In Uncategorized on 11/16/2017 at 11:38

We all know that one of the toughest cases is the employment discrimination-physical illness or injury settlement cases. Emotional harm doesn’t get it. I’ve blogged any number of those, and petitioners lose them all.

And of course the settling tortfeasor isn’t going to make your case. The ST says “smoke your own, have a nice day,” hands over the check, grabs the general release and didi-maos.

But it can be done. And here’s Degaulle Cabinda, Docket No. 10949-16, filed 11/15/17, pro se, to show you how, in a designated hitter off-the-bencher from that Obliging Jurist, Judge David Gustafson. Bless his heart, Judge David Gustafson is the blogger’s friend.

DeG (that’s Doc DeG to you, as he’s a Cameroon-born MD) was tossed as Senior Medical Director from a Big Pharma after two years. Reasons not clear, but Doc DeG says race, EEOC says “go sue,” Doc DeG does and gets a settlement, in which $234K is “alleged non-wage damages.”

Now we all play Kremlinology based on amounts of settlements. But I submit that’s a waste of time. If the Big Pharma is that Big, $234K is nuisance value. Or maybe not. Big Pharmas don’t win a lot of popularity contests just now.

Howbeit, Doc DeG has Guillain-Barre Syndrome, which my online mayvin (please pardon obscure technical term) tells me is when your immune system eats your nervous system.

Doc DeG fell into a Guillain-Barre decline on being tossed. He claims the $234K is for his physical illness.

Judge David Gustafson buys it.

“Dr. Cabinda has suffered, at times, from nearly complete paralysis and believes he nearly died. As a result of his medical bills and unemployment, his financial resources have been exhausted (requiring one of his children to withdraw from college for a time). Even as of the time of trial in this case, he has not fully recovered and still suffers extreme weakness.” Order, Transcript at p. 5.

When Doc DeG sued, physical illness was definitely in the complaint. When he settled, attorneys’ fees, wages and “non-wage damages” were all itemized. Hint to counsel: Be as specific as you can. Defendants don’t admit nothing, of course, but haul in the mainsheet and put the gunwhale in the water; get as close to the wind as you can.

“Non-wage damages” are the crux. Ordinarily, that would be “game over” for Doc DeG.

Except the ordinary symptoms that go with emotional distress don’t put you in the hospital.

“The Commissioner evidently agrees, because he acknowledges in his pre-trial memorandum (at 8, n.1) that Guillain-Barre is not a mere ‘symptom of emotional distress’.

“Dr. Cabinda credibly and movingly testified that his termination by Pharma caused the onset of debilitating and life-threatening physical sickness, and he contends that the entire $234,000 is excluded from taxable income on that basis.” Order, Transcript, at p. 9.

But we still have to look at the settlement agreement. IRS says some of the $234K has to be for emotional harm, reputational damage and that sort of stuff, because Doc DeG’s counsel pleaded that. OK, says Judge David Gustafson. I’ll look.

But Judge David Gustafson looks the way a canny defendants’ lawyer would look.

“If we put ourselves in the role of defense counsel evaluating Pharma’s settlement hazards, it seems clear that Dr. Cabinda’s Guillain-Barre recurrence would be the great motivator toward settlement. A jury could not fail to be moved by Dr. Cabinda’s plight, and Pharma’s attorneys could not fail to so observe. We therefore conclude that the settlement payment was attributable to Dr. Cabinda’s physical sickness.” Order, Transcript, at pp. 11-12.

Doc DeG wins it.

How to win an employment discrimination-Section 104 settlement case? A believable client as witness, a real disease with heavy-duty hospital bills and medical bills, a hefty number unallocated in the settlement agreement, and Judge David Gustafson on the bench.




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