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HomeMy WebLinkAbout09-4986BY: ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY GREGORY S. SPIZER, ESQUIRE AMBER RACINE, ESQUIRE Identification Nos. 82435/208575 1710 Spruce Street Philadelphia, PA 19103 (215) 790-4578 COYNE & COYNE, P.C. LISA MARIE COYNE, ESQUIRE Identification No. 53788 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 Attorneys for Plaintiff E. Carla Bretz, Administratrix of the Estate of Marlin Henry Bretz, Deceased V. MERCK & CO., INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY Oq - qa8( i vi lerk PETITION TO APPROVE SETTLEMENT AND DISTRIBUTION OF WRONGFUL DEATH AND SURVIVAL ACTIONS TO THE HONORABLE JUDGES OF SAID COURT: The Petition of E. Carla Bretz, as Administrator of the Estate of Marlin Henry Bretz, Deceased, by and through her attorney, Gregory S. Spizer, Esquire and Lisa Marie Coyne, Esquire respectfully represent: 1. Petitioner is E. Carla Bretz, who is the Administratrix of the Estate of Marlin Henry Bretz. On July 26, 2006, Petitioner filed the above-captioned wrongful death and survival action on behalf of the Estate of Marlin Henry Bretz, 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 "A". 2. The Decedent, Marlin Henry Bretz, (Date of Birth: August 29, 1942) died from cardiac arrest/respiratory arrest on September 26, 2002, caused by his ingestion of the prescription drug Vioxx. Decedent died intestate. Decedent's death certificate is attached hereto as Exhibit "B". 3. Petitioner was granted Letters of Administration by the Register of Wills in Cumberland County on October 16, 2002. A copy of the Letters of Administration is attached hereto and marked as Exhibit "C". 4. Petitioner filed suit based upon counsel's thorough review of voluminous medical records. 5. On the day of his fatal heart attack, Decedent began to feel pain and tightness in his chest, head and neck. Petitioner, his wife witnessed his duress and drove him to the hospital. Decedent died the following day at the hospital. 6. At the time of his death, Decedent was employed as a terminal operator with Sunoco, Inc. His annual income was $45,000-50,000, an amount which contributed to the household he shared with Petitioner. Decedent's 2001 W-2 is attached hereto as Exhibit "D". 7. 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. 8. 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. 9. 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. 10. On December 17, 2007, Petitioner advised us, her counsel, that she agreed to enroll in the National Vioxx Settlement Program. 11. On January 21, 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 "B". 12. On June 4, 2008, Petitioner's Counsel submitted the medical documents and death certificate referenced in Paragraph 9 to the Settlement's Claims Administrator. -2- 13. On October 30, 2008, Petitioner's claim was assigned the following points award under the settlement: 185.63. 1 14. Counsel was of the professional opinion that the proposed award was reasonable and fair given Mr. Bretz's pre-existing medical conditions and cardiovascular risk factors. 15. On October 30, 2008, Petitioner was advised of the proposed monetary settlement. Petitioner was also advised of the alternative options available to her, 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. 16. On November 10, 2008, Counsel accepted the proposed settlement on behalf of Petitioner. 17. As Petitioner agreed to the points total she was awarded, an interim payment of 40% of her total award was paid at the beginning of December 2008. A gross payment of $142,192.58 was paid to us on behalf of Petitioner's claim by the Vioxx Claims Administrator.2 This money is being held in escrow by Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley. 18. As of today's date, Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley has incurred expenses in the amount of $1,340.54 for which reimbursement is sought. (See cost sheet and ledger attached as Exhibit "F".) These expenses will be deducted from Petitioner's 60% balance award. 19. 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". 20. 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%. Therefore, at this time, Counsel requests $45,501.63 which is 32% of the interim (40%) award. 