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Home My WebLink About09-0956ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY BY: SOL H. WEISS, ESQUIRE ,OGREGORY S. SPIZER, ESQUIRE Identification Nos. 15925/82435 1710 Spruce Street Philadelphia, PA 19103 (215) 790-4578 DEBORAH MCGARY, Executrix of the Estate of MARY E. GONSER, Deceased and : DEBORAH MCGARY, in her own right v. MERCK & CO.,1NC. Attorneys for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY rvr PETITION TO APPROVE SETTLEMENT AND DISTRIBUTION OF WRONGFUL DEATH AND SURVIVAL ACTIONS TO THE HONORABLE JUDGES OF SAID COURT: The Petition of Deborah McGary, as Executrix of the Estate of Mary Gonser, Deceased, by and through her attorney, Gregory S. Spizer, Esquire, respectfully represents: 1. Petitioner is Deborah McGary, who is the Executrix of the Estate of Mary E. Gonser. On August 30, 2006, Petitioner filed the above-captioned wrongful death and survival action on behalf of the Estate of Mary E. Gonser, as well as on her own behalf, in the Superior Court of New Jersey, Atlantic County. The suit alleged that Defendant failed to warn physicians and consumers of the risks associated with the prescription drug Vioxx and, as a consequence, caused Decedent's death. A copy of the time-stamped Complaint is attached hereto as Exhibit "All. 2. The Decedent, Mary E. Gonser, (Date of Birth: February 4, 1934; Social Security Number: 385-32-2131) died from a pulmonary embolism and myocardial infarction on December 30, 2003, caused by her ingestion of the prescription drug Vioxx. Decedent's death certificate is attached hereto as Exhibit "B". 3. Petitioner was granted Letters Testamentary by the Register of Wills in Cumberland County on April 16, 2004. A copy of the Certificate of Grant of Letters is attached hereto and marked as Exhibit "C". 4. Decedent executed a Will on August 4, 2000. The Will devised Decedent's entire estate (with the exception of specified gifts to her children) to her husband, Donald I. Gonser. The Will also named Petitioner as Executrix. A copy of Decedent's Will is attached hereto and marked as Exhibit "D". 5. Patricia Brown, Esquire of the Salzmann Hughes law firm in Carlisle, PA is serving as the estate attorney relative to this action. Ms. Brown has established an estate account at M&T Bank. 6. At the time of her death, Decedent had been married to Mr. Gonser for more than fifty (50) years. The lawsuit filed by Petitioner asserted a Loss of Consortium claim on behalf of Mr. Gonser. See Complaint attached as Exhibit "A". 7. Petitioner filed suit based upon counsel's thorough review of voluminous medical records. 8. Beginning in early 2007, the parties engaged in discovery. Plaintiff completed a Fact Sheet which is used in lieu of interrogatories in Mass Tort cases. Counsel also reviewed millions of pages of Merck & Co., Inc. documents. In addition, numerous Merck employees were deposed regarding their knowledge of the science, marketing and regulatory decisions regarding Vioxx. 9. Further, Plaintiff's counsel engaged various medical and epidemiology experts to support the theory of "general liability", establishing a link between Vioxx and heart attacks/death. 10. After extensive litigation, on November 9, 2007, the various State and Federal Courts that have overseen the coordinated Vioxx proceedings (Federal MDL, New Jersey, Texas and California) approved a settlement, which was available to all plaintiffs who suffered a myocardial infarction, ischemic stroke or sudden cardiac death. The settlement allowed Petitioner to submit a claim form to the Vioxx Claims Administrator along with other documentation, including medical records, prescription records, the death certificate and letters of administration, which evidenced the basis of Petitioner's claims. 11. On January 23, 2008, Petitioner advised us, her counsel, that she agreed to enroll in the National Vioxx Settlement Program. 12. On January 24, 2008, Petitioner signed the Release, which Plaintiff's counsel submitted to the Claims Administrator. The submission of Petitioner's release officially enrolled this claim in the Vioxx Settlement Program. The signed Release is attached hereto and marked as Exhibit "E". 13. On June 5, 2008, Petitioner's Counsel submitted the medical documents and death certificate referenced in Paragraph 10 to the Settlement's Claims Administrator. -2- 14. On November 17, 2008, Petitioner's claim was assigned the following points award under the settlement: 72.44. 1 15. Counsel was of the professional opinion that the proposed award was reasonable and fair given Mrs. Gonser's age, pre-existing medical conditions and cardiovascular risk factors. 16. On November 18, 2008, Petitioner was advised of the proposed monetary settlement. Petitioner was also advised of the alternative options available, including appealing the Claims Administrator's award. Petitioner was of the opinion that, given all of the factual and legal circumstances, the proposed settlement was reasonable and advised Counsel to accept the proposed award. 17. On December 01, 2008, Counsel accepted the proposed settlement on behalf of Petitioner. 18. As Petitioner agreed to the points total awarded, an interim payment of 40% of the total award was be paid to us, Petitioner's Counsel, at the end of December 2008. A gross payment of $55,489.04 was paid to us on behalf of Petitioner's claim by the Vioxx Claims Administrator.2 19. As of today's date, Counsel has incurred expenses in the amount of $1,572.22 for which reimbursement is sought. (See cost sheet attached as Exhibit "F".) These expenses will be deducted from Petitioner's 60% balance award. 20. On August 27, 2008 United Stated District Court Judge Fallon limited the individual attorneys' fees for all Counsel representing claimants enrolled in the Vioxx Settlement Program to 32%. The original Contingent Fee Agreement signed by Petitioner and the August 27, 2008 Order of the Court are attached hereto as Exhibit "G". 21. With the Court's permission, Counsel intends to deduct attorney fees of 32% from the interim (40%) award and 32% from the balance (60%) award for total attorney fees of 32%. At this time, Counsel respectfully requests $17,756.50 which is 32% of the interim (40%) award. 22. Therefore, the net amount Petitioner will receive from the interim award, on behalf of the Estate of Donald Gonser, is $37,732.54. 1 Per the terms of the Vioxx Settlement, a point total is assigned to each Claimant who qualifies for an award. Presently, each point is worth $1,915. Petitioner's point total multiplied by $1,915 equals $138,722.60. 2 The 60% balance of Petitioner's Claim will be paid at some point in 2009. We will file a second Petition for Approval of Wrongful Death and Survival Benefits at that time, as the dollar per point value may be different than it is today. -3- 23. Petitioner requests allocation of the net proceeds of the settlement after deduction of costs and attorney fees as follows: a. Wrongful Death Claim (90%) b. Survival Claim (10%) 24. The reasons for the requested allocation are as follows: Mr. Donald I. Gonser survived Decedent at the time of her death. Any proceeds from this matter, per Decedent's Will, are to be distributed to Mr. Gonser. 25. Pursuant to the Wrongful Death and Survival Action Statutes (42 Pa.C.S. §8301 and §8302), the beneficiary of the Wrongful Death Claim and Survival Action is as follows: NAME Mr. Donald I. Gonser (Widower/Sole Beneficiary) F $37,732.54 26. Petitioner's Counsel served a copy of this Petition on the following interested parties. Counsel further notes that attached to this Petition is the verification of Deborah McGary, the Executrix of the Estate, who approves of the distribution of funds as set forth herein. NAME ADDRESS Donald Gonser 28 Cardamon Road Mechanicsburg, PA 17050 Deborah McGary 380 Hitchcock Road, Unit #42 Waterbury, CT 06705 Further, the parties were advised that if they should have any objection to the proposed distribution, they must submit written objections or a Response to the Petition within twenty (20) days to this Court at the following address: Cumberland County Orphans' Court, 1 Courthouse Square, Room 102, Carlisle, PA 17013 27. Counsel advised the Pennsylvania Department of Revenue of this matter. Inasmuch as the Will left everything to the surviving spouse, the Department of Revenue has no interest in this matter as there is no tax due to the Commonwealth. Nevertheless, we have served -4- a copy of the Petition on the Department of Revenue as well in the event they wish to comment to the Court. WHEREFORE, Petitioner prays that he be permitted to enter into the settlement recited above, and that the Court enter an Order of Distribution (for the 40% interim payment) as follows: (a) To: Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. For Attorney Fees (Contingent Fee Agreement and Order attached as Exhibit "G") $17,756.50 (b) To: WRONGFUL DEATH CLAIM Donald I. Gonser (Widower/Sole Beneficiary) (c) To: SURVIVAL CLAIM Donald I. Gonser (Widower/Sole Beneficiary) TOTAL: Date: )-3-dool Respectfully submitted, $33,959.29 $3,773.25 $ 55,489.04 ANAPOL, SCHWARTZ, WEISS, FELDMAN & SMALLEY, P.C. BY: SOL H. WEISS, ESQUIRE GREGORY S. SPIZER, ESQUIRE Attorneys for Petitioner -5- VERIFICATION I, Deborah McGary, Executrix of the Estate of Mary Gonser, Deceased, hereby state that I am the Petitioner in this action and verify that the statements contained in the foregoing Petition to Approve Settlement and Distribution of Wrongful Death and Survival Actions, are true and correct to the best of my knowledge, information and belief. I understand that the statements in said Petition are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Deborah McGary, Executri of the Estate of Mary Gonser, Deceased Date: 1-? 9 - aooq -6- EXHIBIT "A° ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY, P.C. BY: DAVID JACOBY, ESQUIRE & GREGORY S. SPIZER, ESQUIRE 1040 Kings Highway North Suite 304 Cherry Hill, NJ 08002 (856) 482-1600 Attorneys for Plaintiffs DEBORAH E. MCGARY, EXECUTRIX OF THE ESTATE OF MARY E. GONSER, DECEASED SUPERIOR COURT OF NEW JERSEY AND DEBORAH E. MCGARY, IN HER OWN RIGHT ATLANTIC COUNTY PLAINTIFF(S) V. CIVIL ACTION No:. ATL-L-10206-06 MERCK & CO., INC., Defendant VIOXX LITIGATION SUMMONS The State of New Jersey, to the Above Named Defendant(s): YOU ARE HEREBY SUMONED in a Civil Action in the Superior Court of New Jersey, instituted by the above named plaintiff(s), and required to serve upon the attorney(s) for the plaintiff(s), whose name and office address appears above, an answer to the annexed complaint, within 35 days after the service of the summons and complaint upon. you, exclusive. of the day. of . service. If you fail to answer, judgment by default may. be rendered against you for the relief demanded in the complaint. You shall promptly file your answer and proof of service thereof in. duplicate with the Superior Court of New Jersey, Law Division, Atlantic County, New Jersey, in accordance with the rules of civil practice and procedur. e. If you cannot afford to pay an attorney, call a Legal Services Office. An individual not eligible for free legal assistance may obtain a referral to an attorney by calling a county lawyer referral service. These numbers maybe listed in the yellow pages of your phone book. The phone numbers for the county in which this action is pending are: Lawyer Referral Service, (609)345-3444 and the Legal Services Office: (856)964-2010. Dated: September 8, 2006 Qonafi(T. Awfing Clerk of the Superior Court Name of defendant to be served: Merck & Co., Inc. One Merck Drive White House Station, New Jersey 08889 *For direct filing, add address for County Clerk and strike "in duplicate. " For Trenton filing add CN-971, Trenton, NJ 08625 O m 0 n?pd>r? WNbC•3 Krot0tj0 C4 :Do N x 0 1.4 rr0000ty CONk4? n O w z K 4 m 0 0 N ?HyobH H L+7 HH Z~S+?o? XlbhaH O1H x M T. ii'.H 00OH n0;on tnzHO O 7.' HC to WIC iii 0p0 N?zw W N nHto k Ki ti xH kH P1 00 0 r°qH w9yz GcxC7? W1 WH 1y z ryf2 mxq oC4 cz HST ?•G l7 ?.-3t? O W. 14 0 ?HH Vi 0 va 0? N fn o a C x to tCn to Er) H bra ~ y 0 M m N H -M co 0 °v to O?yj to H tHa?H-7(?yy?f C H7k y n.. v ba o x ?y o0 0 O to p .q x 7d M ''z' ?wom A x ?K H r?S myz H z %0N ° rzO(0 kY H om kH a O V' l7 C H o u w H m'OP O K3 om0 x oQ% r wk ? ?°N y? yy?y o L-i Om ? a?m to rH W W H 3k+J r k c? rn z LV omo ?3GZiG; m < Y ;00oy WO E0 H AO^a z;a H L W ? x0 M t4 N Hm z?b z x 0? o °' K z 0 t?a CIVIL CASE INFORMATION STATEMENT (CIS) PAYMENT TYPE: CK CG CA a?oa r4 ,?? T . Use for initial Law Division - Civil Part pleadings (not CHG/CK NO. nao o°oo motions) under Rule 4:5-1. AMOUNT: o? Pleading will be rejected for filing, under Rule 1:5-6(c), if information above the black bar is not completed or OVERPAYMENT: nature is not affixed if attorne 's si . y g BATCH NUMBER: ATTORNEY/PRO SE NAME TELEPHONE NUMBER COUNTY OF VENUE David Jacoby, Esq. & Gregory S. Spizer, Esq. 856 482-1600 Atlantic County FIRM NAME (If applicable) DOCKET NUMBER (When available) Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. OFFICE ADDRESS O UMENT TYPE 1040 Kings Highway North, Suite 304 Complaint Cherry Hill, NJ 08034 JURY DEMAND MYES DNO NAME OF PARTY (e.g., John Doe, Plaintiff) CAPTION Deborah E. McGary, Executrix of the Gonser v. Merck & Co., Inc. Estate of Mary E. Gonser, Deceased and Deborah E. McGary, In Her Own Rinht CASE TYPE NUMBER (See reverse side IS THIS A PROFESSIONAL MALPRACTICE CASE? AYES [Z]NO for listing) 619 IF YOU HAVE CHECKED'YES,' SEE N.J.S.A. 2A:53A-27 AND APPLICABLE CASE LAW REGARDING YOUR OBLIGATION TO FILE AN AFFIDAVIT OF MERIT. RELATED CASES IF YES, LIST DOCKET PENDING? [['''?? [3YES ? O NUMBERS DO YOU ANTICIPATE ADDING NAME OF DEFENDANT'S PRIMARY INSURANCE COMPANY, IF KNOWN ANY PARTIES (arising out of same transaction or occurrence)? [:]YESE NO ? LI UNKNOWN NONE PROVIDED CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION A. 00 PARTIES HAVE A CURRENT, IF YES, IS THAT DEMPLOYER-EMPLOYEE FRIEND/NEIGHBOR OTHER (explain) PAST OR RECURRENT RELATIONSHIP? DYES®NO RELATIONSHIP FAMILIAL BUSINESS B. DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES ? [O BY THE LOSING PARTY? YES NO USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR ACCELERATED DISPOSITION: tREC'D FILED SUPEMOR COURT OF NEW JERSEY AU G 3 0 20061 DO YOU OR YOUR CLIENT NEED ANY IF YES. PLEASE IDENTIFY THE DISABILITY ACCOMMODATIONS? OYES R] NO REQUESTED ACCOMMODATION: U WILL AN INTERPRETER BE NEEDED? DYES Z NO IF YES, FOR WHAT LANGUAGE: ATTORNEY SIGNATURE Revised effective 4/1/05 !/ CIVIL CASE INFORMATION STATEMENT COQ ? o°oe (CIS) ?e*? Use for initial pleadings (not motions) under Rule 4:5-1 i CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.) Track I -150 days' discovery 151 NAME CHANGE 175 FORFEITURE 302 TENANCY 399 REAL PROPERTY (other than Tenancy, Contract, Condemnation, Complex Commercial or Construction) 502 BOOK ACCOUNT 505 OTHER INSURANCE CLAIM (INCLUDING DECLARATORY JUDGMENT ACTIONS) 506 PIP COVERAGE 510 UM or UIM CLAIM 511 ACTION ON NEGOTIABLE INSTRUMENT 512 LEMON LAW 599 CONTRACTICOMMERCIAL TRANSACTION 801 SUMMARY ACTION 802 OPEN PUBLIC RECORDS ACT (SUMMARY ACTION) Track II - 300 days' discovery 305 CONSTRUCTION 509 EMPLOYMENT (other than CEPA or LAD) 602 ASSAULT AND BATTERY 603 AUTO NEGLIGENCE - PERSONAL INJURY 605 PERSONAL INJURY 610 AUTO NEGLIGENCE - PROPERTY DAMAGE 699 TORT - OTHER Track III - 450 days' discovery 005 CIVIL RIGHTS 301 CONDEMNATION 604 MEDICAL MALPRACTICE 606 . PRODUCT LIABILITY 607 PROFESSIONAL MALPRACTICE 608 TOXIC TORT 609 DEFAMATION 616 WHISTLEBLOWER I CONSCIENTIOUS. EMPLOYEE PROTECTION ACT (CEPA) CASES 617 INVERSE CONDEMNATION' 618 LAW AGAINST DISCRIMINATION (LAD) CASES Track IV ---- Active Case Management by Individual Judge 1450 days' discovery 156 ENVIRONMENTALIENVIRONMENTAL COVERAGE LITIGATION 303 MT. LAUREL 508 COMPLEX COMMERCIAL 701 ACTIONS IN LIEU OF PREROGATIVE WRITS Mass Tort (Track M 240 REDUX/PHEN-FEN (formerly "DIET DRUG') 601 ASBESTOS 248 CIBAGEIGY 619VIOXX 264 PPA 999 OTHER (Briefly describe nature of action) if you believe this case requires a track other than that provided above, please indicate the reason on Side 1, in the space under "Case Characteristics." Please check off each applicable category: ?