now moves for Court
approval of the settlement. [Doc. 50].
On September 1, 2021, this matter came on for final hearing before the
Court. Present for the proceeding were attorney Robert B. Long, Jr., as
counsel for the Plaintiff; Assistant United States Attorney Jonathan D.
Letzring, as counsel for the United States; and the Plaintiff Candy Lossiah.
Prior to the hearing, the Court reviewed the following documents with respect
to the Plaintiff’s Motion to Approve Settlement: (1) the Letters Appointing
Plaintiff as Administratrix [Doc. 51-1]; (2) the parties’ Settlement and Release
[Doc. 48: sealed]; and (3) the Affidavit of Counsel [Doc. 49: sealed].
FINDINGS OF FACT
1.

To assess the reasonableness of the Settlement and Release

Agreement, at the hearing on September 3, 2021, the Court requested that
counsel for the Plaintiff and the Defendants give a forecast of their trial
evidence and provide a candid evaluation of the strengths and weaknesses
of the Plaintiff’s claims and any defenses thereto. The parties complied with

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the Court’s request and proffered the following details surrounding the
factual and legal circumstances of this matter.
2.

As explained by the Plaintiff’s counsel, it was ultimately

determined that Lossiah was suffering from a MRSA infection in his hip, but
he did not present with the typical symptoms of an infection. It was the
Plaintiff’s position that the MRSA infection could have been detected if an
MRI had been performed earlier in his treatment, and the Plaintiff had
retained an expert who would have opined that the MRI should have been
performed immediately once Lossiah began worsening but had no confirmed
diagnosis. The Government, on the other hand, had retained three, wellqualified experts who were prepared to opine that because Lossiah did not
display any signs of infection, obtaining the MRI earlier in the diagnostic
process would not have made an appreciable difference in his treatment.
3.

Given the strength of the Government’s expert testimony, the

Plaintiff acknowledged that a favorable outcome at trial was uncertain.
Additionally, the Plaintiff’s counsel acknowledged that the settlement amount
offered by the Government at mediation was close to the value that he and
the Plaintiff had hoped to recover at trial.
4.

From the Government’s perspective, counsel acknowledged that

the Plaintiff was highly sympathetic and that an award at trial could be
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substantial. Further, while the Government intended to appeal the denial of
its motion to dismiss, counsel acknowledged that prevailing on appeal was
far from certain. For all these reasons, the parties believe that the settlement
reached is a fair resolution to the Plaintiff’s claims.
5.

At the hearing held on September 3, 2021, the Plaintiff as the

natural parent and guardian of the minor children, acknowledged that she:
(a)

had read the settlement documents filed in this matter,

including the Settlement Agreement and Release, and that she understands
and assents to the terms thereof.
(b)

had an adequate opportunity to confer with counsel

regarding her decision to settle this matter.
(c)

understands that the settlement documents propose that

certain consideration be paid for the benefit of the minor children.
(d)

believes, in her capacity as parent of the minor children,

that the proposed settlement is fair and reasonable for the minor children
under the circumstances of this case, particularly as to the nature of the
settlement, the amount of monetary payments to be made under the
settlement, and the proposed disbursements of the settlement funds.

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(e)

understands that, if the Court approves the Settlement

Agreement and Release, the consideration due will be provided as described
in the settlement documents filed herewith.
(f)

understands that, if the Court approves the Settlement and

Release Agreement, the provision of the consideration for the settlement by
the Defendant will terminate any claims of the minor children against the
Defendant.

She further acknowledged that she understands that her

decision to accept the Settlement and Release Agreement on behalf of the
minor children (if such agreement is approved by the Court) will bind the
minor children and said children will be enjoined from seeking any future
redress against the Defendant, pursuant to the Settlement Agreement and
Release, based upon the acts and omissions alleged in the Complaint.
6.

Based on all the foregoing, the Court finds that the Settlement

Agreement and Release is fair and reasonable under all of the circumstances
of this case; that the consideration to be provided under the terms of that
Agreement is fair and reasonable; and that the proposed disbursement of
such consideration is fair and reasonable.
7.

The Court finds that the attorney’s fee requested by Plaintiff’s

counsel is fair and reasonable upon considering the factors outlined by In re
Abrams & Abrams, P.A., 605 F.3d 238, 244 (4th Cir. 2010), including the skill
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of the work performed and the degree of success obtained for the minor
children. The Court additionally finds that the costs of litigation requested by
the Plaintiff’s counsel are fair and reasonable, and were necessary to
effectively prosecute this matter.
CONCLUSIONS OF LAW
WHEREFORE, based upon the foregoing findings of fact, the Court
concludes as a matter of law that:
1.

Minors, because they are legally incompetent to transact

business or give consent for most purposes, need responsible, accountable
adults to handle property or benefits to which they are or become entitled.
N.C. Gen. Stat. § 35A-1201(a)(6). Moreover, where minors are entitled to
receive damages pursuant to the settlement of a wrongful death action, such
settlement must be approved by the Court, even though the minors are not
parties to the wrongful death action. See N.C. Gen. Stat. § 28A-13-3(23).
2.

The Plaintiff, acting in her capacity as parent and guardian for

the minor children, is competent in all respects and is able to understand the
ramifications of the settlement agreement and release, as well as the effect
such agreement would have upon the minor children, and is competent and
able to execute her duties accordingly.

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3.

Having reviewed the details of the proposed disbursement of

funds for the minor children, including payment dates and amounts, the Court
finds that the extent, nature, and amount of recovery for the minor children
are all fair and reasonable, and the disbursement of such funds as provided
in the Settlement Agreement and Release is in the best interests of the minor
children.
4.

The disbursement of the settlement proceeds, as set forth in the

Settlement Agreement and Release, benefits the minor children by the way
in which the funds are to be disbursed.

The parties have specifically

informed the Court that all are in agreement as to the manner of distribution
set forth therein and are capable of carrying into effect the same.
5.

The Plaintiff has bound the minor children herein in the same

manner as if such minors had consented to the settlements as adults.
6.

The settlement and release agreement should be approved.

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Approve
Settlement [Doc. 51] is GRANTED, and the parties’ settlement of this matter
is hereby APPROVED.

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IT IS FURTHER ORDERED that the parties shall file a stipulation of
dismissal with respect to all the Plaintiff’s claims against the Defendant within
thirty (30) days of the entry of this Order.
IT IS SO ORDERED.
Signed: September 6, 2021

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