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HomeMy WebLinkAbout10-4109r Gregory M. Feather, Esq. I.D. #79456 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 E-mail: Feather@HHRLaw.com Leila Watson, Esq. CORY, WATSON, CROWDER & DeGARIS, P.C. 2131 Magnolia Avenue, Suite 200 Birmingham, AL 35205 Telephone: (205) 328-2200 Fax: (205) 324-7896 ? A 4 F A ?... U Vf "'A Attorneys for Petitioner In Re The Estate of : IN THE COURT OF COMMON PLEAS JAMES H. HEMPERLY, SR., : CUMBERLAND COUNTY, PENNSYLVANIA :NO. 2010 CIVIL CIVIL ACTION - LAW PETITION TO SETTLE WRONGFUL DEATH AND SURVIVAL ACTIONS To the Honorable Judges of the Court: Petitioner, Cindy Hockenberry, Administratrix of the Estate of James H. Hemperly, Sr., Deceased, by and through her attorneys, CORY, WATSON, CROWDER & DeGARIS, P.C. and HANDLER, HENNING & ROSENBERG, LLP, by Gregory M. Feather, Esq., petitions this Honorable Court to enter an Order permitting settlement of this action, and in support thereof avers as follows: 0 *qa.00 PA AT" C* 1081( 1. Decedent, James H. Hemperly, Sr., was born on September 27, 1919. Mr. Hemperly is survived by his statutory beneficiaries, Cindy C. Hockenberry, Administratrix; Wendy M. Strohecker; Jamie R. Deiter; James H. Hemperly, Jr.; Michael E. Hemperly; Tammy S. Seiger; and Timothy L. Hemperly. 2. Petitioner is Cindy Hockenberry, an adult individual currently residing at 1725 Newport Road, Duncannon, Perry County, Pennsylvania. She was appointed Administratrix of the Estate of James H. Hemperly, Sr., on June 10, 2005. A copy of the Short Certificate is attached hereto, made a part hereof, and marked "Exhibit A." 3. Decedent did not have a Will. 4. On May 18, 2004, Petitioner's Decedentwent into cardiogenic shock, brought on by an anterolateral myocardial infarction, coronary artery disease and ventricular tachycardia/fibrillation, which was caused by Decedent's use of the prescription medication Bextra. Decedent subsequently died on May 19, 2004, as a result of the injury sustained. A copy of the Certificate of Death is attached hereto, made a part hereof, and marked "Exhibit B." 5. Petitioner's Decedent began use of the Bextra medication on or about April 5, 2002, as a result of a prescription written by his treating physician for treatment of severe pain caused by arthritis. Mr. Hemperly continued to renew his prescription until the time of his death on May 19, 2004. 6. On behalf of Mr. James H. Hemperly, Petitioner, Cindy Hockenberry, entered into a class-action suit against Defendant, Pfizer, Inc., as manufacturers of the Bextra prescription medication. 2 7. As part of the Bextra settlement program', Petitioner's Decedent received an estimated gross settlement offer of $52,877.42. 8. Counsel is of the professional opinion that the proposed settlement offer is fair and equitable under the circumstances of this case. 9. Petitioner is of the opinion that the proposed settlement is reasonable. 10. The Centers for Medicare & Medicaid contributed to the payment of Decedent's medical care and currently have a medical lien of $2,581.14. Pursuant to 42 CFR 411.26, the Centers for Medicare & Medicaid Services are entitled to a repayment of amounts paid on behalf of Petitioner's Decedent for care he received, which was related to his use of the Bextra medication. Attached hereto, made a part hereof and marked "Exhibit C," is a copy of the Centers for Medicare & Medicaid Services' lien.Z 11. Additional fees and expenses were incurred on behalf of Petitioner's Decedent in relation to his representation in the underlying class action. It is respectfully requested that $4.29 be subtracted from the settlement amount to cover escrow and lien resolution fees. It is also respectfully requested that $1,057.55, be subtracted from the client's portion of Petitioner's fee contract, representing a 2% assessment for expenses, and $3,172.65, be subtracted from the attorneys' fees portion of Petitioner's fee contract, I As part of the settlement program, each plaintiffs settlement amount was determined based on, infer alia, the plaintiffs age at the time of injury, proof of total drug use and severity of injury, while taking into account risk factors that may have contributed to the injury. In Decedent's case, there were several risk factors that were taken into account when calculating the value of his settlement offer, including, coronary artery disease, untreated high cholesterol, diabetes, hypertension, and peripheral vascular disease. 2The attached Exhibit pertains to resolution of the Governmental Medical Liens for the Vioxx Settlement Program, however, resolution of the Governmental Medical Liens for the Bextra Settlement Program provided Medicare entitlement according to the same schedule. Plaintiffs Decedent falls under Global Medicare Resolution Category 1 as he was entitled to Medicare prior to the date of his compensable injury. 3 representing a 6% assessment for attorneys' fees.3 Attached hereto, made a part hereof, and marked "Exhibit D," is a copy of amended Pretrial Order No. 8A. 12. Handler, Henning & Rosenberg, LLP, has incurred general case expenses in the amount of $425.27, for which reimbursement is sought. Attached hereto, made a part hereof and marked as "Exhibit E," is a copy of the billing summary. 13. Cory, Watson, Crowder & DeGaris, PC, has incurred general case expenses in the amount of $749.09, for which reimbursement is sought. Attached hereto, made a part hereof and marked as "Exhibit E," is a copy of the billing summary. 14. Pursuant to a Contingent Fee Agreement with the Petitioner, counsel requests fees in the amount of $17,978.31, which represents 40% of the net proceeds of the settlement, minus the court-ordered 6% for fees to the common-benefit fund. Handler, Henning and Rosenberg, LLP will receive $8,989.15, representing 50% of the net attorney fee and Cory, Watson, Crowder & DeGaris, PC, will receive $8,989.16, representing the remaining 50% of the net attorney fee. Attached hereto, made a part hereof and marked "Exhibit F," is a copy of the Contingent Fee Agreement. 15. Petitioner requested approval from the Department of Revenue of allocation of the net proceeds of the settlement, after payment of attorney fees and expenses, as follows: 3 The 8% reduction in the settlement amount represents assessments that were ordered by the United States District Court for the Northern District of California to be paid by all Early Participating Attorneys, who settled any Bextra personal injury case, to the common-benefit fund for use of common discovery and work product. Petitioner's counsel is categorized as an "Early Participating Attorney". Attached hereto, made a part hereof and marked "Exhibit D," is a copy of amended Pretrial Order No. 8A. 4 (a) For the wrongful-death action, 80% to Decedent's following statutory beneficiaries: (1) Cindy C. Hockenberry, Administratrix; (2) Wendy M. Strohecker; (3) Jamie R. Deiter; (4) James H. Hemperly, Jr.; (5) Michael E. Hemperly; (6) Tammy S. Seiger; and (7) Timothy L. Hemperly. (b) For the survival action, 20% to James H. Hemperly, Sr.'s Estate. 