Innovative Technique to Forge a Settlement

Judge's innovative methods lead to settlement of lawsuit

JAMES F. McCARTY

Plain Dealer Reporter

Judge David Matia used an innovative technique to forge a settlement in a lawsuit brought by a

University of Toronto swimmer blinded in a traffic accident in Ohio.

[The plaintiff], then 18 and a freshman member of the university's swim team, sued the college, a van rental company, and the van's driver in Cuyahoga County Common Pleas Court.

But mediation failed, and the opposing lawyers couldn't agree on fair compensation for damages, so they were prepared to go to trial Wednesday.

In a last-ditch attempt to reach an accord, Matia wrote a seven-digit dollar figure on two pieces of paper that he sealed in envelopes and presented to each lawyer.

They had a choice: accept the amount or not.

If either side disapproved, they would proceed to trial.

After some frantic calls to insurance company officials, both sides accepted.

The defendants agreed to pay [the plaintiff] $2,050,000 in damages and medical bills.

Before the settlement, the lawyers had been locked in an impasse: [the plaintiff]'s lawyers demanded $3.7 million and the defendants wouldn't pay more than $1 million.

"I made an educated guess about what would be a good compromise number, and it all worked out," Matia said afterward.

The case was heard here because the van was rented from Budget Rent-A-Car, and [the plaintiff]'s Cleveland-based lawyers, who could have had the case heard anywhere in Ohio, chose Cuyahoga County.

[The plaintiff] and his parents were en route to their home in Toronto on Wednesday and could not be reached for comment.

Neither of the lawyers said they had encountered the sealed-envelope settlement strategy before, and both praised the device for its effectiveness and simplicity.

"Judge Matia worked tirelessly to bring us together to achieve a just and fair settlement," said attorney Jamie Lebovitz, who represented the victim.

John Neville, attorney for the defendants, said, "It was different and it worked."

[The plaintiff], now 21, was one of Ontario's top butterfly and backstroke swimmers. He won a scholarship to the university and earned all As last year. He had hoped to attend medical school after graduation next month.

But on the day after Christmas, 2003, a van carrying the swim team to several intercollegiate swim meets in Florida was involved in an accident on Interstate 75 near Sydney in Shelby County. The driver and team captain, David Ling, had swerved to avoid rear-ending a car in front of him and struck a car beside him.

[The plaintiff] would later recall seeing shards of window glass flying toward him and feeling the stings as they pierced his face. Several slivers entered his left eyeball.

[He] has undergone eight surgeries since then, including three cornea transplants. His doctors have given up any hopes of restoring his eyesight, and have shifted all of their efforts to saving the eye.

A psychologist who interviewed the plaintiff in preparation for trial said the injury had a traumatic impact on his self-esteem and psyche. He is often anxious and depressed, and occasionally has nightmares. He no longer rides his bicycle or plays hockey for fear of injuring his other eye. And he can no longer swim because even a trace amount of chlorine could damage his retina.

"Not a day goes by without thinking about the eye," said [the plaintiff], who has been accepted at a law school in Victoria, British Columbia.

Matia met with [the plaintiff] and his parents in his chambers after they reached the settlement.

"Everyone seemed happy," Matia said.

To reach this Plain Dealer reporter:

jmccarty@plaind.com, (216) 999-4153

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