21. Therefore, the net amount Petitioner will receive is $96,690.95. ` 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 $355,481.45. Z 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- 22. Petitioner requests allocation of the net proceeds of the settlement after deduction of costs and attorney fees as follows: a. Wrongful Death Claim (85%) b. Survival Claim (15%) 23. The reasons for the requested allocation are as follows: Decedent was employed at the time of his death thereby contributing monetarily to his household which he shared with Petitioner, his wife a many years. In addition, he rendered substantial services in the home, including gardening, laundry, cooking and cleaning. The Pennsylvania Department of Revenue has approved the percentage allocation between wrongful death and survival claims. Letter from the Department of Revenue is attached as hereto Exhibit "H". 24. Pursuant to the Pennsylvania Intestacy Statutes, 20 Pa C.S. §2102 (4) and 20 Pa C.S. §2104, Petitioner and Decedent's issue are entitled to the following 3: NAME Mrs. E. Carla Bretz (Spouse) $ 48,345.47 Ms. Wendy Bucher (Daughter) $ 16,115.16 Ms. Robin Mentzer (Daughter) $ 16,115.16 Mr. Brian Bretz (Son) $ 16,115.16 The birth certificates for all three of the Decedent's children are attached ]hereto as Exhibit "I". The listed monetary figures are gross amounts. Each beneficiary's survival action proceeds are likely to change due to inheritance/estate tax payments as well as costs and fees associated with filing the taxes and other required estate processes. Counsel for the Estate of Marlin Henry Bretz, Lisa Marie Coyne, Esq., will file the necessary supplemental inheritance tax return(s) and pay any required taxes. Subsequent to said payment(s), she will disburse the net survival action proceeds to each beneficiary. -4- 25. Petitioner's Counsel served a copy of this Petition to the intestate heirs of Decedent (as provided in 20 Pa. C.S. §2101 et. seq.) who are as follows: NAME ADDRESS E. Carla Bretz 5177 East Trindle Road Mechanicsburg, PA 17050 Wendy Bucher 34 Robin Circle Halifax, PA 17032 Robin Mentzer 5435 Wertzville Road Enola, PA 17025 Brian Bretz 7073 Key Largo Drive Trailer No. 47 Carlisle, PA 17013 Further, should this Honorable Court issue the proposed Rule to Show Case, the intestate heirs will be served with signed Rule and advised that if they should have any objection to the proposed distribution, they must submit written objections or a Response to the Petition within fourteen (14) days, in accordance with the Rule, to this Honorable Court at the following address: Cumberland County Orphans' Court, 1 Courthouse Square, Room 102, Carlisle, PA 17013 26. In addition, Petitioner served a copy of this Petition on the following interested party: Pennsylvania Department of Revenue -5- WHEREFORE, Petitioner prays that she 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") $45,501.63 (b) To: E. Carla Bretz (Widow) For Wrongful Death Claim For Survival Action (c) To: Wendy Bucher (Daughter) For Wrongful Death Claim For Survival Action (d) To: Robin Mentzer (Daughter) For Wrongful Death Claim For Survival Action (e) To: Brian Bretz (Son) For Wrongful Death Claim For Survival Action TOTAL: Date: l Oct Respectfully submitted, $41,093.64 $7,251.83 $13,697.89 $2,417.27 $13,697.89 $2,417.27 $13,697.89 $2,417.27 $ 142,192.58 ANAPOL, SCHWARTZ, WEISS, FELDMAN & SMALLEY, P.C. GREGORY S. SPIZER, ESQUIRE AMBER RACINE, ESQUIRE Attorneys for Petitioner COYNE & COYNE,P.C. \' 11A w Date: r o 9 BY: -6- SA MARIE COYNE, tomev for Petitioner 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 SUPERIOR COURT OF NEW JERSEY ESTATE OF MARY E. GONSER, DECEASED AND DEBORAH E. MCGARY, IN HER OWN RIGHT PLAINTIFF(S) ATLANTIC COUNTY V. CIVIL ACTION No % ATL-L-10206-06 MERCK & CO., INC., VIOXX LITIGATION Defendant : 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 yo. u fail to answer,. judgment by default maybe 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 procedure. 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 Donard T'. Pheran 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 ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLE'Y, 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 E. CARLA BRETZ, AS ADMINSTRATOR OF THE ESTATE OF MARLIN HENRY BRETZ, DECEASED SUPERIOR COURT OF NEW JERSEY PLAINTIFF(S) V. ATLANTIC COUNTY CIVIL ACTION No% ATL-L-7472-06 MERCK & CO., INC., Defendant VIOXX LITIGATION SUMMONS The State of New Jersey, to the Above Named Defendant(s): YOUARE HEREB Y 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 maybe 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 procedure. 