16. Written approval from the Department of Revenue is attached as "Exhibit G." WHEREFORE, Petitioner requests this Honorable Court to: (a) Authorize the payment of $2,581.14, to the Centers for Medicare & Medicaid Services for repayment of services rendered to Petitioner's Decedent; (b) Authorize the payment of $4,234.49, for fees and expenses incurred in the representation of Petitioner's Decedent in the underlying class action; (c) Authorize the payment of $425.27, to Handler, Henning & Rosenberg, LLP for costs incurred; (d) Authorize the payment of $749.09, to Cory, Watson, Crowder & DeGaris, PC, for costs incurred; (e) Authorize the payment of counsel fees in the amount of $17,978.31 to Handler, Henning & Rosenberg, LLP; (f) Approve Allocation of the gross settlement as approved by the Department of Revenue as follows: $42,301.94 (80%) to the Wrongful Death Action; ii. $10,575.48 (20%) to the Survival Action. 5 (g) Direct distribution of the remaining net proceeds of the settlement as follows: To Petitioner's Decedent's statutory beneficiaries for the wrongful death action, in the amount of $21,527.30, which will represent 80% of the net proceeds as follows; (1) Cindy C. Hockenberry, Administratrix - $3,075.32; (2) Wendy M. Strohecker - $3,075.33; (3) Jamie R. Deiter - $3,075.33; (4) James H. Hemperly, Jr. - $3,075.33; (5) Michael E. Hemperly - $3,075.33; (6) Tammy S. Seiger - $3,075.33; and (7) Timothy L. Hemperly - $3,075.33. ii. To the Estate of James H. Hemperly, Sr., for the survival action, in the amount of $5,381.82, which represents 20% of the net proceeds. Attached hereto, made a part hereof and marked "Exhibit H," is a copy of the breakdown of expenses and fees associated with the underlying settlement. Respectfully submitted, HANDLER, HE1NNING 84@MNBERG, LLP r' Date: IflZO10 By: egory I ther, Esq. 4D # 79456 H. Watson, Esq. Attorneys for Petitioner 6 IL SHORT CERTIFICATE - LETTERS OF ADMINISTRATION COMMONWEALTH OF PENNSYLVANIA ss: COUNTY OF PERRY Estate No: 5005-0101 I, Wendy M. Welfley, Register of Wills in and for the County of Perry, in the Commonwealth of Pennsylvania, DO HEREBY CERTIFY that on the 10th day of June, 2005 LETTERS OF ADMINISTRATION on the Estate of JAMES H HEMPERLY, SR, deceased, were granted to Cindy C Hockenberry having first been qualified well and truly to administer the same. And I further certify that no revocation of said Letters appears of record in my office. Date of Death May 19, 2004 Given under my hand and seal of office this l Oth Social Security No. 204-30-8670 day of June, 2005 i C [A u Register NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL i x1059"5 REV.(01104) This is to certify that this is a true copy of the record which is on file in the Pennsylvania Division of Vital Records in accordance with Act 66, P.L. 304, approved by the General Assembly, June 29, 1953. WARNING: It is illegal to duplicate this copy by photostat or photograph, Calvin B. Johnson, M.D., M.P.H. Charles Hardester Secretary of Health State Registrar 3!8863 JAN V 2 7 2005 No. HN,5.143 Rw..2ST ras"WIT w wK Date C0100M IEALTH OF P9NOMAMA • MARitr M OF 11FALTH • WAL R&?S [_FIMCU ATC AG nrwru 051969 NAME 0 ,. DECEDENT NT "TI'K Mlesa trq r?/ - - - - -, - - - • WAVE HibANIER SEX 1AM.ts N- frem Cott SA. aocrLaEaweTrMweee a DEATH Ow-Yell :INLf- ,ao? _3a AGEa.«s*?? - 867 0 ? / , 0?00 DATE OF"TRIH ewnTPLACE1ay.a . RAeI/r ?. H«n aRrrT aF.Y..an D8rb.ra«oA - COUNTY OF MATH 9 ?7 -? J T.`pr?LT.ti, y" •.©. ? -13, . = 13 P-E] p?P?7', ? Cam.80110TMPOFMKYH fACAlf;Y?R/MllEpla«irMiM1Slwrn.ea,ew.e.r) OECIDENTOFNEPMacleam arx « (',?r»6ca t,o T ?. p?j,ITTS(so?Qo vup i4o I q Sp,Q, f J7asP:l q ?.Y?mook ew " ',h.7e . ft. 1 USUAL 00lxlM710N RMOFMAINESSINXAM LLB AROMME!"M O[CEpB/T`S E000Alp11 MAALSIATTM-TNINd, BURNYSq SPOUSE w ?^- Tt?R CRa F7 I :LLTd, ?iwr//J/iQNor? r..?-W? ! we?.«.r..?*,..rr?.eH 7711. u ta. A+A °"`" Ta 0? QCe OEM ACM14. __ E?erts aw. o Om VC. ®Y.. a..a.rarN AC& ew J'7 10 Ntk?p_e. 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Saolo Information about Resolving Governmental Medical Liens for the Vioxx Settlement Program A. General Information for All Claimants Section VII.A of the Notice of Points Award issued by the Claims Administrator identifies whether a claimant is participating in certain government healthcare programs and has any lien reimbursement obligations. For state Medicaid programs, the LRA verified directly with the Medicaid agency for each state and U.S. territory which participating claimants in the Vioxx Settlement Program currently are or have been entitled to Medicaid between the dates of first Vioxx ingestion through the date of settlement. If the Notice of Points Award indicates "No" for the "State Medicaid Participant" section, then the result of the LRA's verification process is that the claimant was not a Medicaid participant and therefore has no Medicaid liens or obligations to satisfy. If you are aware of a Medicaid obligation, please contact the LRA promptly at (877) 774-1130. For federal Medicare, the LRA: (i) verified which participating claimants in the Vioxx Settlement are (or have been) entitled to Medicare (Parts A and B) and who therefore may have potential Medicare obligations resulting from Vioxx-related injuries; and (ii) facilitated a "global" resolution to satisfy and discharge Medicare's interest for all Medicare-entitled claimants. If the Notice of Points Award indicates "No" for the "Federal Medicare Participant" section, then the result of the LRA's verification process is that the claimant was not a participant in the federal Medicare program and therefore has no Medicare liens or obligations to satisfy. If you are aware of a Medicare obligation, please contact the LRA promptly at (877) 774-1130. If the Vioxx claimant or claimant's counsel has not reported to the LRA participation in any Other Government Programs, such as Veterans Affairs ("VA"), TRICARE, Department of Defense ("DOD") or Indian Health Services ("IHS") according to prior instructions provided in Claimant Education Materials on Government Medical Liens/Obligations, then the LRA has presumed that the claimant has no reimbursement obligations to these government entities. While the LIZA has the responsibility to resolve these Other Government Program liens, it was the responsibility of the claimant and the claimant's counsel to report to the LRA whether or not the claimant participated in these Other Government Programs and might therefore have such a lien. (See document entitled Claimant Education Materials on Government Medical Liens/Obligations for more information). The balance of this document addresses the process and procedure if "Yes" is displayed in any of Rows 1, 3 or 5 of Section VILA of your Notice of Points Award letter. DM 345985v.11 Updated: 1/28/09 B. Medicaid Entitlement - Resolution If Section VII.A of the Notice of Points Award indicates "Yes" for the "State Medicaid Participant" section, then the result of the LRA's verification process was that the claimant was a participant in a state Medicaid program. For those claimants verified as Medicaid participants, the LRA is in the process of securing claims histories from the appropriate state Medicaid agency(ies). The LRA is individually auditing each claims history to ensure that only those medical expenses associated with Vioxx-related injuries are included in the claimant's final reimbursement or "lien" amount. This auditing process should