The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:20-cv-00146-MR-WCM
JASON BLACKWELL, as )
Administrator of the Estate of )
Joshua Shane Long, )
)
Plaintiff, )
) ORDER APPROVING
vs. ) WRONGFUL DEATH
) SETTLEMENT
DERRICK PALMER, Sheriff of )
Cherokee County, et al., )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on the Plaintiff’s Consent Motion to
Approve Wrongful Death Settlement [Doc. 45].
BACKGROUND
This action arises from the death of Joshua Shane Long (“the
Decedent”) at the Cherokee County Detention Center on July 12, 2018. The
Plaintiff Jason Blackwell, as administrator of the Decedent’s Estate, asserts
claims against the Defendants for violations of federal civil rights laws
pursuant to 42 U.S.C. § 1983 and 1988, wrongful death, violation of N.C.
Gen. Stat. § 162-55, and an action on the Sheriff’s bond pursuant to N.C.
Gen. Stat. § 58-76-1, et seq.
On June 17, 2020, the Plaintiff filed a Complaint in the United States
District Court for the Western District of North Carolina against Cherokee
County; the Sheriff of Cherokee County, Derrick Palmer; the Cherokee
County Sheriff’s Department; a number of Cherokee County Sheriff’s
Department employees1, including Mark Thigpen, Mark Patterson, Jeremy
Bresch, Frank Daly, Larry Bolen, Glenn Holloway, and Tiffany Enloe; and
Ohio Casualty Insurance Co., Ohio Casualty Corp., and Liberty Mutual
Insurance Co. as sureties. [Doc. 1]. The Defendants answered the Plaintiff’s
Complaint. [Docs. 21, 22]. On September 18, 2020, the Court issued a
Pretrial Order and Case Management Plan, establishing deadlines for Rule
26 disclosures, expert reports, discovery, mediation, dispositive motions,
and trial. [Doc. 30]. During discovery, the parties exchanged initial
disclosures and thousands of documents, including video footage from the
Detention Center. On December 4, 2020, the Plaintiff identified and
submitted written reports from three retained experts (two doctors and one
jail administrator). On February 3, 2020, the Defendants identified and
submitted expert reports from two experts (two doctors).
1 The Plaintiff also sued Cherokee County Sheriff’s Department employees Michael
Faggard and Patrick Williams; however, the Plaintiff subsequently filed a stipulation of
dismissal as to these Defendants. [Doc. 27].
2
On August 27, 2021, the parties and their counsel attended a mediated
settlement conference. Although no settlement was reached at the
mediation, the parties continued settlement negotiations with counsel for
Defendant Sheriff. On September 16, 2021, the parties agreed to settle. As
the sole beneficiary of the Decedent’s estate is a minor child, the Plaintiff
filed the present motion, seeking judicial approval of the parties’ settlement.2
[Doc. 45].
On December 7, 2021, this matter came on for final hearing before the
Court. Present for the proceeding were the Plaintiff Jason Blackwell;
attorneys Edward Winslow Taylor and W. Ellis Boyle, as counsel for the
Plaintiff; attorney Sean Perrin, as counsel for Defendants Cherokee County,
Cherokee County Sheriff’s Department, and Defendants Palmer, Patterson,
and Daly; attorney Patrick Flanagan, as counsel for Defendants Bresch,
Bolen, Holloway, and Enloe; attorney Stephen P. Agan as Guardian Ad Litem
for the minor child; and Christina Rubio, mother of the minor beneficiary
A.L.J.R.3 Prior to the hearing, the Court reviewed the following documents
2 The Plaintiff also has filed a Petition [Doc. 46] for the creation of a trust for the benefit
of the minor child. That Petition is addressed by a separate Order entered
contemporaneously herewith.
3 The full name and date of birth of the minor child are included in a Sealed Addendum
entered contemporaneously with this Order.