_ ? Verbal Threshold ? Putative Class Action l?Title 59 ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY, P.C. RECD BLED BY: DAVID JACOBY, ESQUIRE SUPERIOR COURT GREGORY S. SPIZER, ESQUIRE 01? NEW .JERSEY TRACY A. FINKEN, ESQUIRE AUG 3 a 2D06 1040 Kings Highway North, Suite 304 Cherry Hill, NJ 08034 (856) 482-1600; Fax (856) 482-1911 Attorneys for Plaintiffs IN THE SUPERIOR COURT OF NEW JERSEY LAW DIVISION, ATLANTIC COUNTY DEBORAH E. McGARY, Executrix ATL-L- b Z.? -MT of the Estate of Mary E. Gonser, . Deceased, and DEBORAH. E. Case Code Number: 619 McGARY, in her own right, Plaintiff vs. ABBREVIATED SHORT FORM MERCK & CO., INC., COMPLAINT FOR VIOXX LITIGATION Defendant : JURY TRIAL DEMANDED ABBREVIATED INDIVIDUAL COMPLAINT FOR VIOXX LITIGATION AND ADOPTION BY REFERENCE 1. Plaintiff for his/her claim against the Defendant states and alleges as follows and incorporates by reference the relevant portions of the Master Complaint on file entitled: In Re: Vioxx Litigation Case Code Number 619, now pending in the Superior Court of New Jersey, Law Division, Atlantic County before the Honorable Carol E. Higbee, J.S.C. Plaintiff selects and indicates by checking off the appropriate boxes, those claims that are specific to his or her case. Where claims require, pursuant to New Jersey law, specific pleading or case specific facts and individual information, plaintiff shall add and include them herein. 2. Plaintiff, Deborah E McGary, Executrix of the Estate of Marv E. Gonser, (hereinafter referred to as "Plaintiff), is an individual who resides at 380 Hitchcock Road, Unit #42, Waterbury, in the State of Connecticut. I 2A. On or about 12/30/03 Plaintiff suffered the following injury(ies) as a result of ingesting Vioxx: Pulmonary embolism and myocardial infarction which resulted in Plaintiffs decedent's death. 2B. Plaintiff brings this action: X on behalf of himself or herself as the representative of as the parent and natural guardian ad litem of , a minor born on X as Executrix of the Estate of Marv E. Gonser (hereinafter "Decedent", see Letters of Administration annexed hereto as Exhibit A), who died on 12/30/03. 2C. Plaintiff claims damages as a result of X Personal Injury to himself, herself or the person represented X Wrongful Death X Survival Action X Loss of Consortium (per quod) X Loss of Services X Economic Loss 3. Plaintiff/Decedent purchased and/or otherwise obtained Vioxx, which Plaintiff/Decedent ingested from 11/29/02 to 12/30/03. 4. Plaintiffs spouse, , (hereinafter referred to as "Spouse") is an adult individual residing at , in the State of , and claims damages as a result o£ Loss of Consortium: date of marriage 2 Wrongful Death: date of death 5. The following claims asserted in the Master Complaint and the allegations with regard thereto in the Master Complaint are herein adopted by reference: X Count I: Product Liability - Defective Design (New Jersey Products Liability Act - N.J.S.A. 2A:58C-1 et seq.) X Count II: Product Liability - Failure to Warn (New Jersey Products Liability Act - N.J.S.A. 2A:58C-1 et seq.) X Count III: NJ Consumer Fraud Act (N.J.S.A. 56:8-1 et. seq.) X Count IV: Breach of Express Warranty X Count V: Punitive Damages Under Common Law & Products Liability Act (N.J.S.A. 2A:C-1) X Count VI: Wrongful Death X Count VII: Survival Action Count VIII: Loss of Consortium Plaintiff asserts the following additional theories of recovery against Merck & Co., Inc.. * If you include additional claims against entity(ies) other than Merck & Co., Inc., the facts supporting this count must be specifically pled by the plaintiff and the defendants against who they are alleged must be identified on a separate sheet of paper attached to the Complaint. 3 * If you have included any additional theories of recovery, to the extent they require specificity in pleadings, the specific facts and allegations supporting these theories must be pleaded by the plaintiff in a manner complying with the requirements of the New Jersey Rules of Court. DEMAND FOR JURY TRIAL Demand is hereby made for a trial by jury. Dated: 5 -a y -.too 6 DAVI5 JACOBY, ESQUIRE GREGORY S. SPIZER, ESQUIRE TRACY A. FINKEN, ESQUIRE CERTIFICATION PURSUANT TO RULE 4:5-1 Plaintiff upon information and belief is not aware of any pending or contemplated action. Further, upon information and belief, she/he is not aware of any other party who should be joined in this action. Dated: - ' ?o (o DAVID JACOBY, ESQUIRE GREGORY S. SPIZER, ESQUIRE TRACY A. FINKEN, ESQUIRE 4 DESIGNATION OF TRIAL COUNSEL Pursuant to R. 4:25-4, David Jacoby, Esquire, Gregory S. Spizer, Esquire, Tracy A. Finken, Esquire, and Sol H. Weiss, Esquire, pending his admission, are hereby designated as trial counsel in this matter. DAVID JACOBY, ESQUIRE GREGORY S. SPIZER, ESQUIRE TRACY A. FINKEN, ESQUIRE Dated: Fl ' 029 -;04'(P CERTIFICATION OF NOTICE Pursuant to N.J.S.A., 56:$-20, Plaintiff is mailing a copy of this Complaint and Jury Demand to the Office of Attorney General, Cn-006, Trenton, New Jersey, within (10) days of the filing of this Complaint and Jury Demand. DAVID JACOBY, ESQUIRE GREGORY S. SPIZER, ESQUIRE TRACY A. FINKEN, ESQUIRE Dated: ! '-g9Iao6 5 EXHIBIT "B" This, is to certify that the information here given is correctly copied from an original certificate of death duly filed with me as Local Registrar. The original certificate will be forwarded to the State Vital Records Office for permanent filing. WARNING: It Is Illegal to duplicate this copy by photostat or photograph. Fee for this certificate, $2.00 . Local Registrar P 9812905 No. DEC 31 2003 Date :43 N•,,. 2n7 COMMONWEALTH OF PENNSYLVANIA • DEPARTMENT OF HEALTH • VITAL RECORDS CERTIFICATE OF DEATH nnnc ur oecaUe•Ir trM.. Mtld•. LMq - - - -- - X fOCM SECURITY NUMBER DATE Of OWN Mans, Ddr.'A,a1 ?. Many EL.P.en GonuA : Femate a. 385 - 32 - 2131 . Deeemben 30, 2003 ADe (L•n evewr, u6IDEa 1 rEAa uTDEa 1 DAV ogre as More. law awrirLACa (C+r ana w,eE ar oE?eN x•«. awa . _ w... d a .a a,..e.l Manllr 1 Ddp Nae ( More. On ?Ya.I AdNa Faagn Ca•wN NOSFITAL: ?? 69 ro. i a. 2-41934 T Ihonwood, MI "f"""? 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REOIBTRAR'S l16NAw1E AND NUMBER / I I -07 0"E FILEDINAmOL Oft %-,I D? 3 / 20 0 34. EXHIBIT "C° REGISTER OF WILLS CUMBERLAND County, Pennsylvania CERTIFICATE OF GRANT OF LETTERS No. 2004- 00366 PA No. 21- 04- 0366 Estate Of: GONSER MARYE Most FUst, mkoc) a/k/a : GONSER MARY ELLEN Late of : CARLISLE BOROUGH CUMBERLAND COUNTY Deceased Social Securi ty No: 385-32-2131 WHEREAS, on the 16th day of April 2004 an instrument dated August 4th 2000 was admitted to probate as the last will of GONSER MARY E ilasr, ring. WiN01 a/k/a GONSER MARY ELLEN late of CARLISLE BOROUGH, CUMBERLAND County, who died on the 30th day of December 2003 and WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA FARNER STRASBAUGH , Regi„te,r of Wills in and for CUMBERLAND County, in the commonwealth of Pennsylvania, hereby certify that I have Lhis day granted Letters TESTAMENTARY to: MCGARY DEBORAH E who has duly qualified as EXECUTOR(RIX) and has agreed to administer the estate according to taw, all of which fully appears of record in my office at CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYLVANIA, IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of my office on the 16th day of April 2004. egister v Wi s ,, wrl **NOTE** ALL NAMES ABOVE APPEAR (LAST, FIRS'T', MIDDLE) EXHIBIT "D" 01/06/2009 TUB 12:20 FAX 7172497334 ®002/008 LAST WILL AND TESTAMENT OF MARY ELLEN GONSER I, MARY ELLEN GONSER, of 203 Acre Drive, Carlisle, Cumberland County, Pennsylvania, being of sound and disposing mind, memory and understanding do make, publish and declare this to be my Last Will and Testament. I hereby revoke all previous Wills and Codicils at any time heretofore made by me. ITEM I I order and direct my Executrix, hereinafter named, to pay my debts, funeral expenses and expenses involved or connected with the administration of my estate as soon after my death as is reasonably possible. ITEM II I direct my Executrix to arrange for my cremation and memorial service to be followed by the interment of ashes in my cemetery plot in Ironwood, Michigan, at the convenience of my family. ITEM III A. I give and bequeath my 1991 Chrysler automobile to my husband, DONALD IVAN GONSER, if he survives me. If my husband fails to survive me, then I give and bequeath my 1991 Chrysler to my son, STEVEN M. GONSER, if he survives me. If STEVEN M. GONSER fails to survive me, this bequest shall be distributed with my residuary estate. Page 1 of 6 01/06/2009 TUE 12:20 FAX 7172497334 ®003/008 B. I give and bequeath my 1992 Buick automobile to my husband, DONALD IVAN GONSER, if he survives me. If my husband fails to survive me, then I give and bequeath my 1992 Buick to my son, DONALD J. GONSER. If DONALD J. GONSER fails to survive me, this bequest shall be distributed with my residuary estate. C. I give and bequeath all of myjewelry to my daughter, DEBORAH E. McGARY. If DEBORAH E. McGARY fails to survive me, this bequest shall be distributed with my residuary estate. D. I give and bequeath my Harper prints to my husband, DONALD IVAN GONSER. If my husband fails to survive me, then I give and bequeath my Harper prints to my daughter, DEBORAH E. McGARY. If DEBORAH E. McGARY fails to survive me, this bequest shall be distributed with my residuary estate. ITEM IV I give, devise and bequeath all of the remainder of my property, of every kind and description (including lapsed legacies and devises) wherever situate and whether acquired before or after the execution of this Will, to my husband, DONALD IVAN GONSER, if he survives me, or if he predeceases me, then to our children, DEBORAH E. McGARY, STEVEN M. GONSER and DONALD J. GONSER, equally, and to their issue, then living, per stirpes, subject to the terms and conditions as hereinafter set forth: The share to be distributed to my son, DONALD J. GONSER, shall be retained by my Executrix in a separate account for his life which account shall be used to provide him housing (rental or purchase) and transportation (rental or purchase of an Page 2 of 6 tY, 01/05/2009 TUB 12:21 FAX 7172497334 ®004/008 automobile/truck). Said Executrix shall administer said account and provide my son with an annual accounting until the fund is fully distributed. ITEM V Should the gift in Item IV fail, for whatever reason, I give, devise and bequeath all the rest, residue and remainder of my estate to my church, ST. JOHN'S EPISCOPAL CHURCH, Carlisle, Pennsylvania. ITEM VI I also have a son, MARK D. GONSER, who has been otherwise amply provided for during my life and is therefore not a beneficiary of my estate. ITEM VII In the event that DONALD IVAN GONSER and I should die simultaneously or under circumstances as to render it impossible to determine who predeceased the other, or within thirty (30) days of each other as the result of a common accident, he shall be deemed to have survived me, and all the provisions of this Will shall take effect as though he had survived me. ITEM VIII I hereby nominate, constitute and appoint my daughter, DEBORAH E. McGARY, as Executrix of this my last Will and Testament. In the event of her renunciation, death, resignation or inability to act for any reason whatsoever, I nominate, constitute and appoint ALLFIRST BANK, Carlisle, Pennsylvania, as Alternate Executor, of this, my Last Will and Testament. Page 3 of 6 01/06/2009 TUE 12:21 FAX 7172497334 0005/008 ITEM IX I hereby direct that no Executor or other Fiduciary named or appointed by this Will shall be required to post any bond or give any security of any type for any purpose whatsoever, nor be liable for failure to file any report, accounting or inventory, in any jurisdiction in which he or she may be called upon to act, insofar as I am able by law to do. ITEM X My Executrix shall be compensated at the rate of three (3%) percent of the value of my estate for services rendered in administering and distributing the assets of my estate and shall additionally be reimbursed for any expenses incurred by her in discharging her responsibilities as Executrix, including but not limited to telephone, postage and travel expenses. In addition, my Executrix shall have the power to retain such agents, attorneys, and investment advisors as she shall deem appropriate, and they shall be entitled to reasonable compensation for services rendered in advising and assisting the Executrix in the administration of the estate. ITEM XI I authorize my Executrix in her discretion to sell, with or without notice, at either public or private sale, and. to lease any property belonging to my estate, subject only to such confirmation of Court as may be required by law, for such prices and on such terms and conditions as she deems best, and to make distribution hereunder either in cash or kind, as she may deem wise. Page 4 of 6 01/06/2009.TUE 12:22 FAX 7172497334 0006/008 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal this k r day of August, 2000. 6 0- MARY ELLEN G®NSER •?` residing at Witness residing at ?-?-•?--L.?--`? -, Witness COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND . SS. We, MARY ELLEN GONSER, BONITA L. G=, and PATRICIA R. BROWN, Testatrix and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the Testatrix signed and executed the instrument as her Last Will and Testament, and she had signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the Testatrix, signed the Will as witness and that to the best of his/her knowledge, the Testatrix was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence. MARY ELLEk GONSER - TESTATRIX Page 5 of 6 01/06/2009 TUE 12:22 FAX 7172497334 Witness l) .. ? "7 . r?J J Witness 14007/008 Subscribed, sworn to and acknowledged before me by MARY ELLEN GONSER, the Testatrix, and subscribed and sworn to before me by BONITA L. GETZ and PATRICIA R. BROWN, witnesses, this day of August, 2000. Notary Public NQTARIAL SEAL ? DENISE RINAMONTI, Notary public Carlisle Borough, Cumberland County Poi Commission Expires Nov, 20, 2000 11 Page 6 of 6 EXHIBIT "E" RELEASE OF ALL CLAIMS CLAIMANT Name First Middle Last Marv E. Gonser (deceased) Street Address 380 Hitchcock Rd., Unit #42 City State Zip Waterburv Connecticut 06705 Social Security Number 335-48-4328 Date 1 / 9 / 2008 (month) (day) (year) DERIVATIVE CLAIMANTS (If none, check here: ?) Name First Middle Last Deborah E. McGarv Street Address 380 Hitchcock Rd., Unit #42 City State Zip Waterburv Connecticut 06705 1 / 9 / 2008 Social Security Number 335-48-4328 Date (month) (day) (year) CLAIMANT'S COUNSEL Law Firm Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C 1111111 IN 11111/11 IN 1111111111111111111 IN 11111111111111111111 IN Gonser (deceased), Mary E. 1063903 219120 RELEASE OF ALL CLAIMS I, the undersigned Releasor, am a plaintiff or tolling agreement claimant in the Merck & Co., Inc., a New Jersey corporation ("Merck"), Products Liability Litigation. I have enrolled to participate in the program (the "Program") set forth in the Settlement Agreement (the "Agreement") dated as of November 9, 2007. I understand that the terms of the Agreement govern the resolution of my claim. I further understand that, in order to submit my claim into the Program under the Agreement, I am required to submit a release of any and all claims I and the other Releasing Parties (as defined under "Releases" below) have, or may have in the future, against the Released Parties (as defined under "Releases" below) concerning and/or connected with VIOXX (sometimes referred to as "Vioxx" or "rofecoxib") ("VIOXX") and/or with any injury I (and/or any other Releasing Party) have ever claimed, or may at any time in the future claim, VIOXX caused in whole or in part. Accordingly, in consideration for Merck's agreement to establish the Program, the significant expenses being incurred by Merck in connection with the Program, Merck's waiver of defenses (except as reflected in the Program criteria themselves) solely in the context of the application of the Program, and the opportunity to submit my claim into the Program, I hereby give and make the following releases, waivers, acknowledgements and agreements for the benefit of the Released Parties (this "Release"). This Release is also entered into by any Derivative Claimant (as defined under "Releases" below) who executes a signature page hereto, in which case the agreement of such Derivative Claimant set forth on its signature page is incorporated in, and is part of, this Release. By signing this Release, both I and any such Derivative Claimant understand and acknowledge that there is no assurance as to the amount, if any, of payment to be made to any claimant under the Program, and this fact shall in no way affect the validity or effect of this Release. 