be completed by the time a claimant receives the Final Settlement Payment. To assist with expediting payments to Medicaid- participant claimants while these claims histories are audited and the appropriate Medicaid reimbursement amount is finalized, the LRA has achieved a "holdback" agreement with nearly all state and territory Medicaid agencies. According to the terms of that agreement with most states, a fixed percentage of the gross settlement award may be temporarily "held back" while the LRA verifies and finalizes the amount of the claimant's Medicaid reimbursement with the relevant Medicaid agency(ies). The exact holdback percentage will be disclosed to the claimant through their counsel by a secure website prepared by the LRA and the Claims Administrator. This "holdback" process with state Medicaid agencies is a significant benefit to claimants because it caps the Medicaid reimbursement obligation at the "holdback" amount even if the Medicaid reimbursement obligation would otherwise exceed that amount. In the likely event that a claimant's final Medicaid reimbursement claims are resolved for less than the holdback percentage as stated in the Notice of Points Award letter, the claimant will receive the difference. In future correspondence or postings to the "Lien" section of the secure web portal, the LRA will inform claimants with state Medicaid obligations about the final amount of their Medicaid reimbursement claim. There is nothing further that a claimant needs to do at this time. If a claimant is a current or past recipient of Medicaid coverage, this process ensures that Medicaid's reimbursement interest for Vioxx-related care has been met and is a required step in order for final settlement monies to be released. It must be stressed that while this process satisfies Medicaid's reimbursement interest in a claimant's Vioxx settlement proceeds, the claimant remains responsible for meeting applicable state Medicaid income and/or asset requirements in order for the claimant's state Medicaid benefits to continue uninterrupted. For more information about these requirements, please see prior correspondence entitled Claimant Education Materials on Government Medical Liens/Obligations (also available on the Claims Administrator's website: www.browngreer.com/vioxxsettlement/images/pdfs/lien education.pdf ). DM 345985x.11 2 Updated: 1/28/09 C. Medicare Entitlement -Resolution If Section VII.A. of the Notice of Points Award indicates "Yes" for the "Federal Medicare Participant" section, then the result of the LRA's verification process was that the claimant is a participant in the federal Medicare program. Under the terms of the Vioxx Settlement Program, any statutory Medicare lien or "reimbursement claim" obligations must be resolved in order for final settlement monies to be released. Section II of the Notice of Points Award provides a summary of the compensable claim as determined by the Claims Administrator pursuant to the terms of the Vioxx Settlement Program. For those claimants verified as federal Medicare beneficiaries, the LRA has negotiated a Medicare global reimbursement amount to be paid on their behalf to Medicare out of the claimant's net settlement proceeds. Under the terms of the LRA's agreement with Medicare, there are six (6) Global Medicare Resolution Categories. The Medicare reimbursement amount associated with each of these six (6) categories reflects routine costs incurred by the Medicare program for the treatment and management of the compensable injury associated with each category. Immediately below is a complete listing of the six categories and the global reimbursement amount associated with each type of injury. Global Medicare Resolution Categories 1) Resolution Category 1: Applies to each claimant who was entitled to Medicare Part A or B prior to the date of his/her compensable injury. MI Global Reimbursement Amount: $2,581.14 IS Global Reimbursement Amount: $4,251.00 2) Resolution Category 2: Applies to each claimant who became entitled to Medicare Part A or B after the date of his/her compensable injury. MI Global Reimbursement Amount: $116.62 IS Global Reimbursement Amount: $564.53 3) Resolution Category 3: Applies to each claimant who was Medicare entitled and elected Medicare Part C coverage prior to the date of his/her compensable injury and through date of stabilization. MI Global Reimbursement Amount: $116.62 IS Global Reimbursement Amount: $564.53 4) Resolution Category 4: Applies to each claimant who was Medicare entitled prior to the date of his/her compensable injury and elected Medicare Part C after the date of his/her compensable injury event. MI Global Reimbursement Amount: $2,581.14 IS Global Reimbursement Amount: $4,251.00 5) Resolution Category 5: Applies to each claimant receiving a gross award of less than $10,000 and/or any claimant who elects the "$5,000 Fixed Payment" option. MI Global Reimbursement Amount: $126.76 IS Global Reimbursement Amount: $190.33 DM 345985v.I I Updated: 1/28/09 3 6) Resolution Category 6: Applies to each Claimant who died suddenly on account of their compensable event. MI Global Reimbursement Amount: $143.27 IS Global Reimbursement Amount: $190.33 Each claimant's Medicare reimbursement amount is determined by the claimant's "Global Medicare Resolution" category. By agreeing to have this amount paid to Medicare on their behalf out of the claimant's net Vioxx settlement proceeds, the claimant will satisfy any and all federal Medicare (Part A & B) reimbursement obligations resulting from medical care paid for by Medicare in connection with their Vioxx-related injuries from the first date of Vioxx ingestion through the date of settlement. In addition, payment of this amount will ensure that Medicare does not deny the claimant coverage for any future medical expenses he/she might incur in connection with Vioxx-related injuries, on the ground that the claimant has not satisfied their Medicare obligation. The "Global Medicare Resolution Category and Amount" set forth in Section VILA of the Notice of Points Award is final and will be paid to Medicare on the claimant's behalf unless the claimant requests a re-determination of his/her Global Medicare Resolution Category by the LRA. Requesting a re-determination of the Global Lien Resolution Category will not adversely impact the Claims Administrator's determination of the claimant's Points Award. It is the LRA's judgment that the amounts specified for each of the six (6) Global Medicare Resolution Categories represents a favorable and efficient resolution of Vioxx claimants' obligations to Medicare and these amounts satisfy the terms and conditions of the Vioxx Settlement Program. Thus, the LRA generally recommends that claimants resolve their Medicare obligations by agreeing to their specified Medicare global resolution amount. There are two potential exceptions to this recommendation: 1) if the claimant has had an alternative primary form of health care coverage and has not used federal Medicare coverage for any medical care in connection with his/her Vioxx-related injuries; or 2) the claimant has been placed in the wrong Resolution Category (i.e., his/her date of injury was prior to, rather than after, he/she became entitled to Medicare). If a