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HomeMy WebLinkAbout08-23-10~;{ f F:\WP Directories\GMF\DRUG LITIGATION\vioxx\Petitions for Settlement\Miller James -Final -PTO 5~•~ ., ~( r`' ~_ ~ 4 .~ ~' GJ7 ~"~ ~~~ ~° u~ ~ w Gregory M. Feather, Esq. ~` o I.D. #79456 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17no Telephone: (~~) a38-zooo Attorneys for Petitioner Fax : (717) 233-3OZ9 E-mail: Feather~HHRLaw.com In Re Estate of IN THE ORPHANS' COURT OF JAMES P. MILLER CUMBERLAND COUNTY, PENNSYLV~INIA NO. zoo6-ooCrjo 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 fames 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: _; i ~,..~.:a r ~ ~ ~A . ,~ f"' _d7 _J r' r t "f"' F r t- -- ~ ~; -~ t. i. Decedent, James P. Miller, was born on May u, 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 residling at 8i Linda Drive, Mechanicsburg, PA i~o5o. Petitioner was appointed Administratrix df the Estate of James P. Miller, onAugust i, aoo6, by the Register of Wills of Cumberland Coumty~ A copy of the Short Certificate is attached hereto, made a part hereof, and marked "ExHib~t 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 ~30,00o and go% of the remaining estate with James W.' Miller and Patricia Miller splitting equally the remaining 50% of the Estate. 4. On August zo, zooo, 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 he~etb, made a part hereof, and marked "Exhibit B." In addition, an autopsy report dated August zi, Zooo, is attached hereto, made a part hereof, and marked "Exhibit C." 5. Petitioner's Decedent began use of Vioxx in August, zoo9, as a result of a prescription written by his physician, Dr. Glen R. Daughtry. Decedent continuegl t4 renew his prescription and take Vioxx until the time of his death on August zo, Zooo. 6. On behalf of Decedent, Petitioner, Phyllis Susan Miller, brought a claim iagainst Defendant, Merck & Co., Inc., as manufacturers of the Vioxx prescription medic~tidn. 2 -~ _ - ~. On November 9, Zoo7, 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 Vloxx settlement program', Petitioner's Decedent received a point value of 265.65, which, when multiplied by the monetary per-point value of xi865.o~, resulted in a gross settlement value of 5495439.90. 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 5495-439.91, which represents ioo°ib 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. u. Petitioner is of the opinion that the proposed settlement is reasonable. 12. Counsel has incurred general case expenses in the amount of Si,526.07, 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 plaintiff s 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 Si,86g.oi, which, when multiplied by the point value a particular plaintiff received, determines the total settlement amount for that plaintiff. 3 __ ~_ i3. 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°r6) of the total settlement be withheld until the issued is resolved. The Court ordered Common Benefit fees of 539-635.19, which represents eight percent (8°i6) of the net proceeds of the settlement, shall be withheld from payment by the Claims Administrators. i4. Court-ordered Common Benefit ar "global" costs in the amount of ane!percent (i°r6) of settlement awards are deducted from each VioaQC settlement award. Common Benefit costs of 54,954.40, Which represents one percent (i%) of the net proceeds of the settlement, shall be withheld from payment. i5. The attorney fee, per Contingent Fee Agreement, is forty percent (4a%), but was reduced to thirty-two percent (3i%) by PTO 49. Handler, Henning & Rosenber~'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 Sii8,9o5.57, which represents twenty- four percent (i4%) 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, malde 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 5150.00 to be used for satisfaction of a medical lien pursuant to the Private Lien Resolution Program.. 1']. After deducting Common Benefit expenses of 54954.40, the Commons Benefit fee of 539~635.19~ general case expenses of 51,526.07, Private Lien Resolution holdback of 5150.00, and attorney fees to Handler, Henning & Rosenberg, LLP in the amount of 5118,905.58, the net settlement balance due to the Estate of James P. Miller is 5330,268.6. 