Child born during deployment is beneficiary of settlement

A $475,000 settlement in a case alleging medical negligence in the wrongful death of a father was determined to be fair. In addition, a child who was born 301 days after his father left for Vietnam was presumed to be a beneficiary because there was no evidence showing a pregnancy cannot last 301 days or that the parents did not see one another during the period of deployment. The child was claimed as a dependent on the parents’ tax returns, his sisters testified he was the parents’ son and he was reflected as a dependent in the parents’ divorce decree.

Background

This is a medical negligence case brought against the United States pursuant to the Federal Torts Claims Act based on the alleged wrongful death of Stuart L. Skinner Sr. The parties have agreed to resolve the claims for $475,000. At issue is whether the settlement is fair, just, and reasonable. Also contested is the identity of the appropriate statutory beneficiaries and the appropriate apportionment among the statutory beneficiaries.

Settlement

The proposed settlement amount of $475,000 is fair, just and reasonable. Clearly, the amount of the proposed settlement is substantial and adequately recognizes the claims asserted. Furthermore, the settlement was reached after the close of discovery and after a motion in limine was filed.

Counsel for both parties have devoted significant time and expense to develop the record in this case, which, had it gone to trial, would have required extensive expert testimony. The settlement agreement appears to have been negotiated at arm’s length, and both plaintiff and the government are represented by competent, experienced counsel in this litigation.

Additionally, all potential beneficiaries stated that they approved of the settlement amount of $475,000. Finally, the attorneys’ fees and costs sought by plaintiff’s counsel are reasonable.

Beneficiaries

All parties and potential beneficiaries agree that plaintiff, Stethanie L. Skinner and Ulonda L. Skinner are beneficiaries as the decedent’s biological children. All of the potential beneficiaries agree that Patricia Reidmann is not a beneficiary because she was adopted out of the decedent’s family. The remaining issues are whether Stewart L. Skinner Jr. and Patricia Reidmann are statutory beneficiaries.

The dispute over whether Stewart L. Skinner Jr. is a statutory beneficiary stems from the fact that his birth occurred approximately 301 days after the decedent was deployed to Vietnam. The question is whether this absence precludes the decedent from being his father. It does not.

In Virginia, there is a presumption of legitimacy for a child born of a marriage. Plaintiff fails to rebut this presumption.           First, plaintiff argues that the normal length of a human pregnancy is 280 days and that the time between the decedent’s deployment and Stewart L. Skinner Jr.’s birth is approximately 301 days. But plaintiff neither cites to any evidence to support his assertion that a pregnancy is 280 days or that a pregnancy cannot last 301 days.

Second, plaintiff asserts that neither the decedent nor Mildred Skinner traveled to see one another during the decedent’s period of deployment. Because plaintiff was not yet born at the time of the decedent’s deployment, plaintiff could not have firsthand knowledge of the alleged fact.

In depositions, Stethanie Skinner and Ulonda Skinner testified that Stewart L. Skinner Jr. is the decedent’s son. They also assert the decedent claimed him as a dependent on his tax returns which, in Virginia, is evidence of paternity. Additionally, the divorce decree shows that, when Mildred Skinner and the decedent divorced, there were four children of the marriage – which would only be true if Stewart L. Skinner Jr. was included as a child of the marriage.

With respect to Patricia Reidmann, the record discloses that she was fathered by the decedent in Germany in 1976 and was adopted by Theodor and Hermine Reidmann. Because her adoption terminated any relationship between Patricia Reidmann and the decedent, Patricia Reidmann is not a beneficiary.

Distribution

When a court approves the compromise of a wrongful death action, but the beneficiaries “do not agree upon the distribution to be made,” Virginia law requires the court to do so.

Based on plaintiff’s close relationship with the decedent and his efforts during the decedent’s final illness, plaintiff’s sorrow, mental anguish and loss of solace is greater than that suffered by the other beneficiaries. Plaintiff is therefore awarded $166,896 from the settlement proceeds to compensate plaintiff for his loss.

The damages of Ulonda L. Skinner and Stethanie L. Skinner resulting from the decedent’s death are less than those of plaintiff. Each of them is awarded $77,177 from the settlement proceeds. Finally, because any damages suffered by Stewart L. Skinner Jr. are minimal, he is awarded $5,000 from the settlement proceeds.

Joint motion for settlement approval granted.

Skinner v. United States, Case No. 19-cv-468, Sept. 9, 2020. EDVA at Alexandria (Ellis). VLW 020-3-463. 17 pp.