claimant believes that he/she fits one of these two exceptions and would like to apply for a re-determination of the Lien Resolution Category, the claimant must request a re- determination of the Medicare Resolution Category within 15 days of receipt of the Notice of Points Award. If a claimant disagrees with the LRA determinations, there is a page on the secure web portal for a claimant's counsel to indicate that they want to request a re-determination of their claimant's Global Resolution Category. Claimants can also submit a written request directly to the Claims Administrator, but the letter must be postmarked within 15 days of the date of the Notice of Points Award. If a claimant is in agreement with his/her specified Lien Resolution Category and dollar amount as set forth above, the claimant need not do anything. Unless a claimant requests a re-determination of his/her Medicare Resolution Category within 15 days of receipt of the Notice of Points Award, it will be assumed that the claimant has agreed to resolve his/her Vioxx-related Medicare DM 345985v.11 4 Updated: 1/28/09 reimbursement obligation for the value specified in Section VILA of the Notice of Points Award. If you are requesting a re-determination of your Global Medicare Resolution Category or you would like to contact the LRA to discuss the terms and process associated with a re-determination of your Category, please use the contact information below. Vioxx Lien Resolution Administrator P.O. Box 12540 Charlotte, North Carolina 28220 Phone: (877) 774-1130 vioxxlrana garretsonfirm.com www.vioxxlienresolution.com D. Other Government Program Entitlement - Resolution The previous communication entitled Claimant Education Materials on Government Medical Liens/Obligations (also available on the Claims Administrator's website at: www.browngreer.com/vioxxsettlement/images/pdfs/lien education pdf ) instructed claimants and claimants' counsel on how to report participation in, and liens asserted by, Other Government Programs including Veterans Affairs (VA), TRICARE, Department of Defense (DOD) or Indian Health Services (IHS). In this regard, if Section VILA of the Notice of Points Award indicates "Yes" for the "Other Government Program Obligations" section, then the LRA's records reflect that the claimant has a reimbursement obligation to satisfy with respect to one or more of these Other Government Programs. The LRA is in the process of securing claims histories from the appropriate Governmental agency(ies) for all claimants who reported participating in any of these Other Government Programs. Further, the LRA is individually auditing each claims history to ensure that only those medical expenses associated with Vioxx-related injuries are included in the claimant's final reimbursement or "lien" amount. To enable the release of Interim Payments to those claimants determined to be entitled to Other Government Programs, the LRA has determined an amount to be "held back" from those claimants' Interim Payment. The "holdback" amount will be based on the agency's claimed expenditures. In the likely event the lien is satisfied for less than the holdback amount, the balance of the holdback will be released to the claimant. In future correspondence, the LRA will inform claimants with Other Government Program obligations about the final amount of their reimbursement claim(s). There is nothing further that a claimant needs to do at this time. DM 345985v.I I Updated: 1/28/09 CaseM:05-cv-01699-CRB Document2507 Filed07/07/08 Pagel of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IN RE: BEXTRA AND CELEBREX MARKETING SALES PRACTICES AND PRODUCT LIABILITY LITIGATION CASE NO. M:05-CV-01699-CRB MDL No. 1699 This Order Relates to: ALL CASES. PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND 1. SCOPE OF ORDER 1. Order Applicable to All Cases in MDL Proceedings. This Order shall apply to all cases currently pending in MDL No. 1699 and to all related actions that have been or will be originally filed in, transferred to, or removed to this Court and assigned thereto (collectively, "the MDL proceedings"). This Order is binding on all parties and their counsel in all cases currently pending or subsequently made a part of these proceedings and shall govern each case in the proceedings. 2. Amendment to Section AM of Pretrial Order No. 8 Only. This Order shall amend and supersede only Section A(1) of Pretrial Order No. 8 relating to assessments for the common benefit fund, unless otherwise provided in this Order. Nothing in this Order shall be construed to amend any other portion of Pretrial Order No. 8, unless otherwise provided. 3. Purpose of Amended Order. On February 27, 2006, this Court issued Pretrial Order No. 8. Pursuant to the Court's authority under the common benefit doctrine, PRETRIAL TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseM:05-cv-01699-CRB Document2507 Filed07/07/08 Page2 of 9 1 Pretrial Order No. 8 established a common benefit fund and a system of voluntary assessments on 2 cases filed and/or transferred to this Court, as well as on cases filed in other jurisdictions where 3 common discovery and the work product of the MDL Plaintiffs' Steering Committee ("PSC"), 4 including all those performing PSC-approved common benefit work, might be used. While 90- 5 day participation agreements have been received from many of the firms which have cases 6 pending in or transferred to this Court, it has come to the Court's attention that, despite the low 7 initial assessments (2% costs and 2% fees) established under the 90-day participation options, a 8 few firms have failed to voluntarily agree to an assessment, even though they have received the 9 benefit of the PSC's extensive work product and discovery, as well as the benefit of common 10 expenses paid by the PSC. Given the extensive work, including discovery, expert, and bellwether 11 trial preparation, that has been conducted by Court-designated counsel, including Plaintiffs' 12 Liaison Counsel and the members of the PSC (including its subcommittees), and given the size 13 and length of the litigation, the Court finds that the current 2% costs and 2% fees assessment is 14 inadequate to properly reimburse members of the PSC for their out-of-pocket costs and to pay for 15 appropriate and necessary common benefit work. The Court therefore finds that an increased 16 assessment is warranted because the litigation has been pending for nearly three years and a 17 substantial amount of PSC-approved common benefit work has been done by Plaintiffs' Liaison 18 Counsel and the PSC. Absent this substantial and necessary common benefit work, the Court 19 would not otherwise approve an increased assessment. 20 4. Scope of Common Benefit. The Court finds that any case transferred to or 21 filed in this Court benefits from PSC common benefit work product and discovery, and from the 22 expenses borne by the PSC. The Court further finds that the PSC's work and leadership relieves 23 the plaintiffs' attorneys in these cases of the prohibitively expensive and time-consuming 24 individual work that would be required absent this MDL, and that it is unfair and detrimental to 25 the MDL and federal/state coordination to allow firms to take the benefit of PSC work product 26 without providing any compensation. 