HomeMy WebLinkAbout08-23-10F:\WP Directories\GMF\DRUG LITIGATION\vioxx\Petitions for Settlement\Miller James -Final -PTO
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Gregory M. Feather, Esq.
I.D. #79456
HANDLER, HENNING & ROSENBERG, LLP
130o Linglestown Road
Harrisburg, PA r7uo
Telephone: (7~7) 238-ZOOo
Fax : (717) 233-3029
E-mail: Feather@HHRLaw.com
In Re Estate of
JAMES P. MILLER
Attorneys for Petitioner
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IN THE ORPHANS' COURT OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. zoo6-o06~0
CIVIL ACTION -LAW
PETITION TO SETTLE WRONGFUL DEATH AND
SURVIVAL ACTIONS
To the Honorable Judges of the Court:
Petitioner, Phyllis Miller, Administratrix of the Estate of James P. Miller, Deceased,
by and through her attorneys, 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:
1. Decedent, James P. Miller, was born on May 11, 1953 and resided in
Mechanicsburg, Pennsylvania. He is survived by his spouse and Petitioner in this action,
Phyllis Susan Miller, and his parents, James W. Miller and Patricia Miller.
i. Petitioner, Phyllis Susan Miller, is an adult individual currently residing at 81
Linda Drive, Mechanicsburg, PA i~o5o. Petitioner was appointed Administratrix of the Estate
of James P. Miller, on August 1, aoo6, by the Register of Wills of Cumberland County. A copy
of the Short Certificate is attached hereto, made a part hereof, and marked "Exhibit A."
3. Decedent died intestate and his Estate shall be distributed pursuant to the
Intestacy laws of the Commonwealth of Pennsylvania with Phyllis Susan Miller, the surviving
spouse, receiving the first $30,000 and 50% of the remaining estate with James W. Miller and
Patricia Miller splitting equally the remaining 50% of the Estate.
4. On August zo, aooo, Petitioner's Decedent suffered an instantaneous cardiac
death, brought on by an acute myocardial infarction, resulting from Decedent's use of the
prescription medication, Vioxx. A copy of the Certificate of Death is attached hereto, made
a part hereof, and marked "Exhibit B." In addition, an autopsy report dated August ii, 2000,
is attached hereto, made a part hereof, and marked "Exhibit C."
5. Petitioner's Decedent began use of Vioxx in August, aoo9, as a result of a
prescription written by his physician, Dr. Glen R. Daughtry. Decedent continued to renew
his prescription and take Vioxx until the time of his death on August ao, aooo.
6. On behalf of Decedent, Petitioner, Phyllis Susan Miller, brought a claim against
Defendant, Merck & Co., Inc., as manufacturers of the Vioxx prescription medication.
2
~. On November g, aoo~, a nationwide settlement was reached between all
Plaintiffs in MDL No.1657and Defendant, Merck and Co., Inc. Judge Fallon, the MDL Judge
assigned to the Vioxx litigation, set up a settlement procedure for administration and
distribution of all Vioxx settlement funds.
8. As part of the Vioxx settlement program', Petitioner's Decedent received a
point value of 265.65, which, when multiplied by the monetary per-point value of $i865.oi,
resulted in a gross settlement value of $495439.90. Attached hereto, made a part hereof, and
marked "Exhibit D," is a copy of the Notice of Points Award.
9. Petitioner, on behalf of Petitioner's Decedent, received a final settlement offer
in the amount of ~495~439.91, which represents ioo% of the gross settlement value. This
payment is the basis behind the current settlement petition.
io. Counsel is of the professional opinion that the proposed settlement offer is fair
and equitable under the circumstances of this case.
ii. Petitioner is of the opinion that the proposed settlement is reasonable.
i2. Counsel has incurred general case expenses in the amount of $i,5a6.o~, for
which reimbursement is sought. Attached hereto, made a part hereof, and marked as
"Exhibit E" is a copy of the billing summary.
' As part of the settlement program, each plaintiff received a point value, which was determined based on,
inter alia, the plaintiffs age at the time of injury, proof of total drug use, and severity of the injury, while taking
into account risk factors which may have contributed to the injury. Each individual point has been assigned
a fixed monetary value of $i,865.oi, which, when multiplied by the point value a particular plaintiff received,
determines the total settlement amount for that plaintiff.
3
13. Court-ordered Common Benefit fees, representing the reimbursement of
Common Benefit attorneys working toward all Vioxx Plaintiffs' claims, are to be withheld
from the settlement payment. The MDL Court has not yet made a final determination of
what percentage is appropriate for Common Benefit fees, but has ordered that eight percent
(8%) of the total settlement be withheld until the issued is resolved. The Court-ordered
Common Benefit fees of $39635.19, which represents eight percent (8%) of the net proceeds
of the settlement, shall be withheld from payment by the Claims Administrators.
14. Court-ordered Common Benefit or "global" costs in the amount of one percent
(1%) of settlement awards are deducted from each Vioxx settlement award. Common Benefit
costs of $4954.40, which represents one percent (1%) of the net proceeds of the settlement,
shall be withheld from payment.
15. The attorney fee, per Contingent Fee Agreement, is forty percent (40%), but
was reduced to thirty-two percent (3i%) by PTO 49. Handler, Henning & Rosenberg's fee is
reduced by an additional eight percent (8%) to a twenty-four percent (i4%) Contingency Fee
due to subtraction of the Common Benefit Fee that was withheld by MDL Court Order.
Counsel requests that attorney fees in the amount of $118,905.57 Which represents twenty-
four percent (z4%) of the gross settlement, be approved. Attached hereto, made a part
hereof, and marked "Exhibit F," is a copy of PTO 49. In addition, attached hereto, made part
hereof, an marked "Exhibit G" and "Exhibit H" respectively, are a copy of the Contingent Fee
Agreement and a copy of PTO 50, authorizing the release of the attorneys fees previously
held in escrow pursuant to PTO 49•
4
16. Petitioner requests approval of $150.00 to be used for satisfaction of a medical
lien pursuant to the Private Lien Resolution Program..
1']. After deducting Common Benefit expenses of $4954.40, the Common Benefit
fee of $39635.19, general case expenses of $1,526.07, Private Lien Resolution holdback of
$150.00, and attorney fees to Handler, Henning & Rosenberg, LLP in the amount of
$118,905.58, the net settlement balance due to the Estate of James P. Miller is $33o,z68.67.
18. 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:
(a) $30,000.00 to the surviving spouse, Phyllis Miller.
(b) For the survival action, $90,080.60, thirty percent (30%) of the
net settlement proceeds to the Estate of James P. Miller;
(c) For the wrongful-death action, $210,188.07, seventy percent
(70%) of the net settlement proceeds, to Decedent's Intestate
beneficiaries pursuant to the Intestacy laws of the
Commonwealth of Pennsylvania as follows:
(i) Phyllis Susan Miller, surviving spouse and
Petitioner in this action, in the amount of
$io5,o94•04~
(ii) James W. Miller, surviving father of the decedent,
in the amount of $52547.02;
(iii) Patricia Miller, surviving mother of the decedent,
in the amount of $52547.02
ig. The Department of Revenue has approved the above-proposed allocation of the
net settlement proceeds. Written approval from the Department of Revenue is attached
hereto, made a part hereof, and labeled Exhibit "I."
5
20. Petitioner respectfully requests that seventy percent (70%) of the net
settlement be allocated to the wrongful-death action. There was no conscious pain and
suffering on the part of the Decedent, since his death was sudden and instantaneous.
Decedent was not working at the time of death and, therefore, no wage loss is being claimed.
WHEREFORE, Petitioner requests this Honorable Court to:
(a) Authorize the payment of attorney fees in the amount of
$u8,go5.58 and general case expenses in the amount of $1,526.07
to Handler, Henning & Rosenberg, LLP from the funds due;
(b) Approve allocation of the net settlement, as approved by the
Department of Revenue, as follows:
i. $30,000.00 to the surviving spouse, Phyllis Miller.
ii. $210,188.07, seventy percent (70%) of the net settlement
proceeds, to the Wrongful Death Action; and
iii. $90,080.60, thirty percent (30%) of the net settlement
proceeds, to the Survival Action.