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: August 2, 2006 oona l fT. Pheran 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 ? 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C'? ro r <3 (n y y n Ow- N O M N H •• ?< x o? 7 N n x ; 0 z M*0 Pi ddw ,P y m o b 0 ?! b I ( M m y ?9C w> r tN M w 4 4 to M to ~ N zr) r .rj ° to zG to y z tt o t H 3 R, -< 4 o ? x 0 to M 0 p 7 o ;a hi (0 y to C to Z C z z K z O'] 2PO co 4 C -3 H ° M M x x to 0 C/3 .0 Do 0 y 0 T' N M z n] H to ft+ nz °l n n c? ° W H 6 •< z n n M w CIVIL CASE INFORMATION STATEMENT FOR USE BY CLERK'S OFFICE ONLY CIS) CIS) PAYMENT TYPE: CK CG CA ( ( Q?e,OR cOU?r Use for initial Law Division -Civil Part pleadings (not b 00 CHG/CK NO. 000 z motions) under Rule 4:5-1. AMOUNT: 0 000 Pleading will be rejected for filing, under Rule 1:5-6(c), if information above the black bar is not completed or OVERPAYMENT: t affixed tur is n tt i if ' o . a orney s s gna e BATCH NUMBER: ATTORNEYIPRO 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. i ?- 11) 20Co 4 OFFICE ADDRESS O UMENTTYPE 1040 Kings Highway North, Suite 304 Complaint Cherry Hill, NJ 08034 JURY DEMAND AYES [:]NO 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? =YES ©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? ?? OYES ZNO NUMBERS DO YOU ANTICIPATE ADDING NAME OF DEFENDANTS PRIMARY INSURANCE COMPANY, IF KNOWN ANY PARTIES (arising out of [] same transaction or occurrence)? 1:1 YESM NO IZI UNKNOWN NONE THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE. CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION A. DO PARTIES HAVE A CURRENT, IF YES, IS THAT EMPLOYER-EMPLOYEE FRIENDlNEIGHBOR OTHER (explain) R TI NSHIP PAST OR RECURRENT RELATIONSHIP? ?YES©NO ELA O ? FAMILIAL BUSINESS B. DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES ? ? YES NO BY THE LOSING PARTY? USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR ACCELERATED DISPOSITION: RECD FILED SUPERIOR COURT OF NEW JERSEY AU G 3 0 20061 Q DO YOU OR YOUR CLIENT NEED ANY IF YES, PLEASE IDENTIFY THE DISABILITY ACCOMMODATIONS? AYES a NO REQUESTED ACCOMMODATION: WILL AN INTERPRETER BE NEEDED? ?YES Z NO IF YES, FOR WHAT LANGUAGE: ATTORNEY SIGNAT RE U Revised effective 411105 it CIVIL CASE INFORMATION STATEMENT coo OOa r 1300 (CIS) r*Use for initial pleadings (not motions) under Rule 4:5-1 CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.) Track 1-150 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 CONTRACT/COMMERCIAL 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 / 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 ENVIRONMENTAUENVIRONME14TAL COVERAGE LITIGATION 303 MT. LAUREL 508 COMPLEX COMMERCIAL 701 ACTIONS IN LIEU OF PREROGATIVE WRITS Mass Tort (Track IV) 240 REDUX/PHEN-FEN (formerly "DIET DRUG") 601 ASBESTOS 248 CIBA GEIGY 619 VIOXX 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: F] Verbal Threshold ? Putative Class Action n Elitle 59 ANAPOL, SCHWARTZ, WEISS, COHAN, RECD FILED FCLDNIAN & SMALLEY, P.C. SUPERIOR COURT BY: DAVID JACOBY, ESQUIRE OF NEW JERSEY GREGORY S. SPIZER, ESQUIRE JUL 2.6 2006 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 E. CARLA BRETZ, as ATL-L-16t?2_oGMT Administratrix of the Estate Case Code Number: 619 of MARLIN HENRY BRETZ, Deceased Plaintiff(s) 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 atleges 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, E. Carla Bretz (hereinafter referred to as "Plaintiff'), is an individual who resides at 5177 E. Trindle Road, Mechanicsburg in Pennsylvania. 2A, On or about September 25, 2002, Plaintiff/Decedent suffered the following injury(ies) as a result of ingesting Vioxx: Myocardial Infarction resulting in Death. 2B. Plaintiff brings this action: X on behalf of himself or herself. X as the representative of Marlin Henry Bretz. as the parent and natural guardian ad litem of , a minor born on X as Administrator of the Estate of Plaintiffs Marlin Henry Bretz, (hereinafter "Decedent", see Letters of Administration annexed hereto as Exhibit A), who died on September 26, 2002. 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 approximately July 19, 2001 to September 26, 2002. 4. Plaintiffs spouse, E. Carla Bretz, (hereinafter referred to as "Spouse") is an adult individual residing at 5177 E. Trindle Road, Mechanicsburg in Pennsylvania, and claims damages as a result of- X Loss of Consortium: date of marriage August 24, 1986. X Wrongful Death: date of death September 26, 2002. 