27 28 -2- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseK05-cv-01699-CRB Document2507 Filed07/07/08 Page3 of 9 1 II. ASSESSMENT FOR THE COMMON BENEFIT FUND 2 5. Categories of Counsel. All counsel with cases and/or claims alleging 3 personal injury due to the ingestion of Bextra and/or Celebrex fall into one of the following 4 categories: 5 a. Early Participating Attorneys. The term "Early Participating 6 Attorneys" shall refer to counsel who signed a "90-Day Participation Option Agreement" (Exhibit 7 A to Pretrial Order No. 8) within ninety days of the entry of Pretrial Order No. 8, or within 45 8 days from the date of such counsel's initial filing of a personal injury claim relating to Celebrex 9 or Bextra that became part of these MDL proceedings. All members of the MDL Plaintiffs' 10 Steering Committee ("PSC"), any PSC sub-committee members, and any Court approved State 11 Liaison Committee shall be required to sign the 90-Day Participation Option Agreement. 12 b. Later Participating Attorneys. The term "Later Participating 13 Attorneys" shall refer to counsel who signed a "Post 90-Day Assessment Option Agreement" 14 (Exhibit B to Pretrial Order No. 8) more than ninety days after the entry of Pretrial Order No. 8 or 15 more than 45 days from the date of such counsel's initial filing of a personal injury claim relating 16 to Celebrex or Bextra that became part of these MDL proceedings. 17 c. Non-Participating Attorneys Settling an MDL Case. The term 18 "Non-Participating Attorneys Setting an MDL Case" shall refer to counsel who have not signed a 19 "90-Day Participation Option Agreement" or a "Post 90-Day Assessment Option Agreement' 'and 20 who settle a personal injury case in the MDL proceedings. 21 d. Non-Participating Attorneys Settling a Non-MDL Case. The term 22 "Non-Participating Attorneys Settling a Non-MDL Case" shall refer to counsel who have not 23 signed a "90-Day Participation Option Agreement" or a "Post 90-Day Assessment Option 24 Agreement" and who settle a personal injury case that is not in the MDL (i.e., a case pending in 25 state court, a case settled prior to transfer to these MDL proceedings, or an unfiled claim) ("a non- 26 MDL case"). 27 6. Assessments. All plaintiffs and their attorneys who agree or have agreed to 28 settle, compromise, dismiss, or reduce the amount of a claim or, with or without trial, recover a -3- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseM:05-cv-01699-CRB Document2507 Filed07/07/08 Page4 of 9 1 judgment for monetary damages or other monetary relief, including compensatory and punitive 2 damages, with respect to any Bextra and/or Celebrex personal injury claims are subject to an 3 assessment of the "gross monetary recovery," as provided in this paragraph. In measuring the 4 "gross monetary recovery," the parties shall exclude court costs that are to be paid by the 5 defendant but shall include the present value of any fixed and certain payments to be made in the 6 future. 7 a. Early Participating Attorneys. Early Participating Attorneys who 8 settle: (i) any Bextra and/or Celebrex personal injury case in the MDL proceedings (including 9 cases later remanded to a state court), (ii) any other personal injury case filed in federal or state 10 court, and/or (iii) any unfiled personal injury claim (collectively, "a Participating Attorney case 11 and/or claim") shall, if such settlement is executed after or on April 1, 2008 but before the 12 termination of these MDL proceedings, pay a total of eight percent (8%) of the gross monetary 13 recovery in such cases and/or claims. Six percent (6%) shall be deemed fees to be subtracted 14 from the attorneys' fees portions of individual fee contracts, and two percent (2%) shall be 15 deemed costs to be subtracted from the client portion of individual fee contracts. This increased 16 assessment shall not apply to any settlements executed prior to April 1, 2008. 17 b. Later Participating Attorneys. Later Participating Attorneys who 18 settle any Participating Attorney case and/or claim shall, if such settlement is executed after or on 19 April 1, 2008 but before the termination of these MDL proceedings, pay a total of ten percent 20 (10%) of the gross monetary recovery in such cases and/or claims. Eight percent (8%) shall be 21 deemed fees to be subtracted from the attorneys' fees portions of individual fee contracts, and two 22 percent (2%) shall be deemed costs to be subtracted from the client portion of individual fee 23 contracts. This increased assessment shall not apply to any settlements executed prior to April 1, 24 2008. 25 c. Non-Participating Attorneys Settling an MDL Case. Non- 26 Participating MDL Attorneys who settle any Bextra and/or Celebrex personal injury case in the 27 MDL proceedings (including cases later remanded to a state court) shall, if such settlement is 28 executed after or on April 1, 2008 but before the termination of these MDL proceedings, pay a -4- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseM:05-cv-01699-CRB Document2507 Filed07/07/08 Page5 of 9 1 total of twelve percent (12%) of the gross monetary recovery in such cases and/or claims. Ten 2 percent (10%) shall be deemed fees to be subtracted from the attorneys' fees portions of 3 individual fee contracts, and two percent (2%) shall be deemed costs to be subtracted from the 4 client portion of individual fee contracts. Any counsel with an MDL case who decides not to 5 become a Participating Attorney, but who desires access to MDL and/or PSC non-work-product 6 materials, including but not limited to non-work product portions of the virtual document 7 repository, shall be allowed access to such non-work product materials upon payment of 8 appropriate costs. This increased assessment shall not apply to any settlements executed prior to 9 April 1, 2008. 10 d. Non-Participating Attorneys Settling a Non-MDL Case. Nothing in 11 this Order shall limit the PSC's right or ability to seek an equitable contribution from any gross 12 monetary recovery by a Non-Participating Attorney settling a non-MDL personal injury case in 13 which such counsel obtained access to, or the benefit of, MDL work product. 14 e. Assessments for Cases or Claims in Skin Injury Settlement 15 Program. In any case or claim involving a plaintiff who has alleged a skin injury ("a skin injury 16 plaintiff') and whose claim has been evaluated in the Skin Injury Settlement Program, the 17 following assessments shall apply: 18 i. Skin Cases Pending in MDL Proceedings. If the skin injury 19 plaintiff's attorney notified Pfizer of the skin claim in writing prior to April 1, 2008, and the case 20 is settled through the Skin Injury Settlement Program, such a settlement shall be subject to the 21 four percent (4%) assessment originally established by Pretrial Order No. 8. Where a skin injury 22 plaintiff's attorney did not notify Pfizer of the skin claim in writing prior to April 1, the case shall 23 be subject to the assessments imposed in paragraphs 6(a) through 6(c) of this Order, depending on 24 the counsel's participation status. 25 ii. Skin Claims Not Pending in MDL Proceedings. 