(c) Direct distribution of the net proceeds of the settlement as
follows:
i. To Phyllis Miller, the surviving spouse, $30,000.00
ii To Decedent's Intestate beneficiaries, for the wrongful
death claim, in the amount of $210,188.07, which represents
seventy percent (70%) of the net settlement proceeds as
follows:
(i) Phyllis Susan Miller, surviving spouse and
Petitioner in this `action, in the amount of
$io5,o94.04~
(2) James W. Miller, surviving father of the decedent, in
the amount of $52,547.02;
(3) Patricia Miller, surviving mother of the decedent, in
the amount of $52547.02
ii. To the Estate of James P. Miller, for the survival action, in
the amount of $90,080.60, which represents thirty percent
(30%) of the net settlement proceeds.
Respectfully submitted,
HANDLER HENNIru~SENBERG, LLP
Date• '~/~~ 'IC By:
'LD. #7945
Attorneys fo Petitioner
STATE OF PENNSYLVANIA SHORT CERTIFICATE
COUNTY OF CUMBERLAND
I, GLENDA EARNER STRASBAUGH
Register for the Probate of WiI2s and Granting
Letters of Administration in and for
CUMBERLAND County, do hereby certify that on
the 1st day of August, Two Thousand and Six,
Letters of ADMIN/STRAY/ON
in common form were granted by the Register of
said County, on the
estate of JAMES P M/LEER late of S/EVER SPRING TOWNSH/P
iFrist Middle, Lest)
in said county, deceased, to PHYLL/S SUSAN MILLER
(First, Middle, Lase!
and that same has not since been revoked.
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IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the
seal of said office at CARLISLE, PENNSYLVANIA, this 1st day of August
Two Thousand and Six.
File No. 2006-00670
PA File No . 21- 06- 0670
Date of Death 8/20/2000
S . S . # 169-44-6304
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Register /l/s
eputy
J NOT VALID WITHOUT ORI Ili D IMPRESSED SEAL
V
ilOS.8D5 REV 9186
This is to certify that the information..!'"
~ "`given is 'correctly copied from,an`"origina~~"'~ificar"~ of death duly filed with me as`" '
'
.Local Registrar. The original certlficati r K ,ce for permanent filing.
l be forwarded to the State Vital Records
WARNING: It is ill egal to duplicate this copy by photostat or photograph.
Fee for this certificate, $2.00
'Local Registrar .
P 6764245
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No. Date
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SIC PAT~-IOLOC;Y ASSOCIATES, IIVC.
U CEDAR CREST BLVD. 2031 GREENWOOD ROAD
LENTOWN, PA 18103 ALLENTOWN, PA 18103
(610) 402-8144 (610) 770-2040
FAX (610) 402-5637
AUTOPSY REPORT
Name .................M.II.I..ER,..J.amss....................................
Age ..........4.7........ Race ..........V~.hite... Sex.....Male.........
Attending Physician/Coroner..........Mr...Mlchael.NOrri.s..
......................... C.urrzberland..Counxy. C.aron.ez............
Pathologist .................................C..DiAngelra,.M:D..........
Autopsy Protocol Completed...........8/.2.1.,1fl0 ........................
Autopsy No. ...........C-Q0-46.1 ..............................................
Hospital No. ...........CC-27.-~.45 ..........................................
Date Admitted .........T.ransp...L.VH..8!21/.00 ......................
Date of Death .........Pron...81.2.0/D.O, tt .03.1.1.hr .................
Date of Autopsy.......8121/.OO...C1.1.1.OD..hr .............................
Autopsy .........~3.]...1/.2............Hrs. After PrOnOUnced
ANATOMICAL DIAGNOSES
CAUSE OF DEATH: SEVERE THREE-VESSEL CORONAR~T~~Y DISEASE
~~~~ i'~
I.I. Miscellaneous findings:
A. No acute trauma or injury
B. No significant changes, neck
C. Toxicology: no significant findings
D. Status post appendectomy, remote
FINAL PAT>EIOLOGIC DIAGNOSES: C~~ ~ ~~~~
V®® N~
I. Cardiovascular system:
A. Cardiomegaly, 520 gm, with four chamber dilatation
B. Coronary atherosclerosis:
1. Left anterior descending, proximal, calcified with organizing thrombus, nearly
100% occlusion; inid and distal, 90% occlusion
2. Circumflex, proximal, 90 +% occlusion
3. Right coronary, diffuse, 20-30% occlusion; distal 90 +% occlusion
C. No gross acute or remote ischemic changes
D. Visceral congestion
E. Cerebral ischemic, mild to moderate
~' i ~ ~ ~ t'JQ~~
°'~R'~'L"E'E-F~14E; fiA,{~. ^ SAMUEL LAND, M.D. ^ ISIDORE MIHALAKIS, M.D. ^ MALCOM L. COWEN, M.D.
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UTOPSY REPORT -Continued
MILLER, Jam C-00-461 2
Name ............. .............Autopsy No............Page..,............
OPINION:
After review of the history and complete autopsy on 47-year-old James Miller, the cause of death
is due to severe three-vessel coronary artery disease. The three main vessels which supply blood
to the heart muscle have 90% stenosis with the left anterior descending being occluded by
organizing thrombus. Grossly visible changes are not identified. Toxicology is reported as "no
significant findings". There is no acute trauma or~i~
~~~~~ +~ ~~
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C. DiAngelo, MD ~S
Forensic Pathologist
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UTOPSY REPORT -Continued
MILLER, Jam C-00-461
Name ........... . . .............Autopsy No, ......... 3
..Page ...............
CIRCUMSTANCES:
The decedent was a 47-year-old white male with a history of hypertension. He had fractured his
neck three years prior while at work; there was no paralysis but he was on disabili*,y: He had
gained weight since the accident and was on pain medications. He smoked one pack of cigarettes
a day. He was last seen alive at midnight on 8/20/00. He may have gone outside to smoke a
cigarette. He was found in the backyard lying on the ground at approximately 0230 hours by his
stepson. He was pronounced dead at the scene. There we~no signs of foul play or trauma. He
was pronounced dead at 0311 hours on 8/20/OQ~~'~~,
ONE® ,~~ ~~p~
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UTOPSY REPORT -Continued
MILLER, James C-00-461 4
Name ....... . ...... ............Autopsy No..... , ......Page .............. .
EXTERNAL EXAM ATION•
The body is received in a body bag with lock O l 11090. The body is that of a partially clothed,
76.5 inch, approximately 275 pound 47-year-old white male. Rigor mortis is present in the large
muscle groups and able to broken with moderate difficulty. There is posterior- red-purple barely
blanching lividity. The head and neck are very congested. The body was clothed in white
underbriefs, "B VD" brand, size 36; blue shorts, "FB Ball" brand. The cl ~ ~~~~,
suspicious defects. ~®~
®~ ~®~
The head is normocephalic and atraumatic. The scalp is covered b~s~rt gray-brown hair which is
present in a normal male. distribution. The face has bear d st~.rbble. The ears ar•e normally formed.
The facial bones and nose are intact to palpation. The eyes have hazel irides with 0.6 crn round,
regular, and equal pupils. The sclerae and conjunctivae are congested with very rare petechiae
seen in the lower conjunctivae and periorbital tissue on the left side. There are no hemorrhages or
icterus. The lips, gums, teeth, palate, and tongue are within normal limits with a few missing teeth
on the mandible. There is clear fluid within the mouth and on the face. The neck is full without
palpable masses or defects.
The chest is normally formed with an increased anterior-posterior diameter. There are no masses
or defects. The abdomen is protuberant, soft, and without masses or defects. The external
genitalia are normal adult male with circumcised penis and bilaterally descended testes. Normal
adult male pattern pubic hair is present. The upper and lower- extremities are symmetrical,
normally formed, and without missing digits. The nails are intact. There is a gold-tone band about
the left ring finger which is left in place. The back and buttocks ar-e symmetrical, normally formed,
and without masses or defects, The anus is unremarkable.
