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Assiah Phinisee, A Minor, By and Through Rasheena Phinisee, the Parent and v. United States of America

August 6, 2012

ASSIAH PHINISEE, A MINOR, BY AND THROUGH RASHEENA PHINISEE, THE PARENT AND NATURAL GUARDIAN, AND RASHEENA PHINISEE, IN HER OWN RIGHT
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Jacob P. Hart United States Magistrate Judge

ORDER AND OPINION

I. Introduction

This medical malpractice case involving injuries to a minor child is assigned to the undersigned pursuant to Title 28 U.S.C. § 636(c), and Fed.R.Civ.P.73. On April 19, 2012, a settlement conference in this matter was held before the Honorable Magistrate Judge Thomas J. Rueter. Although both parties left the conference that day with the understanding that the case was settled, Ms. Rasheena Phinisee, the mother and natural guardian of plaintiff Assiah Phinisee, told her counsel the next morning that her consent was vitiated by their failure to adequately advise her. She has also argued that a binding settlement was not reached at the conference.

Defendant, the United States of America ("the Government"), filed a motion to enforce the settlement agreement. A hearing was held on this motion on June 6, 2012, and post-hearing submissions were filed on July 27, 2012. For the reasons set forth below, I will now grant the Government's motion to enforce the settlement agreement.

II. Factual and Procedural Background

Rasheena Phinisee maintains that her daughter, Assiah Phinisee, developed biliary atresia, a disorder causing liver failure, as a result of her ingestion through breast milk of a medication known as Macrobid, prescribed for Ms. Phinisee at a federally funded health care clinic. At the time the case was filed, Assiah had already undergone a liver transplant, which was followed by serious complications. Recently, she underwent a second transplant at the age of four.

In a motion for summary judgment, the Government posted a serious challenge to the liability aspect of this case. According to the Government's medical experts, Macrobid has never been linked to biliary atresia, despite the fact that it is a widely used 40-year-old drug and has been subjected to thorough testing. Plaintiffs have been unable to rebut this, although their medical experts argue that the Macrobid caused a disease process in Assiah which culminated in biliary atresia.

The Government's motion for summary judgment has not been ruled upon. However, on April 11, 2012, I granted the Government's motion to bifurcate the trial, addressing only liability in the first stage. Earlier, I had scheduled trial for April 30, 2012.

As noted, the parties appeared before Judge Rueter for mediation on April 19, 2012. After nearly a day of negotiations, the government conveyed to Judge Rueter an offer of $1.2 million in settlement of the matter. Judge Rueter informed counsel for Plaintiffs of the offer, and, as even Phinisee agrees, Phinisee authorized her counsel to accept it, which they did. Hearing Transcript at 113, 125. The hearing thus ended with the agreement that the case was settled, although the Government still needed to obtain the approval of the Department of Justice Assistant Attorney General.

According to Phinisee, it was not until she went home that evening and began searching online that she discovered that the proceeds of the settlement, which were to be placed in a special needs trust for the benefit of Assiah, were subject to a Medicaid lien: "I found out that if you had any Medicaid expenses or if Medicaid paid for healthcare for your child, that you were obligated to pay those funds back." Hearing Transcript at 114. Phinisee maintains that the lien was never disclosed to her by counsel at the settlement conference:

COUNSEL FOR PHINISEE: Now, during the April 19th settlement conference, was there any discussion as to any obligation out of those settlement funds to repay Medicaid?

PHINISEE: No.

Id. at 113.

Phinisee testified that she was disturbed by this, since her daughter's Medicaid bills were high: "When I knew that the lien was over $700,000 and that we had only settled the case for $1.2 million, to me I'm like, after my lawyer gets his fees, after Medicaid gets their lien, my daughter is left with nothing. I didn't think it was a good offer" Id. at 115.

On the morning of Friday, April 20, 2012, Phinisee called one of her two attorneys and, as she testified: "I told him over the phone that I was unhappy with the settlement, I did not want the offer, that he had not disclosed to me a lien against it, and that I wanted to go to trial." Id. The following Monday, April 23, 2012, Phinisee sent her attorney an e-mail "expressing that [her] decision still stood not to accept the offer and to proceed to trial." Id. at 116. In this e-mail, Phinisee repeated that counsel had not discussed the Medicaid lien with her. Id. at 83.

Phinisee met with her attorneys for several hours on Thursday, April 26, 2012. Transcript at 60 (Testimony of Derek Layser) and 118 (Testimony of Rasheena Phinisee). However, there was no satisfactory outcome, and on May 7, 2012, Phinisee filed several pro se motions, with the intent to vacate the settlement, reinstate the case for trial, and terminate her relationship with her attorneys. On May 15, 2012, the Government filed its motion to enforce the settlement. A day later, Phinisee's counsel filed a motion to appoint a guardian ad litem for Assiah Phinisee in order to complete the settlement paperwork on the terms agreed upon at the April 19 mediation conference.

At the June 6, 2012, hearing on these motions, Phinisee, who was represented by new counsel, argued that she had not been informed about the Medicaid lien. Additionally, she argued that the April 19 conference could not have resulted in a binding settlement because the Government's offer was contingent upon its ability to obtain approval from the DOJ Assistant Attorney General. Because of this, Phinisee maintained, she was entitled to revoke her acceptance at any time before the Government became able ...

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