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 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. DAVID JACOBY, ESQUIRE GREGORY S. SPIZER, ESQUIRE Dated: 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 1'4v ?? DAV JACOBY, ESQUIRE GREGORY S. SPIZER, ESQUIRE Dated: 4 DESIGNATION Or TRIAL COUNSEL Pursuant to R. 4:25-4, David Jacoby, Esquire, Gregory S. Spizer, 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 Dated: 7 - a5- 7 ce iv CERTIFICATION OF NOTICE Pursuant to N.J.S.A., 56:8-20, 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 Dated: 7 -a5-'Z006 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, $2.00 P 8606759 No. I I I Ub;U H.. 2187 PLPRINT W IMANENI ACKINK STAMP. NAME OFOECEDENT IFS.&SWO, LAMI SES SOCIALSECUIYTYNUMBER DATE Oi DEA7N.MaIgl. pay,'+WI ,. Marlin Henry Bretz 2-male I - - 161 - 34 -' 4845 e Ci )UUc2 AGE IUP 9W..,I UNDERI YEAR UNDER ID/Y 00EOF11MM WFITHPLACE ey," MACE OF DEATH Icr- A ol.._,.. wonxiomen cwhy, wN 60 M.W. 1 D.Y. HM" t t/E.AM 'MaN..O y, Y0..1 SIM. w fa.wCdulaH THEM YN. ' 8 /29/1942 e ERIO,-- G ODA O HMMe ? Ovp«.1 ? COUNTYDf N CRY. NYWIL rwo or OEATN NAaIEMwtwA.a.,gw]V..IaMM..bI. CEDE OIY6IN7 RAC -Am.nCY1lnaw, Sh". WIM...K. Cumberland E. Pennsboro Ti1tp. Ub s/71(?, jC w . w ?f w'?wV1 whiteFee, v OECEOENT USUALO C C UPPATION KWD 1WSIIAiS V TRY WABOEC DI EVERIN DEC6DE T•SE RqN MAIBTALBWU •Yaruq SURVIVING SPOUSE 7 6 MMEDfOfIC U ' p ? ? 'ol?wb"1d..d.p y1 eddl . E6 wN. q.?nVMnnrlM> ) 1. 14 fWIV.01$p.cl " MV4 1 r G' ""? "a? 11a Terminal operator l/ troltumn • 2 ' r 1narried ina Carla Sentz DECEDENT'S MAILING AI]ORESS I5Nµ Cftrrg.. SUM. ID CoMI DECEDENT'! ACTUAL 17. SIAM. PA Q ?Y. d4..dr.lr.a T . 04 vE ? 5177 E. Trindle Rd . . . pq .q , - A6 . Mechani b P 17 lNed new We) Cumt?rlardd '°"""`p7 ? I.. cs ur A 55 wa . .OU.l lan in. Can .aN ?.<•rAao _ FATNER'5 NAME %I -, M401.. La.R MOTHER'S NAME IF4X MOM. M.d.n SWrgp* it, Harvie A. Bretz to. Emma, Onto n d1FONMAIIT'S (TYP-PI.4 r QII..L SW. LpLodN INFORMANT` MAIL6/0 *AXMW a Bretz 296. E. Ca 17.7 Last Trindl Rd.. METIIOOOf SPOBITION ECFOISPOSITgN E • Money r CEIMIry C7MMNIY IOCATION•CtlylT.wL IB tod. B./IIL® GalnuaA? R.nldrN hom&M.? (MNr., D.V.vw p0IM1fMIi odnN.m? «KNaP.<•? ?O Oct. 1, 2002 I Cumberland valley Mam., Gar. 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If • < ,? ANO ApORE56??Of PERSON WHO COMPLETEDCAU OF DERV )_ I.In 371 Typ.a PliN • ' YEOICALEKAYOI,600O.tER On ltI.4MJ.of.UMLIMANIOA.nN ..l .In my Opl .n,d.d h«cwc. . M.dU... plap,.nddu ....wM(a)add II--- ? - ?QKt? /{. d, f1SYSJG. F6/? ..... .. . ...... .. ... ...... r AEG $I R'S SKiNAfURE AND IMMBI/EA?/ lf'I[LEOµbv. 0.Y. 1..11 33 Ate. a J!! Q i?t'1 °AJ? /, 7- ]/. c/ 1 zrw Z Local Registrar J/( Date COMMONWEALTH OF PENNSYLVANIA • DEPARTMENT OF HEALTH • VITAL RECORDS CERTIFICATE OF DEATH vs EXHIBIT "C" Register of Wills of CUMBERLAND County, Pennsylvania Certificate of Grant of Letters No. 2002-00932 PA No. 21-02-0932 ESTATE OF BRETZ MARLIN HENRY (Imi, kiRSE, Mil 1E) Late of HAMPDEN TOWNSHIP , Deceased Social Security No WHEREAS, BRETZ MARLIN HENRY , CUMBERLAND COUNTY died on the 26th day of September 2002 and WHEREAS, the grant of letters of administration is required for the administration of the estate. THEREFORE, I, MARY C. LEWIS Register of Wills in,and-for the County of CUMBERLAND in. the Commonwealth of Pennsylvania, have this day granted Letters of Administration to BRETZ E. CARLA { , who has duly qualified as administrator(rix) of the estate of the above named decedent and has agreed to administer the estate according to law, all of which fully appears of record in my office at CUMBERLAND COUNTY COURT HOUSE, CARLISLE, PENNSYLVANIA. IN TESTIMONY WHEREOF, Ihave hereunto set my hand and affixed the seal of my office on the 16th day of October 2002. 161-34-4845 late of HAMPDEN TOWNSHIP P_ O **NOTE** ALL NAMES ABOVE APPEAR (LAST, FIRST, MIDDLE) STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND estate of MARLIN HENRY BRETZ SHORT CERTIFICATE I, GLENDA FARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby, certify that on the 16th day of October, Two Thousand and Two, Letters of ADMINISTRATION in common form were granted by the Register of said County, on the late of HAMPDEN TOWNSHIP !First, Middle, LsstJ in said county, deceased, to E. CARLA BRETZ (First, Middle, Lest) and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand' and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 21st day, of December Two Thousand and Five. File No. PA Fi1e No. Date of Death S.S. # 2002- 00932 21- 02- 0932 912612002 161-34-4845 ,,l 1 NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL EXHIBIT "D" io Copy C For EMPLOYEES RECORDS (Soo po&o on back) 7 S 1.1 a ih ti,. t Wage. Ups, saw c Pa.rwr 2 F d ial news. taa wIWMk- 45041.04 9100.76 e Empl.r.f/ KLnt Add-.rd ZIP Cole If Allan 17P. 1 A.eryly. w.1- a s.Whlr Q. wam.' 50287.32 3117.814 SUNOCO, INC. (R&M) S "- 13C hrr...t Ipm w.,o w ups .tam d..nw<I. 1801 MARKET STREET 1 50287.32 729.17.