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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`TRACY CANNON, as Administratrix of the Estate
`of MARK CANNON, Jr.,
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`Plaintiff,
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`CORRECTIONAL MEDICAL CARE, INC, et al.,
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`Defendants.
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`APPEARANCES:
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`LAW OFFICES OF ELMER ROBERT
`KEACH, III, P.C.
`Counsel for Plaintiff
`One Pine West Plaza, Suite 109
`Albany, NY 12205
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`J
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`REBAR BERNSTIEL
`Counsel for CMC Defendants1
`Time & Life Building
`1271 Avenue of the Americas, Suite 4300
`New York, NY 10020
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`THUILLEZ, FORD LAW FIRM
`Counsel for Defendant Coogan
`20 Corporate Woods Boulevard
`Albany, NY 12211
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`S
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`BURKE, SCOLAMIERO LAW FIRM
`Counsel for Defendant Goyer
`7 Washington Square
`Albany, NY 12205
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`Civ. No. 9:15-CV-1417
` (DJS)
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`OF COUNSEL:
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`ELMER R. KEACH, III, ESQ
`MARIA K. DYSON, ESQ.
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`CATHLEEN KELLY REBAR,
`ESQ.
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`MOLLY C. CASEY, ESQ.
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`THOMAS A. CULLEN, ESQ.
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`1 The “CMC Defendants” include Correctional Medical Care, Inc., Emre Umar, Maria Carpio, Dr. Silver
`Masaba, and John Doe 1-2.
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 2 of 14
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`TRACY A. MURPHY, ESQ.
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`JOHN W. LIGUORI, ESQ.
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`ALBANY COUNTY ATTORNEY’S OFFICE
`Counsel for Albany County Defendants2
`112 State Street, Suite 1010
`Albany, NY 12207
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`TOWNE, RYAN LAW FIRM
`Counsel for Albany County Defendants
`450 New Karner Road
`P.O. Box 15072
`Albany, NY 12205
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`D
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`DANIEL J. STEWART
`United States Magistrate Judge
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`DECISION and ORDER
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`On August 30, 2014, Mark Cannon, Jr. died while in the custody of the Albany
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`County Sheriff. Thereafter, on November 25, 2015, this civil rights lawsuit was commenced
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`by Tracy Cannon, the Administratrix of the Estate of Mark Cannon, Jr., against Correctional
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`Medical Care and its staff, as well as against the County of Albany and its officials. Dkt. No.
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`1, Compl. Nearing the end of a lengthy litigation process, a settlement conference was held
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`with the Court which ultimately resulted in a settlement of the case. That settlement was
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`placed on the record and consisted of a monetary payment between Correctional Medical
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`Care and the County of Albany, and Plaintiff, with all other claims and cross-claims to be
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`discontinued and dismissed. However, because the action involved the alleged wrongful
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`death of Mark Cannon, Jr., whose sole distributee is his daughter, a formal motion to approve
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`2 The “Albany County Defendants” include County of Albany, Craig Apple, Sr., and Christian Clark.
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 3 of 14
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`the settlement was required pursuant to New York State Estates, Powers and Trusts Law
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`(“EPTL”) § 5-4.6 and New York State Surrogate’s Court Procedure Act § 2204.
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`On October 26, 2017, Plaintiff’s counsel filed a Motion to Approve Settlement of
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`Wrongful Death And Civil Rights Action. Dkt. No. 165. The CMC Defendants are
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`generally in support of the Motion to Approve Settlement, but object to certain statements
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`and characterizations made by Plaintiff’s counsel in his Motion papers; question the
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`procedure for the payment of the settlement and funding of the proposed structure; and have
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`concerns regarding the scope of the non-disparagement clause agreed to by the parties. Dkt.
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`Nos. 168 & 172. Defendants County of Albany, Goyer, and Coogan join in the request to
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`settle the action. Dkt. Nos. 169, 170 & 171.