1. Releases. (a) On my own behalf and on behalf of each other Releasing Party, I hereby knowingly and voluntarily release, remise, acquit and forever discharge the Released Parties from (i) any and all rights, remedies, actions, claims, demands, causes of action, suits at law or in equity, verdicts, suits of judgments and/or Liens (as defined under "Liens and Other Third-Party Payor Claims" below), of any kind whatsoever ("Claims"), which I or any other Releasing Party may have ever had, may now have or at any time hereafter may have against any Released Party and (ii) any and all debts, liabilities, obligations, covenants, promises, contracts, agreements and/or obligations, of any kind whatsoever ("Liabilities"), which any Released Party may have ever had, may now have or at any time hereafter may have to me or any other Releasing Party, in the case of clause (i) and clause (ii), to any extent, or in any way, arising out of, relating to, resulting from and/or connected with VIOXX and/or with any injury I (and/or any other Releasing Party) have ever claimed, or may at any time hereafter claim, VIOXX caused in whole or in part. These Claims and Liabilities are the "Released Claims and Liabilities". (b) The term "Released Parties" means all the parties, past, present and/or future, in any way and/or at any time connected with VIOXX and/or with any injury I (or any other Releasing Party) have ever claimed, or hereafter claim, VIOXX caused in whole or in part, including, but not limited to, Merck, all named defendants in any pending action concerning VIOXX and/or any such injury to which 1111111 N 1111111111111111111 I I I I11111111111111111111111111111 I I I I I I I I Gonser (deceased), Mary E. 1063903 219120 I am (and/or any other Releasing Party is) a party, and all those who may have acted in concert with Merck, together with their respective insurers. These parties, past, present and/or future, in any way and/or at any time connected with VIOXX and/or with any injury I (or any other Releasing Party) have ever claimed, or hereafter claim, VIOXX caused in whole or in part, also include, but are not limited to, manufacturers; suppliers of materials; distributors; other persons involved in development, design, manufacture, formulation, testing, distribution, marketing, labeling, regulatory submissions, advertising and/or sale of any product; physicians, pharmacists and other healthcare providers; sales representatives; pharmacies, hospitals and other medical facilities; advertisers; manufacturers of other products that I used before, while or after taking VIOXX; the respective past, present, and/or future parents, subsidiaries, divisions, affiliates, joint venturers, predecessors, successors, assigns, and transferees of the parties referred to in this paragraph; and the respective past, present and/or future shareholders (or the equivalent thereto), directors (or the equivalent thereto), officers (or the equivalent thereto), managers, principals, employees, consultants, advisors, attorneys, agents, servants, representatives, heirs, trustees, executors, estate administrators and personal representatives (or the equivalent thereto) of the parties referred to in this paragraph. (c) The term "Releasing Parties" means (i) myself and (ii) any and all persons who have or assert the right to sue Merck or any other Released Party, independently, derivatively or otherwise, by reason of their personal relationship with me, and/or otherwise by, through or under, or otherwise in relation to, me ("Derivative Claimants"). Derivative Claimants include, but are not limited to, my heirs, beneficiaries, surviving spouse (including, but not limited to, a putative or common law spouse), surviving domestic partner and/or next of kin, if any. (d) I acknowledge that I (and/or any other Releasing Party) may in the future learn of additional and/or different facts as they relate to VIOXX, the Released Parties' activities as they relate to VIOXX, and/or any injury I (and/or any other Releasing Party) have ever claimed, or may at any time in the future claim, VIOXX caused in whole or in part. I understand and acknowledge the significance and consequences of releasing all of the Released Claims and Liabilities and hereby (on my own behalf and on behalf of each other Releasing Party) assume full risk and responsibility for any and all such additional and/or different facts and any and all Released Claims and Liabilities that I (and/or any other Releasing Party) may hereinafter incur or discover. To the extent that any law, statute, ordinance, rule, regulation, case or other legal provision or authority (each, a "Law") may at any time purport to preserve my and/or any other Releasing Party's right to hereinafter assert any such unknown and/or unanticipated Claims and/or Liabilities, I hereby (on my own behalf and on behalf of each other Releasing Party) specifically and expressly waive (to the fullest extent permitted by applicable Law) each Releasing Party's rights under such Law. I further acknowledge having had an opportunity to obtain advice of counsel of my choosing regarding this waiver, and having discussed it with such counsel to my satisfaction. (e) On my own behalf and on behalf of each other Releasing Party, I acknowledge and agree that the releases set forth in this Release are irrevocable and unconditional, inure to the benefit of each Released Party, and are intended to be as broad as can possibly be created. III IN 1111111111111111 INII III I III 11111111111111111111111111 IN II III Gonser (deceased), Mary E. 1063903 219120 (f) WITHOUT LIMITATION OF THE FOREGOING, THIS RELEASE IS SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED, CHARGED OR PROVED THAT SOME OR ALL OF THE RELEASED CLAIMS AND LIABILITIES ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, NEGLIGENCE PER SE, GROSS NEGLIGENCE, BREACH OF WARRANTY, VIOLATION OF LAW, DEFECTIVE PRODUCT, MALICE, AND/OR CONDUCT OF ANY TYPE BY MERCK, ANY OF THE OTHER RELEASED PARTIES, ANY RELEASING PARTY AND/OR ANY OTHER PERSON. THIS RELEASE IS SPECIFICALLY INTENDED TO AND DOES INCLUDE, BUT IS NOT LIMITED TO, A RELEASE OF, AND COVENANT NOT TO SUE FOR, ANY WRONGFUL DEATH CLAIM THAT MAY BE BROUGHT AT ANY TIME BY OR ON BEHALF OF ANY OF THE RELEASING PARTIES IN CONNECTION WITH ANY OF THE FACTS, EVENTS AND/OR INCIDENTS THAT GAVE RISE TO ANY OF THE RELEASED CLAIMS AND LIABILITIES. 2. Attorneys' Fees: Division of Any Settlement Payment. I understand that the Released Parties are not responsible for any attorneys' fees or costs I have incurred or may at any time incur, including, but not limited to, entering into this Release and any other documents. I understand that, with respect to any payment that may be made to me under the Program (a "Settlement Payment"), any division of such Settlement Payment between me, any Derivative Claimant executing this Release and our respective counsel (if any) executing a Certification of Counsel attached to this Release shall be determined by me and such other person(s), and such division, or any dispute in relation to such division, shall in no way affect the validity of this Release. 3. Pursuit of Certain Claims. I agree that I will never (i) take any legal or other action to initiate, pursue or maintain, or otherwise attempt to execute upon, collect or otherwise enforce, any of the Released Claims and Liabilities of or against any Released Party, (ii) institute or participate in any new legal action against any Released Party to any extent, or in any way, arising out of, relating to, resulting from and/or connected with VIOXX and/or with any injury I (and/or any other Releasing Party) have ever claimed, or may at any time hereafter claim, VIOXX caused in whole or in part or (iii) attempt to execute or collect on, or otherwise enforce, any judgment that may be entered against any Released Party in any legal action described in clause (ii) or my pending legal action against Merck. 4. Liens and Other Third-Party Payor Claims. (a) I agree that prior to the first time, if any, that a Settlement Payment is made to me, I shall identify to Merck and to the Lien Resolution Administrator for the Program all governmental authorities that are Third Party Providers/Payors (as defined below) known to me to hold or assert any lien, pledge, charge, security interest, assignment, encumbrance, subrogation right, third-party interest or other adverse claim of any nature whatsoever ("Lien") pursuant to any applicable statute with respect to any Settlement Payment (and/or the right to receive such Settlement Payment), through procedures and protocols to be established by the Lien Resolution Administrator, subject to approval by the Claims Administrator for the Program. (b) A "Third Party Provider/Payor" is any provider or payor (public or private) of (i) health, III III IIIII IINI Ill IH1111111111111NI Nil 111111111111111111111111111111111111111 Gonser (deceased), Mary E. 1063903 219120 hospital, medical, physician, healthcare and/or pharmaceutical services, products or expenses and/or (ii) any other form of compensation, including, but not limited to, federal and state governmental authorities (or other persons) providing Medicare and/or Medicaid services or benefits. (c) I understand and acknowledge that satisfaction and discharge of any and all Liens with respect to any Settlement Payment (and/or the right to receive any Settlement Payment) is the sole responsibility of me, any Derivative Claimant executing this Release and our respective counsel (if any) executing a Certification of Counsel attached to this Release and must, in relation to all governmental authorities that are Third Party Providers/Payors who hold or assert any Liens pursuant to any applicable statute, be established to the satisfaction of the Claims Administrator and Merck before any Settlement Payment (if any) can be disbursed to me. (d) Prior to the first time, if any, that a Settlement Payment is made to me, I shall, jointly and severally with any Derivative Claimant executing this Release (and with our respective counsel (if any) executing a Certification of Counsel attached to this Release), represent and warrant that any and all Liens with respect to any and all Settlement Payments (and/or the right to receive any and all Settlement Payments) have been satisfied and discharged. Furthermore, upon request to the Lien Resolution Administrator, Merck shall be entitled to proof of satisfaction and discharge of any or all such Liens pursuant to any applicable statute in relation to all governmental authorities that are Third Party Providers/Payors. (e) In addition to and without limitation of the foregoing, I hereby agree, jointly and severally with any Derivative Claimant executing this Release (and with our respective counsel (if any) executing a Certification of Counsel attached to this Release), to indemnify and hold harmless the Merck Released Parties (as defined below) from and against (i) any and all Claims made or asserted at any time against any Merck Released Party by (x) any Third Party Provider/Payor in relation to, (y) any person at any time holding or asserting any Lien in relation to and/or (z) any other person at any time claiming by, through or under, me or any Derivative Claimant executing this Release, with respect to any funding payment by or for the account of Merck under the Program and/or any Settlement Payment (and/or the right to receive any such Settlement Payment) and (ii) any and all damages, losses, costs, expenses (including, but not limited to, legal fees and expenses) and/or Liabilities incurred or suffered by, or imposed on, any Merck Released Party in connection with, arising out of or resulting from any Claim described in clause (i) of this sentence (including, but not limited to, any amount paid or to be paid in satisfaction of any such Claim). (f) The term "Merck Released Parties" means (i) Merck and (ii) all other Released Parties, past, present and/or future, in any way and/or any time related to Merck, including, but not limited to, Merck's past, present and/or future parents, subsidiaries, divisions, affiliates and joint venturers; the respective past, present and/or future predecessors, successors, assigns and transferees of the parties referred to in this paragraph; and the respective past, present and/or future insurers, shareholders (or the equivalent thereto), directors (or the equivalent thereto), officers (or the equivalent thereto), managers, principals, employees, consultants, advisors, attorneys, agents, servants, representatives, heirs, trustees, executors, estate administrators and personal representatives (or the equivalent thereto) of the parties referred to in this paragraph. 1111111111111111 ???? Ilnl IINI ???? Hill 111111111111111111111111111111111111111111111111111 IN Gonser (deceased), Mary E. 1063903 219120 5. Indemnification for Released Claims and Liabilities. (a) I hereby agree, jointly and severally with any Derivative Claimant executing this Release, to indemnify and hold harmless each Released Party from and against (i) any and all Claims that may be asserted, made or maintained at any time against any Released Party by, on behalf of or for the benefit of, or otherwise through or under, any Releasing Party with respect to any of the Released Claims and Liabilities and (ii) any and all damages, losses, costs, expenses (including, but not limited to, legal fees and expenses) and/or Liabilities incurred or suffered by, or imposed on, any Released Party in connection with, arising out of or resulting from any Claim described in clause (i) of this sentence (including, but not limited to, any amount paid or to be paid in satisfaction of any such Claim) and/or, without limitation of the foregoing, any breach by me (or any Derivative Claimant executing this Release) of any of the terms of this Release. (b) Without limitation of the foregoing paragraph, I further agree, jointly and severally with any Derivative Claimant executing this Release, to indemnify and hold harmless the Merck Released Parties from and against (i) any and all Claims made or asserted (prior to, on or after the date of my claim under the Program) against any Merck Released Party by any Released Party that is not an Merck Released Party (a "Non-Merck Released Party") arising out of any Claim made or asserted at any time by me and/or any other Releasing Party against any Non-Merck Released Party to any extent, or in any way, arising out of, relating to, resulting from and/or connected with VIOXX and/or any injury I (and/or any other Releasing Party) have ever claimed, or may at any time hereafter claim, VIOXX caused in whole or in part and (ii) any and all damages, losses, costs, expenses (including, but not limited to, legal fees and expenses) and/or Liabilities incurred or suffered by, or imposed on, any Merck Released Party in connection with, arising out of or resulting from any Claim described in clause (i) of this sentence (including, but not limited to, any amount paid or to be paid in satisfaction of any such Claim). (c) Merck has the right to setoff all or any portion of any amount payable to any Merck Released Party pursuant to the indemnification provisions of the Release against an equal amount of any Settlement Payment. 