•. " PHILADELPHIA, PA 19103- 699 10 Lwpwtlmrt mm bloen4 Is oft. pallf*.d Ww ww M a.. 12 5246.28 p • 13 atvarr a.1Nw. -F ." u of w MARLIN H BRETZ 018034 .wesiirwll.. 5177 EAST TRINDLE RD 23-1743283 l MECHANICSBURG, PA 17050 l E.V one's .o.iol . itr wwiba 161-34-4845 .aca:•. u .+a ? ' y. ? µr L . C°u::,r..: Ni tip., v 44 fa fatal v... is la..l i oi-s PA 23-1743283 50287.32 1408.03 50287.32 502.88 MECHANI Form M.,Q Ways mud Tae Stmtmmxkt 2001 OMB Nn. 1545-0006 DikPartmont of Troasury-kftornal Ravoltua Sarviea This a/o.er1l.P is baa, #, NMssl to Ws IWAML Ilrwe.w ServkL 11 roa .m vsoY Is Ill. • a: rvAm a .gli9ara p.n.Uv .r .asr aww" roar ae JAW0024 os ray It Wm Is- Is fam" W 7wm t.n M roam K EXHIBIT "E" RELEASE OF ALL CLAIMS CLAIMANT Name First Middle Last Marlin Henry Bretz (deceased) Street Address 5177 East Trindle Rd. City State Zip Mechanicsbure Pennsylvania 17050 Social Security Number 161-34-4845 Date 1 / 9 ! 2008 (month) (day) (year) DERIVATIVE CLAIMANTS (If none, check here: ?) Name First Middle Last E. Carla Bretz Street Address 5177 East Trindle Rd. City State Zip Mechanicsbure Pennsylvania 17050 1 / 9 ! 2008 Social Security Number 161-40-1905 Date (month) (day) (year) CLAIMANT'S COUNSEL Law Firm Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C Bretz (deceased), Marlin Henry 1063928 219191 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 Bretz (deceased), Marlin Henry 1063928 219191 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 perrnitted 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. Bretz (deceased), Marlin Henry 1063928 219191 (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 Pavor 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/Pavor" is any provider or payor (public or private) of (i) health, Bretz (deceased), Marlin Henry 1063928 219191 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. Bretz (deceased), Marlin Henry 1063928 219191 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 Bretz (deceased), Marlin Henry 1063928 219191 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 Reeardinz Timine 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 Bretz (deceased), Marlin Henry 1063928 219191 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 Any 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.] Bretz (deceased), Marlin Henry 1063928 8 219191 IN WITNESS WHEREOF, I have executed this Release effective as of the date set forth under my name below: RELEASOR: ,C3 By ?. Name: Marlin Henry Bretz (d eAsed) Title: Social Security No.: 161-34-4845 Dated: / A r NOTARIZATION OF RELEASOR'S SIGNATURE; ST'AT E OF COUNTY OF SS.: V CULIW LIJ ?j_????i v, i `pry her' I hereby certify that on, )•. c)/ __,200a, 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. COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL { STEPHANIE NEIL, Notary Public Camp Hill Boro,_ Cumberland County Notary ublic of the State of _ M cam"1iuoi" fix es Jan. 25, 2011 Bretz (deceased), Marlin Henry 1063928 9 219191 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-Party Payor Claims". BY COUNSEL FOR RELEASOR: By Name: Title: Dated: Bretz (deceased), Marlin Henry 1063928 10 219191 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 snake 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 Name: E. Carla Bretz Title: Social Security No.: 161-40-1905 Dated: NOTARIZATION OF DERIVATIVE CLAIMANT'S SIGNATURE STATE OF C , COUNTY OF (11 A ell he r la nj SS.: I hereby certify that on , 200_1, 'f-5 •(ar-j6Z '8i5 _b--- 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. COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL STEPHANIE NEBL, Notary Public otary Pu lie of the State of Camp Hill Boro, Cumberland County M Commission Expires Jan, 25, 2011 11 Bretz (deceased), Marlin Henry 1063928 219191 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: Bretz (deceased), Marlin