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) 530,000.00 to the surviving spouse, Phyllis Miller. (b) For the survival action, 590,080.60, thirty percent (30%) of'the net settlement proceeds to the Estate of James P. Miller; (c) For the wrongful-death action, 5210,188.0, seventy perGen~ (~o%) 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 5io5~o94•04- (ii) James W. Miller, surviving father of the decedent, in the amount of S5z~547.OZ- (iii) Patricia Miller, surviving mother of the decedent, in the amount of 552,547.oz 19. The Department of Revenue has approved the above-proposed alloca~io'~ of the net settlement proceeds. Written approval from the Department of Revenue is attached hereto, made a part hereof, and labeled Exhibit "I." 5 __ i _ _ __ Zo. Petitioner respectfully requests that seventy percent (7o°r6) 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 Maimed. WHEREFORE, Petitioner requests this Honorable Court to: (a) Authorize the payment of attorney fees in the amount bf au8,9o5.58 and general case expenses in the amount of ~i,5a6.a7 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. ~30,000.0o to the surviving spouse, Phyllis Miller. ii. ~Zio,i88.o7, seventy percent (7o°r6) of the net settletn~nt proceeds, to the Wrongful Death Action; and iii. S9o,o80.60, thirty percent (3o°ib) 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, S3o,oo0.00 ii To Decedent's Intestate beneficiaries, for the wrong$al death claim, in the amount of ~Zio,i88.o7, which represents seventy percent (70%) of the net settlement proceeds ias follows: (i) Phyllis Susan Miller, surviving spouse amd Petitioner in this 'action, in the amount of X105,094.04; (2) James W. Miller, surviving father of the decedent, in the amount of 552547.02; Z _ _ _ ii. Date: ~ ~ lb (3) Patricia Miller, surviving mother of the decedent, in the amount of ssa,547.oz To the Estate of James P. Miller, for the survival action, in the amount of X90,080.60, which represents thirty percent (30%) of the net settlement proceeds. Respectfully submitted, __ -~ ... __ ...~ _. - ..-_ _r _ __ _. STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICATE I, GLENDA EARNER STRASBAUGH Register for the Probate of Wills end Granting Letters of Administration in and fmr CUMBERLAND County, do hereby certify that on the 1st day of August, Two Thousands end Six, Letters of ADM/NISTRATiON in common farm were granted by the'Register of said County, on the estate of JAMES P MILLER late of S/EVER SPRING TGIWiNSH/P rwnc Mioidwr, cwn in said county, deceased, to PHYLLIS SUSANM/LEER fFhat M~ddfy Land and that same has~not since been revoked. 3" IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office a t CARLISLE, PENNSYLVANIA, this I s t day o~ Augus.t 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 J NOT VALID WITHOUT eg step s:. Q eputy IMPRESSED SEAL ,., - _ _ ~ __ _ _ _. H105 BDS 1tBV 9(B6 ~: 1 . 1 1 .. .' OIM~„~ N . ,. ' ~ .O~4DgcM,tl:.. Cw,rM , . : . 4T +~.. 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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 ................. ~1..)C,.E~,..~.aT1'1srS........................... , ......... Age ..........4.7........ Race ..........Vlthtxe... sex....Male.......... Attending PhysiciaNCoroner..........Mr..MiGI'~ael.ntOf.T1S... ......................... Cuml~erlansl .Cpuniy. C.araner............. PathoVogist .................................C.. D'tAngela,.lYll~.........,. Autopsy Protocol Comp{eted..........11i.211fl0 ......................... Autopsy No. ...........C-00r4b1 ............................................. Hospital No............GC-27-345 .......................................... Date Admitted ........Transp..L.~i..Rl21f.Q0 ...................... Date of Death .........P.ron..5./.2.OlQ0.i@.D3.l.l.hr ................. Date of Autopsy.......8121/.OO..ac .1.1.0II.hr ............................. Autopsy .........~3.1..1J~............Hrs. Ater' Pronounced ANATOMICAL DIAGNOSES CAUSE OF DEATH: SEVERE THREE-VESSEL CORONAR~~~1~Y D~SLASE FINAL PATHOLOGIC DIAGNOSES: ~~`~~ ~~ ca ~o~ co I. Cardiovascular system: ~O A. Cardiomegaly, 520 gm, with four chamber dilatation B. Coronary atherosclerosis: 1. Left anterior descending, proximal, calcified with organizing thrombus, nearly 100% occlusion; mid and distal, 90% occlusion __ 2. Circumflex, proximal, 90 +% occ{usion 3. Right coronary, diffuse, 20-30% occlusion; distal 90 +% occlusion C. No gross acute or remote ischemic changes D. Visceral congestion E. Cerebral ischemia, mild to moderate II. Miscellaneous findings: A. No acute trauma or injury B. No significant changes, neck C. Toxicology: no significant findings D. Status post appendectomy, remote ~ c ~~ 2 0 .?oao ~,,y """9iAtft~ti_~fE-FHN~!