6. Confidentiality. I agree to maintain in confidence, and shall not disclose to any person, the amount of any Settlement Payment (if any), except as may be required by applicable Law; provided, that I understand that I may disclose such information to my immediate family members and to my counsel, accountants and/or financial advisors, if any (each of whom I shall, upon such disclosure, instruct to maintain and honor the confidentiality of such information). I agree that if I breach this confidentiality provision, money damages would not be a sufficient remedy and, accordingly, without limitation of any other remedies that may be available at law or in equity, Merck shall be entitled to specific performance and injunctive or other equitable relief as remedies for such breach. 7. Medical Documentation Authorization. I have authorized my counsel to obtain and supply (or if I am not represented by counsel, I will obtain and supply) to Merck, the Claims Administrator, the Lien Resolution Administrator, the Special Master (and any Deputy Special Master) for the Program, the Chief Administrator for the Program, members of the Gate Committee for the 111111 N? NIh III ICI n? IIII I? IIIHII IIII IINI INI IIIIN IINI IIII IIII Gonser (deceased), Mary E. 1063903 219120 Program, all other persons provided for under the terms of the Agreement to consider claims, and their respective attorneys, agents, servants, employees and independent auditors and others deemed necessary by each to assist them, the medical or other documentation required for approval of an award under the Program along with any and all authorizations for the release of medical records required in my Enrollment Form under the Program or that may be required by a provider of such documentation, including, but not limited to, a specific authorization required by a particular hospital, pharmacy, physician or any other source of documentation. I agree to cooperate fully in providing any authorization for the release of records requested in the Program. I also authorize the foregoing persons to have access to my medical and other documentation available in any electronic depository through which Merck delivers medical records it collects by way of authorization or subpoena to counsel for plaintiffs in the VIOXX litigation. 8. ACKNOWLEDGEMENT OF COMPREHENSION: NO GUARANTEE OF PAYMENT. I AM ENTERING INTO THIS RELEASE FREELY AND VOLUNTARILY, WITHOUT BEING INDUCED, PRESSURED OR INFLUENCED BY, AND WITHOUT RELYING ON ANY REPRESENTATION OR OTHER STATEMENT MADE BY OR ON BEHALF OF, MERCK OR ANY OTHER PERSON. I UNDERSTAND AND ACKNOWLEDGE THE NATURE, VALUE AND SUFFICIENCY OF THE CONSIDERATION DESCRIBED IN THE SECOND PARAGRAPH OF THIS RELEASE. I ACKNOWLEDGE THAT I HAVE READ THIS RELEASE AND THE AGREEMENT, AND I HAVE HAD AN OPPORTUNITY TO OBTAIN ADVICE FROM, AND ASK QUESTIONS OF, COUNSEL OF MY CHOOSING REGARDING THE TERMS AND LEGAL EFFECT OF THESE DOCUMENTS AND MY DECISION TO ENROLL TO PARTICIPATE IN THE PROGRAM. I FURTHER ACKNOWLEDGE THAT I HAVE DISCUSSED ALL THESE MATTERS WITH THE COUNSEL TO ME EXECUTING A "CERTIFICATION OF COUNSEL" ATTACHED TO THIS RELEASE, AND SUCH COUNSEL HAS ANSWERED ALL MY QUESTIONS TO MY SATISFACTION. I FURTHER ACKNOWLEDGE THAT I UNDERSTAND THIS RELEASE AND THE AGREEMENT AND THAT THERE IS NO GUARANTEE THAT I WILL RECEIVE ANY SETTLEMENT PAYMENT OR, IF ANY SETTLEMENT PAYMENT IS MADE, THE AMOUNT THEREOF. 9. Waiver of Certain Provisions Regarding Timing of Any Payments. If I have any civil action pending in any jurisdiction that has enacted, promulgated or otherwise adopted any Law containing provisions that establish specific time periods within which settlement funds, if any, must be paid to me in connection with the settlement of such civil action and/or impose sanctions, penalties or other similar obligations against the paying party if the settlement funds are not paid within such time periods and/or invalidate or otherwise affect the terms of the settlement of such civil action (including, but not limited to, Pennsylvania Rule of Civil Procedure 229. 1), I hereby (i) specifically and expressly waive (to the fullest extent permitted by applicable Law) my rights under any such provisions and (ii) agree that payment of any Settlement Payment shall be made solely in accordance with the terms and conditions of the Program. 10. No Admission of Fault. I understand and agree that Merck has entered into this Release and the Agreement solely by way of compromise and settlement. These documents are not, and shall not be construed at any time to be, an admission of liability, responsibility or fault of or by Merck or 1111111 IN III III 111111111111111111111111111111111111 IIII Gonser (deceased), Mary E. 1063903 219120 any other Released Party. 11. Representations and Warranties. I hereby represent and warrant that: I have full power, authority and capacity to enter into this Release, which is enforceable in accordance with its terms. Except as set forth in the second sentence under "Attorneys' Fees: Division of AU Settlement Payment" above, I have the sole right to receive any and all Settlement Payments, if any, with respect to my claim under the Program. Neither I nor any other Releasing Party has sold, assigned, transferred or otherwise disposed of, or pledged or otherwise encumbered, any of the Released Claims and Liabilities in whole or in part. 12. GOVERNING LAW. THIS RELEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF NEW YORK, WITHOUT REGARD TO ANY CHOICE-OF-LAW RULES THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. 13. Severability. I agree that if any provision of this Release is adjudicated to be invalid, illegal or unenforceable in any jurisdiction, the relevant provision shall be deemed modified to the extent necessary to make it enforceable in such jurisdiction and, if it cannot be so modified, this Release shall be deemed amended to delete herefrom the invalid or unenforceable provision, and this Release shall be in full force and effect as so modified. Any such modification or amendment in any event shall apply only with respect to the operation of this Release in the particular jurisdiction in which such adjudication was made and shall not affect such provision in any other jurisdiction. To the fullest extent permitted by applicable Law, I hereby (on my own behalf and on behalf of each other Releasing Party) specifically and expressly waive any provision of Law that renders any provision of this Release invalid, illegal or unenforceable in any respect. 14. Legal Representatives. If I am signing this Release as a legal representative of a VIOXX user, then (i) all references in this Release to my use of, or injury from, VIOXX shall also mean the use of, or injury from, VIOXX by or of such VIOXX user, all references in this Release to any person claiming by, through or under, or in relation to, me shall also mean any person claiming by, through or under, or in relation to, such VIOXX user, and all references to me in the definition of Derivative Claimant shall also mean such VIOXX user, (ii) if such VIOXX user is not deceased, he or she shall also be a "Releasing Party", (iii) if such VIOXX user is deceased, I am executing this Release both individually and on behalf of the estate of such VIOXX user, and (iv) prior to the first time, if any, that a Settlement Payment is made to me, I will obtain judicial approval of this Release to the extent required under applicable Law. [The remainder of this page is intentionally left blank.] Gonser (deceased), Mary E. 1063903 219120 IN WITNESS WHEREOF, I have executed this Release effective as of the date set forth under my name below: RELEASOR: BY S 0-\e /66yiaa Name: Mary E. Gonser (deceased) Title: Social Security No.: 335-48-4328 Dated: t " a- `1 - --Vu, 0k- NOTARIZATION OF RELEASOR'S SIGNATURE STATE OF COUNTY OF SS.: a" re I hereby certify that on 200 ) , _5 we s I personally came before me and acknowledged under oath to my satisfaction that this person: (a) is named and personally signed this document; and (b) signed, sealed and deliver this document as his or her act and deed. No Public of the State of QT JILL A. SHARILLO NOTARY PURUC W SON EXPIRES NOV. 30.2W8 1 I1III IIII 1I II II I hull IIII HIN 1111111111111111111111111111 Goner (deceased), Mary E. 1063903 219120 CERTIFICATION OF COUNSEL (COUNSEL FOR RELEASOR) hereby represent and declare that ("Releasor") has at all relevant times been represented by the undersigned counsel. I have provided Releasor a copy of the Release to which this Certification of Counsel is attached and have made available to Releasor a copy of the Settlement Agreement referred to in the Release (which copies include all attachments). I discussed with Releasor the terms and legal effect of all of the foregoing documents and Releasor's decision to enroll to participate in the Program (as defined in the Release), and I answered any and all questions Releasor may have had. I hereby certify that, having had a full opportunity to read, understand, and inquire of counsel about the terms and conditions of the foregoing documents, Releasor does not have, and I do not have, any objection to the terms of this Release or any of the other foregoing documents. I further agree to be bound by the "Confidentiality" section in this Release and my joint and several obligations to provide representations and warranties regarding the satisfaction of, and indemnification with respect to, Liens set forth under "Liens and Other Third-Pg1y Pavor Claims". BY COUNSEL FOR RELEASOR: By Name: Title: Dated: Gonser (deceased), Mary E. 1063903 10 219120 SIGNATURE PAGE AND AGREEMENT BY DERIVATIVE CLAIMANT I am a person having or asserting the right to sue Merck by reason of my relationship with Releasor (or, if Releasor is a legal representative of a VIOXX user, such VIOXX user). I hereby enter into the Release to which this signature page is attached and agree to be bound by all of its terms (and, without limitation, hereby give and make all releases, waivers, acknowledgements, agreements, representations and warranties therein) on the same basis as Releasor set forth therein (including, but not limited to, all joint and several indemnification obligations set forth therein). This agreement is effective as of the date set forth beneath my name below. DERIVATIVE CLAIMANT: By UL..'xaA s me- Name: Name: Deborah E. McGary Title: Social Security No.: 335-484328 Dated: 1 - X%A - ;X U U'? NOTARIZATION OF DERIVATIVE CLAIMANT'S SIGNATURE STATE OF 06nn eeki c , y4' , COUNTY OF i? SS.: uvs t re I hereby certify that on 1jQy1ua,n1 , 2001 personally came before me and acknowledged under oath to my satisfaction that this person: (a) is named and personally signed this document; and (b) signed, sealed and deliver this document as his or her act and deed. Notfy Public of the State of -12,T JILL A. 3HARILLO NGTARY FvzuC y GQI AMM EXPIRES NOV. K 2008 Illla INII III NCI Intl 11111 ? ??I IIII VIII I? ??I NIII III NII 11 Goner (deceased), Mary E. 1063903 219120 CERTIFICATION OF COUNSEL (COUNSEL FOR DERIVATIVE CLAIMANT) 1, hereby represent and declare that ("Derivative Claimant') has at all relevant times been represented by the undersigned counsel. I have provided Derivative Claimant a copy of the Release to which this Certification of Counsel is attached and have made available to Derivative Claimant a copy of the Settlement Agreement referred to in the Release (which copies include all attachments). I have discussed with Derivative Claimant the terms and legal effect of all of the foregoing documents and I answered any and all questions Derivative Claimant may have had. I hereby certify that, having had a full opportunity to read, understand, and inquire of counsel about the terms and conditions of the foregoing documents, Derivative Claimant does not have, and I do not have, any objection to the terms of this Release or any of the other foregoing documents. I further agree to be bound by the "Confidentiality" section of this Release and my joint and several obligations to provide representations and warranties regarding the satisfaction of, and indemnification with respect to, Liens set forth under "Liens and Other Third-Party Payor Claims". BY COUNSEL FOR DERIVATIVE CLAIMANT: By Name: Title: Dated: Ilil N? I NNI NII IIRN III IINI Ilh II IIN NNI Ilu I III Gonser (deceased), Mary E. 1063903 12 219120 EXHIBIT "F" Deborah McGary 380 Hitchcock Road Waterbury CT 06705 Attn: 9-30-2006 mCGARY, DEBORAH vs. VIOXX JRR COSTS $ 117.59 1 06/22/2006 106/23/2006 07/24/2006 1 07/24/2006 08/29/2006 09/13/2006 09/25/2006 10/17/2006 11/10/2006 04/03/2007 06/14/2007 06/19/2007 01/15/2008 Page: 1 January 13, 2009 Account No: 219120-00 Statement No: 9248 MEDICAL RECORDS - (1830) MEDICAL COPY SERVICES GIANT FOODS LLC LEGAL DEPT MEDICAL RECORDS - (1830) MEDICAL COPY SERVICES SAV-RX MEDICAL RECORDS - (1830) MEDICAL COPY SERVICES / MASLAND ASSOCIATES,INC. MEDICAL RECORDS - (1830) MEDICAL COPY SERVICES / GIANT FOODS LLC LEGAL DEPT FILING - ATLANTIC COUNTY COURIER SERVICE - (724) FEDERAL EXPRESS CORP. / 8/29/2006 - SUE TO ATLANTIC COUNTY CIVIL COURTHOUSE IN AC MEDICAL RECORDS - (1830) MEDICAL COPY SERVICES / MEDCO HEALTH FILING (12190) LEXISNEXIS COURTLINK, INC. FILING - (5938) FIRST CHOICE COURIER, INC. MEDICAL EXPERTS - (12627) KAREN S. CAMPIONE, RN COURIER SERVICE - (724) FEDERAL EXPRESS CORP. / 5/22/07 - SHAWN TO HEATHER BROWN, ESW/DECHERT LLP IN LAWRENCEVILLE, NJ FILING - (12190) LEXISNEXIS COURTLINK, INC. MEDICAL RECORDS - (12833) SDS / MOFFITT HEART & VASC.GRP Total Advances Total Current Work Balance Due Draft Bill 32.78 42.20 139.90 35.50 200.00 4.43 131.50 15.96 33.18 715.00 13.52 16.59 74.07 1,454.63 1,454.63 $1,454.63 EXHIBIT "G" CONTINGENT FEE AGREEMENT THIS AGREEMENT entered into the ?,5 day of ajA Q4.c& , 2005, 11.1 by and between the law firms of SCHMIDT, RONCA & KRAMER, P.C., and SHELLER, LUDWIG & BADEY, P.C., and DEBORAH McGARY, hereinafter referred to as "Client." WITNESSETH: The law firm of SCHMIDT, RONCA & KRAMER, P.C., will act as Client's attorney in negotiating for a settlement, and in bringing a claim against Merck & Co., Inc., or any other drug manufacturer or distributor arising out of the Client's injuries believed to have been caused by Client's use of Vioxx. In return, the Client will: 1. Promptly supply accurate information, as requested by SCHMIDT, RONCA & KRAMER, P.C., and cooperate fully, including being available for meetings with attorneys and for legal proceedings. Client promises all information supplied will be truthful and accurate. 2. (a) In any claim brought on Client's behalf, to pay one fee to the law firms of SCHMIDT, RONCA & KRAMER, P.C., for their combined services an amount equal to thirty-three and one-third percent (33 1/3%) in the event the case is resolved without filing suit and forty percent (40%) of all funds or property accruing to Client as a result of the services of SCHMIDT, RONCA & KRAMER, P.C., in the event the claim is resolved after a lawsuit is filed. Page 2 of 4 (b) Client agrees not to settle or negotiate the above claim or any proceedings based thereon. (c) If Client terminates this Agreement before recovery, Client agrees that SCHMIDT, RONCA & KRAMER, P.C., shall be entitled to a fee based upon work done and benefit conferred. (d) Client agrees to read and follow the SCHMIDT, RONCA & KRAMER, P.C., "Client Instruction Manual". 3. Client agrees to reimburse SCHMIDT, RONCA & KRAMER, P.C., out of any recovery, in addition to attorneys' fees, all costs and expenses incurred on Client's behalf in order to make the claim. All such costs and expenses will be advanced by SCHMIDT, RONCA & KRAMER, P.C., as they are incurred. Such costs and expenses include, but are not limited to, filing fees, cost of medical records, copying costs, fax costs, long distance telephone costs, expert witness fees and sheriffs service costs. In the event there is no recovery, the Client will not be responsible for any costs or interest charges. Costs will be repaid to SCHMIDT, RONCA & KRAMER, P.C., out of any funds or property collected either by settlement or judgment. 