Henry 1063928 12 219191 EXHIBIT "F" Page: 1 Carla Tice July 16, 2009 5177 East Trindle Road Account No: 219191-00 Mechanicsburg PA 17050 Statement No: 9253 Attn: 9-30-2006 BRETZ, HENRY, the est. of vs. VIOXX JRR COSTS $ 335.51 07/26/2006 FILING - ATLANTIC COUNTY 08/10/2006 COURIER SERVICE - (724) FEDERAL EXPRESS CORP. / 7/25/06 - SUE TO ATLANTIC COUNTY CIVIL COURTHOUSE IN AC,NJ 09/19/2006 FILING - (12190) LEXISNEXIS COURTLINK, INC. 11/10/2006 FILING - (5938) FIRST CHOICE COURIER, INC. 03/19/2007 MEDICAL EXPERTS - (12627) KAREN S. CAMPIONE, RN 06/11/2008 MEDICAL RECORDS - (13340) MEDICONNECT.NET, INC. / ORTHO INSTITUTE OF PA 07/16/2008 MEDICAL RECORDS - (13340) MEDICONNECT.NET, INC. / ORTHO INSTITUTE OF PA 07/17/2008 MEDICAL RECORDS - (13340) MEDICONNECT.NET, INC. / DR MD OSBORNE 12/16/2008 INVESTIGATION - (8210) CHARLES JONES, LLC 05/26/2009 MEDICAL RECORDS - (13340) MEDICONNECT.NET, INC. / DR. OSBORNE, MD 06/11/2009 FILING - (13896) ORPHAN'S COURT - CUMBERLAND COUNTY Total Advances Total Current Work Balance Due Draft Bill 200.00 4.43 15.96 14.35 522.50 121.97 4.99 110.83 10.00 5.06 5.00 1,015.09 1,015.09 $1,015.09 W N r C1 ? -i ,) n ro ?o A E f D CD N N ;or N m m n g 3 m 0 gs' m V C °D 3 -i o D m m m o j = m p 3 K f° Dy D D NA O 3; 3 N ?p 7 c c IO OO tT N » S p O S N m O pO Op O O O O Si m fl Of ? m N N n C Cl) O Z k a E ;(D v 30? y d ? 7 n n m m tC N EXHIBIT "G" CONTINGENT FEE AGREEMENT THIS AGREEMENT entered into the 4 'J day of 2005, by and between the law firms of SCHMIDT, RONCA & KRA R, P.C., and SHELLER, LUDWIG & BADEY, P.C., and CARLA BRETZ, 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 fled. 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: ARLA BRETZ Approved: SCHMIDT,R_9#C,,? & KRAMER, P.C., I have received a copy of this Co gent Fee Agreement. Client's Initials Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 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 Page 1 of Vk Aug 27 2008 5:04 PM 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 -2- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 Page 3 of 21 U.S.C. § 1407. See In re Vioxx 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. 06-485 (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/vioxxsettlement.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.e 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. Doe. 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 08/27/2008 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. Il. 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). 11 See id. at 111 ("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), aff'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 ("[A]s 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 12 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, 11 F.CAs. 480,485 (1823)). -to- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 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 ofsuch 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 08/27/2008 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 Guidant, 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. S. 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 Filed 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 T 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 331/3% of the net recovery); see also In re Zyprexa, 424 F. Supp. 2d at 495 (conducting a survey of the states and noting that "ft]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 plaintiffs 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 08/27/2008 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'/3% 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 08/27/2008 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- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 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- Case 2:05-md-01657-EEF-DEK Document 15722 Filed 08/27/2008 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- 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. eA,orn2 ?;7" UNITED STATES DISTRICT JUDGE finalized upon the ultimate calculation of claimants' total awards. -21- EXHIBIT "H" 07/16/2009 10:37 717-783-3467 INHERITANCE TAX PAGE 02/02 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE BUREAU OF INDIVIDUAL TAxEs PO BOX 280601 HARRISBURG, PA 17128-0601 April 30, 2009 Lisa Marie Coyne, Esq. Coyne & Coyne, P.C. 3901 Market Street Camp Hill, PA 17011 Re: Estate of Marlin Henry Bretz File Number 