26 A. Participating Attorneys. If a skin injury plaintiff's 27 attorney notified Pfizer of the skin claim in writing prior to April 1, 2008, the claim is settled 28 through the Skin Injury Settlement Program, and the plaintiff's attorney is an Early or Later -5- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseR05-cv-01699-CRB Document2507 Filed07/07/08 Page6 of 9 1 Participating Attorney as defined by paragraphs 5(a) and 5(b) of this Order, such a settlement 2 shall be subject to the four percent (4%) assessment originally established by Pretrial Order No. 8. 3 If a skin injury plaintiff s attorney did not notify Pfizer of the skin claim in writing prior to April 4 1, 2008, and the plaintiff's attorney is an Early or Later Participating Attorney as defined by 5 paragraphs 5(a) and 5(b) of this Order, such a case shall be subject to the assessments imposed in 6 paragraphs 6(a) and 6(b) of this Order. 7 B. Non-Participating Attorneys. If a skin injury 8 plaintiff s attorney notified Pfizer of the skin claim in writing prior to April 1, 2008, the claim is 9 settled through the Skin Injury Settlement Program, and the plaintiff's attorney is a Non- 10 Participating Attorney as defined by paragraph 5(d) of this Order, such a claim shall not be 11 subject to any assessment by this Court. This provision, however, shall not limit the PSC's right 12 or ability to seek an equitable contribution from any gross monetary recovery by a Non- 13 Participating Attorney settling a non-MDL skin injury case in which such counsel obtained access 14 to, or the benefit of, MDL work product. 15 7. Parties' Obligations When Case Settled - Payments to Common Benefit 16 Fund and Certifications of Participation Status. 17 a. Early Participating Attorneys - Certification of Early Participation 18 and Payment to Fund. When an Early Participating Attorney settles a Participating Attorney case 19 and/or claim, such counsel shall provide counsel for Pfizer with a Certification of Early 20 Participation, which shall include for the first case or claim settled by such counsel a signed copy 21 of the "90-Day Participation Option Agreement" (Exhibit A to Pretrial Order No. 8). Pfizer may 22 not disburse settlement proceeds to the Early Participating Attorney until Pfizer has received such 23 a certification and a signed stipulation of dismissal, and the Court will not dismiss any MDL 24 cases without such a certification. Upon receipt of such a certification, Pfizer shall pay the 25 assessment amount to the trust account established by Plaintiffs' Liaison Counsel (8% of the total 26 settlement amount, pursuant to paragraph 6(a) of this Order) and disburse the remainder to the 27 Early Participating Attorney. Any certification filed with the Court along with a dismissal shall 28 not disclose the amounts of any assessments paid to the common benefit fund. -6- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseM:05-cv-01699-CRB Document2507 Filed07/07/08 Page7 of 9 1 b. Later Participating Attorneys - Certification of Later Participation 2 and Payment to Fund. When a Later Participating Attorney settles a Participating Attorney case 3 and/or claim, such counsel shall provide counsel for Pfizer with a Certification of Later 4 Participation, which shall include for the first case or claim settled by such counsel a signed copy 5 of the "Post 90-Day Assessment Option Agreement" (Exhibit B to Pretrial Order No. 8). Pfizer 6 may not disburse settlement proceeds to the Later Participating Attorney until it has received such 7 a certification and a signed stipulation of dismissal, and the Court will not dismiss any MDL 8 cases without such a certification. Upon receipt of such a certification, Pfizer shall pay the 9 assessment amount to the trust account established by Plaintiffs' Liaison Counsel (10% of the 10 total settlement amount, pursuant to paragraph 6(b) of this Order) and disburse the remainder to 11 the Later Participating Attorney. Any certification filed with the Court along with a dismissal 12 shall not disclose the amounts of any assessments paid to the common benefit fund. 13 c. Non-Participating Attorneys Settling an MDL Case - Certification 14 of Non-Participation and Payment to Fund. When a Non-Participating Attorney settles an MDL 15 case (i.e., when no certification of participation is provided as set forth above), such counsel shall 16 pay the assessment amount to the trust account established by Plaintiffs' Liaison Counsel (12% of 17 the total settlement amount, pursuant to paragraph 6(c) of this Order). Prior to disbursement of 18 the settlement proceeds, such counsel must provide counsel for Pfizer with a Certification of Non- 19 Participation and Payment to the Common Benefit Fund, which shall include as an exhibit proof 20 of the amount paid to the fund. Pfizer may not disburse settlement proceeds until it has received 21 such a certification and a signed stipulation of dismissal, and the Court will not dismiss any MDL 22 cases without such a certification. Any certification filed with the Court along with a dismissal 23 shall not include any exhibit with proof of the amount of payment or otherwise disclose the 24 amount of any assessment paid to the common benefit fund. Pfizer shall retain copies of the 25 exhibits with proof of the amount of payment for each case. These shall be made available only: 26 (i) to the Special Master for an in camera inspection (i.e., not to any counsel for Plaintiffs, 27 including Plaintiffs' Liaison Counsel or any other PSC member); and (ii) for auditing purposes 28 -7- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseK05-cv-01699-CRB Document2507 Filed07/07/08 Page8 of 9 1 upon a showing of good cause (e.g., if questions arise concerning the payment of assessments on 2 MDL cases). 3 d. Non-Participating Attorneys Settling a Non-MDL Case - 4 Certification of Non-Participation and Indemnification for Assessment. When a Non- 5 Participating Attorney settles a non-MDL case, such counsel must provide counsel for Pfizer with 6 a Certification of Non-Participation and Indemnification for Assessment for each case, in the 7 event that the PSC later seeks an equitable contribution from any gross monetary recovery by the 8 Non-Participating Attorney. Pfizer may not disburse settlement proceeds until it has received 9 such a certification and indemnification. Plaintiff and his or her counsel are jointly responsible 10 for such indemnification. Pfizer shall retain copies of the certification and indemnification, as 11 well as documentation showing the settlement amount paid in each case. These shall be made 12 available only: (i) to the Special Master for an in camera inspection (i.e., not to any counsel for 13 Plaintiffs, including Plaintiffs' Liaison Counsel or any other PSC member); and (ii) for auditing 14 purposes upon a showing of good cause (e.g., if questions arise concerning the payment of 15 assessments where the Non-Participating Attorney received access to MDL work product). 16 8. PSC to Report Participation Status. The PSC shall provide Defendants' 17 Liaison Counsel, all plaintiffs' counsel, the escrow agent, and the Court or its designee with a list 18 of counsel who are Early Participating Attorneys and Later Participating Attorneys on a periodic 19 basis, and not less than every three months. In the event there is a dispute as to whether a case is 20 subject to an assessment, the PSC shall resolve the matter with the particular plaintiff's counsel 21 either informally or upon motion. In such event, Pfizer shall not disburse any settlement proceeds 22 until the dispute or motion is resolved. 