{E; ~A,~. ^ SAMUEL LAND, M.D. ^ ISIDORE MIHALAKIS, M.D. • MALCOM L. ~O)J1/EN, M.D. ~- ~ - AUTOPSY REPORT -Continued MII,LER, 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°l° stenosis with the left anterior descending being occluded by organizing thrombus. Grossly visible changes are not identified. Toxicology is rep©rt~d as "no significant findings". There is no acute trauma o~pj~ ~p~~ ~p~t OAF ~ c C. DiAngelo, MD Forensic Pathologist CD/amr _ _ . __ . ___ __~ AUTOPSY REPORT -Continued MILLER, Jam C-00-461 3 Name ............. ....... , .....Autopsy No............ Page ... , .......... . CIRCUMSTANCES: The decedent was a 4?-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 disabi~it}i"He had gained weight since the accident and was on pain medications. He smoked one park 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 ~~no signs of foul play or trauma. He was pronounced dead at 0311 hours on 8/20/0~~~'~ NF~~ C~p~ ca ~~~ D~ _ ___ __ AUTOPSY REPORT -Continued MILLER, James C-00-461 Name .............. ............Autopsy No..... . EXTERNAL EXA ATION: The body is received in a body bag with lock Ol 11090. The body is that of a partiajlly clothed, 76.5 inch, approximately 275 pound 47-,y~r-old white male. Rigor mortis is present in the large muscle groups and able to broken with moderate difficulty. There is posterior red-pur;,ple barely blanching lividity. The head and neck are very congested. The body was clothed in' white underbriefs, "BVD" brand, size 36; blue shorts, "FB Ball" brand. The ~~~i`p-1~. suspicious defects. ~0 ~~ I,AIApY The head is normocephalic and atraumatic. The scalp is covered b~sPl'Ort~ y-brown hair which is present in a normal male. distribution. The face has beard stubble. The ears are normally formed. The facial bones and nose are intact to palpation. The eyes have hazel irides with 06 dm round, regular, and equal pupils. The sclerae and conjunctivae are congested with very rare p~techiae seen in the lower conjunctivae and periorbital tissue on the left side. There are no hiembrrhages 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, soil, and without masses or defects. The eternal genitalia are normal adult male with circumcised penis and bilaterally descended testes. Normal adult male pattern pubic hair is present. The upper and tower extremities are symmetridal, 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 are symmetrical, no~m~lly 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 passible osteophyte formation on the anterior body of C3. No other abnormalities are apprecat$d. There is a 4 inch well-healed scar of the right lower quadrant of the abdomen and a 2 inch will-i~ealed scar on the left. Internal examination reveals fibrosis of the right lower quadrant of the abdomen and absence of the appendix. EVIDENCE OF INJURY: 4 ......Page ............... There are healing abrasions of the left lower leg. No other evidence of acute trauma or injury is present. AUTOPSY REPORT -Continued MILLER, James C-00-461 Name ..... . ......... ............Autopsy No.... . ~~ ORGAN WEIGH D FLUID VOLUMES: Brain: 1520 grams ,~ Dart: 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 ~~~, Urinary Bladder: 80~a ~Op ~~~ 0~ INTERNAL EXAMI BRAIN AND CENTRAL NERVOUS SYSTEM: The scalp is without contusions. The skull is intact and atraumatic. The brain weighs 1 X520 grams. The dura is intact without epidural or subdural hemorrhage. The meninges 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 midbr~in and brainstem are grossly unremarkable. The cerebellar hemispheres are symmetrical. Cros$ sectioning reveals normally formed gray and white matter structures with no masses, abscesses, irufarctions, contusions, lacerations, or hemorrhage. The gray matter has mildly to moderately increased tan coloration and the white matter .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. Thy 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. Them 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. 