EVIDENCE OF REMOTE MEDICAL INTERVENTION:
There is a 2 inch well-healed scar- of the posterior- neck. Internal examination reveals possible
osteophyte formation on tl~e anterior body of C3. No other abnormalities are appreciated. There is
a 4 inch well-healed scar of the right lower quadrant of t}~e abdomen and a 2 inch well-healed scar
on the left. Internal examination reveals fibrosis of the right lower quadrant of the abdomen and
absence of the appendix.
EVIDENCE OF INJURY:
There are healing abrasions of the left lower leg. No other- evidence of acute trauma or injury is
present.
UTOPSY REPORT -Continued
MILLER, James C-00-461 5
Name ............... ............Autopsy No........... Page
ORGAN WEIGH D FLUID VOLUMES:
Brain: 1520 grams
Hurt: 520 grams
Right Lung; 950 grams
Left Lung: 920 grams
Liver: 3340 grams
Pancreas: 200 grams
Spleen 350 grams
Right Kidney: 300 grams
Left Kidney: 300 grams
Stomach: 350 ml
Gallbladder: 15 ml ~.~e~-~
Urinary Bladder: 80o'F„ ~~~
c®~' ®~ ~
INTERNAL EXAMI
BRAIN AND CENTRAL NERVOUS SYSTEM:
The scalp is without contusions. The skull is intact and atraurnatic. The brain weighs 1520 grams.
The Jura is intact without epidural or subdural hemorrhage. The meni-lges are thin with no
exudate or hemorrhage. The cerebral hemispheres are symmetrical with a mildly edematous gyral
pattern. There is no subfalceal, uncal, or cerebellar tonsilar herniation but there is prominence of
these structures. The vessels at the base of the brain have a normal distribution with minimal
atherosclerosis but no vascular anomalies, plaque hemorrhages, or thrombi. The midbrain and
brainstem are grossly unremarkable. The cerebellar hemispheres are symmetrical. Cross sectioning
reveals normally formed gray and white matter structures with no masses, abscesses, infarctions,
contusions, lacerations, or hemorrhage. The gray matter has mildly to moderately increased tan
coloration and the white ma±ter congested vasculature.
NECK:
The soft tissue and musculature of the anterior neck are within normal limits. The bony structures
are as previously described. The hyoid bone and thyroid cartilage are atraumatic. The tongue is
within normal limits. There are no obstructive lesions or foreign objects of the oropharynx,
nasopharynx, larynx, or trachea. The mucosa is tan-red without masses or lesions. There is edema
fluid and small amounts of aspirated gastric contents throughout the tracheobronchial tree.
BODY CAVITIES:
The pleural cavities and pericardial sac have no significant fluid or- adhesions. The peritoneal
cavity is a previously described.
UTOPSY REPORT -Continued
MILLER, Ja C-00-461 ~
Name . , . , ....... .............. .Autopsy No............ Page .............. .
CARDIOVASC SYSTEM:
The 520 gram heart has an enlarged size and globular shape. The epicardium is smooth and intact.
The coronary arteries have a normal takeoff and distribution. The crosscut surfaces of the
coronary arteries have occlusion by eccentric atheromatous plaque which is focally calcified. The
left main coronary artery has no significant atherosclerosis. The proximal left anterior descending
coronary artery has calcified plaque and near total occlusion by tan-white organized thrombus.
The mid and distal portion of the left anterior descending have 90% occlusion by eccentric
atheromatous plaque formation. The circumflex coronary artery has proximal 90% percent
occlusion by similar plaque formation. The right coronary has diffuse 20-30% occlusion in its
proximal and mid portion. ThP distal right coronary has 90 +% occlusion by eccentric
atheromatous plaque formation. No acute plaque hemorrhages or acute thrombi are identified.
The foramen ovale and septa are closed. The chambers are dilated but with no mural thrombi. The
myocardium is red-brown and soft throughout with no grossly visible acute or remote ischemic
changes. The cardiac valves are normally placed and competent with no vegetations or
perforations. The aorta and its branches are normally formed, pat~nild to moderate
atherosclerotic plaque formation. There are no trauma~~~~ ~~~~~
RESPIRATORY SYSTEM: ~® ~~~
D~
The 950 gram right and 920 gram left lungs are normally lobated. The pleural surfaces are red-
purple, smooth, and intact. The bronchi contain edema fluid and gastric contents as previously
described but no masses. The pulmonary arteries are free of thromboernboli. The crosscut
surfaces of the lungs are red-purple, congested, and edematous but with no masses,
consolidations, or traumatic injuries.
HEPATOBILIARY SYSTEM:
The 3340 gram liver has a smooth surface and thin capsule. The parenchyma is tan, congested,
and with no increased fibrosis or masses. The i~epatobiliary tree is patent. The gallbladder
contains 15 ml of red-green bile with no stones or sludge. The rnr.rcosa has cholesterolosis. The
portal vein and inferior vena cava are not thr•ombosed.
GASTROINTESTINAL SYSTEM:
The esophagus is intact and lined by tan-pink mucosa. The gastroesophageal junction is within
normal limits. The stomach contains approximately 350 rnl of tan thick fluid with grossly
recognizable noodles, vegetables, and meat particles. No medication particles are identified.
The regal pattern is intact. The mucosa is congested with no ulcerations or perforations. The
pyloric sphincter is within normal limits. The small and large bowel are free of pathologic lesions
or traumatic injuries. The appendix is not present.
UTOPSY REPORT -Continued
MILLER, Jame C-00-461 7
Name ............. ~ ..............Autopsy No............ Page .............. .
HEMOLYMPHAT SYSTEM:
The 350 gram spleen has a taunt gray capsule. The parenchyma has the usual red and white pulp
architecture. There is no significant lymphadenopathy. The bone marrow is normal for age.
GENITOURINARY SYSTEM:
The 300 gram each kidneys have capsules which strip easily revealing smooth cortical surfaces.
The corticomedullary junction is demarcated. The medullae are congested. The renal papillae,
collecting systems, and ureters are unremarkable. The urinary bladder contains 80 ml of clear
urine. The urethra through the prostate is patent. The prostate has a granular gray crosscut
surface with mildly increased nodularity but no hemor-•hage or necrosis. The testes are palpable
within the scrotum and without masses.
ENDOCRINE SYSTEM:
The pituitary gland is unremarkable. The thyroid gland is red-brown, gelatinous, and within
normal limits. The 200 gram pancreas has a tan to red lobul ~iirface with no fibrosis. The
bilateral adrenal glands are in their normal anatom' ellow cortices surround
autolyzed medullae. ~~:~ a~~
~~ ®~
MUSCULOSKELETAL SYSTEM: ~~
The skull, vertebral column, ribs, and upper and lower extremities are as previously described.
The musculature is red-brown and firm.
MISCELLANEOUS:
Michael Gery was the forensic autopsy assistant. Also present for parts of the autopsy was Joe
Hoover.
Representative sections from all major organ systems are retained in 10% formalin.
Specimens are collected by this office and submitted for toxicologic analysis by the Cumberland
County Coroner's OPFce.
Photographs are obtained by this office.
The clothing is returned to the body. The ring is left on the finger.
onfidential Information
V2046C NOTICE OF SPECIAL MASTER POINTS DETERMINATION
Date of Notice: 8/17/09
I. IDENTIFYING INFORMATION
Claimant Name Miller, Dec., James P. Social Security Number 169-44-6304
Law Firm Handler, Henning & Rosenberg, LLP
VCN Number 1062765 Enrollment Status IP Enrolled First Confirmed Vioxx Use 8/20/00
II. TOTAL POINTS CALCULATION
A. BASIS POINTS
1. Qualifying Event/Level Injury Type : SCD Injury Level : 1 Date of Event: 8/20/00
2. Age at Event 45 to 49 years
3 O
. verall Duration of Vioxx Use 0-2M
4 B
i
P
i
. as
s
o
nts
500
00
.