4. We cannot make a final decision on the validity of your claim until we have reviewed your medical records and have them reviewed by a qualified physician. Our present determination and offer of representation is based upon the information supplied by you to date. Page 3 of 4 5. This agreement is subject to and will be revised, if necessary, to comply with all applicable State laws. 6. The client acknowledges that pharmaceutical litigation involves millions of documents and dozens of witnesses and it is important for Schmidt, Ronca and Kramer, P.C., to associate with and work with other law firms in the prosecution of your case. Schmidt, Ronca and Kramer, P.C., has an affiliation agreement with the Law Firm of Sheller, Ludwig and Badey in Philadelphia, wherein the firms agree to work together on all Vioxx cases handled by the two law firms. You may be contacted by lawyers or other employees of Sheller, Ludwig and Badey and you agree to cooperate with that law firm in the same way that you cooperate with Schmidt, Ronca and Kramer, P.C. There will be no additional attorneys' fees to you as a result of the two law firms working together. 7. If your case was referred to Schmidt, Ronca and Kramer, P.C., by another law firm, a part of the fee earned by Schmidt, Ronca and Kramer, P.C., may be paid to the referring law firm and by signing below, you are agreeing to the payment of this referral fee. There is no additional fee to you as a result but the referring lawyer or law firm receives a portion of the fee due Schmidt, Ronca and Kramer, P.C., under this agreement. Page 4 of 4 By signing this agreement, the Client agrees that he or she has read and understands this Agreement. Signed the day and year set forth above. Client's Signature: 'CAk?O-Dx Me A -`± DEBORAH McGARY -U Approved: SCHMIDT, WNCA & KRAIVW?R, P.C., I have received a copy of this Contingent Agreement. b_ K1 Client's Initials Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 1 of L `f? 21263356 F &ERV101 V Aug 27 2008 5:04PM UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: VIOXX PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: ALL CASES MDL NO. 1657 SECTION: L JUDGE FALLON MAG. JUDGE KNOWLES ORDER & REASONS With interim settlement payments scheduled to begin on August 28, 2008, the Court finds that it is appropriate at this time to address the issue of individual attorneys' fees. For the reasons listed below, the Court orders that individual attorneys' fees for all counsel representing claimants enrolled in the Vioxx Settlement Program will be capped at 32% plus reasonable costs. At a later date, after giving the parties due notice and an opportunity to be heard, the Court will determine the amount of fees and costs to be awarded to those attorneys who performed common benefit work. Pursuant to the terms of the Settlement Agreement, these latter amounts will be deducted from the individual plaintiffs' attorneys' fees. 1 Given the nature of the interim payment schedule, it bears emphasizing that no claimant shall pay more than 32% of their total award towards attorneys' fees, and any future award of -i- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 2 of 21 1. BACKGROUND To put this matter in perspective, a brief review of this litigation is appropriate. This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as Rofecoxib. Merck, a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration approved Vioxx for sale in the United States. Vioxx remained publicly available until September 30, 2004, when Merck withdrew it from the market after data from a clinical trial known as APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions (heart attacks) and ischemic strokes. Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various products liability, tort, fraud, and warranty claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20, 1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States.2 On February 16, 2005, the Judicial Panel on Multidistrict Litigation conferred multidistrict litigation status on Vioxx lawsuits filed in federal court and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 common benefit fees will come from the individual attorneys' shares of their claimants' awards. Because at the present time only interim payments are being distributed, the mechanics of withholding any common benefit fee charge will be finalized upon the ultimate calculation of claimants' total awards. 2For a more detailed factual background describing the events that took place before the inception of this Multidistrict Litigation, see In re Vioxx Prods. Liab. Litig., 401 F. Supp. 2d 565 .Z_ Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 3 of 21 U.S.C. § 1407. See In re No= Prods. Liab. Litig., 360 F. Supp. 2d 1352 (J.P.M.L. 2005). One month later, on March 18, 2005, this Court held the first status conference in the Vioxx MDL to consider strategies for moving forward with the proceedings. Shortly thereafter, the Court appointed committees of counsel to represent the parties and to meet with the Court once every month to review the status of the litigation.3 One of this Court's first priorities was to assist the parties in selecting and preparing certain test cases to proceed as bellwether trials. In total, this Court conducted six Vioxx bellwether trial S.4 The first of the bellwether trials took place in Houston, Texas, while this Court was displaced following Hurricane Katrina. The five subsequent bellwether trials took place in New Orleans, Louisiana. Only one of the trials resulted in a verdict for the plaintiff. Of the five remaining trials, one resulted in a hung jury and four resulted in verdicts for the defendant. During the same period that this Court conducted its six bellwether trials, approximately thirteen additional Vioxx-related cases were tried before juries in the state courts of Texas, New Jersey, California, Alabama, Illinois, and Florida. With the benefit of experience from these bellwether trials, as well as the encouragement of the several coordinated courts, the (E.D. La. 2005) (resolving Daubert challenges to a number of expert witnesses). 3The Court appointed twelve attorneys to serve on the Plaintiffs' Steering Committee ("PSC"), see Pretrial Order No. 6 (Apr. 8, 2005), and five attorneys to serve on the Defendant's Steering Committee, see Pretrial Order No. 7 (Apr. 8, 2005). 4See Plunkett v. Merck & Co., No. 05-4046 (E.D. La. filed Aug. 23, 2005) (comprising both the first and second bellwether trials, as the first trial resulted in a hung jury); Barnett v. Merck & Co., No. 06485 (E.D. La. filed Jan. 31, 2006) (third bellwether trial); Smith v. Merck & Co., No. 05-4379 (E.D. La. filed Sept. 29, 2005) (fourth bellwether trial); Mason v. Merck & Co., No. 06-0810 (E.D. La. filed Feb. 16, 2006) (fifth bellwether trial); Dedrick v. Merck & Co., No. 05-2524 (E.D. La. filed June 21, 2005) (sixth bellwether trial). -3- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 4 of 21 parties soon began settlement discussions in earnest.5 On November 9, 2007, Merck and the NPC formally announced that they had reached a Settlement Agreement. See Settlement Agreement, In re Vioxx Prods. Liab. Litig., MDL 1657 (E.D. La. Nov. 9, 2007) ("Settlement Agreement"), available at http://www.browngreer.com/vioxxsett(ement.6 The private Settlement Agreement establishes a pre-funded program for resolving pending or tolled state and federal Vioxx claims against Merck as of the date of the settlement, involving claims of heart attack ("MI"), ischemic stroke ("IS"), and sudden cardiac death ("SCD"), for an overall amount of $4.85 billion. Id. § "Recitals".' The Settlement Agreement expressly contemplates that this Court shall oversee various aspects of the administration of settlement proceedings, including appointing a Fee Allocation Committee, allocating a percentage of the settlement proceeds to a Common Benefit Fund, and modifying any provisions of the Settlement Agreement that are otherwise unenforceable.8 Accordingly, this 5In their efforts to develop a comprehensive, joint settlement agreement, counsel for Merck and the Negotiating Plaintiffs' Counsel ("NPC") met together more than fifty times and held several hundred telephone conferences. Although the parties met and negotiated independently, they kept this Court-as well as the coordinate state courts of Texas, New Jersey, and California- informed of their progress in settlement discussions. 6When the parties formally announced the settlement agreement, Vioxx-related discovery had been moving forward in the coordinate jurisdictions for more than six years. Over 50 million pages of documents had been produced and reviewed, more than 2,000 depositions had been taken, and counsel for both sides had filed thousands of motions and consulted with hundreds of experts in the fields of cardiology, pharmacology, and neurology. ' For a more detailed factual background of the various mechanics of the Settlement Agreement, including the provisions for the mandatory resolution of governmental liens, see In re Vioxx Prods. Liab. Litig., 2008 WL 3285912 (E.D. La. Aug. 7, 2008) (denying motions to enjoin disbursement of interim settlement payments). 8 See, e.g., Settlement Agreement, § 9.2.4 (establishing that the Court shall appoint a Fee Allocation Committee); § 9.2.5 (establishing that the Court shall "provide appropriate notices governing the procedure by which [it] shall determine common benefit attorneys' fees and reimbursement of common benefit expenses"); § 16.4.2 (establishing that the Court may modify -4- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 5 of 21 Court has consistently exercised its inherent authority over the MDL proceedings in coordination with its express authority under the terms of the Settlement Agreement to ensure that the settlement proceedings move forward in a uniform and efficient manner.9 The Settlement Agreement provides a schedule for the disbursement of interim payments to certain eligible claimants. Id. § 4.1. In order to qualify for interim payments, eligible claimants must fulfill specific registration and filing obligations. Id. Pursuant to the terms of the Settlement Agreement, eligible MI claimants who timely fulfill all of their filing obligations may qualify to receive interim payments beginning on August, 1, 2008, or the date on which the Claims Administrator has determined pre-review points awards for at least 2,500 MI claimants, whichever is later. Id. The schedule for distributing interim payments to claimants is conditioned on Merck's decision to waive its walk away privileges. Id. On July 17, 2008, Merck formally announced that it was satisfied that the thresholds necessary to trigger funding of the Vioxx Settlement Program would be met. See Minute Entry, July 17, 2008, Rec. Doc. 15362 (July 17, 2008). Merck further advised that it intended to waive its walk away privileges and that it would commence funding the Vioxx Settlement Program by depositing an initial sum of $500 million into the settlement fund, clearing the way for any provision of the Agreement under certain limited circumstances if the Court determines that the provision "is prohibited or unenforceable to any extent or in any particular context but in some modified form would be enforceable"). 9 See, e.g., Pretrial Order No. 32, Rec. Doc. 13007 (Nov. 20, 2007) (exercising the Court's "inherent authority over this multidistrict litigation" as well as its express authority under Paragraph 9.2.4 of the Settlement Agreement to appoint a Fee Allocation Committee; reserving the right to "issue subsequent Orders governing the procedure by which the Allocation Committee shall carry out its function"; and providing that members appointed to the committee may not be substituted by other attorneys "except with the prior approval of the Court"). -5- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/2712008 Page 6 of 21 distribution of interim payments to eligible claimants. Id. On August 20, 2008, the Claims Administrator reported to the Court that it had successfully reviewed approximately 2,750 claims for interim payments. See Minute Entry, August 20, 2008, Rec. Doc. 15674 (Aug. 20, 2008). The Claims Administrator further advised that interim payments were scheduled to begin as early as August 28, 2008. Id. In light of the upcoming disbursement of interim settlement payments, it is appropriate at this time to address the issue of individual attorneys' fees. 11. LAW & ANALYSIS As an initial matter, the Court notes that addressing the issue of attorneys' fees in the context of the Vioxx global settlement will require a two-step process. The first step involves examining the reasonableness of all the contingent fee contracts in the global settlement and setting an appropriate limitation on the amount of fees that attorneys may charge claimants. The second step of the process will involve allocating a percentage of those fees for the Common Benefit Fund to be distributed to those who performed common benefit work. After notifying the parties and all counsel and offering them an opportunity to be heard, the Court will issue a separate order addressing the Common Benefit Fund. At this time, the Court will only address the reasonableness of contingent fee contracts in the context of the global settlement. The Court will begin its analysis by reviewing the basis of its authority for examining the contingent fee contracts in this setting. After briefly reviewing the basis of its authority, the Court will then examine the contingent fee contracts and set a reasonable limitation on the amount that individual attorneys may charge claimants enrolled in the global settlement, regardless of whether their cases were filed in state or federal courts. -6- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 7 of 21 A. The basis of this Court's authority to review contingent fee contracts for reasonableness Contingent fee contracts have long been accepted in the United States because "they provide many litigants with the only practical means by which they can secure legal services to enforce their claims." Cappel v. Adams, 434 F.2d 1278, 1280 (5th Cir. 1970).10 Nevertheless, "[c]ontingent fees may be disallowed as between attorney and client in spite of contingent fee retainer agreements, where the amount becomes large enough to be out of all proportion to the value of the professional services rendered." Gair v. Peck, 160 N.E. 2d 43, 48 (N.Y. 1959). In addressing contingent fees, the Court is mindful that tort litigation-and particularly mass tort litigation---has a dual role in our society: (1) to compensate people who are harmed; and (2) to prevent future injuries by deterring harmful conduct. See Contingent Fees in Mass Tort Litigation, 42 TORT TRIAL & INS. PRAc. L.J. 105, 109-10 (2006). These are laudable goals and ones which should be encouraged. Undercompensating attorneys who handle such litigation would result in too few meritorious private suits being brought and less competent representation in the cases that are brought. Id. Overcompensating attorneys, however, would also be harmful, as it would encourage frivolous lawsuits and result in unfair recovery for injured litigants. Id. The courts must, therefore, endeavor to strike a fair balance between these two opposing policy concerns.' 