5 .......Page ............... ,_ ~__ L __ __ AUTOPSY REPORT -Continued MILLER, Ja C-00-461 6 Name ........... ... . ..... . .... .Autopsy No............ Page .... , ......... . CARDIOVASC SYSTEM: The 520 gram heart has an enlarged size and globular shape. The epicardium is smpoth 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. The 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, pa,~nild to moderate atherosclerotic plaque formation. There are no trauma~NN ~~0~~ RESPIRATORY SYSTEM: ~ ~Q~ The 950 gram right and 920 gram left lungs are normally lobated. The pleural surfacies ire 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 thromboemboli. The crassaut 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 car masses. The hepatobiliary tree is patent. The gallbladdler contains 15 ml of red-green bile with no stones or sludge. The mucosa has cholesteralosis. The portal vein and inferior vena Cava are not thrombosed. GASTROINTESTINAL SYSTEM: The esophagus is intact and lined by tan-pink mucosa. The gastroesophageal junction is within normal limits. The stomach contains approximately 350 ml of tan thick fluid with grossly recognizable noodles, vegetables, and meat particles. No medication particles are identified. The raga] 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. AUTOPSY 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 rend papillae, collecting systems, and ureters are unremarkable. The urinary bladder contains 80 inl of clear urine. The urethra through the prostate is patent. The prostate has a granular gray grosscut surface with mildly increased nodularity but no hemorrhage 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, anc~ within normal limits. The 200 gram pancreas has a tan to red lobul surface with no fitbrosis. The bilateral adrenal glands are in their normal anatom' ,~ ellow cortices surround autolyzed medullae. ~0~~",, ~ C~ MUSCULO5KELETAL SYSTEM: ~O 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 Office. Photographs are obtained by this office. The clothing is returned to the body. The ring is left on the finger. i _ _ __ __ _ ___ Conftdentia/ 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 ]69-44-6304 Law Firm Handler, Henning & Rosenberg, LLP VCN Number 1062765 Enrollment Status IP Enrolled First Confirmed Vioxlr Ube 8/20/00 II. TOTAL POINTS CALCULATION A. BASIS POINTS 1. Qualifying EventlLevel Injury Type : SCD Injury Level : 1 Date of'Event: 8120/00 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 AD JUSTMENTS 5. Label +15 6. Consistency 0 7. Adjustment Total % +15 g, Subtotal Points (Row 4 x Row 7) 575.00 C. R LSK FACTOR ADJUSTME NTS Risk Factors Finding Adjustment Clumiufative 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.G5 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 Point$ Determination in response to your appeal under Section 3.2.4 of the Settlement Agreement. After receiving notice o!f yjour appeal, the Special Master conducted a de novo review of your claim and assessed the Point value above. ' Thos 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 ~y 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 claimanti satisfies all other requirements to receive an Interim Payment and that the claim is not selected for audit under Atticle 10 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. vzonec.-i Page ] of 3 Confidential Information 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 CIaimant Education Materials on Government Medical Liens/Obligations explained that the Lien Resolution Administrator ("LRA") is responsible for establishing a forma] 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 suo`h 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 andlor 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 cpntact 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, Deparltinent 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 LienslOb~igations instructed claimants and claimants' counsel on how to report liens asserted by Other Government Programs. A. OBLIGATIONS TO GOVERNMENT HEALTHCARE PROGRAMS 1. State Medicaid Partici ant No 2. Medicaid Holdback Percenta a 0% 3. Federal Medicare Participant No 4• Global Medicare Resolution Category and Amount SO 5. Other Government Program Obli ations 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 Healthcare Programs. 