B. LABEL AND CONSISTENCY ADJUSTMENTS
5 L
b
l
. a
e +15
6. Consistency o
0 /o
7. Adjustment Total % +15
g. Subtotal Points (Row 4 x Row 7)
575.00
C. RISK FACTOR ADJUSTMENTS
Risk Factors Finding Adjustment Cumulative Points
9. Obesity BMI>=30 - 17.5
474.3 8
10. Hypertension Controlled o
- 20 /0
379.50
11. Smoking Regular - 30
265.65
12
. TOTAL POINTS 265.65
III. POINTS AWARD DETERMINATION
This Notice of Special Master Points Determination is an official notification from BrownGreer PLC, the Vioxx
Claims Administrator. The Claims Administra#or has issued this Notice of Special Master Points Determination in
response to your appeal under Section 3.2.4 of the Settlement Agreement. After receiving notice of your appeal, the
Special Master conducted a de novo review of your claim and assessed the Point value above. This determination
supersedes any determination you previously received from the Claims Administrator.
IV. FINALITY OF SPECIAL MASTER'S DETERMINATION
This Notice of Special Master Points Determination is final, binding and not subject to further appeal by the claimant.
You do not need to accept this Special Master's Determination to receive payment. The Claims Administrator will
place this claim in line for payment (see Section VII of this Notice), assuming that this claimant satisfies all other
requirements to receive an Interim Payment and that the claim is not selected for audit under Article ] 0 of the
Settlement Agreement. The Points Award on any claim selected for audit may go up or down in audit, even if the
claimant has accepted the Points Award and has received an Interim Payment.
Page I of 3
onfidential /nformation
V. FIXED PAYMENT
Pursuant to Section 3.3 of the Settlement Agreement, if the Total Points in this Notice are less than ten points for a
MI-related injury or less than two points for an IS-related injury, the claimant may elect a Fixed Payment of $5
000 by
"
,
selecting the
Accept $5,000 Fixed Payment" button on the secure web portal. If the claimant has a dual injury claim
,
the aggregate Grand Points Total on Page 1 of this Notice must be less than the 10-point or the 2-point threshold for
the Fixed Payment option. If the claimant alleged both an IS and a MI injury, the Primary Injury identified on Page 1 of
this Notice governs whether the Fixed Payment threshold is less than ten points for MI Claims or less than two points
for IS Claims. If the claimant qualifies for a Fixed Payment but fails to elect a Fixed Payment within 30 days of this
notice, the claim shall be reviewed de novo by the Special Master, in accordance with Section 3.4 of the Settlement
Agreement.
VI. GOVERNMENTAL LIEN RESOLUTION
A previous communication entitled Claimant Education Materials on Government Medical Liens/Obligations
explained that the Lien Resolution Administrator ("LRA") is responsible for establishing a formal process for
satisfying and discharging any statutory obligations to Medicare, Medicaid and/or other specific government
healthcare programs for Enrolling Claimants who have been or who currently are entitled to such state or federal
benefits. Under the terms of the Vioxx Settlement Program, any such Vioxx-related statutory obligations must
be resolved in order for any final settlement monies to be released. However, the LRA has established procedures
and protocols to allow disbursement of Interim Payments while the obligations (if any) described below are satisfied.
The LRA is resolving federal Medicare (Part A & B) and Medicaid's interest (if any) in the settlement awards of
claimants determined to be entitled to federal Medicare and/or state Medicaid based upon the Social Security Numbers
(SSNs) provided to the Claims Administrator. The LRA, Medicare and Medicaid assume no responsibility for the
correctness of the SSNs provided to the Claims Administrator by claimants or their counsel. If the claimant's SSN in
Section I of the Notice of Points Award is incorrect, the claimant or their counsel must contact the Claims
Administrator immediately, as it could affect the correctness of the claimant's governmental lien obligations listed
below. In addition to federal Medicare and state Medicaid, the LRA is resolving any reimbursement obligations
associated with Other Government Programs, such as Veterans Affairs (VA), TRICARE, Department of Defense
(DOD), or Indian Health Services (IHS) which were reported to the LRA by the claimant or claimant's counsel. The
previous communication entitled Claimant Education Materials on Government Medical Liens/Obligations instructed
claimants and claimants' counsel on how to report liens asserted by Other Government Programs.
A. OBLIGATIONS TO GOVERNMENT HEALTHCARE PROGRAMS
I• State Medicaid Participant No
2• Medicaid Holdback Percentage 0%
3. Federal Medicare Participant No
4• Global Medicare Resolution Category and Amount $0
5• Other Government Program Obligations No
6• Resolution of Other Government Program Obligations
(not to exceed the relevant Program's actual injury-related 0%
care expenditures on behalf of Claimant)
B. GOVERNMENTAL LIEN/ CLAIM RESOLUTION PROCEDURES
Identification of Participants in Government Healthc
P
are
rograms.
If "No" is displayed in any of Rows 1, 3 or 5 of Section VI.A above, then you were determined by the LRA not to be a
participant in that particular government program and you, therefore, do not have any liens to satisfy with respect to
that healthcare program/agency. If "Yes" is displayed in any of Rows 1, 3 or 5 of Section V1.A above
the LRA
,
determined that you are entitled to federal Medicare (Part A & B) and/or state Medicaid benefits and/or Other
Government Programs (VA, TRICARE, DOD or IHS) and that you will have to satisfy reimbursement obligations or
liens associated with injury-related care benefits that you may have received from those respective healthcare
programs. Additional information about the procedures used by the LRA to identify and resolve these obli
ati
g
ons are
\'2046Cv 1
V IOY)i I:LAIMS ADMINISTRATOR Page 2 of 3
BROWNGRGLR ~~ I'LC
onJidentia( Information
included within the separate, posted document titled Information About Resolving Governmental Medical Liens for the
Vioxx Settlement Program. It is imperative that all claimants and counsel review the information above in
Section VI. A to confirm that it is correct. Claimants and/or their counsel should contact the office of the Lien
Resolution Administrator at (877) 774-1130 immediately if the information in Section VI.A Obligations to
Government Healthcare Programs is thought to be inaccurate.
All counsel should also download the document entitled Info(°mation About Resolving Governmental Medical Liens
for the Vioxx Settlement Program, read it carefully, and provide it to their clients/clamants. This document is
available on the "Lien" section of your secure web portal.
VII. PAYMENTS AND WITHOLDINGS
Claimants who are IP Enrolled and are not Special Marker QPC claimants will receive a 40% Interim Payment, and no
deductions will be made from the Interim Payment. A Special Marker QPC who elects the $5,000 Fixed Payment will
not be subject to a Common Benefit Fee deduction. The LRA (explained in Section VI) is not responsible for resolving
private liens, which remain the responsibility of the Claimant and Primary Counsel. On August 27, 2008, the United
States District Court for the Eastern District of Louisiana, which supervises the implementation of the Settlement
Program, entered an Order (Document # 15722) that limited the attorneys' fees payable out of payments in the
Settlement Program, including any Interim Payments, to 32%.
vzoa6a•i VIOXx CLAIMS ADMINISTRATOR Page 3 of 3
BRO\~I~'GRELR ~~ PLC
andlQr,
Qnning~
~ osQnbQrg,u~
ATTORNEYS AT LAW
1300 Linglestown Road, Harrisburg, PA 17110
Phyllis Miller
81 Linda Drive
Mechanicsburg, PA 17050
INVOICE
PAYMENT DUE UPON RECEIPT
EXPENSES
Client No: 210206
Matter: 000000
Attorney: GMF
VX
Pre-Bill No: 34886
Bill Date: July 14, 2010
05/31/2005 General Case Expense- CHART ONE 101
05
CASE 05/31/2005 $101.Q5 .