1 10 For a detailed analysis of the history of contingent fee arrangements in mass tort litigation as well as the effects that these arrangements might have on the future of mass tort actions, see Contingent Fees in Mass Tort Litigation, 42 TORT TRIAL & INS. PRAc. L.J. 105 (2006). ' 1 See idd, at 1 I 1 ("It is thus crucial to calibrate compensation for lawyers who prosecute mass tort cases to provide enough incentive for them to be brought (to serve the deterrence and compensation functions) but not so much that nonmeritorious cases are brought or victims are -7- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 8 of 21 Before examining the contingent fee contracts in the context of the global settlement, it is first necessary to determine whether this Court has authority to inquire into the reasonableness of contingent fee agreements between the claimants and their attorneys. This determination requires an analysis of the Court's equitable powers, its inherent supervisory authority, and its express authority under the terms of the Settlement Agreement. Each of these will be discussed in turn. 1. The Court's equitable authority to oversee administration of the global settlement The Federal Rules of Civil Procedure expressly provide that district courts may require reasonable fees in class actions. See Fed. R. Civ. P. 23(g)(1)(C)(iii); Fed. R. Civ. P. 23(h); see also MANUAL FOR COMPLEX LITIGATION (FOURTH) § 22.927 (2004). In the Zyprexa MDL, the court found that several factors counseled in favor of treating the case as a quasi-class action, subjecting the settlement program to review under the court's general equitable powers. See In re Zyprexa Prods. Liab. Litig., 424 F. Supp. 2d 488, 491 (E.D.N.Y. 2006). In particular, the court in Zyprexa noted as persuasive "[t]he large number of plaintiffs subject to the same settlement matrix approved by the court; the utilization of special masters appointed by the court to control discovery and to assist in reaching and administering a settlement; the court's order for a huge escrow fund; and other interventions by the court." Id. As a result, the court found that the settlement was subject to the court's "imposition of fiduciary standards to ensure fair treatment to all parties and counsel regarding fees and expenses." See id.; see also In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., MDL No. 05-1708, 2008 WL 682174, at * 18 (D. undercompensated."). -8- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 9 of 21 Minn. Mar. 7, 2008) (characterizing a mass tort proceeding as a quasi-class action and subjecting the global settlement to the court's equitable authority). Turning to the instant case, the Court notes that there are substantial similarities between the global settlement currently before the Court and the global settlement at issue in Zyprexa. First, the court in Zyprexa found that the case could be treated as a quasi-class action in part because of "[t]he large number of plaintiffs subject to the same settlement matrix approved by the court." In re Zyprexa, 424 F. Supp. 2d at 491. Similarly, there are approximately 50,000 eligible claimants currently enrolled in the Vioxx Settlement Program, all of whom are subject to the same settlement matrix for awarding points and valuating claims. Second, like the court in Zyprexa, which utilized special masters "to control discovery and to assist in reaching and administering a settlement," this Court has benefited from the efforts of special masters throughout the course of the MDL proceedings and the settlement administration. See, e.g., Order, Rec. Doc. 13228 (Jan. 14, 2008) (appointing Mr. Patrick A. Juneau to act as Special Master pursuant to the terms of the Settlement Agreement). Moreover, the $4.85 billion settlement fund in the instant case is similar to the large settlement fund held in escrow in Zyprexa. In light of these factors, the Court finds that the Vioxx global settlement may properly be analyzed as occurring in a quasi-class action, giving the Court equitable authority to review contingent fee contracts for reasonableness. 2. The Court's inherent authority to exercise ethical supervision over the parties In addition to this Court's equitable authority over the global settlement, the Court also has the inherent authority and concomitant duty to exercise ethical supervision over the parties. -9- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 10 of 21 See In re Zyprexa, 424 F. Supp. 2d at 492 ("The judiciary has well-established authority to exercise ethical supervision of the bar in both individual and mass actions."); see also Karim v. Finch Shipping Co., Ltd., 233 F. Supp. 2d 807, 810 (E.D. La. 2002), aft' d, 374 F.3d 202 (5th Cir. 2004) ("Among the broad equitable powers of a federal court is its supervisory capacity over an attorney's contingent fee contracts."). 12 Pursuant to the Court's supervisory authority, the Court may address the reasonableness of contingent fee contracts even if the parties have not raised the issue. See Rosquist v. Soo Line R.R., 692 F.2d 1107, 1111 (7th Cir. 1982) ("Even when the validity of the fee contract itself has not been challenged by the parties, it is within the court's inherent power of supervision over the bar to examine the attorney's fee for conformance with the reasonable standard of the Code of Ethics."). District courts necessarily retain the authority to examine attorney fees sua sponte because the attorneys' interests in this regard are in conflict with those of their clients. See In re Guidant, 2008 WL 682174, at * 18 ("[Ajs for the representative counsel involved, Plaintiffs' counsel have a built-in conflict of interest that is directly opposed to that of their clients."); In re Zyprexa, 424 F. Supp. 2d at 491-92 ("[P]laintiffs' counsel have a built-in conflict of interest; and the defendant is buying peace and 'z Historically, a district court's supervisory authority to examine contingent fee contracts for fairness is well-settled and has longstanding roots in a variety of different areas of law. Karim, 233 F. Supp. 2d at 810. For example, federal courts have long endeavored to protect seamen from unfair contingent fee contracts: Federal courts, particularly when sitting in admiralty, have long protected seamen when they enter into contracts with those more skilled than they. As long ago as 1823, Justice Story penned these famous words: "They (referring to seamen) are emphatically wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees." Id. (quoting Harden v. Gordon, I 1 F.CAs. 480, 485 (1823)). -10- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/2712008 Page 11 of 21 is generally disinterested in how the fund is divided so long as it does not jeopardize the settlement."). With large corporations now seeking to achieve global peace by resolving mass tort litigations simultaneously in state and federal courts, settlement agreements such as the one currently before the Court will likely become more common. See, e.g., In re Guidant, 2008 WL 682174, at *3 (noting that the parties "contemplated a global settlement covering Plaintiffs from both the MDL and state cases, and included Plaintiffs whose cases had been filed or transferred to the MDL, Plaintiffs whose cases were filed outside the MDL in state court proceedings, and potential Plaintiffs who had not yet filed their cases"). As these global settlements occur more frequently, however, and as the public consciousness focuses more closely on the outcome of mass tort litigations, there will also be a growing need to protect the public's trust in the judicial process. See In re Zyprexa, 424 F.2d at 494 ("Public understanding of the fairness of the judicial process in handling mass torts-and particularly those involving pharmaceuticals with potential widespread health consequences-is a significant aspect of complex national litigations involving thousands of parties."). The potential harm to the public's perception of the judicial process is especially acute in the instant case because of the large number of claimants participating in the settlement. See id. at 493 ("The risk of excessive fees is a special concern here because of the mass nature of the case."). The approximately 50,000 plaintiffs and the $4.85 billion settlement fund have captured the public's attention, resulting in a heightened degree of public scrutiny on the settlement proceedings and the judicial process in general. Disproportionate results and inconsistent standards threaten to damage the public's faith in the judicial resolution of mass tort litigation by Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 12 of 21 creating an impression of inherent unfairness. Id. at 494 ("Litigations like the present one are an important tool for the protection of consumers in our modern corporate society, and they must be conducted so that they will not be viewed as abusive by the public; they are in fact highly beneficial to the public when adequately controlled."). 13 "These considerations are enhanced where, as here, the Judicial Panel on Multidistrict Litigation has assembled all related federal cases for coordinated or consolidated pretrial proceedings ... [to] promote the just and efficient conduct of such actions."' Id. at 493 (quoting 28 U.S.C. § 1407) (emphasis added). In addition, many of the Vioxx claimants are elderly and in poor health, making it more difficult for them to negotiate fair contingent fee contracts. See id at 491 ("Many of the individual plaintiffs are both mentally and physically ill and are largely without power or knowledge to negotiate fair fees"); see also In re Guidant, 2008 WL 682174, at * 18 (same). In order to qualify for the settlement, a claimant or the claimant's representative must first demonstrate that the claimant suffered a heart attack, ischemic stroke, or sudden cardiac death after taking Vioxx. As a result, all of the claimants in the global settlement have suffered life- threatening injuries. Under such circumstances, the supervisory court has an increased responsibility to ensure that the fees are both consistent and reasonable. For these reasons, the Court finds that it has the inherent authority and responsibility to examine the individual contingent fee contracts for fairness and consistency. 13 See also Contingent Fees in Mass Tort Litigation, supra, at 125 (noting that several courts "have invoked their inherent authority to regulate lawyers to limit attorney fees in mass tort contexts.... not to correct for market failure but rather to protect clients from being charged unreasonable fees"). The Court notes that although many of the plaintiffs' attorneys in the Vioxx litigation have entered into contingent fee contracts for 33%3% of the claimant's net recovery, there are many other attorneys who have 40% and even 50% contingent fee contracts. -12- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 13 of 21 3. The Court's express authority pursuant to the terms of the Settlement Agreement The terms of the Settlement Agreement in this case provide further support for the Court's authority to examine the reasonableness of the contingent fee contracts. The Settlement Agreement expressly grants this Court the authority to oversee various aspects of the global settlement administration. For example, the Settlement Agreement contemplates that this Court will appoint an Allocation Committee to assist in determining the appropriate amount of fees to be deposited into the Common Benefit Fund. See Settlement Agreement § 9.2.4. The Agreement also contemplates that this Court will consider the Committee's recommendations in making a final determination of common benefit fees as well as deciding how those fees should be distributed to individual attorneys for their common benefit work. See id. § 9.2.5. Pursuant to the terms of the Settlement Agreement, these amounts will be deducted directly from the attorneys' fees after the Court's final determination regarding the Common Benefit Fund. See id. § 9.2.1 ("Any sum paid as a common benefit fee shall be deducted from the total amount of counsel fees payable under individual plaintiffs' counsel's retainer agreement."). In addition, the Settlement Agreement also establishes that this Court has the express authority to modify any provision of the Agreement in certain limited circumstances if the Court determines that the provision "is prohibited or unenforceable to any extent or in any particular context but in some modified form would be enforceable." Id. § 16.42. To the extent that the Settlement Agreement would be unenforceable if it resulted in excessive or unreasonable attorneys' fees that threaten the public interest and reflect poorly on the courts, this Court may address those fees in order to ensure fairness to all parties. As a result, the Court finds that it -13- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/2712008 Page 14 of 21 may examine the reasonableness of contingent fee contracts in order to protect the claimants and enforce the Settlement Agreement. In light of this Court's equitable authority over the settlement, its inherent authority to exercise ethical supervision over the parties, and its express authority under the terms of the Settlement Agreement, the Court finds that it has the authority to examine the contingent fee contracts in the global settlement for reasonableness, regardless of whether the claimants filed their cases in state or federal courts. See In re Gaidant, 2008 WL 682174, at * 19 (capping contingent fees in global settlement pursuant to "the Court's general equitable powers, the Court's inherent authority to exercise ethical supervision over [the] global settlement, and the Court's inherent authority to review contingency fees for fairness"). In the interest of fairness and uniformity, it is both necessary and desirable that a single court be able to set a reasonable limitation on contingent fees in this global settlement proceeding. Having overseen not only the course of the MDL proceedings but also the administration of the Vioxx Settlement Program, this Court is uniquely situated to examine the reasonableness of attorneys' fees for claimants enrolled in the global settlement. Further, in light of the upcoming distribution of interim settlement payments, the Court finds that it is appropriate at this time to set a reasonable limitation on the contingent fees that attorneys may charge to claimants participating in the settlement, B. Applying the Court's authority to examine contingent fee contracts in the global settlement In order to determine a reasonable limitation on individual contingent fee contracts, the Court will look for guidance to comparable limitations on contingent fees. First, the Court will -14- Case 2:05-md-01657-EEF-DEK Document 15722 t=iled 08/27/2008 Page 15 of 21 examine state statutes and rules that cap contingent fee arrangements. Second, the Court will review the manner in which other district courts have approached the issue of contingent fee arrangements in the context of similar global settlements. Finally, the Court will consider the unique contours of the Vioxx global settlement in light of these comparative sources in order to set a reasonable limitation on individual contingent fees in this context. 1. State statutes and rules placing limitations on contingent fees Because this MDL proceeding is essentially a series of diversity jurisdiction cases, it is appropriate for the Court to consider state statutes in examining whether the contingent fee contracts are fair or reasonable. See In re Zyprexa, 424 F. Supp. 2d at 494. New Jersey's approach to contingent fees provides considerable guidance for this Court in determining the appropriate contingent fees in this case. See N.J. R. Ct. 1:21-7. The Court notes that the New Jersey rule is particularly persuasive in this context because New Jersey is one of the primary coordinate jurisdictions in the Vioxx litigation. In New Jersey, an attorney in a products liability action "shall not contract for, charge, or collect a contingent fee in excess of the following: (1) 33%3% on the first $500,000 recovered; (2) 30% on the next $500,000 recovered; (3) 25% on the next $500,000 recovered; (4) 20% on the next $500,000 recovered." Id. The New Jersey statute further provides that counsel must apply to the court for a reasonable fee on all amounts in excess of $2 million, and may not charge more than 25% where the amount recovered is "for the benefit of a client who was a minor or mentally incapacitated when the contingent fee arrangement was made." Id. The New Jersey rule therefore provides strong support for limiting attorneys' contingent fees to a reasonable amount in the context of the global settlement. In addition, the Court is further persuaded by similar rules in California and Texas, the -15- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 16 of 21 other primary coordinate jurisdictions in the Vioxx litigation. See Cal. Bus. & Prof. Code § 6146(a) (providing a sliding scale framework for limiting contingent fees in actions against health care providers); Tex. Lab. Code Ann. § 408.221 (limiting contingent fee arrangements in worker's compensation lawsuits to 25% of the plaintiff's net recovery). Other states have also adopted similar rules or statutes placing comparable limitations on contingent fee arrangements. See, e.g., Conn. Gen. Stat. Ann. § 52-251c(b) (limiting contingent fees in personal injury and wrongful death cases to 33 %3% of the first $300,000; 25% of the next $300,000; 20% of the next $300,000; 15% of the next $300,000; and 10% of any amount exceeding $1.2 million); Mich. Gen. Ct. R. 8.121 (limiting contingent fees in personal injury or wrongful death suits to a maximum of 33'/3% of the net recovery); see also In re Zyprexa, 424 F. Supp. 2d at 495 (conducting a survey of the states and noting that "[t]he trend in the states is to limit contingent fees in substantial cases to 33%3% or less of net recovery where fees are large"). 