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 S of Section V1.A' above, the LRA determined that you are entitled to federal Medicare (Part A & B) andlor state Medicaid benefits andlor 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 obligations are v2oaec~~ VIOJ~X CLAIMS ADMII~IISTRATOR Page 2 of 3 BROWNGRELR I~ NLC _ - . _ _ _ __ t;on,/raennar ~n,/ormar:on 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 Information About Resolving Governmental Medical Liens for the Yioxx Settlement Program, read it carefully, and provide it to their clients/claimants. 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 LItA (explained in Section VI) is not responsible for resolving private liens, which remain the responsibility of the Claimant and Primary Counsel. On August 27`, X008, 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%. vzoaeevt VIOXX CLAIMS ADMINISTRATOR Page 3 of 3 BR0I~NGRELR ~~ PLC ~ndl~r, ~~~ ~~~ ATTORNEYS AT LAW 1300 Linglestown Road, Harrisburg, PA 17110 Phyllis Miller 81 Linda Drive Mechanicsburg, PA 17050 INVOICE PAYMENT DUE UPON RECEIPT Client No: 210206 Matter: 000000 Attorney: GMF VX Pre-Bill No: 34886 Bill Date: July 14, 2010 EXPENSES 05/31/2005 General Case Expense- CHART ONE 101.05 06/17/2005 General Case Expense -REFUND CHART ONE -101.50 07/28!2005 General Case Expense -CHART ONE ' 54.27 08/01/2006 Vendor LAURIE DEBARR; General Case Expense- REGISTER OF WILLS 43.00 08/11/2006 Vendor CUMBERLAND CO CORONER; General Case Expense 100.00 09/12/2006 Vendor TREASURER, STATE OF NEW JERSEY; General Case Expense 200.00 10/20/2006 Vendor CUMBERLAND LAW JOURNAL; General Case Expense 75.00 10/25/2006 Vendor Patriot-News Co; General Case Expense 168.66 03/13/2009 Vendor ARNOLD MESHKOV MD 750.00 06/02/2010 PROTH OF CUMBERLAND COUNTY 92.00 06/02/2010 PROTH OF CUMBERLAND COUNTY ' -92.00 07/13!2010 REG OF WILLS CUMBERLAND 43.50 07/31/2010 Document Reproduction 3.40 07/31/2010 Fax Char es 5.00 07/31/2010 Federal Ex ress Costs 3.00 07/31/2010 Document Reproduction 3.20 07/31/2010 Mileage 45.93 210206 Miller, Phyllis Pre-Bill # 34886 Fage 2 07/31/2010 Mailin Costs 5.00 07/31/2010 Postage Costs 3.49 07/31/2010 Postage Costs 21.96 07/31/2010 Long Distance Telephone Charges 1.11 TOTAL EXPENSES $1,526.07 Total due this invoice x1,526.07 TOTAL BALANCE DUE ~$1 X526.07 Trust Remaining Balance $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 * PRODUCTS LIABILITY LITIGATION * * * * * ************************************* THIS DOCUMENT RELATES TO ALL CASES. MDL Docket No. 1657 SECTION L JUDGE FALCON MAGISTRATE JUDGE K~1U!WLES 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 awarrd of 8% in attorneys' fees to common benefit counsel. The Court has held a Scheduling Co f-fetence 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 ~ragram has progressed to the point that the final payments for all heart attack and sudden c~rdliac death claims are imminent. Therefore, it is necessary for the Court to determine whalt 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 _-_ _ 1__ ~ _ _ __. ' 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 Benefft 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 anal 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' Comiman 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 Odder Capping Contingency Fees, but instituted a procedure whereby on or before Septemb$r 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 end 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'I 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 mad take fees in the amount established by fee agreements with claimants.l Significant uncert~linty remains therefore, as to what the final contingency fee percentage will be since certai$t 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 f~na~ payment is ready to be made for all qualifying heart attack and sudden cardiac death clainj~s. 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 prelparations 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 $~.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 iru 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. UNITED STATES DISTRICT JUDGE 4 CONTINGENT FEE AGREEMENT KNOW ALL MEN BY THESE PRESENTS, that 1, 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 arhd~or arbitrate a settlement or to institute for me in my name any legal proceedings o~ alctions that, in their judgment are necessary, against the Manufacturers and/or C~isltributors as well as any other responsible parties, of the medication, Vioxx. 