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C.D. v. Coca-Cola Refreshments USA, Inc.

United States District Court, M.D. Alabama, Northern Division

June 15, 2015

C.D., a Minor, by and Through her Mother and Next Friend, Cynthia Davenport, Plaintiff,



Plaintiff C.D., a six-year-old, suing by and through her mother, filed this lawsuit against defendant Coca-Cola Refreshments USA, Inc., claiming that a CVS Pharmacy store shelf and plastic bottles of detergent displayed on the shelf injured her while she was sitting in a shopping cart. The removal jurisdiction of the court has been invoked pursuant to 28 U.S.C. §§ 1441, 1332 (diversity of citizenship). Because this case involves a minor, the parties have asked the court to approve their proposed settlement.

At a pro ami hearing, the court heard from counsel for both parties, C.D.’s mother, and C.D.’s court-appointed guardian ad litem. The settlement will be approved.


Alabama law requires that a court hold a fairness hearing before a minor plaintiff’s case may be settled. Largo v. Hayes By and Through Nesbitt, 534 So.2d 1101, 1105 (Ala. 1988). This is a rule of substantive law, which must be applied by federal courts sitting in diversity. Burke v. Smith, 252 F.3d 1260, 1266 (11th Cir. 2001). In order for the settlement to be binding on the minor, the hearing must involve “‘examination or investigation into the facts.’” Abernathy v. Colbert Cnty. Hosp. Bd., 388 So.2d 1207, 1209 (Ala. 1980) (quoting 42 Am. Jur.2d Infants § 47 (1978)).


On the morning of April 9, 2012, C.D. was shopping with her mother and grandmother in a CVS Pharmacy in Montgomery, Alabama. According to C.D.’s mother, while they were in the store, the corner of a wood pallet, which was being maneuvered into place by a Coca-Cola Refreshments USA employee, bumped a metal shelf and tipped it over, and both the shelf and plastic bottles of detergent displayed on the shelf injured C.D. while she was sitting in a shopping cart. C.D. was treated at, and released from, a hospital emergency room. X-ray views of her head revealed no fracture. C.D. was treated by her primary-care doctor the day after the incident and was released to her mother’s care. The primary care-doctor referred her to a pediatric neurologist for further treatment “as needed.”

Following an extensive examination that included an electroencephalogram, the pediatric neurologist determined that C.D.’s injury was minor “and that there was no reason to think that there [were] any long-term consequences from that injury.” Sanchez Depo., (doc. no. 46-3) at 37-38.

After the incident, C.D. received psychological treatment for a number of behavioral issues. The treating psychologist stated that he could not “attest ... with any degree of psychological certainty” that C.D.’s behavioral issues were caused by the CVS Pharmacy incident. Clark Psychological Associates Notes (doc. no. 47-4) at 2. There is no indication from any source uncovered during the lengthy discovery phase of this case that C.D. will require any treatment in the future for any issues relating to this incident.

C.D. sued Coca-Cola Refreshments USA asserting two claims: negligence and wantonness. Coca-Cola Refreshments USA filed a motion for partial summary judgment on the wantonness claim. The court notes, for the purposes of the issue now before the court, that the motion is well supported by both fact and law and likely would have been granted. Coca-Cola Refreshments USA has asserted a number of additional affirmative defenses to C.D.’s claims and has denied liability for the incident.

The parties propose to settle this case based on payment by Coca-Cola Refreshments USA in the amount of $ 19, 000.00 in full satisfaction of all claims C.D. has or could have asserted in this case. Under the proposed settlement, C.D.’s counsel would be paid $ 7, 600.00 out of the settlement as an attorney’s fee. In addition, out of the settlement, C.D.’s counsel would be paid $ 2, 430.74 in reimbursement for expenses incurred in filing and prosecuting the action. The proposed settlement also bears a $ 667.54 Medicaid lien for medical treatments for C.D.

At the pro ami hearing, C.D.’s counsel, her court-appointed guardian ad litem, and her mother testified about the circumstances surrounding the incident and C.D.’s injuries, treatment, recovery and current condition. C.D.’s mother further testified about the various ways she intended to use the settlement funds to benefit C.D. and that she understood and approved of the settlement. C.D.’s counsel and the guardian further testified about their understanding of the settlement and asked that it be approved by the court. They explained that a total of $ 10, 698.28 for the attorney’s fee and expenses and the Medicaid lien would be subtracted from the $ 19, 000.00 settlement, with the result that C.D. would receive $ 8, 301.72. All expressed their opinions that the settlement is in the best interest of C.D. given the nature of her claims and injuries and the defenses to them.

C.D.’s counsel also explained the terms of the contingency-fee agreement and expenses incurred in prosecuting the action. As stated, her counsel seek a fee of $ 7, 600.00 and reimbursement for $ 2, 430.74 in expenses. The court finds that the fee and expenses are reasonable under the factors set forth in Peebles v. Miley, 439 So.2d 137 (Ala. 1983), and that the fee has been duly earned by counsel. The representation of C.D. required significant learning, skill and labor for its proper discharge; her attorneys spent 40 hours on her case; one attorney has three years of experience practicing law and was assisted by another attorney who has 35 years of experience practicing law; the attorneys achieved a successful result, that is, a favorable settlement in light of the injuries and the significant dispute as to liability; the attorneys and C.D.’s mother agreed to a contingency-fee arrangement, which is customary for such cases in this jurisdiction; and the attorneys’ time devoted to this case could have been profitably spent on other matters.

Upon consideration of the testimony, other evidence introduced at the pro ami hearing, and its knowledge of the facts and circumstances of this case, the court finds that the proposed settlement is fair, reasonable, just, and in C.D.’s best interest and thus should be approved. The court is ...

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