2102-0932 Court of Common Pleas Cumberland County Dear Ms. Coyne: The Department of Revenue has 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 has been 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 60 year old decedent died as a result of complications from the medication Vioxx. Decedent is survived by his spouse and three children. Please be advised that, based upon these facts and for inheritance tax purposes bnly, this Department has no objection to the proposed allocation of the net proceeds of this action, $82,187.31 to the wrongful death claim and $ 14,503.54 to the survival claim. Proceeds of a survival action are an asset included in the decedent's estate and are subject to the imposition of Pennsylvania inheritance tax. 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 Merryman, 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 any hearing regarding it. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. "erely, Shannon E. Baker Trust Valuation Specialist Inheritance Tax Division Bureau of Individual Taxes PMNE. 717-783-5824.• Fax: 717-783.3467 • ENAL: shabakercgstatepa.us. EXHIBIT "I" y HYS aC 1P2 )ISY. 6/63 commonwcatth of peruns .LvanjaT DEPARTMENT a 'HE:ALTH 4 =- ?? ij. 'fie official Certificate of 5irlh for.your child has been filed with tho Local Registrar of Vital ry'j 5tati5t!Cs at .. .. .................................._.......................... { Name ... .??.!i- Sex. 3i ...............::.:.??':..r....'`:?....._.. f9 :. -• ..[?E1S:ldl 2' Uor: of 87rrh '` Penna.; G• 3i. Name of Father ........? .?, r 2..f..... :f !t~,fri , .. ••- - 4 ii f;? Maiden Ndmi df *fher'.......... ? .. ?!,)s., / G ......... .. '•. •r1 :? Y1 Ti .: .cV. ?•• ssr?r .i...•?.Cl?:6R:?'?X:.wt. o...:...i..:.t::i?•?_;y .,; Re1gi's{ered No. HAR ?` ` .. RiS.6U- PEA ?'????_ '.-JP?'??P.p?'ti?;Y2??rr? ?,?'?P..?7???@?' '??1tr ? r.. -.?N•'7.7.??.4.???"T4•? .C? _ _ _ 3=_?;t;?.2?.?_{'3?..,,.?13'?`r8?]?..??- ?? :C'T.t'. =E4^--..k??..??+3as•,??•?-' _l:L....;, _? - ? 5EE REV •RSE$ipEc-`a -ys??;:..: ... _ .;?'?•'i:a`..x`1J'.o`::' :., .. . O ' . DATE OF BIRTH.. M ,MO'. D17. FF,aaj Piz • lam. M7?r?> ' cnBnns? f NUF?! f1 f1 .a?TE 9-04-f3 yy SUBJECT FIR IAN - S Mhis ?s lue.-?it)Jtluitliisls aUUe wpy of ?ne,.wnrde?Itte?isanl6e i.tlfl Penervbai?D/junmwtef NeaLLll ? ,' L •4 ?- a4.OIClK! WGLL1 AGl fQ P.L .Ip., ? PD,nN7 or ik tlcnlrM geaern..y, NM , .95L ' ATi NEOSI91Ut 1110LUR Nw W411 - --- UCW 0 WE OF FILE. WTN 02-22_1966 xa 0204300-1966 :.•c. \PIALLE 012-22-1966 ca11IR 1-DAUPHIN 05 k, 06 NAME S?? CARD' $RETZ 'Alb ?Flr`F_._:' 7bm A 1o c/flily IIl+ YK is n Wn Dow a U. romtl A is 1 m Cn lrc r. the PrlggYlrytfii 7ep Vf71Rq d kYIIR i. WW:Ifdnn+ofcWW AGt ft D,L 30% xWm.*a by rm Gi:n" At" y. Jnyn/C?D2-. 1.9 -. S ., GaMn 8. O F an, M.O., M.P.H. mosaoswcv.flaw chall- e fi Bm w acrafluY CA h W61W 13424455 s? V ? 7 °?anTn` 07-16-1963 NO. 1154560--1963 DATE ' PLED 07-251963 st ni°` DAUPHIN r:.;, ;' ?ssu'eo 01 Q9 '2'009 NAME $r:: Ell -, ROBIN LOUSSV, , .ia ' FATHERS NAME : tii:i r ??..i,a• ??, MARLIN F i,TR`R Z . AIdE .c MOTHERS MAIDM7 .3 CAROL LOUIS.- ME- v,D - - Tht W b wd* thst Ilk a a rw ropy d tlm ieC(yd w1fIM is on 0G to fie Penr?t Gnu DedtruMM d Flsllh.: , ; h a,, rdara aith AAA ttt3. P.l 30+, +f1y by 1M GOA" As ier*. Ime 2 1 A53 . HOMO lk..Ame Frank g7pl Mato 40kt12Uar LL ?? 6? . 149821?0 VERIFICATION I, E. Carla Bretz, Administratrix of the Estate of Marlin Henry Bretz, Deceased, hereby state that I am the Petitioner in this action and verify that the statements contained in the foregoing Petition to Settle 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 unworn falsification to authorities. 1 dC4"? 1O- . Carla Bretz, Administra f the Estate of Marlin Henry Bretz, Deceased Date: / g -7 FlLE?????IGE OF THE f 47?10?? (,)N'oTk,QY C4 2009 JUL 23 Ali 10: 1 *7C.60 Pb ATTY C16* o1o15a9 P* aasayq t BY: ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY GREGORY S. SPIZER, ESQUIRE AMBER RACINE, ESQUIRE Identification Nos. 82435/208575 1710 Spruce Street Philadelphia, PA 19103 (215) 790-4578 Attorneys for Plaintiff COYNE & COYNE, P.C. LISA COYNE, ESQUIRE Identification No. 53788 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 E. Carla Bretz, Administratrix of the Estate of Marlin Henry Bretz, Deceased COURT OF COMMON PLEAS CUMBERLAND COUNTY Orphans Court Division MERCK & CO., INC. V. 414- of (f AMENDMENT TO PETITION TO APPROVE SETTLEMENT AND DISTRIBUTION OF WRONGFUL DEATH AND SURVIVAL ACTIONS TO THE HONORABLE JUDGES OF SAID COURT: The Petition of E. Carla Bretz, as Administrator of the Estate of Marlin Henry Bretz, Deceased, by and through her attorney, Gregory S. Spizer, Esquire and Lisa Marie Coyne, Esquire respectfully represent: 1. On July 23, 2009, Petitioner filed with this Honorable Court, her original Petition to Approve Settlement and Distribution of Wrongful Death and Survival Actions. 