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 agra do 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 FD TY PERCENT (409/0) of whatever sum is recovered in the event my case is filed in~o 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 offer the case is closed. Counsel reserves the right to withdraw if they desire to dd so, for any reason(s) they deem proper. I agree that HANDLER., HENNING & ROSENBERG, may ass~ojciate another lawyer to represent me, and any associated lawyer may appear on ~y 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 pdrventage fee to be received by the lawyer or lawyers representing me. 1 ACKNOWLEDGE that I have read, approved and understo d .the above Contingent Fee Agreement and I acknowledge having received a copy~of the same. The terms set forth are accepted. ~t~---- IN NESS WHEREOF, I have hereunto set my hand and seal thp~ZS day of ~~~ , 2005. (SEAL) Signature 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 PRODUCTS LIABILITY LITIGATION * * THIS DOCUMENT RELATES TO ALL CASES. MDL Docket No. 1657 SECTION L JUDGE FALCON MAGISTRATE JUDGE KNO~VVLES Pretrial Order No. SO 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 ofl 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 a~ Affiliated Counsel, meaning that they serve as ca-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 Counsel ~ 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 lbe 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 nlone of this amount is to be deducted from claimant's share of the award. New Orleans, Louisiana, this the 23rd day of September, 2009. ~'~'~7 UNITED STATES DISTRICT JUDGE ' For purposes of ease in administration and efficiency, the Claims Administrator throughout the Resolgtion Program has required that Primary Counsel be identified for each Program claimant, though multiple attiorneys 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, nbt only Primary Counsel. - _ _ - - ' Case 2:05-md-01657-EEF-DEK Document 24041 Filed 09/23/2009 Page 3 of 3 r~ ~ ~ ~ ~ ~ k i, ~~(~i ~ f , 'i 3 yr! ',' ~ c , -t ~~ k ~~ ~'~~ ~C ~ ~~I 1~Ik~! ~ ! i, ~: ~' ~ ~ ~ R ~ 1 4 ~ r 1 ~ ~1 ,lf ~; `a fl ~} ~N I i, Fil ~i~ ~ s Y .,~!~ .s -~ ~I ~ '~17~~i I ~', P r~~ ~ Y r ~F'j{,',~~ '4 i~,~' - } a. ; A. -IN~a~'RfiiCTIONS (1) Only Primary Counsel must complete this Certification. (2) To locate this Certification, log onto your Secure Web Portal. The Certification avill 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 emaiM it to your CA Contact. & >i~I~IVlliv'i'=C~I~~L I15iFfIWLA'I~tO`l Name Last First titidldle str«uP.o. BoX Address o;~, s~~ ~P Telephone Number Email C. CE'iR'i'FI~CA~~OI+~,~'Y ~"~R+~ CaUl+tSil~~, 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% Gammon 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: S~l"~i~~'~ g'~' ~)Y Cf~'UIL ~ ~~ Signature Date ~-,_-_/ (month) (day) (year) Printed Name First MI Last Primary Counsel Firm Name 1 _.. 08/19/2020 10:43 7177833467 INHERITANCE TAX PAGE 02/82 p~nnaylvania DEPARTMENT OF REVENUE August 19, 2010 C3regoty Farther, F.acluire Has+dler, Henniag dt Rosenberg, LI.P 1300 Lmglee6ovva Road Harrisburg, PA 171 IO Ra: Estate of James P. Miller Pile Number 7106-0670 Court of Common Pleas Cumberland County Dear Mr. Feather: The Department of Revenue has recaive+d the Petition for Appa~ovai of Settlement Claia~n be filod om behalf of the abm-o-referancxd Estate is regard to a wr~ozigfisl death aad survival action. Ilt lies been fot~varded to this Bureau for the Comt~:onwalth's approval of the allocation of fife prooeq~s pirid to acttle the actions. ', t to the Petition, the 47 year old decedent died as a result of caitrpliaabons firo~an r~ medication Vioxx. Doeedeert is suuvivesi by hie wife and parents. Please be advised that, based upon theac ~'ects and far inhetitatioe tax purposes only, this Dep~r~ant has uo objoction to the proposed allocation of the oast peoceeda of thin action, $210,188.07 to the wra+gful death claim and $90,080.60 to the survival claim. Pt+ooeeds of a survival aetioa ' a» asset included is the decedent's estate and ae+s subject td the imposition of Petmaylvaria irrh~ce . ~2 Pa.C.3.A,.'