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with respect to the Plaintiff’s Consent Motion to Approve Wrongful Death
Settlement and the Plaintiff’s Petition for Creation of Trust: (1) the Settlement
and Release of All Claims [Doc. 45-1]; (2) the Affidavit of Jason Blackwell
[Doc. 45-2]; (3) the Affidavit of Stephen Agan [Doc. 45-3]; (4) the Affidavit of
W. Ellis Boyle [Doc. 45-4]; (5) the Affidavit of E. Winslow Taylor [Doc. 45-5];
and the Preservation Trust Agreement [Doc. 46-1].
FINDINGS OF FACT
1. To assess the reasonableness of the Settlement and Release
Agreement, at the hearing on December 7, 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
the Court’s request and proffered the following details surrounding the
factual and legal circumstances of this matter.
2. The Plaintiff’s claims arise from the Defendants’ alleged failure
to provide the Decedent with any medical screening or to react to the known
issues of his potential ingestion of an unknown quantity of a potentially
dangerous substance and then failing to timely send him for emergency
medical treatment when he showed symptoms of drug-related medical
problems during his time spent in their exclusive custody and control, which
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resulted in his death. The autopsy results showed that the Decedent died of
a methamphetamine overdose. He was 31 years old at the time of his death.
3. Based on the evidence obtained during discovery, the Plaintiff’s
counsel stated that they believed that they had a strong case of liability
premised on the Defendants’ failure to provide the Decedent with a prompt
medical evaluation after his arrest despite the Decedent’s obvious
intoxication and his ingestion of an unknown substance as observed by
officers at the scene of his arrest. Further, the Plaintiff’s counsel stated that
they believed that they could make a strong showing that the officers acted
with deliberate indifference to a serious medical need by failing to contact
emergency medical services or by failing to timely send the Decedent for
emergency medical treatment when he began showing symptoms of a drug-
related problem while he was detained in the facility, and that the Defendants
were improperly trained on procedures for seeking medical clearance and
for conducting rounds for observation of intoxicated detainees. Counsel
indicated that they had retained the services of two experts who could testify
that the passage of time between the Decedent’s ingestion of an unknown
substance at the time of his arrest and his subsequent death was consistent
with the timeline for death from methamphetamine toxicity, which was the
cause of death determined by the coroner.
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4. Despite the noted strengths of the Plaintiff’s case, counsel also
acknowledged the inherent uncertainties that exist in proceeding to a trial,
including the risk of a defense verdict, thereby recovering nothing on behalf
of the Estate. Counsel further noted the existence of various defenses that
could be asserted by the Defendants at both the summary judgment stage
and at trial, including the defenses of qualified immunity and public official
immunity.
5. As for the strengths of the Defendants’ case, defense counsel
noted that there was evidence indicating that the Decedent had been asked
when he arrived at the Detention Center whether he wanted to seek medical
treatment, and that he had refused. Additionally, defense counsel noted the
availability of the defenses of qualified immunity and public official immunity.
However, defense counsel conceded that at least some of the Defendants
were unlikely to prevail on such defenses, particularly in light of Defendant
Daly’s testimony that had he known prior to the Decedent’s delivery to the
Detention Center that the Decedent had ingested an unknown substance, he
would have directed the arresting officers to transport him to a medical facility
for evaluation. Additionally, defense counsel noted, the video recordings
from the detention facility indicated that the officers on duty failed to make
proper rounds to check on the Decedent.
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6. In light of these considerations, as well as the uncertainty of
submitting the case to a jury, both the Plaintiff’s and the Defendants’ counsel
stated they believed that the settlement reached is a fair resolution to the
Plaintiff’s claims.
7. At the hearing held on December 7, 2021, the Guardian Ad
Litem, opined that the settlement is fair and reasonable, in the best interest
of the minor child A.L.J.R., and therefore recommended the settlement be
approved.
8. At the hearing held on December 7, 2021, Christina Rubio, as
the mother and legal guardian of the minor child A.L.J.R., acknowledged that
she:
(a) had read the settlement documents filed in this matter,
including the Settlement and Release Agreement, and that she understands
and assents to the terms thereof.
(b) had an adequate opportunity to confer with counsel
regarding the settlement of this matter.
(c) understands that the settlement documents propose that
certain consideration be paid for the benefit of the minor child A.L.J.R.