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`With regard to the proposed settlement, the Court has considered the total settlement
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`of $1,094,999.993 and finds it to be an appropriate resolution after considering the merits of
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`the action. See EPTL § 5-4.6(a). The Court has dealt extensively with the facts of this case
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`in prior rulings, in particular in its decision regarding the Commission of Correction Report,
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`Dkt. No. 136, and incorporates those facts by reference in this Decision and Order. Plaintiff
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`has alleged that there was a failure to provide Mark Cannon, Jr., with proper medical care,
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`and further, that this failure was part of a broader pattern and practice implemented by
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`Correctional Medical Care. Dkt. No. 52, Am. Compl. at ¶¶ 15-46; Dkt. No. 165-1, Keach
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`Affirm. at ¶¶ 3-4. The Defendants have denied the allegations contained in the Amended
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`3 Of that amount, $999,999.99 is to be paid by Correctional Medical Care, Inc., and $95,000 is to be paid by
`the County of Albany.
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 4 of 14
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`Complaint, Dkt. Nos. 65 & 80, and the Albany County Defendants and the CMC Defendants
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`specifically moved to dismiss, inter alia, Plaintiff’s pattern and practice claim. Dkt. Nos. 81
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`& 99.4 Plaintiff’s attorney indicates to the Court several factors which counsel in favor of
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`settlement, including the risks of litigation in this action, particularly as may relate to
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`damages. Keach Affirm. at ¶¶ 7-11. Based upon the foregoing, together with the
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`opportunity the Court had to discuss the matter privately with each side (as well as the
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`mother of Mr. Cannon’s daughter) during a lengthy settlement conference, the Court
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`concludes that the proposed settlement is appropriate under the facts and circumstances of
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`this case.5
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`It is also the Court’s obligation to review the proposed attorney’s fee requested by
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`Plaintiff’s counsel. Mr. Keach notes that his firm expended $20,773.24 as disbursements in
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`this matter, and further notes that his office spent approximately 800 hours in preparing and
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`prosecuting the matter. Keach Affirm. at ¶¶ 13 & 16. In addition, Plaintiff Tracy Cannon,
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`on behalf of the Estate of Mark Cannon, Jr., signed a retainer agreement authorizing a one-
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`third attorney’s fee, calculated prior to the deduction of expenses. Id. at ¶¶ 5 &13; see also
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`Dkt. No. 165-5. The Court has reviewed the retainer agreement and finds that it is in
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`compliance with State law, and in particular with 22 N.Y.C.R.R. § 806.13 of the Appellate
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`Division rules dealing with contingent fees in claims involving wrongful death.
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`4 The Motions to Dismiss were still pending at the time this settlement agreement was entered into.
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`5 Both Mr. Cannon’s mother, as well as the distributee’s mother, have submitted Affidavits in support of the
`proposed settlement. Dkt. Nos. 165-8 & 165-9.
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 5 of 14
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`Accordingly, the Court authorizes reimbursement of disbursements to Plaintiff’s counsel in
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`the amount of $20,773.24, and approves an attorney’s fee award in the amount of
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`$364,635.00, for a total amount of $385,408.24. Mr. Keach and his Firm will continue on
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`as representative of the Estate in order to obtain Surrogate’s Court approval. In that regard,
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`he shall be entitled to reimbursement of additional expenses from the Estate, but he shall not
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`be entitled to any further fees for work related to the wrongful death claim. See Estate of
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`Haag, 43 N.Y.S.3d 870 (N.Y. Sur. Ct. 2016).
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`As to the settlement procedure, Plaintiff’s counsel is requesting that any distribution
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`of the settlement proceeds be approved by the Surrogate’s Court.6 Further, Plaintiff’s
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`counsel is requesting that $650,000.00 of the settlement proceeds be utilized to fund a
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`structured settlement account for the benefit of Mr. Cannon’s minor daughter. Because of
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`tax regulations specifically relating to the creation of such a structured settlement account,
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`see Dkt. No. 173, Plaintiff’s counsel is requesting that the $650,000.00 not be paid until a
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`short period of time after the Surrogate’s Court approves of the structured settlement and
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`distribution. The remaining amount of the settlement consists of $385,408.24 in attorney’s
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`fees and expenses, as well as a residual amount of $59,591.75. These amounts would be paid
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`pursuant to New York’s prompt payment law. N.Y. C.P.L.R. § 5003-a. The above-
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`referenced residual amount would be placed in an account as authorized by the May 24, 2016
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`decree signed by the Honorable Vincent Versaci, Schenectady County Surrogate’s Court.
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`6 The proper venue for proceedings relating to the Estate is in the Surrogate's Court of the County of the
`decedent’s domicile at the time of his death. N.Y. SURR. CT. PROC. ACT § 205.