23 9. Pfizer to Report Counsel Who Have Settled Cases. On a monthly basis, 24 beginning on May 31, 2008, Pfizer shall provide to Plaintiffs' Liaison Counsel a confidential list 25 of all counsel who settled MDL cases and/or non-MDL cases relating to Bextra and/or Celebrex 26 in the prior month and the participation status of such counsel (e.g., Pfizer's May 31, 2008 report 27 shall list counsel who settled MDL cases and/or non-MDL cases relating to Bextra and/or 28 Celebrex in April 2008). Paragraph A(2)(e) of Pretrial Order No. 8 is hereby amended so that -8- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CaseW05-cv-01699-CRB Document2507 Filed07/07/08 Page9 of 9 1 Pfizer shall not be required to identify the specific claimants or plaintiffs whose cases it settled. 2 This provision shall not be construed to require Pfizer to disclose to Plaintiffs' Liaison Counsel 3 any information other than the counsel who settled MDL cases and/or non-MDL cases (i.e., Pfizer 4 shall not be required to disclose the number of cases settled or the amounts of any settlements). 5 Plaintiffs' Liaison Counsel may not disclose the list to any other plaintiffs' counsel, including 6 other attorneys on the Plaintiffs' Steering Committee. 7 10. Order Does Not Preclude Future Agreements Regarding Common Benefits. 8 Nothing in this Order shall preclude the PSC and Pfizer from agreeing to other provisions for 9 common benefit compensation or reimbursement, so long as such agreements are subject to the 10 approval of this Court and do not increase the assessment percentages paid by participating 11 plaintiffs. 12 IT IS SO ORDERED. 13 /s/ 14 Dated: July 7, 2008 15 HONORABLE CHARLES R. BREYER UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- PRETRIAL ORDER NO. 8A: AMENDMENT TO ORDER ESTABLISHING COMMON BENEFIT FUND - M:05-CV-01699-CRB CORY, WATSON, CROWDER & DEGARIS Cindy C. Hockenberry Hockenberry, Cindy C. 1725 Newport Road Duncannon, PA 0083 00093 HI 2131 MAGNOLIA AVENUE STE 200 BIRMINGHAM, ALABAMA 35205 DIRECT DIAL (205) 271-7164 FAX NUMBER (205) 324-7896 November 24, 2009 Balance forward as of bill dated 01/01/1900 Payments received since last bill Net balance forward Total fees for this matter 0.00 hrs Prebill Number 51598 Billed through 11/30/2009 $0.00 $0.00 $0.00 $0.00 LGL - j4 -a 8/I I U05 r,, r - 2% ; ! ; fit] NUa I X 5.a a...,kiu.ttk t ».a _ 08/16/05 Vendor LEXIS NEXIS; Legal Research 2.14 M , 11 /02/700 $3!0;00' : n ?? `. ---- ------- - --- - 11/02/05 Vendor Welfley Pharmacy; MEDICAL RECORDS - pharmacy 30.00 records for James H. Hemperly, Sr. (deceased) LGL 04/13/2006 '$0 0$ ? t 04/13/06 Vendor PACER SERVICE CENTER; Legal Research 0.08 PST 06i15720Q6f -.......... r? w 6 Q6 - F n? ? ? .,... v .._....iF.l. .. .. .. . ? ?fii_. '-.1.1' u7u tli. ? aa.' ,u ... . "" ?' ,u?_a. e. I ... 06/15/06 Postage Charges 6.06 PST 06/15/-0`06 '• , , _r.-- 7 06/15/06 Postage Charges 6.06 PST" 0/200 06/20/06 Postage Charges 3.66 PST : 0/2Q06 _ r - .? $3 6f { 06%2 ., ? ,? 06/20/06 Postage Charges 3.66 PST "4c ` -!T -5 - s u 4 yg1 ? ` '90P t us m. »..r,.'?. r ' ?? a. • 07A9106 Postage Charges 5.60 -? 0 ` ? . . a . .. _ _ Hockenbeny, Cindy C. Prebill Number 51598 Page 2 07/19/06 Postage Charges 9.00 ':PST "' 07/1??/2006 ' - ?$1 98 '. f 07/19/06 Postage Charges 1.98 PST 07!24/2006 ... - " $0 39 07/24/06 Postage Charges 0.39 PST 07/2.:412006 '` $0 39" " ` ' ` 07/24/06 Postage Charges 0.39 M 07I26/2U06 $35 97. :... _ _ 07/26/06 Vendor Chartone, Inc (PO 152471); MEDICAL RECORDS- 35.97 Orthopedic Institute of PA M .. - •r-,- r 77 09/05%L006 ?,?3 85 ?. _ 09/05/06 Vendor Orthopedic Institute (OK); MEDICAL RECORDS 13.85 LGL 09112/2006 09/12/06 Vendor PACER SERVICE CENTER; Legal Research 4.48 LGL`s '? $44'0, 0912?2006? ''' „ 09/12/06 Vendor PACER SERVICE CENTER; Legal Research 4.40 10/05/06 Vendor Pacer Service Center; Legal Research 0.16 M : "i .. . Q2/06/2007' " ;i ; , $1`1^7 17 - _. 02/06/07 Vendor Chartone, Inc (PO 152471); MEDICAL RECORDS for 117.17 James H. Hemperly, Sr. deceased from Holy Spirit LGL' 3/31/2007 ° $280' 03/31/07 Vendor Pacer Service Center; Legal Research 2.80 PST OS/,17/2007. _ ' $31041ir , 08/17/07 Postage Charges 31.04 08/20/07 Postage Charges 12.10 P8T' 08120/2007 $'12.10' 08/20/07 Postage Charges 12.10 "PST,:. '09/27/2007 09/27/07 Postage Charges 1.48 LGL" '07/24/008 $0' 16 „.. .. _... 07/24/08 Vendor Pacer Service Center; Legal Research 0.16 58T 080 09130 2 , 09/30/08 Postage Charges 0.76 PST LL - :11/10/2008 $042=£' - 11/10/08 Postage Charges 0.42 PS T ' q"Ga i P?, Cl-4' C yj9 ? Ph Y m r} ? r S y s JJi j X1;68 °` 4 f 4/O7/2009 n 0 - 1 ' _ n... II ? ...._ 1E}.. WiS.s+,T..Ax... ... a `M. ._..... -.ti(hk.?fS,l L{cCN'._a.._.x..n Hockenberry, Cindy C. Prebill Number 51598 Page 3 04/07/09 Postage Charges 1.68 FEQX 07/01%2009 $119 07/01/09 Vendor FedEx; Invoice # 9-238-07079; SHIPPING 1.19 11/12/09 Federal Express 3 packages 45.00 $TOR 11/12/'2009 $20.00. .. 11/12/09 Storage / Closing Expense 20.00 COPY 11/30/2009 $233 00 11/30/09 PHOTOCOPIES 233.00 LAsk-- 11/BO%2009, ' $85'"T5 c N ; 11/30/09 PRINTLOG 85.75 Lb 1/30/2b09 %' W $34 14 r°?"?? + ' _ a 11/30/09 LONG DISTANCE TELEPHONE CHARGES 34.14 PST 11/30/009 $b 42 F 11/30/09 POSTAGE 0.42 ZFAX 11/3012009 $22 00 11/30/09 ZETA FAX 22.00 Total expenses for this matter $749.09 BILLING SUI CKARY TOTAL EXPENSES $749.09 ---------------- TOTAL CHARGES FOR THIS BILL $749.09 NET BALANCE FORWARD $0.00 TOTAL BALANCE NOW DUE $749.09 TRUST BALANCE $46,061.79 r; I 0:00. 0.00 0.00 CONTINGENT FEE AGREEMENT KNOW ALL MEN BY THESE PRESENTS, that i, the undersigned, do hereby retain HANDLER, HENNING and ROSENBERG, of Harrisburg, Pennsylvania, as my attorneys in this matter to represent me and to process, negotiate and/or arbitrate a settlement or to institute for me in my name any legal proceedings or actions that, in their judgment are necessary, against the Manufacturers and/or Distributors as well as any other responsible parties, of the medication, BEXTRA. I agree not settle, negotiate or adjust the above claim or any proceedings based thereon without the written consent of my said attorneys. NOW, THEREFORE, in consideration of the services so to be rendered by Handler, Henning & Rosenberg, I hereby covenant, promise and agree to pay them fortheir professional services rendered of THIRTY FIVE PERCENT (35%) of whatever sum Is recovered in the event of settlement without litigation and FORTY PERCENT (40%).of whatever sum is recovered in the eventmy case Is filed Into litigation. I will reimburse Handler, Henning and Rosenberg for any necessary expenses and costs advanced on my behalf in pursuing my claim out of whatever sum is recovered. I also authorize counsel to destroy my file three_3) years after the case is closed. Counsel reserves the right to withdraw if they desire to do so, for any reason(s) they deem proper. I agree that HANDLER, HENNING & ROSENBERG, may associate another lawyer to represent me, and any associated lawyer may appear on my behalf and represent me in this matter. If another lawyer or