§8302; 7Z P.S. X9146, 9107. Coats and Ease ttauat be deducted is the same pettxnta¢e~ aathe pTOCetds are. allocated. In n Ea to of Mercvman, 669 A.2d 1059 (Pa. Cmwlth. 1995}. !, I trust that this ktbet is a sufficient r+epreatntation of the Depae~trnent's position an thin tta'r. As the Department l>as no objectiaas to the Petition, as attorney fibm the Department of Revenue n not be attending airy hearing regarding it. Please contact me i.f you or the Court has any questions ar atrything additional from this Bureau. «~y, ~~~~ hsrrnon 8. Baker Trust Valuation Spxiaiist 'Iaheritanae Tax Divisiazz Burosu of Endividuai 't'axes Burwu d Individual Taxes ~ PO sox ~ 717.783.5824 ~ ahabnkar~tl~sUe.pb.ua _. __ _ __ __ - STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICATE I, GLENDA EARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and far CUMBERLAND County, do hereby certify that on the 1st day of August, Two Thousand and Six, Letters of ADMINISTRATION • in common form were granted by the Register of said County, on the estate of JAMES P MILLER 1 a to of S/L VER SPRING TOWNSHIP ~r~.n t+Ilddte u„tl in said county, deceased, to PHYLL/S SUSAN MILLER IFhaL MWdk, Lae1J 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 File No . 21- 06- 0670 - Da t e of Death 8/20/2000 S . 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Nbrris, Coronex waomx ^xA-urwcoRONn, on urr.x.a.s."InnNen anatwrwNllB.Nsn,MmY.Pid"i,dnlh oeeu,rw., . . wua 6375 Basahove Road, Suite 41 • nn« . ....................................................... m o,.. Mechanica~hur Pa. 17055 a Nu ot-wn,o.r.nn~ ai. .r.,. Be. O _.. 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 PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO ALL CASES. MDL Docket No. 1657 SECTION L JUDGE FALCON MAGISTRATE JUDGE KNO~VLES 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 calydiac 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 det~rrnine 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 wejre 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 feirs 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 ~.nd 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 fits 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 thee.. 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, t17e 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 certaim 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 clairr~s. 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 Maims. 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 thee... heart attack fund pending further orders of this Court. New Orleans, Louisiana, this the 23rd day of September, 2009. Y `wl UNITED STATES DISTRICT JUD~dE~ 4 ~ ,,:. _ _ Confidential Information V2046C NOTICE OF SPECIAL MASTER POINTS DETERMINATION Date of Notice: 8/I7/09 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 Viox 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. R ISK FACTOR ADJUSTME NTS Risk Fsctors 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 claunant' satisfies all othe 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 ] of 3 _ _ Cenfdential lnforrr~acion 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 $5,000 Fixed Payment" button on the secure web portal. If the claimant has a dual injury claim, the aggregate Grand Points Total on Page 1 of this Notice must be less than the IO-point or the 2-point threshold for the Fixed Payment option. If the claimant alleged both an IS and a MI injury, the Primary Injury identified on Page 1 of this Notice governs whether the Fixed Payment threshold is less than ten points for MI Claims or less than two points for IS Claims. If the claimant qualifies for a Fixed Payment but fails to elect a Fixed Payment within 30 days of this notice, the claim shall be reviewed de nova by the Special Master, in accordance with Section 3.4 of tkte, Settlement Agreement. VI. GOVERNMENTAL LIEN RESOLUTION A previous communication entitled Claimant Education Materials on Government Medical LienslObligations explained that the Lien Resolution Administrator ("LRA") is responsible for establishing a formal process for satisfying and discharging any statutory obligations to Medicare, Medicaid and/or other specific government healthcare programs for Enrolling Claimants who have been or who currently are entitled to such state or federal benefits. Under the terms of the Vioxx Settlement Program, any such Vioxx-related statutory obligations must be resolved in order for any final settlement monies to be released. However, the LRA has established procedures and protocols to allow disbursement of Interim Payments while the obligations (if any) described below are satis$ed. 