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 6 of 14
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`Dkt. No. 165-2. The Court agrees that the procedure outlined above is the correct procedure.
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`L.R. N.D.N.Y. 17.1.
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`The final issue in dispute concerns the terms of any non-disparagement agreement
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`between the parties. During the course of the settlement conference with the Court, the
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`Defendants requested, and the Plaintiff and her counsel agreed to, a non-disparagement
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`clause in the settlement. The specific terms of that clause, however, are in dispute. Counsel
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`for the CMC Defendants has proposed the following three paragraphs:
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`This Release does not constitute an admission of liability by the Releasees.
`The Releasor, and their agents, representatives, and counsel, agree to strictly
`maintain the confidentiality of all the terms and conditions of this Release and
`the settlement, and to not disclose any information relating to any and all terms
`of this Release and the settlement to any person or entity.
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`Releasor and their attorneys agree not to make any statements, written or
`verbal, or cause or encourage others to make any statements, written or verbal,
`that defame, disparage or in any way allege, intimate, infer, suggest or
`otherwise imply wrongdoing by Releasees related to the substance of this
`lawsuit. Releasor acknowledges and agrees that this prohibition extends to
`public or private statements, and statements made during the course of other
`and/or future litigation.
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`Releasor and their attorneys acknowledge and agree that they will not
`reference this settlement as evidence of wrongdoing by Correctional Medical
`Care, Inc. or any of their current or former employees, or its successor
`corporations . . . in any public or private statements, or in statements made
`during the course of pending and/or future litigation.
`Dkt. No. 168 at pp. 2-3 (emphasis added).
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`Counsel for Plaintiff objects to the terms of this proposal, which he believes amounts
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`to an agreement that Plaintiff’s counsel never discuss the facts of this case again in any
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`setting as a condition of the settlement. Dkt. No. 173 at p. 3. The Court starts with the
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 7 of 14
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`understanding of the parties on this issue as expressed during the settlement conference:
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`MS. REBAR: Yes, Your Honor, with the additional
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`caveat that while I understand Your Honor is not
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`going to seal or issue any types of additional
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`protective orders, it's my understanding that Ms.
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`Mundorf did discuss with Mr. Keach that the language
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`of the settlement agreement would make the
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`settlement, as far as Mr. Keach is concerned,
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`confidential. The same language that would appear in
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`the Lynch settlement, settlement documents, would
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`also appear in the Cannon settlement documents.
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`THE COURT: All right. I'm what sure what that
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`language is. Certainly the parties can agree to
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`anything, but I can tell you just generally, and I
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`know that you all understand this, is that this is
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`a case that I think has public importance,and so
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`insofar as it is my determination that the actual
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`settlement and the approval of the settlement is
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`going to be a public record.
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`But Bob, I don't know. With regard to
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`specifically what Cathleen said, do you understand
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`what she's talking about?
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`MR. KEACH: I think there's some kind of --
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`there's language that Correctional Medical Care
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 8 of 14
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`wants that I'm not going to rely upon the settlement
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`of this case in other litigation. Certainly I can't
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`rely upon the settlement of this case pursuant to
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`the Federal Rules of Evidence in any event. That's
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`not admissible, and none of the complaints I filed
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`against Correctional Medical Care, while they have
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`discussed the facts of cases that I've worked on,
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`have not discussed settlements or amounts or
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`anything like that. So if that's what -- I'm pretty
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`sure that's what Ms. Rebar is referring to.
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`Certainly that's acceptable to me.
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`THE COURT: Okay. Let me then turn -- Cathleen,
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`is there anything further you want to add?
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`MS. REBAR: I just want to relay the language as
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`it was relayed to me just so we can -- that Mr.
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`Keach agrees to confidentiality and no use in future
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`litigation of the settlement. Is that your
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`understanding, Mr. Keach?
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`MR. KEACH: I don't understand what you mean by
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`confidentiality. I mean I'm going to file my
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`documents supporting this settlement on the public
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`record. The Court, this particular Court has already
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`rejected confidentiality language in the Helijas
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`matter. If what you're asking me is: Am I going to
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 9 of 14
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`go out there as part of this settlement and go on TV
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`or to the newspapers and say all kinds of derogatory
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`stuff about Correctional Medical Care? The answer is
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`no. I'm not going to do that. Is that what you're
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`concerned about?