06/17/2005 General Case Expense -REFUND CHART ONE -101
50
CASE ~ 06/1 712 0 05 ' ,, =$101:50 .
07128!2005
.. General Case Expense -CHART ONE 54
27
CASE :.. `0712812005 $54.27 .
08/01!2006 Vendor LAURIE DEBARR; General Case Expense- REGISTER OF WILLS 43
00
CASE ., 08/01/2006 `$43.00 .
08111/2006, Vendor CUMBERLAND CO CORONER; General Case Expense 100
00
CASE 08/11/2006
$10a.OQ . .
09/12/2006 Vendor TREASURER, STATE OF NEW JERSEY; General Case Expense 200
00
CASE , .09/12/2006. $200..00 .
10/20/2006 Vendor CUMBERLAND LAW JOURNAL; General CaseExpense 75
00
CASE -'' . <1Q120/2006 $75.00
/ .
10J25/2006 Vendor Patriot-News
Co; General Case Expense 168
66
CASE - 10/25/2006 $168.66 .
03/13/2009 VendorARNOLD MESHKOV MD 750
00
.CASE ,:: 03I1312Q09 $750.00 .
06/02/2010 PROTH OF CUMBERLAND COUNTY 92
00
CASE _ = 06/02/2010
$92.00 .
06/02/2010 PROTH OF CUMBERLAND COUNTY -92
00
...CASE ;: , `~` 06102/2010 - =$92.00 .
07/13/2010 REG OF WILLS CUMBERLAND
CASE .:,-
07113/2010 , $43.50 43.50
:, , ~:
07/31/2010 Document Reproduction
COPY
0713 1 12 0 1 0 $3.40 3.40
07/31!2010 Fax Charges
FAX ,
.0 713 1 12 0 1.0 $5.00 5.00
07/31/2010 Federal Express Costs
FEDX :... -
N07/31/20'10
$3..00 3.00
,
07/31/2010 Document Reproduction
ISI `
07f31l2010 $3.20 3.20
07/31/2010 Mileage ~ ~~~
1~~~
~ 45.93
~..;
210206 Miller, Phyllis
MILE ~ 07!3112010 _ $45.93
07/31/2010 Mailing Costs
-PACK 07/31/20 0 $5.00
07/31/2010 Postage Costs
POS 07131J2010 $3.49
07/31/2010 Postage Costs
POST <~~ 07/31/2010 $21.96
07/31/2010 Long Distance Telephone Charges
TELE 07/31/2010 $1,11
Pre-Bill # 34886
TOTAL EXPENSES
Total due this invoice
TOTAL BALANCE DUE
Trust Remaining Balance
Page 2
5.00
3.49
21.96
1.11
$1, 526.07
$1,526.07
$1,526.07
$440, 700.32
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
In re: VIOXX * MDL Docket No. 1657
PRODUCTS LIABILITY LITIGATION * SECTION L
'~ JUDGE FALCON
THIS DOCUMENT RELATES TO ALL CASES.
MAGISTRATE JUDGE KNOWLES
Pretrial Order No. 49
ESTABLISHING ESCROW FUND FOR ATTORNEYS' FEES
The Court has before it the Motion for Award of Plaintiffs' Common Benefit Counsel
Fees and Reimbursement of Expenses [Doc. 17642]. In the motion, Plaintiffs' Liaison
Counsel requested on behalf of Common Benefit Counsel an assessment of 8% for common
benefit attorneys' fees. Several objections have been filed opposing the award of 8% in
attorneys' fees to common benefit counsel. The Court has held a Scheduling Conference and
discussed the implementation of a structure for proceeding with a discovery and briefing
schedule. Further action will be taken regarding the award of common benefit attorneys' fees
when the Court feels that it is appropriate. Additionally, The Vioxx Settlement Program has
progressed to the point that the final payments for all heart attack and sudden cardiac death
claims are imminent. Therefore, it is necessary for the Court to determine what amount of
attorneys' fees, if any, should be held in escrow for later distribution.
The Vioxx Settlement Agreement provides that the Court shall determine the
appropriate percentage of funds to be assessed for common benefit fees, up to 8%. Given this
provision of the Settlement Agreement, it would be appropriate to hold in escrow 8% of the
gross fund until the sought after discovery is completed and the issue is submitted to the Court
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009 Page 2 of 4
and resolved. However, there is another issue that impacts the determination of the amount
that should be held in escrow. That issue concerns appeals and objections to the Court's order
imposing a 32% cap on contingency fees.
Prior to the filing of the Motion for Award of Plaintiffs' Common Benefit Counsel
Fees on August 27, 2008, the Court issued an order capping contingency fees at a maximum of
32% of the amount recovered in all cases compensated through the Vioxx Resolution
Program. Motions to reconsider the Court's Order capping contingency fees were filed. The
Court appointed the Tulane Law Center to represent the claimants, set a briefing schedule, and
heard oral argument. With this issue under advisement, the Court determined and advised the
parties that the issue of the appropriateness of the 32% cap on contingency fees should be
resolved prior to the Court addressing the Motion for Award of Plaintiffs' Common Benefit
Counsel Fees since any common benefit fees would come out of the contingency fees.
On August 3, 2009, the Court denied the Motions to Reconsider the Order Capping
Contingency Fees, but instituted a procedure whereby on or before September 15, 2009,
counsel could object to the 32% cap in certain cases where he or she believes that a departure
from the 32% cap would be appropriate. In addition, the Court indicated that it would hold
hearings on objections and consider appointing a special master to take evidence and to make
recommendations to the Court. Pursuant to the procedure set forth in the August 3, 2009
Order, the Court would then issue rulings on whether a departure from the 32% cap is
warranted in a particular case, either upward or downward.
The Court's initial Order of August 27, 2008 capping contingency fees and its Order of
August 3, 2009 denying in part the motion to reconsider have been appealed to the Circuit
Court of Appeals for the Fifth Circuit. The issue on appeal is whether the Court has
jurisdiction to determine the reasonableness of attorneys' fees in cases pending before the
2
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009 Page 3 of 4
Court. If the Circuit Court of Appeals finds that the Court does have the requisite authority
and jurisdiction to determine the reasonableness of attorneys' fees, then the matter will return
to this Court and the Court will be left with the task of conducting hearings in those cases, if
any, in which plaintiff counsel seeks more than 32% in fees. In those cases, the Court will
consider the evidence and determine the appropriate fee percentage whether that percentage is
greater than 32% or less than 32%.
On the other hand, if the Circuit Court of Appeals finds that the Court lacks
jurisdiction over the reasonableness of attorneys' fees, lawyers for claimants may take fees in
the amount established by fee agreements with claimants.l Significant uncertainty remains
therefore, as to what the final contingency fee percentage will be since certain firms have
appealed this issue or seek more than 32% in fees.
The urgency of addressing the appropriateness of escrowing certain funds arises from
the fact that the Vioxx Resolution Program has progressed to the point that the final payment
is ready to be made for all qualifying heart attack and sudden cardiac death claims. All heart
attack and sudden cardiac death claims have been reviewed for eligibility under the program,
eligible claims have been evaluated to determine the appropriate points' awards, opportunities
to appeal relevant issues have been afforded all claimants, and now, final preparations are
being made to issue the final payment for heart attack and sudden cardiac death claims. The
distribution of final payments will result in the disbursement of approximately $2.4 billion or
the remainder of the $4 billion fund established by the Vioxx Master Settlement Agreement
for compensation of claims involving heart attacks.
~ The Vioxx Litigation Consortium has indicated in previous filings that many of its fee agreements with
claimants provide for a fee percentage in the amount of 40%.
3
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009 Page 4 of 4
As stated above, it would be appropriate to escrow only 8% of the gross fund for
common benefit fees, but for the appeals and objections to the Court's order capping
contingency fees at 32%. However, because of the pendency of the appeals in this case and
because the final contingency fee percentage is not yet determined, it is necessary for the
Court to order that the portion of the final payment related to attorneys' fees be held in escrow
by the Claims Administrator. For these reasons, IT IS HEREBY ORDERED that the Claims
Administrator shall hold in escrow 32% of each claimant's final award from the heart attack
fund pending further orders of this Court.