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 Goven~-ment Programs, such as Veterans Affairs (VA), TRICARE, Depar4ment 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/Obl#gations 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 ~% 3• Federal Medicare Participant No 4• Global Medicare Resolution Category and Amount $~ 5• Other Government Program Obligations No b• 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 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 Others Govemm~ent 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 obligations are v2oaeC~-i ~TIOl3: CLAIMS ADMINISTRATOR Page 2 of 3 BROVVNGItC•LKIIPLC __ Conrdential Inlorn:ation included within the separate, posted document titled Information About Resolving Governmental Medical dens 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 Information About Resolving Governmental Medical Liens for the Vioxa- Settlement Program, read it carefully, and provide it to their clients/claimants. This document is available on the "Lien" section of your secure web portal. VII. PAYMENTS AND'i~'ITHOLDINGS 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 Specia] Marker QPC who elects the $5,000'1~ixed Payment will not be subject to a Common Benefit Fee deduction. The LRA (explained in Section VI) is not responsible for resolving private liens, which remain the responsibility of the Claimant and Primary Counsel. On August 27, 2008, the United States District Court for the Eastern District of Louisiana, which supervises the implementation of the Sett]ement ~~, Program, entered an Order (Document # 15722) that limited the attorneys' fees payable out of payments in the Settlement Program, including any Interim Payments, to 32%. v2agec~•i VIOX7C CLAIMS ADMINISTRATOR Page 3 of 3 BRO\Y~~'GRL•LI~ ~~ PLC CONTINGENT FEE AGREEMENT KNOW ALL MEN BY THESE PRESENTS, that 1, the undersignd,c~, ¢io hereby retain HANDLER, HENNING and ROSENBERG, of Harrisburg, Pennsylhr~an~a, as my attorneys in this matter to represent me and to process, negotiate andyor arbitrate a settlement or to institute for me in my name any legal proceedings orja~ct(ons that, in their judgment are necessary, against the Manufacturers andJor Dilsirri~utors as well as any other responsible parties, of the medication, Vioxx. t agree not settle, negotiate or adjust the above claim or any proceedings based thereon without the written consent of my said attorneys, NOW, THEREFORE, in consideration of the services so to be rte~ndered by Handler, Henning & Rosenberg, 1 hereby covenant, promise and agree ~d pjay them for their professional services rendered of THIRTY FIVE PERCENT (35%) t~~ v~hatever sum is recovered in the event of settlement without litigation and FORT ! P~RCENT (40%) of whatever sum is recovered in the event my case is filed into ~i igption. I wiU reimburse Handler, Henning and Rosenberg for any necessary ex{~~n$es and costs advanced on my behalf in pursuing my claim out of whate~- r 'sum is recovered. 1 also authorize counsel to destroy my file three (3) years aft~~ the case is closed. Counsel reserves the right to withdraw if they desire to do so„ f'or any reason(s) they deem proper. I agree #hat HANDLER., HENNING & ROSENBERG, may associat'lej a''nother lawyer to represent me, and any associated lawyer may appear on my ti$hi~lf and represent me in this matter. If another lawyer or law firm is associated on '~y Iclaim, 1 understand that this will not change the agreement regarding the perce'~~tage fee to be received by the lawyer or lawyers representing me. I ACKNOWLEDGE that 1 have read, approved and understood tfh~ above Contingent Fee Agreement and 1 acknow{edge having received a copy of tale dame. The terms set forth are accepted. ~' IN 1 NESS WHEREOF, I have hereunto set my hand and seat thisdk y of 2005. _.. ~'a" ~`~~. (SEAL} s ~~~i na ure Witne g Print Name ~~ I