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`MS. REBAR: Yes.
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`MR. KEACH: You're buying complete peace from me,
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`Cathleen, and complete peace is what you're going to
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`get from this case. I don't have any control over
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`the newspapers and what they print or don't print.
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`All I'm going to say is that my client is satisfied
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`with the settlement and that, you know, is glad that
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`her grandchild will benefit from the proceeds of the
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`estate, something like that in words or substance.
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`Does that meet with your approval?
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`MS. REBAR: Yes, thank you.
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`Dkt. No. 174 at pp. 7-9.
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`The Court understands that there are significant disputes with regard to the underlying
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`facts of this case, and that the settlement of this action is not an admission by any Defendant
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`that they engaged in misconduct or wrongdoing. Further, it is well-settled that a “settlement
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`neither requires nor implies any judicial endorsement of either party’s claims or theories.”
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`Bates v. Long Island Railroad Co., 997 F.2d 1028, 1038 (2d Cir. 1993). Further, Federal
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`Rule of Evidence 408 governs the admissibility of settlement agreements. It provides:
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 10 of 14
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`(a) Prohibited Uses. Evidence of the following is not
`admissible – on behalf of any party – either to prove or disprove
`the validity or amount of the disputed claim or to impeach by a
`prior inconsistent statement or contradiction:
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`(1) furnishing, promising, or offering – or accepting, promising to
`accept, or offering to accept – a valuable consideration in
`compromising or attempting to compromise the claim; . . .
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`The parties are in agreement with this general principle. Therefore, the first paragraph of the
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`CMC Defendants’ proposal is warranted and appropriate.
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`As to the second paragraph, this paragraph goes to the heart of Plaintiff’s obligation
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`not to disparage the Defendants in any setting. However, by adding the words “and their
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`attorneys” and by referencing future legal cases, the proposed agreement significantly
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`affects Plaintiff’s counsel’s role in representing future clients in the courtroom. In other
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`words, will Plaintiff’s counsel be prevented from introducing or arguing the underlying facts
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`of this action in some future lawsuit? The Court does not believe that such a result was
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`intended nor agreed to.
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`While evidence of the settlement would not generally be admissible against any
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`Defendant as evidence of negligence or misconduct, the settlement cannot bar inquiry into
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`the facts of the case if they are legitimately at issue in some future lawsuit. Of course,
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`whether evidence of the facts of this case are proportionally relevant to the needs of some
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`future case, see FED. R. CIV. PROC. 26(b)(1), or admissible at a trial, is ultimately an issue for
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`the District Court or the presiding Magistrate Judge in that future case. This Court cannot
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`foreclose that avenue of inquiry, nor can the parties agree to preclude existing facts as
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 11 of 14
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`admissible evidence. In the case of Mark Cannon, Jr., for example, the Commission of
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`Correction has already issued a detailed report concerning its findings of the medical care
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`provided to Mr. Cannon, and the relationship between that level of medical care and Mr.
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`Cannon’s death. A plaintiff in a future lawsuit against Correctional Medical Care could
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`certainly make reference to that finding by a public agency, and all the facts upon which it
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`was based, as specifically noted in this Court’s decision dated June 27, 2017. Dkt. No. 136.
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`It would be incongruous, therefore, for the Court to approve an agreement whereby one
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`plaintiff could introduce evidence of the Commission of Correction Report and argue that
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`the facts of the Cannon incident supported his or her case in connection with some issue of
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`notice, or a claim of Monell liability, but another plaintiff, who happened to be represented
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`by Plaintiff’s counsel, could not.7 No such limitation was agreed to by the parties and their
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`counsel at the settlement conference, and therefore the Court will not compel Plaintiff’s
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`counsel to abide by such a limitation.
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`The Court’s ruling is further supported by the language of the Lynch settlement, the
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`terms of which the lawyers specifically referenced during the settlement colloquy. The
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`Lynch settlement agreement has now been provided to the Court, and it contains the specific
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`language of paragraph two, without the addition of the words “and their attorneys.” The
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`Court therefore modifies the proposed language to eliminate these three words, and otherwise
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`approves of the proposed second paragraph.