2. Pursuant to local Rule of Court No. 208.3(a)(2), no Judge of this court has ruled upon any other issue in these Cumberland County Proceedings. P 3. Pursuant to local Rule of Court No. 208.3(a)(9), no concurrence of any opposing counsel is required as this Petition seeks to Approve Settlement and Distribution of Wrongful Death and Survival Action already reached in this matter. 4. In all other matters, the original Petition filed with this Honorable Court remains unchanged and is incorporated herein by reference as if fully set forth herein. WHEREFORE, Petitioner prays as stated in the original Petition, that she 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 "(7) $45,501.63 (b) To: E. Carla Bretz (Widow) For Wrongful Death Claim $41,093.64 For Survival Action $7,251.83 (c) To: Wendy Bucher (Daughter) For Wrongful Death Claim $13,697.89 For Survival Action $2,417.27 (d) To: Robin Mentzer (Daughter) For Wrongful. Death Claim $13,697.89 For Survival Action $2,417.27 (e) To: Brian Bretz (Son) For Wrongful Death Claim $13,697.89 For Survival Action $2,417.27 TOTAL: $ 142,192.58 Respectfully submitted, COYNE & COYNE BY: ---- Date: 7 0 LISA MARIE COYNE, ESQUIRE Attorney for Petitioner Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 -2- o? 2001 to 5 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 COYNE & COYNE LISA COYNE, ESQUIRE Identification No. 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 E. Carla Bretz, Administratrix of the Estate of Marlin Henry Bretz, Deceased V. MERCK & CO., INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY oq-qqW PROPOSED ORDER OF DISTRIBUTION AND NOW, this 3? day of , 2009, upon consideration of Plaintiff's Petition to Approve Settlement and Distribution of Wrongful Death and Survival Actions, it is hereby ORDERED and DECREED as follows: (1) The allocation of the 40% interim payment from the Vioxx Settlement shall be as follows: a. Wrongful Death b. Survival Action (85%) (15%) (2) The sum of $142,192.58 represents the 40% interim payment from the Vioxx Settlement. The funds shall be distributed as follows: (a) To: Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. For Attorney Fees $45,501.63 (b) To: E. Carla Bretz (Widow) For Wrongful Death Claim $41,093.64 For Survival Action $7,251.83 (d) To: Wendy Bucher (Daughter) For Wrongful Death Claim $13,697.89 For Survival Action $2,417.27 (e) To: Robin Mentzer (Daughter) For Wrongful Death Claim $13,697.89 For Survival Action $2,417.27 (f) To: Brian Bretz (Son) For Wrongful Death Claim $13,697.89 For Survival Action $2,417.27 TOTAL: $ 142,192.58 BY THE COURT: The funds apportioned to the Survival Action are subject to applicable estate and/or inheritance tax. PLELL y ! I lr r T't ' ,J AR 2009 AUG -3 Aid I f : L4 i ll? ?? ?g - (2c AVG 2 4 2010 BY: ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY GREGORY S. SPIZER, ESQUIRE AMBER RACINE, ESQUIRE Identification Nos. 82435/208575 1710 Spruce Street Philadelphia, PA 19103 (215) 790-4574 Attorneys for Plaintiff COYNE & COYNE b 1"' LISA COYNE, ESQUIRE ; c? Identification No. F Q CA 3901 Market Street s Camp Hill, PA 17011 3 (717) 737-0464 c co E. Carla Bretz, Adnumstratrix of the Estate of COURT OF COMMON PLEA S Marlin Henry Bretz, Deceased CUMBERLAND COUNTY Orphans Court Division PROPOSED ORDER OF DISTRIBUTION AND NOW, this 2 Y' day of 09!1001 , 2010, upon consideration of Plaintiff's MERCK & CO., INC. V. 10 ttj-yy?-6 2-002-? Petition to Approve Settlement and Distribution of Wrongful Death and Survival Actions (for the Extraordinary Injury Program "EIP Claim" payment), it is hereby ORDERED and DECREED as follows: (a) To: Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. For Attorney Fees (b) To: Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. For Costs (c) To: Common Benefit Expense Funds 1% Assessment $16,249.81 $23.80 $508.04 (d) To: E. Carta Bretz (Petitioner/Widow) For Wrongful Death Claim For Survival Action CO D ryIZL I k& a-4 11Y Lv. C"&C"-6 81mzs?iv $34,022.80 $5,103.42 TOTAL:. $50,804.45 BY THE COURT: