Sunday, December 20, 2009

When Is A Settlement Not A Settlement?

There was an extraordinary decision late last week out of the Second Department that I was getting ready to blog, but John Hochfelder beat me to the punch.

Short version: At a Brooklyn medical malpractice trial the defendant, at some point, offered 150K to settle. Then, while the jury was deliberating, the plaintiff tried to accept. But a note had been passed to the clerk that the jury had reached a verdict.

Did the judge quickly confirm an agreement between the parties and put the settlement on the record? Nope. She did the opposite. And not only did the judge insist on the verdict being taken, but defense counsel remained silent, perhaps smelling a defense verdict after a short deliberation.

This exchange ensued in open court between plaintiff's counsel and the judge:

Mr. Jordan: Could I put my request on the record?
The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.
Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?
The Court: Because I said what I have to say. Let's proceed

The jury came back with a $1.45M verdict. The judge then proceeds to toss out the verdict and asserts that the settlement -- the one defense counsel refused to confirm and she refused to put on the record -- controlled.

What do you think the appellate court did?

You can read the decision in Diarassouba v Urban or go to Hochfelder's site for his analysis of the case.

Labels: Medical Malpractice

posted by Eric Turkewitz
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Comments:

Check out Velazquez v St. Barnabas Hosp., 2009 NY Slip Op 09315 (Ct. App. 2009, which was decided two days after Diarassouba.

"The parties do not dispute that they agreed to settle the action for a specific amount; however, details regarding conditions of the settlement, including a disputed [*2]confidentiality agreement, were never recorded or memorialized. No agreement was made in open court or filed with the county clerk. Accordingly, it is not binding upon the parties (see CPLR 2104; Matter of Dolgin Eldert Corp., 31 NY2d 1, 9-11 [1972]; Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2d Dept 2006])."

# posted by  David M. Gottlieb : January 02, 2010 8:23 PM

 

David:

Thanks for the extra cite.

Leaving any details open about a settlement is a bad idea if you have a jury sitting in the box that is about to be discharged.

The devil, as they say, is in the details, and those details won't wait for later.

# posted by  Eric Turkewitz : January 02, 2010 8:46 PM

 

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