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`7 Such a limitation would also create significant ethical concerns. See N.Y. Rules of Prof’l Conduct R. 5.6(a)(2)
`(“A lawyer shall not participate in offering or making . . . (2) an agreement in which a restriction on a lawyers right to
`practice is part of the settlement of a client controversy.”).
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 12 of 14
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`As to the third proposed paragraph, I find that this language is appropriate. Plaintiff’s
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`counsel made specific representations at the settlement conference to counsel for the CMC
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`Defendants that he would not make disparaging public statements with regard to the Cannon
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`settlement, and would merely state that Plaintiff was satisfied with the result. In the words
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`of Plaintiff’s counsel, the settlement agreement bought “complete peace” in connection with
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`public statements by Plaintiff’s counsel. The third paragraph properly encapsulates this
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`agreement.
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`For the reasons stated herein, it is hereby
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`ORDERED, that Plaintiff’s Motion for Court Approval of the Wrongful Death
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`Settlement (Dkt. No. 165) is GRANTED; and it is further
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`ORDERED, that the letter motions of the Albany County Defendants, the CMC
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`Defendants, and Defendants Coogan and Goyer (Dkt. Nos. 168-172) are GRANTED to the
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`extent they are consistent with this Decision and Order; and it is further
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`ORDERED, that all claims against Defendants Correctional Medical Care, Inc.,
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`Umar, Carpio, Masaba, County of Albany, John Doe 1-3, Goyer, Coogan, Apple, Sr., and
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`Clark are hereby DISMISSED; and it is further
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`ORDERED, that all cross-claims are DISMISSED; and it is further
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`ORDERED, that the Albany County Defendants and the CMC Defendants’ Motions
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`to Dismiss (Dkt. Nos. 81 & 99) are DENIED as moot; and it is further
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`ORDERED, that Tracy Cannon, as Administratrix of the Estate of Mark Cannon, Jr.,
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 13 of 14
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`is hereby authorized to accept the sum of $1,094,999.99 for settlement of all claims made on
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`behalf of the decedent in this matter, said amount to include all claims for attorney’s fees and
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`costs. The Administratrix of the Estate of Mark Cannon, Jr. is further authorized to execute
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`and deliver to the CMC Defendants and the Albany County Defendants a release for all
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`claims asserted, or that could have been asserted in this litigation; and it is further
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`ORDERED, that the terms of any non-disparagement agreement shall be consistent
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`with this Court’s ruling; and it is further
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`ORDERED, that the Application of Plaintiff’s Attorney for attorney’s fees and
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`expenses is GRANTED. Plaintiff’s attorney is awarded $20,773.24 as reimbursement for
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`litigation expenses, and $364,635.00 in attorney’s fees, pursuant to the terms of the signed
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`retainer agreement with the Law Offices of Elmer Robert Keach, III, P.C.; and it is further
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`ORDERED, that $650,000.00 of the settlement proceeds shall be held by the settling
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`parties, and their insurance carriers, to fund a structured settlement agreement for Mark
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`Cannon, Jr.’s daughter, said structured settlement to be approved by the Schenectady County
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`Surrogate’s Court, and to be funded within a period of time to be determined by the
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`Surrogate’s Court; and it is further
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`ORDERED, that $385,408.24 in attorneys fees and expenses shall be paid to
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`Plaintiff’s counsel pursuant to the time constraints set forth in New York’s Prompt Payment
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`Statute, C.P.L.R. § 5003-a; and it is further
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`ORDERED, that the remaining share of the settlement, $59,591.75, shall be paid to
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`Plaintiff’s counsel pursuant to the time constraints set forth in New York’s Prompt Payment
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`Case 9:15-cv-01417-DJS Document 175 Filed 12/14/17 Page 14 of 14
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`Statute, C.P.L.R. § 5003-a, the distribution of which is referred to the Schenectady County
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`Surrogate’s Court for disposition; and it is further
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`ORDERED, that Plaintiff’s counsel shall continue to serve as attorney for the Estate
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`until the entry of the final decree in the Schenectady County Surrogate’s Court; and it is
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`further
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`ORDERED, that jurisdiction is retained over this matter to enforce the terms of the
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`settlement agreement; and it is further
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`ORDERED, that the Clerk of the Court serve a copy of this Decision and Order upon
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`the parties to this action.
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`Date: December 14, 2017
`Albany, New York
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