New Orleans, Louisiana, this the 23rd day of September, 2009.
Y ~Vl
UNITED STATES DISTRICT JUDGE
4
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, Vioxx.
1 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, 1 hereby covenant, promise and agree to pay them
for their 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 event my 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
reasonls) 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,
1 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 1 acknowledge having received a copy of the same.
The terms set forth are accepted.
~-----
IN /l NESS WHEREOF, I have hereunto set my hand and seal thi~day of
~~~ .2005.
~'
.. _ __.,
' ---f ~~~~~~. (SEAL)
nes ignature
Print Name
Case 2:05-md-01657-EEF-DEK Document 24041 Filed 09/23/2009 Page 1 of 3
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
In re: VIOXX * MDL Docket No. 1657
PRODUCTS LIABILITY LITIGATION
SECTION L
JUDGE FALCON
MAGISTRATE JUDGE KNOWLES
THIS DOCUMENT RELATES TO ALL CASES.
Pretrial Order No. 50
ESTABLISHING PROCEDURE FOR DEVIANCE FROM ORDER ESCROWING 32%
OF EACH CLAIMANT'S FINAL AWARD
The Court has ordered that 32% of each claimant's final award from the heart attack fund
be escrowed pending the appeal of its ruling capping all fees at 32%.
However, it is apparent that many firms have accepted the Court's Orders of August 27,
2008 and August 4, 2009. In the Vioxx Settlement Program, 1,064 firms or lawyers are
designated as Primary Counsel. In addition, 796 firms or lawyers are designated as Affiliated
Counsel, meaning that they serve as co-counsel with Primary Counsel in representing individual
claimants. Of the more than 1850 firms or lawyers only three appeals to the Fifth Circuit Court
of Appeals have been filed and only three objections have been filed to the procedure regarding
fee adjustments set forth in the Court's order of August 3, 2009. By choosing not to appeal these
orders, counsel for claimants have indicated that they do not and will not seek fees in an amount
greater than 32%. For these firms, it is appropriate to establish a mechanism by which they may
certify that they agree not to take more than 32% in attorneys' fees. For firms that so certify, it
will be necessary to escrow only 8% of each claimants' final award until such time as the
Case 2:05-md-01657-EEF-DEK Document 24041 Filed 09/23/2009 Page 2 of 3
Plaintiffs' Liaison Counsel's Motion for Award of Plaintiffs' Common Benefit Fees is finally
determined.
Counsel for claimants who wish to participate in this mechanism may do so by certifying
that he or she will neither seek nor charge claimants fees in excess of 32% and further certify that
the 8% of funds escrowed will be withheld solely from attorneys fees, not in any fashion
reducing the amount of payment to claimants. The certification (attached as Exhibit "A") shall
be submitted to the Claims Administrator. For those Primary Counsel1 who submit the required
certification, the Claims Administrator shall release all but 8% of the claimants' final award.
WHEREFORE, IT IS HEREBY ORDERED that, unless Brown Greer receives an
executed Certification in the form attached to this Order, the Claims Administrator shall hold in
escrow 32% of the claimant's final award amount, which amount shall be deducted solely from
the attorney fees portion of claimant or claimants disbursement. In the event the Claims
Administrator does receive an executed Certification prior to the issuance of Primary Counsel's
claimant or claimants final payment, 8% of the claimant's final award amount shall be deducted
solely from the attorney fees portion of claimant's disbursement. To be clear, the entire amount
held in escrow under this Order (either 32% or 8%), is for attorneys' fees and none of this
amount is to be deducted from claimant's share of the award.
New Orleans, Louisiana, this the 23rd day of September, 2009.
UNITED STATES DISTRICT JUDGE
For purposes of ease in administration and efficiency, the Claims Administrator throughout the Resolution
Program has required that Primary Counsel be identified for each Program claimant, though multiple attorneys and
law firms may be working in cooperation to represent the claimant. Primary Counsel in signing the Certification
attached as Exhibit "A" indicating that only 32% in fees shall be charged to a client does so on behalf of all counsel
for the claimants in question. Furthermore, though the common benefit fee assessment ultimately will be deducted
from payments directed to Primary Counsel, the assessment should be borne by all counsel for claimants, not only
Primary Counsel.
Case 2:05-md-01657-EEF-DEK Document 24041 Filed 09/23/2009 Page 3 of 3
PRIMARY COUNSEL CERTIFICATION OF
V2115 CONTINGENCY FEE IN AMOUNT OF 32%
DEADLINE FOR SUBMISSION: 9/29/09
A. INSTRUCTIONS.
(1) Only Primary Counsel must complete this Certification.
(2) To locate this Certification, log onto your Secure Web Portal. The Certification will be located on
your home page.
(3) After reviewing this Certification, you may sign it electronically and submit it instantaneously.
(4) If you complete this in hard copy, fill out all sections, sign, date, scan it, and email it to your CA
Contact.
B. PRIMARY'COUNSEL INFORMATION
Name Last First Middle
Street/P.O. Box
Address C~h, S[ate Zip
Telephone Number Email
C: CERTIFICATION BY PRIMARY COUNSEL
By my signature below, I represent, warrant, and agree on behalf of the Primary Counsel firm identified below,
that:
(a) Primary Counsel expressly and irrevocably waives any claim to attorneys fees in an amount greater than
32% of the gross amount awarded to his or her clients through the Vioxx Resolution Program.
(b) Primary Counsel acknowledge that the Claims Administrator will withhold the 8% Common Benefit Fee
until further Order of the Court.
(c) Primary Counsel will deduct the 8% of funds escrowed by the Claims Administrator solely from the
attorneys' fee portion and not in any fashion reduce the amount of compensation paid to the claimant.
D. SIGNATURE BY PRIMARY COUNSEL'.
Signature Date / /
(month) (day) (year)
Printed Name First MI Last
Primary
Counsel Firm
Name
08!19/2020 10:43 7177833467
r pennsyLvania
DEPARTMENT OP REVENUE
August 19, 2010
Gregory Feather, Esquire
Handler, Henning & Rosenberg, I,LP
1300 Linglestown Road
Harrisburg, PA 17110
Re'
Dear 11~r. Feather:
INHERITANCE TAX
Estate of James P. Miller
File Number 2146-0670
Court of Common Pleas Cumberland County
PAGE 02!02
The Department of Revenue has received the Petition for Approval of Settlement Claim to be
filed ors behalf of the abovE-referenced Estate in rcgar~d to a wrotgful 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 47 year old deozdent died as a result of complications from the
medication Vioxx. Decedent is survived by his wife and parents.
Please be advised that, based upon these facts and for inheritance tax purposes only, this
Department has no abjection to the proposed allocation of the net proceeds of this action, $210,188.07 to
the wrongful death claim and $ 90,080.60 to the survival claim. Proceeds of a survival action are an asset
included in the decedent's estate and are subject to the imposition o~Pennsylvania inheritance tax. 42
Pa.C.S.A.. §8302; 7z P.S. §9146, 9107. Costs and fete must be deducted in the same percentages as the
proceeds are allocated. In rt Estate of Merryman, G69 A.2d 1059 (Pa. Cmwltlt_ 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. Pieasc contact me if you or the Court has ary questions or requires
anything additional from this Bureau.
cere~ly~, ~j~~ ~ y j~~ ~ ~
harnton E. Baku
Trust Valuation Specialist
Inheritance Tax Division
Bureau of Individual Taxes
......... . ......_..,._.,._........... :.. ........., ... ........i ....._ _,,...,,....._. I .. ....