(d) believes, in her capacity as mother and legal guardian of
the minor child, that the proposed settlement is fair and reasonable for the
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minor child 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.
(e) understands that, if the Court approves the Settlement and
Release Agreement and creates a Trust as requested, 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 and creates a Trust as requested, such trust funds may
not be used by her to discharge any legal obligation that she has as the
mother of the minor child.
(g) understands that, if the Court approves the Settlement and
Release Agreement, the provision of the consideration for the settlement by
the Defendants will terminate any claims of the minor child against the
Defendants. She further acknowledged that she understands that her
decision to accept the Settlement and Release Agreement on behalf of the
minor child (if such agreement is approved by the Court) will bind the minor
child and said child will be enjoined from seeking any future redress against
the Defendants, pursuant to the Settlement and Release Agreement, based
upon the acts and omissions alleged in the Complaint.
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9. Based on all the foregoing, the Court finds and concludes that
the Settlement and Release Agreement is fair and reasonable under all of
the circumstances of this case; that the consideration to be provided under
the terms of the Settlement and Release Agreement is fair and reasonable;
and that the proposed disbursement of such consideration is fair and
reasonable.
10. The Court finds that the attorney’s fees and costs of litigation as
requested by Plaintiff’s counsel are 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 of the work performed and the degree of success
obtained for the minor child. Specifically, the Court finds that this litigation,
which involved issues of medical causation, federal civil rights liability, and
governmental immunity, required a high degree of specialized skill and
knowledge on the part of counsel. While the case was settled relatively early
in the stages of litigation, counsel was required to perform an considerable
amount of work conducting discovery and procuring the testimony of expert
witnesses to support the Plaintiff’s claims. This resulted in a large amount
of costs being advanced by the Plaintiff’s counsel, with the potential that such
expenses might not be recouped in the event that the case was dismissed
or otherwise decided in the Defendants’ favor. Additionally, by settling this
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matter before the summary judgment stage, counsel did not incur additional
costs in briefing such motions and preparing the matter for trial. All counsel
of record (as well as the Plaintiff, who himself is a practicing attorney)
concurred that the Plaintiff’s counsel performed excellent work in this matter
and that, but for the skill and perseverance of counsel, the Plaintiff likely
would not have recovered nearly as much as what was agreed upon in the
Settlement Agreement.
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, Jason Blackwell, acting in his capacity as
Administrator for the Estate of the Decedent, is competent in all respects and
is able to understand the ramifications of the Settlement and Release
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Agreement, as well as the effect such agreement would have upon the minor
child, and is competent and able to execute his duties accordingly.
3. Attorney Stephen Agan, acting in his capacity as the Guardian
ad Litem, is competent in all respects and is able to understand the
ramifications of the Settlement and Release Agreement, as well as the effect
such agreement would have upon the minor child, and is competent and able
to execute his duties accordingly.
4. Cristina Rubio, acting in her capacity as parent and guardian for
the minor child, is competent in all respects and is able to understand the
ramifications of the Settlement and Release Agreement, as well as the effect
such agreement would have upon the minor child, and is competent and able
to execute her duties accordingly.
5. Having reviewed the details of the proposed disbursement of
funds for the minor child, including payment dates and amounts, the Court
finds that the extent, nature, and amount of recovery for the minor child are
all fair and reasonable, and the disbursement of such funds as provided in
the Settlement and Release Agreement is in the best interests of the minor
child.
6. The disbursement of the settlement proceeds, as set forth in the
Settlement and Release Agreement, benefits the minor child by the way in
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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.
7. The Plaintiff, Jason Blackwell, acting in his capacity as
Administrator of the Estate of the Decedent, and Cristina Rubio, in her
capacity as parent and guardian for the minor child, have bound the minor
child herein in the same manner as if such minor had consented to the
settlements as an adult.
8. The Settlement and Release Agreement should be approved.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Consent Motion to
Approve Wrongful Death Settlement [Doc. 45] 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 Plaintiff’s claims against the Defendants
within thirty (30) days of the entry of this Order.
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IT IS SO ORDERED.
Signed: January 3, 2022
Martiff Reidinger ey
Chief United States District Judge MES
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