2. Decisions by other courts in similar situations The instant case presents something of a matter of first impression, due in large part to the global nature of the settlement, the large number of plaintiff's participating in the settlement, and the considerable amount of money in the settlement fund. With little precedent bearing directly on the facts of the instant case, the Court finds guidance in the decisions of other district courts dealing with similar global settlements. For example, the MDL court in Guidant examined contingent fee arrangements in the context of a comparable global settlement resolving state and federal claims. See In re Guidant, 2008 WL 682174, at * 3 (noting that the global settlement covered "Plaintiffs from both the MDL and state cases, and included Plaintiffs whose cases had been filed or transferred to the MDL, Plaintiffs whose cases were filed outside the -16- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/2712008 Page 17 of 21 MDL in state court proceedings, and potential Plaintiffs who had not yet filed their cases"). The global settlement agreement in Guidant provided the district court with authority over the administration of the settlement proceedings, including the authority to decide the amount of fees for common benefit payment. Id. at *4. In determining the amount of the common benefit payment fees, the court also addressed the reasonableness of contingent fee contracts, taking into consideration the economies of scale provided by the coordinated proceedings and the global settlement. Id. at *17-19. Accordingly, the court capped all individual case contingency fees at 20%, reserving to the parties the right to petition to the special masters for an upward departure subject to certain limiting factors. Id. Pursuant to the court's limitations, however, no counsel could recover more than 33 %,% in contingent fees. Id. 14 The court's approach to attorney fees in Guidant is consistent with the decisions of other courts in similar circumstances. For example, in the In re Silicone Gel Breast Implant MDL, the court recognized a settlement class and allocated 25% of the $4.2 billion settlement fund for attorneys' fees. In re Silicone Gel Breast Implant Prods. Liab. Litig., MDL No. 926, 1994 WL 114580, at *4 (N.D. Ala. 1994). Although the settlement ultimately fell through for other reasons, the court suggested that individual contingent fees should be capped at approximately 25% of each plaintiff's net recovery because of the considerable benefits provided by the economies of scale unique to that litigation. See id.; see also PAUL D. RHEINGOLD, LITIGATING MASS TORT CASES § 7:52 (2006) (describing in detail the court's proposed framework for 14 See also Contingent Fees in Mass Tort Litigation, supra, at 116-20 (collecting cases and examining resolutions of contingent fee arrangements); PAUL D. RHEINGOLD, LITIGATING MASS TORT CASES § 7:46 (2006) (same). Unlike the fees in the present case, the contingent fees in Guidant apparently did not include the common benefit fees. -17- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08127/2008 Page 18 of 21 apportioning fees). Similarly, in Zyprexa the court addressed the issue of contingent fees by conducting a thorough analysis of the complexity of the issues of the case, the economies of scale offered by the global settlement, and the persuasive authority of several state rules and statutes. In re Zyprexa, 424 F. Supp. 2d at 496. Given the unique contours of that case, the court in Zyprexa capped contingent fees at 35%, reserving the right to depart upward to 37.5% or downward to 30% based on the facts of each individual case. Id. These decisions provide helpful guidance for the Court in approaching the fee determination in the instant case. 3. Determining reasonable fees in the context of the Vioxx global settlement As an initial matter, the Court notes that this is essentially a products liability case, and all products liability cases pose significant challenges to plaintiffs' counsel. The risk of loss for plaintiffs' counsel in these cases is considerable. In addition, the basic challenges inherent in any products liability case were compounded in this case by a host of complex legal issues unique to the instant litigation, including (to name only a few) the learned intermediary doctrine, contributory negligence, causation, federal preemption laws, and Merck's assertion of attorney- client privilege with respect to thousands of documents in its possession. The risks associated with pursuing these cases became even more daunting in light of the verdicts returned by juries in this Court's bellwether trials-only one of the six trials resulted in a verdict for the plaintiff. On a single-case basis, therefore, reasonable contingent fees might range from 33% to 40% of the total recovery for each claimant. In setting a reasonable limitation on contingent fees, the Court is also mindful of the many contributions made by plaintiffs' counsel in furtherance of the administration of the global -18- ! fA Y Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08127/2008 Page 19 of 21 settlement proceedings. Without the dedication of plaintiffs' counsel from across the nation, the approximately 50,000 claimants currently enrolled in the settlement would have faced considerable difficulties in securing and producing the appropriate records necessary to enroll in the settlement. Nevertheless, the Court must assess the reasonableness of the contingent fees in light of the fact that the economies of scale have led to a global settlement offering considerable benefit to the attorneys. Instead of pursuing individual discovery, filing individual motions, engaging in individual settlement negotiations, or preparing individual trial plans, attorneys for eligible claimants who wish to participate in the settlement need only enroll the claimants in the settlement and then carefully monitor their progress through the claims valuation process. These economies of scale must cut both ways. The attorneys have benefited from a uniform and highly efficient resolution procedure; the claimants should similarly benefit from fees reduced to reflect that uniformity and efficiency. Even though the unique facts of certain cases may have initially warranted disparate contingent fee arrangements, these individual characteristics no longer control the calculus for determining reasonable fees. See In re Guidant, 2008 WL 682174, at * 18 ("Because of the mass nature of this MDL, the fact that several firms/attorneys benefited from economies of scale, and the fact that many did or should have benefited in different degrees from the coordinated discovery, motion practice, and/or global settlement negotiations, there is a high likelihood that the previously negotiated contingency fee contracts would result in excessive fees."); In re Zyprexa, 424 F. Supp. 2d at 493 ("[T]hese firms all benefitted from the effectiveness of coordinated discovery carried out in conjunction with the plaintiffs' steering committee and from other economies of scale, suggesting a need for reconsideration of fee -19- e ?? v Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/2712008 Page 20 of 21 arrangements that may have been fair when the individual litigations were commenced."). In consideration of the various state rules dealing with contingent fees and the decisions of other district courts faced with comparable situations, the Court finds that the individual contingent fee arrangements for attorneys representing claimants enrolled in the Vioxx global settlement should be capped at 32% plus reasonable costs. 15 In reaching this detennination, the Court acknowledges the complexity and risk involved in pursuing these cases as well as the fact that any award for common benefit work will later be deducted from this sum.16 Nevertheless, in light of the large number of plaintiffs, the global settlement, the considerable settlement fund, and the unique contours of this litigation, the Court finds that this is a fair and reasonable framework for apportioning fees. Although perhaps a reduction from the standard 33%3% to 40% contingent fee applicable on a single-case basis, this reduction will not result in a paltry award for the attorneys. With a total settlement fund of $4.85 billion, limiting attorneys' fees to 32% of the net recovery means that the attorneys in this case will receive more than $1.55 billion. III. CONCLUSION In consideration of the economies of scale offered by the global settlement proceedings and all of the above expressed reasons, IT IS ORDERED that contingent fee arrangements for all 15 The Court notes that this percentage is the maximum that any counsel representing claimants enrolled in the Vioxx global settlement may charge in contingent fees. To the extent that any state rule or statute requires a recovery below this percentage, or to the extent that any individual parties may have agreed to a lower percentage contingent fee, this percentage acts only as a ceiling and does not supersede state rules or statutes or reasonable agreements between claimants and their attorneys. 16 It bears repeating that under no circumstances shall any claimant pay more than 32% of their total award towards attorneys' fees (not including costs). A percentage of the individual attorneys' fees will be used to pay the Common Benefit Fund. Because only interim payments are currently being distributed, the mechanics of withholding common benefit fees will be -20- 11,0 r Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 21 of 21 attorneys representing claimants in the Vioxx global settlement shall be capped at 32% plus reasonable costs. At a later date after due notice and an opportunity for all counsel to be heard, the Court will determine the appropriate sum for common benefit work. This sum will be deducted from the above amount, reducing the individual attorneys' fees across the board. New Orleans, Louisiana, this 27th day of August, 2008. UNITED STATES DISTRICT JUDGE finalized upon the ultimate calculation of claimants' total awards. -21- R O o00 -b ? a D -T, .. =i 3 DEBORAH McGARY, Executrix of the Estate of MARY E..GONSER, Deceased and DEBORAH McGARY, in her own right, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MERCK & CO., INC., Defendant NO. 09-956 CIVIL TERM ORDER OF COURT AND NOW, this 24`h day of February, 2009, upon consideration of Plaintiffs Petition To Approve Settlement and Distribution of Wrongful Death and Survival Actions, a Rule is hereby issued upon all interested parties, including the Pennsylvania Department of Revenue, to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of service. SERVICE OF THIS RULE is to be made by Plaintiffs counsel and a proof of service shall be filed with the Prothonotary. BY THE COURT, C esley O r, Jr., 41H. Weiss, Esq. Gregory S. Spizer, Esq. Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley 1710 Spruce Street Philadelphia, PA 19103 Attorneys for Plaintiff 9 : $,I Q3 831 olooz e BY: ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY SOL H. WEISS, ESQUIRE GREGORY S. SPIZER, ESQUIRE Identification Nos. 15925/82435 1710 Spruce Street Philadelphia, PA 19103 (215) 790-4578 Attorneys for Plaintiff DEBORAH MCGARY, Executrix of the Estate of MARY E. GONSER, Deceased and DEBORAH MCGARY, in her own right v. MERCK & CO., INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PROOF OF SERVICE I, Amber M. Racine, Esquire, am a lawyer at the law firm of Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C., attorneys for Plaintiff herein. I hereby certify that on March 3, 2009, I directed that this Honorable Court's Order, requiring all interested parties who wish to object to the proposed distribution of settlement proceeds to show cause why the relief requested should not be granted, be served upon the following parties: 1. Donald Gonser, 28 Cardamon Drive, Mechanicsburg, PA 17050. A copy of the letter and return receipt are attached as Exhibit "A". 2. Deborah McGary, 380 Hitchcock Road, Unit #42, Waterbury, CT 06705. A copy of the letter and return receipt are attached as Exhibit "B". The Pennsylvania Department of Revenue sent correspondence to my attention on February 11, 2009 explaining that the Department has no objection to the proposed distribution. Their correspondence is attached as Exhibit "C". ER M. RACINE, ESQUIRE Sworn to and subscribed before me this day of , 2009 Notary Public My Commission Expires: E XHIBIT (04 N 0) DEBORAH McGARY, Executrix of the Estate of MARY E..GONSER, Deceased and DEBORAH McGARY, in her own right, Plaintiff V. MERCK & CO., INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-956 CIVIL TERM ORDER OF COURT AND NOW, this 24`x' day of February, 2009, upon consideration of Plaintiff's Petition To Approve Settlement and Distribution of Wrongful Death and Survival Actions, a Rule is hereby issued upon all interested parties, including the Pennsylvania Department of Revenue, to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of service. SERVICE OF THIS RULE is to be made by Plaintiffs counsel and a proof of service shall be filed with the Prothonotary. Sol H. Weiss, Esq. Gregory S, Spizer, Esq. Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley 1710 Spruce Street Philadelphia, PA 19103 Attorneys for Plaintiff BY THE COURT, J15 Anapol Schwartz A T T O R N E Y S AT L A W Amber M. Racine, Esquire 1710 Spruce Street Philadelphia PA 19103 aracine@anapoischwartz.com (215) 790-4564 Direct Dial (215) 875-7740 Direct Fax March 3, 2009 Mr. Donald Gonser 28 Cardamon Drive Mechanicsburg, PA 17050 Re: Estate of Marv E. Gonser - Vioxx Claim Dear Mr. Gonser: 1710 Spruce Street Philadelphia, PA 19103 1040 Kings Highway North Suite 304 Cherry Hill, NJ 08034 252 Boas Street Harrisburg, PA 17102 146 North 6th Street Reading, PA 19601 230 North Monroe Street Media, PA 19063 89 12"' Street Wheeling, WV 26003 866-735-2792 Toll Free www.Anapa(Schwaru.com YOU ARE HEREBY NOTICED THAT, the Court of Common Please of Cumberland County has received and filed Plaintiff's Petition to Approve a Settlement and Distribution of Wrongful Death and Survival Actions. The Court has issued the enclosed Order, requiring all interested parties who wish to object to the proposed distribution to show cause why the relief requested should not be granted. If you object to the proposed distribution, you must submit your written objections or Response to the Petition within fourteen (14) days from the date of this correspondence, to the following address: Honorable Judge J. Wesley Oler, Jr., Cumberland County Court of Commons Pleas, 1 Courthouse Square, Room 100, Carlisle, PA 17013. Thank you and should you have any questions, please do no Ln Very trui ru `n m M (BER i a 0 AMR/sdt Enclosure cc: Schmidt, Kramer, P.C. CERTIFIED AND REGULAR MAIL ® Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. zM ? Agent I,4 ? Addressee B. RjjW by (Printed Name) C. Date of Delivery c? D T_ Go D. Is delivery from item 1? ? Yes if YES 11i 461; ress below: ? No ?? ?? V'r °s s _6 3. Type .?. I / TI ZRegisterr9 ?S ? Return Receipt for Merchandise ? insured mail ? C.O.D. 4. Restricted Delivery? (Bars Fee) ? Yes 2. Article Number (Transfer from service 7006 3450 0003 3642 5978 --? ,? PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 ¦ Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. A Addressed to: EXHIBIT (a low 4) EJ Anapol Schwartz A T T O R N E Y S AT L A W Amber M. Racine, Esquire 1710 Spruce Street Philadelphia PA 19103 aracine@anapolschwartz.com (215) 790-4564 Direct Dial (215) 875-7740 Direct Fax March 3, 2009 Ms. Deborah E. McGary 380 Hitchcock Road Unit #42 Waterbury, CT 06705 Re: Mary Gonser, Deceased - Vioxx Claim Dear Ms. McGary: YOU ARE HEREBY NOTICED THAT, the Court of Common Please of Cumberland County has received and filed Plaintiff's Petition to Approve a Settlement and Distribution of Wrongful Death and Survival Actions. The Court has issued the enclosed Order, requiring all interested parties who wish to object to the proposed distribution to show cause why the relief requested should not be granted. 