Bureau of individual Taxes ~ PO Box 717.783.5824 shabaker(~siate.pa.us
STATE OF PENNSYLVANIA SHORT CERTIFICATE
COUNTY OF CUMBERLAND
I, GLENDA EARNER STRASBAUGH
Register for the Probate of Wills and Granting
Letters of Administration in and for
CUMBERLAND County, do hereby certify that on
the 1st day of August, Two Thousand and Six,
Letters of ADMINISTRA TION
in common form were granted by the Register of
said County, on the
estate of JAMES P M/LEER late of S/EVER SPR/NG TOtNNSH/P
IFirst, Middle, Lastl
in said county, deceased, to PHYLLIS SUSAN MILLER
IFirst, Middle, Lastl
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 1st day of August
Two Thousand and Six.
File No. 2006-00670
PA Fi 1 e No . 2 ~ - 06- 0670
Date of Death 8/20/2000
S . S . # 169-44-6304
` Register f Wflls . ,~~
JCL.
U Deputy
l NOT VALID WITHOUT ORI D IMPRESSED SEAL
;EXHIBIT
.~. t
IDS.SDS REV 9f8G
This is to certify that the information.!' " "given is correctly copied from ari'"origirak~-'~'`~~ificar~ of death duly filed witfi me as "
.Local Registrar. The original certifica.ti ~1 be forwarded to the State Vital Records',Y ,ce for permanent flling.;
WARNING: It is illegal to duplicate this"cvpy;by photostat or photograph.
Fee'for this certificate, $2.00
_;
`Local Registrar
P 676:4245 ~~~ o~U~~
No. -~~~ Date
._ ..
H,asne4aey.,re, COMMONWEALTH OFPENNSYWANIA:•DEPARTMENTOE'HEALTH.•VITALRECORDS
CERTIFICATE OF`bEATH' ''
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,. James P Miller a:. Male J. 16:9-44-6304 4. August 20,, 2000
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:.,
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009
Page 1 of 4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
In re: VIOXX * MDL Docket No. 1657
PRODUCTS LIABILITY LITIGATION * SECTION L
1C
~C*~F~:*~*~:i~C i~C ~C~C]~C i~C ~CXl~C]ti 7F 7F i~C~X*~C i~iF'IC**~: 7~~: ~~F fCX
JUDGE FALCON
MAGISTRATE JUDGE KNOWLES
THIS DOCUMENT RELATES TO ALL CASES.
Pretrial Order No. 49
ESTABLISHING ESCROW FUND FOR ATTORNEYS' FEES
The Court has before it the Motion for Award of Plaintiffs' Common Benefit Counsel
Fees and Reimbursement of Expenses [Doc. 17642]. In the motion, Plaintiffs' Liaison
Counsel requested on behalf of Common Benefit Counsel an assessment of 8% for common
benefit attorneys' fees. Several objections have been filed opposing the award of 8% in
attorneys' fees to common benefit counsel. The Court has held a Scheduling Conference and
discussed the implementation of a structure for proceeding with a discovery and briefing
schedule. Further action will be taken regarding the award of common benefit attorneys' fees
when the Court feels that it is appropriate. Additionally, The Vioxx Settlement Program has
progressed to the point that the final payments for all heart attack and sudden cardiac death
claims are imminent. Therefore, it is necessary for the Court to determine what amount of
attorneys' fees, if any, should be held in escrow for later distribution.
The Vioxx Settlement Agreement provides that the Court shall determine the
appropriate percentage of funds to be assessed for common benefit fees, up to 8%. Given this
provision of the Settlement Agreement, it would be appropriate to hold in escrow 8% of the
gross fund until the sought after discovery is completed and the issue is submitted to the Court
iE~CH1BIT
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009 Page 2 of 4
and resolved. However, there is another issue that impacts the determination of the amount
that should be held in escrow. That issue concerns appeals and objections to the Court's order
imposing a 32% cap on contingency fees.
Prior to the filing of the Motion for Award of Plaintiffs' Common Benefit Counsel
Fees on August 27, 2008, the Court issued an order capping contingency fees at a maximum of
32% of the amount recovered in all cases compensated through the Vioxx Resolution
Program. Motions to reconsider the Court's Order capping contingency fees were filed. The
Court appointed the Tulane Law Center to represent the claimants, set a briefing schedule, and
heard oral argument. With this issue under advisement, the Court determined and advised the
parties that the issue of the appropriateness of the 32% cap on contingency fees should be
resolved prior to the Court addressing the Motion for Award of Plaintiffs' Common Benefit
Counsel Fees since any common benefit fees would come out of the contingency fees.
On August 3, 2009, the Court denied the Motions to Reconsider the Order Capping
Contingency Fees, but instituted a procedure whereby on or before September 15, 2009,
counsel could object to the 32% cap in certain cases where he or she believes that a departure
from the 32% cap would be appropriate. In addition, the Court indicated that it would hold
hearings on objections and consider appointing a special master to take evidence and to make
recommendations to the Court. Pursuant to the procedure set forth in the August 3, 2009
Order, the Court would then issue rulings on whether a departure from the 32% cap is
warranted in a particular case, either upward or downward.
The Court's initial Order of August 27, 2008 capping contingency fees and its Order of
August 3, 2009 denying in part the motion to reconsider have been appealed to the Circuit
Court of Appeals for the Fifth Circuit. The issue on appeal is whether the Court has
jurisdiction to determine the reasonableness of attorneys' fees in cases pending before the
2
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009 Page 3 of 4
Court. If the Circuit Court of Appeals finds that the Court does have the requisite authority
and jurisdiction to determine the reasonableness of attorneys' fees, then the matter will return
to this Court and the Court will be left with the task of conducting hearings in those cases, if
any, in which plaintiff counsel seeks more than 32% in tees. In those cases, the Court will
consider the evidence and determine the appropriate fee percentage whether that percentage is
greater than 32% or less than 32%.
On the other hand, if the Circuit Court of Appeals finds that the Court lacks
jurisdiction over the reasonableness of attorneys' fees, lawyers for claimants may take fees in
the amount established by fee agreements with claimants. ~ Significant uncertainty remains
therefore, as to what the final contingency fee percentage will be since certain firms have
appealed this issue or seek more than 32% in fees.
The urgency of addressing the appropriateness of escrowing certain funds arises from
the fact that the Vioxx Resolution Program has progressed to the point that the final payment
is ready to be made for all qualifying heart attack and sudden cardiac death claims. All heart
attack and sudden cardiac death claims have been reviewed for eligibility under the program,
eligible claims have been evaluated to determine the appropriate points' awards, opportunities
to appeal relevant issues have been afforded all claimants, and now, final preparations are
being made to issue the final payment for heart attack and sudden cardiac death claims. The
distribution of final payments will result in the disbursement of approximately $2.4 billion or
the remainder of the $4 billion fund established by the Vioxx Master Settlement Agreement
for compensation of claims involving heart attacks.
~ The Vioxx Litigation Consortium has indicated in previous filings that many of its fee agreements with
claimants provide for a fee percentage in the amount of 40%.
3
Case 2:05-md-01657-EEF-DEK Document 24040 Filed 09/23/2009 Page 4 of 4
As stated above, it would be appropriate to escrow only 8% of the gross fund for
common benefit fees, but for the appeals and objections to the Court's order capping
contingency fees at 32%. However, because of the pendency of the appeals in this case and
because the final contingency fee percentage is not yet determined, it is necessary for tl~e
Court to order that the portion of the final payment related to attorneys' fees be held in escrow
by the Claims Administrator. For these reasons, IT IS HEREBY ORDERED that the Claims
Administrator shall hold in escrow 32% of each claimant's final award from the heart attack
fund pending further orders of this Court.
New Orleans, Louisiana, this the 23rd day of September, 2009.
