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Lemmings v. United States

United States District Court, E.D. Oklahoma

December 11, 2017

MILLARD LANCE LEMMINGS, a minor, by and through his parents and next friends, ANGELA KILE and JODY LEMMINGS; and ANGELA KILE, Individually; and JODY LEMMINGS, Individually, Plaintiffs,
UNITED STATES OF AMERICA; COMPHEALTH, INC., f/k/a C.H.S., INC., a Delaware corporation; COMPHEALTH MEDICAL STAFFING, INC., a Delaware Corporation; ORIN PETE COUNCIL, M.D.; and ROMULO G. PEREZ, M.D., Defendants.



         This matter comes before the Court on the following filings:

• Motion to Re-Open, Set Aside Dismissal, Add an Indespensible Party, and for Equitable Relief to Amend the Terms of the Medical Reversionary Trust filed by Prospective Intervenors Barbara Lemmings and Oran Hurley, Jr. (Docket Entry #165);
• Motion to Allow Intervenors Access to Sealed Transcript filed by the Prospective Intervenors (Docket Entry #184); and
• Motion to Strike the Affidavit of, and Exclude Any Testimony of, Brant McGee filed by the United States of America (Docket Entry #194).

         On October 19, 2017, this Court conducted a hearing to receive argument and any evidence on the subject Motions. George Braly represented the Prospective Intervenors and Elliott Davis and Susan Brandon represented the United States of America.

         Millard Lance Lemmings (“Lance”) and his parents, Angela Kile and Jody Lemmings suing as “parents and next friends”, initiated this action on August 8, 2000, alleging medical malpractice by Defendants during Lance's birth under the Federal Tort Claims Act. United States District Judge Frank H. Seay presided over the case. The undersigned acted as the settlement judge in the case.

         On September 28, 2001, the case was announced as settled prior to the scheduled November 5, 2001 jury trial. The settled case was set for a hearing to determine the fairness of the settlement to the minor child. By the consent of the parties, the case was reassigned to the undersigned on October 22, 2001. The fairness hearing was conducted on October 25, 2001.

         On October 25, 2001, Kile and Lemmings were appointed by the District Court in and for Garvin County, Oklahoma as the guardians of Lance's estate. The request for approval of the settlement which had previously been filed by the guardians in the State District Court was withdrawn that morning.[1]

         At the hearing, Plaintiffs were represented by counsel of record, Larry Tawwater, Jo Slama, and Steve Davis. The United States was represented by Assistant United States Attorney Susan Brandon and Defendants Perez and CompHealth were represented by Tim Cheek. At the fairness hearing to consider the propriety of the settlement and whether it was in Lance's best interests, Plaintiffs' counsel recited the terms of the settlement into the record in considerable detail. The essential terms of the settlement was stated to be as follows:

• The total settlement was represented as $5, 000, 000.00 with $4, 000, 000.00 paid by the United States and $1, 000, 000.00 paid by Defendants Perez and CompHealth.
• The money was to be paid into two separate trusts for the benefit of Lance - (1) a trust (“Non-Governmental Trust”) funded by the $1, 000, 000.00 paid by Defendants Perez and CompHealth to pay the quality of life of Lance and treatment not expressly covered by the second trust; and (2) a reversionary medical trust (“Irrevocable Governmental Trust”) funded by the annuities purchased by the United States which covered the payments required by certain enumerated medical expenses incurred by Lance. The Irrevocable Governmental Trust was, by its terms, established as a “secondary payor” after coverage was exhausted from Medicare, Medicaid, and any tribal or insurance benefits. In the event of Lance's death, the Irrevocable Governmental Trust benefits reverted to the United States.
• The Non-Governmental Trust was created “to fund benefits[, ] care and/or improvements of the quality of life of the Grantor, Millard Lance Lemmings that are not covered or qualified under the Irrevocable Trust.” Under the terms of the Non-Governmental Trust, the appointed trustee “shall only pay all expenses of Millard Lance Lemmings that are not covered, allowable, available, payable or qualified under the terms of the Irrevocable Reversionary Inter Vivos Medical Care Trust for the benefits of Millard Lance Lemmings.” The NonGovernmental Trust was designated “only as a supplementary Trust to the Irrevocable ...

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