The plaintiff and defendant in a New York medical malpractice lawsuit has come to a putative settlement agreement just before the jury rendered a verdict. The parties failed to get the settlement on the record prior to the jury verdict and the settlement was invalidated and the verdict upheld.
In 1996, plaintiff Mahmoud Diarassouba underwent surgery to repair a chronic condition in his left knee. Shortly thereafter, he experienced pain and discomfort in his right knee which he blamed on the surgeon and anesthesiologist for improperly repositioning the right leg during the long operation. The condition became chronic. In 2003, a jury found in his favor for $1.5 million. The verdict was thrown out due to improper admission of some testimony and a retrial ordered. The case was tried again in 2007 and while the jury deliberated, plaintiff’s counsel advised the defense counsel his client would accept a $150,000 settlement. Defense counsel agreed.
Moments later, the judge informed the parties that they jury had a verdict awaiting them. Plaintiff’s counsel asked the judge if the settlement could be read into the record prior to the jury verdict being read. The judge replied in the negative. “Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to,” the judge said. “An agreement is an agreement, counsel.” Defense counsel remained silent. The verdict rendered by the jury was for $1.45 million. The defense then moved to enforce the settlement which the judge granted. Plaintiff appealed.
Last week, the appellate court ruled that the settlement was invalid. They found that there was no written, agreed to settlement as required by the court rules. Neither was it placed on the record in open court. Further appeals are expected.
I have frequently advocated for my clients to settle early in litigation. Many cases settle on the courthouse steps. Waiting until the last possible moments to settle is not a wise course of action, as this case illustrates. Thirteen years later, the parties in this case do not have any resolution.