Y ~vl
UNITED STATES DISTRICT JUDGE
4
Conl<deniia/ Inla•rnalion
V2046C NOTICE OF SPECIAL MASTER POINTS DETERMINATION
Date of Notice: 8/17/09
I. IDENTIFYING INFORMATION
Claimant Name Miller, Dec., James P. Social Security Number 169-44-6304
Law Firm Handler, Henning & Rosenberg, LLP
VCN Number 1062765 Enrollment Status IP Enrolled First Confirmed Vioxx Use 8/20/00
II. TOTAL POINTS CALCULATION
A. BASIS POINTS
1. Qualifying Event/Level Injury Type : SCD Injury Level : 1 Date of Event: 8/20/00
2. Age at Event 45 to 49 years
3. Overall Duration of Vioxx Use 0-2M
4. Basis Points 500.00
B. LABEL AND CONSISTENCY ADJUSTMENTS
5. Label +15
6. Consistency 0 %
7. Adjustment Total % +15
g, Subtotal Points (Row 4 x Row 7) 575.00
C. RI SK FACTOR ADJUSTM ENTS
Risk Factors Finding Adjustment Cumulative Points
9. Obesity BMI>=30 - 17.5 % 474.38
10. Hypertension Controlled - 20 % 379.50
11. Smoking Regular - 30 % 265.65
12. TOTAL POINTS 265.65
III. POINTS AWARD DETERMINATION
This Notice of Special Master Points Determination is an official notification from BrownGreer PLC, the Vioxx
Claims Administrator. The Claims Administrator has issued this Notice of Special Master Points Determination in
response to your appeal under Section 3.2.4 of the Settlement Agreement. After receiving notice of your appeal, the
Special Master conducted a de novo review of your claim and assessed the Point value above. This determination
supersedes any determination you previously received from the Claims Administrator-.
IV. FINALITY OF SPECIAL MASTER'S DETERMINATION
This Notice of Special Master Points Determination is final, binding and not subject to further appeal by the claimant.
You do not need to accept this Special Master's Determination to receive payment. The Claims Administrator will
place this claim in line for payment (see Section VII of this Notice), assuming that this claimant satisfies all other
requirements to receive an Interim Payment and that the claim is not selected for audit under Article 10 of the
Settlement Agreement. The Points Avrard on any claim selected for audit may go up or down in audit, even if the
claimant has accepted the Points Award and has received an Interim Payment.
EXHIBIT
vzoavc~~
V I Ox
`~
Page 1 of 3
Confidential Infarmat ion
V. FIXED PAI'MENT
Pursuant to Section 3.3 of the Settlement Agreement, if the Total Points in this Notice are less than ten points for a
MI-related injury or less than two points for an IS-related injury, the claimant may elect a Fixed Payment of $5,000 by
selecting the "Accept $5,000 Fixed Payment" button on the secure web portal. If the claimant has a dual injury claim,
the aggregate Grand Points Total on Page 1 of this Notice must be less than the 10-point or the 2-point threshold for
the Fixed Payment option. If the claimant alleged both an IS and a MI injury, the Primary Injury identified on Page 1 of
this Notice governs whether the Fixed Payment threshold is less than ten points for MI Claims or less than two points
for IS Claims. If the claimant qualifies for a Fixed Payment but fails to elect a Fixed Payment within 30 days of this
notice, the claim shall be reviewed de novo by the Special Master, in accordance with Section 3.4 of the Settlement
Agreement.
VI. GOVERNMENTAL LIEN RESOLUTION
A previous communication entitled Claimant Education Materials on Government Medical Liens/Obligations
explained that the Lien Resolution Administrator ("LRA") is responsible for establishing a formal process for
satisfying and discharging any statutory obligations to Medicare, Medicaid and/or other specific government
healthcare programs for Enrolling Claimants who have been or who currently are entitled to such state or federal
benefits. Under the terms of the Vioxx Settlement Program, any such Vioxx-related statutory obligations must
be resolved in order for any final settlement monies to be released. However, the LRA has established procedures
and protocols to allow disbursement of Interim Payments while the obligations (if any) described below are satisfied.
The LRA is resolving federal Medicare (Part A & B) and Medicaid's interest (if any) in the settlement awards of
claimants determined to be entitled to federal Medicare and/or state Medicaid based upon the Social Security Numbers
(SSNs) provided to the Claims Administrator. The LRA, Medicare and Medicaid assume no responsibility for the
correcfiess of the SSNs provided to the Claims Administrator by claimants or their counsel. If the claimant's SSN in
Section I of the Notice of Points Award is incorrect, the claimant or their counsel must contact the Claims
Administrator immediately, as it could affect the correctness of the claimant's governmental lien obligations listed
below. In addition to federal Medicare and state Medicaid, the LRA is resolving any reimbursement obligations
associated with Other Government Programs, such as Veterans Affairs (VA), TRICARE, Department of Defense
(DOD), or Indian Health Services (IHS) which were reported to the LRA by the claimant or claimant's counsel. The
previous cotntnunication entitled Claimant Education Materials on Government Medical Liens/Obligations instructed
claimants and claimants' counsel on how to report liens asserted by Other Government Programs.
A. OBLIGATIONS TO GOVERNMENT HEALTHCARE PROGRAMS
1• State Medicaid Participant No
2• Medicaid Holdback Percentage 0%
3• Federal Medicare Participant No
4• Global Medicare Resolution Category and Amount $0
5• Other Government Program Obligations No
6• Resolution of Other Government Program Obligations
(not to exceed the relevant Program's actual injury-related ~%
care expenditures on behalf of Claimant)
B. GOVERNMENTAL LIEN/ CLAIM RESOLUTION PROCEDURES
Identification of Participants in Government Healthcare Programs.
If "No" is displayed in any of Rows 1, 3 or 5 of Section V1.A above, then you were determined by the LRA not to be a
participant in that particular government program and you; therefore; do not have any liens to satisfy with respect to
that healthcare program/agency. If "Yes" is displayed in any of Rows l , 3 or 5 of Section V1.A above, the LRA
determined that you are entitled to federal Medicare (Part A & B) and/or state Medicaid benefits and/or Others
Government Programs (VA, TRICARE, DOD or IHS) and that you will have to satisfy rennbursement obligations or'
liens associated with injury-related care benefits that you may have received from those respective healthcare
programs. Additional information about the procedures used by the LRA to identify and resolve these obligations are
v2oa6C~ i ~~IO\?: CLAI]!4S ADR4InISTRATOR Pale 2 of 3
Bao~a~n~Gi:r:~~;ll~~~c
~an~raenrrar nyormanon
included within the separate, posted document titled Information About Resolving Governmental Medical Liens for the
Vioxx Settlement Program, It is imperative that all claimants and counsel review the information above in
Section VI. A to confirm that it is correct. Claimants and/or their counsel should contact the office of the Lien
Resolution Administrator at (877) 774-1130 immediately if the information in Section VI.A Obligations to
Government Healthcare Programs is thought to be inaccurate.
I All counsel should also download the document entitled Information About Resolving Governmental Medical Liens
for the Vioxx Settlement Program, read it carefully, and provide it to them clients/claimants. This document is
available on the "Lien" section of your secure web portal.
~ VII. PAYMENTS ANI3'C~VITHOLDINGS ~
Claimants who are IP Enrolled and are not Special Marker QPC claimants will receive a 40% Interim Payment, and no
deductions will be made from the Interim Payment. A Special Marker QPC who elects the $5,000 Fixed Payment will
not be subject to a Common Benefit Fee deduction. The LRA (explained in Section VI) is not responsible for resolving
private liens, which remain the responsibility of the Claimant and Primary Counsel. On August 27, 2008, the United
States District Court for the Eastern District of Louisiana, which supervises the implementation of the Settlement,
Program, entered an Order (Document # 15722) that 1united the attorneys' fees payable out of payments in thel
Settlement Program, including any Interim Payments, to 32%.
vao~bCvi VIO~X CLAIMS ADMINISTRATOR Page 3 of=
1380\1'r~'~1?ELl? I PLC
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, Vioxx.
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
for their 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 event my case is filed into litigation.
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,
1 understand that this will not change the agreement regarding the percentage fee
to be received by the lawyer or lawyers representing me.
1 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.
K~
IN I NESS WHEREOF, I have hereunto set my hand and seal thi~day of
~~1~ , 2005.
~~~\\\\\~\~. (SEAL )
ness~ ~ aignaTUre
Print Name
EXHIBIT