law firm is associated on my claim, I understand that this will not change the agreement regarding the percentage fee to- be received by the lawyer or lawyers representing me. I ACKNOWLEDGE that I have read, approved and understood the above Contingent Fee Agreement and I acknowledge having received a copy of the same. The terms set forth are accepted. IN WI EREOF, I have hereunto set my hand and seal this day of 20V-5- (SEAL) igna re Print Na e r,r ? ??Ve 06/14/2010 22:31 7177833467 Pennsylvania DEPARTMENT OF REVENUE April 1, 2010 Gregory Feather, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Rd Harrisburg, PA 17110 INHERITANCE TAX Re: Estate of James H. Hemperly Sr. File Number 5005-0101 Court of Common Pleas Cumberland County Dear Mr. Feather: PAGE 02/02 The Department of Revenue has received the Petition for Approval of Settlement Claim to be tiled 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 84 year old decedent died as a result of complications from the :., , ; . medication Bextra. Decedent is survived by his seven adult children. Please be advised that, based upon these facts and for inheritance tax purposes only, this Department has no objection to the proposed allocation of the net proceeds of this action, $21,527.30 to the wrongful death claim and S 5,381.82 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 Men,nn , 669 A.2d 1059 (Pa. Cmwith. 1995). I trust that this lettcr 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. s' ty, lr-. Shannon E. Baker Trust Valuation Specialist Inheritance Tax Division Bureau of Individual Taxes Bureau Individual Taxes I PU Box --'RbU9d-2A 171 28 1717.703.5824 1 shabaker®state.pa.us Client Number: 83-0093 Name of Person drafting this Request Martha Clayton TOTAL SETTLEMENT AMOUNT Client Name: James Hemperly Checks Received x Yes -No $ 52,877.42 Expenses/Costs: (Paid by Beasley, Allen and kept back for reimbursement) 2% MDL Assessment - Client Expenses $ 1,057.55 Escrow fee and lien resolution fee - Client Expenses $ 4x29 6% MDL Assessment Atty fee $ 3,172.65 Medicare Lien - Held Back $ ' 2,58L14 $ 46,06L79 Net Attorney Fee - 40% of Settlement (minus 6% assessment) CWCD Fee - 50% of Net Fee Referring attorney Fee - 50% of Net Fee Payable to: Handler, Henning CWCD Expenses Handler, Henning & Rosenberg Expenses Subrogation/Liens Paid on behalf of Client: (Name, address and acct or reference number) Medicare Lien - Held Back NET TO CLIENT $ 17,978.31 $ 8,989.16 $ 8,989.15 $ 749.09 $ 425.27 See Above $26,909.12 Instructions: Have the settlement check in hand before making this request Present this request two (2) days before the disbursement appointment with the client. Review file, Trialworks and ledger for subrogation/liens/protection letters Review file, TrWworks and ledger for client loans/promissory notes Make sure Accounting has the Federal Tax ID info of Co-counsel or Referring Atty Attach a copy of the settlement check to this request Have the Responsible attorney sign this Signature of Responsible Arty approi SETTLEMENT CHECK REQUEST (For CWCD Accounting) Net Wire from Beasley Allen Date._ Amount of Settlement Less Attorneys' Fee (409/6) Less Expenses Less Subrogation NET TO CLIENT DISBURSEMENT SCHEDULE FOR JAMES HEMPERLY CELEBREX -83-0093 $ 52,877.42 $ 21,150.96 $2,236.20 $ 2,581.14 $ 26,909.12 I acknowledge and understand that I shall be responsible for payment of all medical bills associated with this matter, including any subrogation interest claimed by any medical provider or insurer. Further, I acknowledge that the attached sheeting listing the expenses incurrred by CWCD in their pursuit of my claim and any loans, liens or subrogation claims has geen viewed by me and explained to me, and I understand same. I undertht that my file will be retained by CWCD for six (6) years and upon expiration of six (6) years, the entire contents of the file will be-destroyed. Therefore, should I desire anything out of my file, I should request it prior to the expiration of six (6) years from the date of this disbursement. I do hereby ratify that I have read and understand the above and agree such is a true and accurate accounting of my settlement. Date Date Client Client ? Y f andltr, tnningfi ostnbtrg,LLP ATTORNEYS AT LAW 1300 Linglestown Road, Harrisburg, PA 17110 Cindy Hockenberry 1725 Newport Road Duncannon, PA 17020 INVOICE PAYMENT DUE UPON RECEIPT EXPENSES Client No: 210348 Matter: 000000 Attorney: GMF BX Pre-Bill No: 33574 Bill Date: March 29, 2010 03/14/2005 Vendor WELFLEY PHARMACY; General Case Expense 15.00 04/20/2005 General Case Expense - Common of PA Court of Common Pleas 1.00 07/13/2005 Vendor PINNACLE HEALTH MEDICAL; General Case Expense 60.12 04/12/2006 Filing Fee - Federal Court 250.00 03/31/2010 Fax Charges 5.00 03/31/2010 Document Reproduction 43.40 i ij? 1 03/31/2010 11 71111, Mailing Costs 5.00 „ 0 3/31/2010 r. Postage Costs ANN= glamor 0.37 03/31/2010 Postage Costs 43.36 03/31/2010 Long Distance Telephone Charges 2.02 TOTAL EXPENSES $425.27 Total due this invoice $425.27 TOTAL BALANCE DUE $425.27 ~}r ~~ ~~c,.~-~~ F~~~~~AF?Y 201Q JU~~ 24 Ali 8~ 57 I'~L1~IYl.7~f ~ Yr~Y~~1 Gregory M. Feather, Esq. I.D. #79456 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 E-mail: Feather@HHRLaw.com JUN 2 2 2010 ~, Attorneys for Petitioner /Leila Watson, Esq. CORY, WATSON, CROWDER & DeGARIS, P.C. 2131 Magnolia Avenue, Suite 200 Birmingham, AL 35205 Telephone: (205) 328-2200 Fax: (205) 324-7896 In Re The Estate of ; IN THE COURT OF COMMON PLEAS JAMES H. HEMPERLY, SR., :CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-4109 CIVIL CIVIL ACTION -LAW ORDER OF COURT AND NOW, this day of , 2010, upon consideration of the foregoing Petition, IT IS HEREBY ORDERED that: 1. The above parties may compromise the action set forth in the Petition to Approve Settlement of Wrongful Death and Survival Actions for the principal sum of $52,877.42. 2. Cindy Hockenberry, Administratrix of the Estate of James H. Hemperly, Sr., Deceased, is authorized to distribute the monies in this action as follows: (a) Payment of $2,581.14, to the Centers for Medicare & Medicaid Services for repayment of services rendered to Petitioner's Decedent; (b) Payment of $4,234.49, for fees and expenses incurred in the representation of Petitioner's Decedent in the underlying class action; (c) Payment of $425.27, to Handler, Henning & Rosenberg, LLP for costs incurred; (d) Payment of $749.09, to Cory, Watson, Crowder & DeGaris, PC, for costs incurred; (e) Payment of counsel fees in the amount of $17,978.31 to Handler, Henning & Rosenberg, LLP; and (f) Direct distribution of the remaining net proceeds of the settlement as follows: To Petitioner's Decedent's statutory beneficiaries for the wrongful death action, in the amount of $21,527.30, which will represent 80% of the net proceeds as follows; (1) Cindy C. Hockenberry, Administratrix - $3,075.32; (2) Wendy M. Strohecker - $3,075.33; (3) Jamie R. Deiter - $3,075.33; (4) James H. Hemperly, Jr. - $3,075.33; (5) Michael E. Hemperly - $3,075.33; (6) Tammy S. Seiger - $3,075.33; and (7) Timothy L. Hemperly - $3,075.33. ii. To the Estate of James H. Hemperly, Sr., for the survival action, in the amount of $5,381.82, which represents 20% of the net proceeds. l~o, Y m~.i~l.. ~~au/ r~ ~,~-') T: J.