1110 Spruce Street Philadelphia, PA 19103 1040 Kings Highway North Suite 304 Cherry Hill, NJ 08034 252 Boas Street Harrisburg, PA 11102 146 North 6th Street Reading, PA 19601 230 North Monroe Street Media, PA 19063 89 1211 Street Wheeling, WV 26003 866-135-2192 Toll Free www.AnapoISchwartz.com if you object to the proposed distribution, you must submit your written objections or Response to the Petition within fourteen (14) days from the date of this correspondence, to the following address: Honorable Judge J. Wesley Oler, Jr., Cumberland County Court of Commons PteaS,__? Courthouse Square, Room 100, Carlisle, PA 17013. Thank you and if you should have any questions, please do -i- I it I Very tru `r' ru a ? .. rC, M Qoata9e $ [A ?LU I?BER la C7 C3 AM R/sdt Enclosure cc: Schmidt, Kramer, P.C. CERTIFIED AND REGULAR MAIL Certified Fee Retum Receipt Fed (Endorsement Re* 1110d) Restrioted 09WOry Fee (Endorsemen( Required) Feea 0 Lrl m ° r.lva direei, ?p r`- or PO Sax No_ Postmark Here Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. A, Signature ? Agent X Q9? c Addressee B. Received by (Pdnfed Name) C. to of Delivery h E ftK-x3, Eh D. Is delivery address different ? Yes If YES, enter delivery a EN No MAR 0 7 2009 Val /?? L-? 3. Type iNed Mail Mail FRRegistered ? etCttandise 6V70-6" ? insured Mail E3 C.O.D. a 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7006 3450 0003 3642 5954 (Transfer from servic PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 'Q L'A ?t 0 ?x ?-44 Ch?- EXHIBIT "C" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE BUREAU OF INONIDUAL TAXES PO Box 280601 HARRISBURG, PA 17128-0601 February 11, 2009 Amber M. Racine Anapol Schwartz 1710 Spruce Street Philadelphia, PA 19103 Re: Estate of Mary E. Gonser File Number 2104-0366 Court of Common Pleas Cumberland County Dear Ms. Racine: The Department of Revenue received the Petition for Approval of Settlement Claim to be flied on behalf of the above-referenced Estate in regard to a wrongful death and survival action. It was forwarded to this Bureau for the Commonwealth's approval of the allocation of the proceeds paid to settle the actions. Pursuant to the PetMon,.the 69 year old decedent died as a result of a pulmonary embolism. The sole heir to decedent's estate is her spouse. Therefore, any proms paid to settle the survival action would pass to decedent's spouse and would be subject to a zero percent Inheritance tax rate. 72 P.S. §9116(ax1.1 xii). Accordingly, regardless of the allocation of the subject proceeds, there would be no inheritance tax consequences. Please be advised that based upon these facts and for)nheritance tax purposes only, this Department has no objection to the proposed allocation of the net prate of this action, $33,959.29 to the wrongful death claim and $3,773.25 to the survival clalm. Proceeds of a survival action are an asset included in the decedent's estate and, although subject to the imposition of a zero percent Inheritance taut rate in this instance, they must be reported on decedent's Pennsylvania inheritance tax return. 42 Pa.C.S.A. § 8302; 72FP.S. § 9106, 9107. Costs and fees must be deducted in the same percentages as the proceeds are allocated. In re Estate of , 669 A.2d 1059'(Pa. Cmwkh. 1995). I trust that this letter is a sufficient representation of the Department's position on this matter. As the Department has no objections to the Petition, an attorney from the Department of Revenue will not be attending the hearing regarding it. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. . IY. non E. Bake ..Trust.Vaiuation Specialist _ .??.:.; ;;- ..Inheritantre.Tax Division Bureau. of Individual Taxes Plan: 717-783-5824 - Fax: 717-783-3467 - V"L: shab*gr4Kate. oa. us C? 6 CQ ?r F X, F ti+ 'f CO ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY BY: SOL H. WEISS, ESQUIRE GREGORY S. SPIZER, ESQUIRE AMBER M. RACINE, ESQUIRE Identification Nos. 15925/82435/208575 1710 Spruce Street Philadelphia, PA 19103 (215) 735-1130 Attorneys for Plaintiff DEBORAH MCGARY, Executrix of the Estate of MARY E. GONSER, Deceased and DEBORAH MCGARY, in her own right COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW V. MERCK & CO., INC. No. 09-956 CIVIL TERM MOTION TO MAKE RULE ABSOLUTE AND NOW, comes Petitioner, Deborah McGary, Executrix of the Estate of Mary E. Gonser, Deceased, by and through her attorneys, Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. and files this Motion to Make Rule Absolute and state the following reasons in support thereof: 1. On February 24, 2009, the Court issued a Rule upon all interested parties herein to show cause, if any they had, why Plaintiff's Petition to Approve Allocation of Settlement and Distribution of Wrongful Death and Survival Actions, should not be granted. The Rule was returnable fourteen (14) days after service of same by Petitioner's Counsel. A true and correct copy of the Rule to Show Cause is attached hereto and marked as Exhibit "A". 2. The said Rule to Show Cause was served upon Donald Gonser on or about March 3, 2009. A true and correct copy of the letter serving Mr. Gonser dated March 3, 2009, as well as a copy of the return receipt confirming delivery on March 6, 2009, is attached hereto and marked as Exhibit "B". The said Rule to Show Cause was served upon Deborah McGary on or about March 3, 2009. A true and correct copy of the letter serving Ms. McGary dated March 3, 2009, as well as a copy of the return receipt confirming delivery on March 7, 2009, is attached hereto and marked as Exhibit "C". 4. The Pennsylvania Department of Revenue provided correspondence to Petitioner's Counsel on or about February 11, 2009, confirming that the Department has no objections to the Petition. A true and correct copy of the Department's correspondence is attached hereto and marked as Exhibit "D". No interested, served party has responded to the Rule to Show Cause. The Department of Revenue responded to the filed Petition with the above-mentioned correspondence confirming that they have no objection to the Petition and the proposed allocation. See Exhibit "D". WHEREFORE, Petitioner, Deborah McGary, Executrix of the Estate of Mary E. Gonser, Deceased, respectfully moves this Court to make the Rule Absolute and to grant Plaintiff's Order of Distribution (for the 40% interim payment). Respectfully submitted, ANAPOL, SCHWARTZ, WEISS COHAN. FBY: Attorney for Pe titioner ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY BY: SOL H. WEISS, ESQUIRE GREGORY S. SPIZER, ESQUIRE AMBER M. RACINE, ESQUIRE Identification Nos. 15925/82435/208575 1710 Spruce Street Philadelphia, PA 19103 (215) 735-1130 DEBORAH MCGARY, Executrix of the Estate of MARY E. GONSER, Deceased and DEBORAH MCGARY, in her own right Attorneys for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW V. MERCK & CO., INC. No. 09-956 CIVIL TERM CERTIFICATE OF SERVICE This is to certify that in this case complete copies of all papers contained in the Motion to Make Rule Absolute were mailed to all interested parties by first class mail on May 7, 2009. ANAPOL, SCHWARTZ, WEISS, COHAN FELDNA N & SMALLEY BY: B R M. RACINE, ESQUIRE Attorney for Plaintiff EXHIBIT "A" DEBORAH McGARY, Executrix of the Estate of MARY E.. GONSER, Deceased and DEBORAH McGARY, in her own right, Plaintiff V. MERCK & CO., INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-956 CIVIL TERM ORDER OF COURT AND NOW, this 24"' day of February, 2009, upon consideration of Plaintiff's Petition To Approve Settlement and Distribution of Wrongful Death and Survival Actions, a Rule is hereby issued upon all interested parties, including the Pennsylvania Department of Revenue, to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of service. SERVICE OF THIS RULE is to be made by Plaintiff's counsel and a proof of service shall be filed with the Prothonotary. BY THE COURT, G esley O r, Jr., ! Sol H. Weiss, Esq. Gregory S. Spizer, Esq. Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley 1710 Spruce Street Philadelphia, PA 19103 Attorneys for Plaintiff EXHIBIT "B" i1i Anapol Schwartz A T T O R N E Y S AT L A W Amber M. Racine, Esquire 1710 Spruce Street Philadelphia PA 19103 aracine@anapolschwartz.com (215) 790-4564 Direct Dial (215) 875-7740 Direct Fax March 3, 2009 Mr. Donald Gonser 28 Cardamon Drive Mechanicsburg, PA 17050 Re: Estate of Marv E. Gonser - Vioxx Claim Dear Mr. Gonser: 1710 Spruce Street Philadelphia, PA 19103 1040 Kings Highway North Suite 304 Cherry Hill, NJ 08034 252 Boas Street Harrisburg, PA 17102 146 North 6th Street Reading, PA 19601 230 North Monroe Street Media, PA 19063 8912"' Street Wheeling, WV 26003 866-735-2792 Toll Free www.AnapoISchwartz.com YOU ARE HEREBY NOTICED THAT, the Court of Common Please of Cumberland County has received and filed Plaintiff's Petition to Approve a Settlement and Distribution of Wrongful Death and Survival Actions. The Court has issued the enclosed Order, requiring all interested parties who wish to object to the proposed distribution to show cause why the relief requested should not be granted. If you object to the proposed distribution, you must submit your written objections or Response to the Petition within fourteen (14) days from the date of this correspondence, to the following address: Honorable Judge J. Wesley Oler, Jr., Cumberland County Court of Commons Pleas, 1 Courthouse Square, Room 100, Carlisle, PA 17013. Thank you and should you have any questions, please do not hesitate to contact me. Very truly yours, 4BER RACINE AMR/sdt Enclosure cc: Schmidt, Kramer, P.C. CERTIFIED AND REGULAR MAIL Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space Dermits 1. Ar N Addressed to: 1 C jq from item 1? U Yes ss below: 0 No e s'1it Return Receipt for Merchandise ? C.O.D c. Hrucie Number (Transfer from service 7006 3450 0003 3642 5978 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 EXHIBIT "C" Anapol Schwartz A T T O R N E Y S AT L A W Amber M. Racine, Esquire 1710 Spruce Street Philadelphia PA 19103 aracine@anapolschwartz.com (215) 790-4564 Direct Dial (215) 875-7740 Direct Fax March 3, 2009 Ms. Deborah E. McGary 380 Hitchcock Road Unit #42 Waterbury, CT 06705 Re: Mary Gonser, Deceased - Vioxx Claim Dear Ms. McGary: 1710 Spruce Street Philadelphia, PA 19103 1040 Kings Highway North Suite 304 Cherry Hill, NJ 08034 252 Boas Street Harrisburg, PA 17102 146 North 6th Street Reading, PA 19601 230 North Monroe Street Media, PA 19063 8912"' Street Wheeling, WV 26003 866-735-2792 Toll Free www.AnapoiSchwartz.com YOU ARE HEREBY NOTICED THAT, the Court of Common Please of Cumberland County has received and filed Plaintiff's Petition to Approve a Settlement and Distribution of Wrongful Death and Survival Actions. The Court has issued the enclosed Order, requiring all interested parties who wish to object to the proposed distribution to show cause why the relief requested should not be granted. If you object to the proposed distribution, you must submit your written objections or Response to the Petition within fourteen (14) days from the date of this correspondence, to the following address: Honorable Judge J. Wesley Oler, Jr., Cumberland County Court of Commons Pleas, 1 Courthouse Square, Room 100, Carlisle, PA 17013. Thank you and if you should have any questions, please do not hesitate to contact me. Very truly yours, +ABER RA N AMR/sdt Enclosure cc: Schmidt, Kramer, P.C. CERTIFIED AND REGULAR MAIL Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. f A. Signature ? Agent ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. X? Addressee ¦ Print your name and address on the reverse so that we can return the card to you. B. Received by (Printed Name) C. ate of Delivery ¦ Attach this card to the back of the mailpiece, . (" or on the front if space permits. o ? Yes D. Is delivery address different f ?r No 1. Article Addressed to: If YES, enter delivery a sr C- 9 U s oon MAR ' sG 3. Se Ice Type ss Mall e L Mail ertified ??< f (-? ;?1 Registered ? e? teoei?fo erchandise `- 1 It t r ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7006 3450 0303 3642 5954 (Transfer from servic 102595-02-M-1540 Domestic Return Receipt PS Form 3811, February 2004 EXHIBIT "D" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE BUREAU OF INDIVIDUAL TAXES PO Box 280601 HARRISBURG, PA 17128-0601 February 11, 2009 Amber M. Racine Anapol Schwartz 1710 Spruce Street Philadelphia, PA 19103 Re: Dear Ms. Racine: Estate of Mary E. Gonser File Number 2104-0366 Court of Common Pleas Cumberland County The Department of Revenue received the Petition for Approval of Settlement Claim to be filed on behalf of the above-referenced Estate in regard to a wrongful death and survival action. It was forwarded to this Bureau for the Commonwealth's approval of the allocation of the proceeds paid to settle the actions. Pursuant to the Petition, the 69 year old decedent died as a result of a pulmonary embolism. The sole heir to decedent's estate is her spouse. Therefore, any proceeds paid to settle the survival action would pass to decedent's spouse and would be subject to a zero percent inheritance tax rate. 72 P.S. §9116(a)(1.1)(ii). Accordingly, regardless of the allocation of the subject proceeds, there would be no inheritance tax consequences. Please be advised that based upon these facts and for, inheritance tax purposes only, this Department has no objection to the proposed allocation of the net proceeds of this action, $33,959.29 to the wrongful death claim and $3,773,25 to the survival claim. Proceeds of a survival action are an asset included in the decedent's estate and, although subject to the imposition of a zero percent inheritance tax rate in this instance, they must be reported on decedent's Pennsylvania inheritance tax return. 42 Pa.C.S.A. § 8302; 72?P.S. § 9106, 9107. Costs and fees must be deducted in the same percentages as the proceeds are allocated. In re Estate of Menyman, 669 A.2d 1059 (Pa. Cmwlth. 1995). I trust that this letter is a sufficient representation of the Department's position on this matter. As the Department has no objections to the Petition, an attorney from the Department of Revenue will not be attending the hearing regarding it. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. :In?onE. ly, Bake Trust Valuation Specialist Inheritance Tax Division Bureau of Individual Taxes PHONE: 717-783-5824 • FAX: 717-783-3467 • Ma: shabaker@state.pa.us FLED , OF THE Pl " ui0T, Y 2CG9 MAY R 3 MAY 13 20A? ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY BY: SOL H. WEISS, ESQUIRE GREGORY S. SPIZER, ESQUIRE /AMBER M. RACINE, ESQUIRE Identification Nos. 15925/82435/208575 1710 Spruce Street Philadelphia, PA 19103 (215) 735-1130 Attorneys for Plaintiff DEBORAH MCGARY, Executrix of the Estate of MARY E. GONSER, Deceased and DEBORAH MCGARY, in her own right v. MERCK & CO., INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL.ACTION - LAW No. 09-956-CIVIL TERM ORDER AND NOW this L I4day of , 2009, the Rule to Show Cause t? filed on February 24, 2009 is made absolute and Plaintiff's Order of Distribution (for the 40% interim payment), is granted, as follows: (a) To: Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. For Attorney Fees $17,756.50 (b) To: WRONGFUL DEATH CLAIM Donald I. Gonser (Widower/Sole Beneficiary) $33,959.29 (c) To: SURVIVAL CLAIM Donald I. Gonser (Payable to the Estate of Mary E. Gonser) $3,773.25 TOTAL: $ 55,489.04 BY THE COURT: 0- J. 0 C\j ?cJ cz ct 'IJ J c.. Q CYN y l t -?1 CZZ) Cl,j ?i 1?