Opinion
MDL NO. 1203, Civil Action No. 99-20593.
August 26, 2004
AND NOW, this ____ day of ____, 2004, upon consideration of the Joint Motion for Preliminary Approval of the Seventh Amendment to the Nationwide Class Action Settlement Agreement with American Home Products Corporation, revised as of August 24, 2004, (the "Seventh Amendment"), and finding that the terms of the proposed Seventh Amendment appear to be the product of serious, informed, non-collusive negotiations, have no obvious deficiencies, do not improperly grant preferential treatment to class representatives or segments of the class, and fall within the range of possible approval, such that we may make a preliminarily determination of fairness, reasonableness, and adequacy of those terms, and in recognition that the Court's full consideration of the Seventh Amendment upon notice and hearing is in the best interests of the Class, it is hereby ORDERED that said motion is GRANTED. It is further ORDERED as follows:
1. All capitalized terms used in this Order shall have the same meaning as those in the Seventh Amendment and in the Settlement Agreement.
2. The Seventh Amendment is preliminarily approved.
3. The Court approves a written Notice in the form appended to the Seventh Amendment as Exhibit L.
4. The Parties shall commence service of such Notice by first-class mail, postage pre-paid, as soon as reasonably practicable, and no later than 15 days after the entry of this Pretrial Order, to all Class Members who have ever registered or purported to register with the Trust or who have submitted any type of form to the Trust (including Class Members who have exercised or attempted to exercise any right of opt-out) and to all known attorneys representing such Class Members, at the addresses reflected in the most recent version of the Trust's database made available to the Parties at the time Notice is disseminated. The mailing of the Notice shall be concluded within five days after the date the mailing commences. Where an attorney represents more than one registered Class Member, it shall be sufficient to provide that attorney with a single copy of the Notice. The Trust shall post a copy of the Seventh Amendment and of the Settlement Agreement as it currently exists without the Seventh Amendment and a copy of Parts I and II of the Official Notice on the Trust's website, and shall promptly send copies of those documents to any Class Member who requests such copies, either by writing to the Trust at AHP Settlement Trust, P.O. Box 7939, Philadelphia, Pennsylvania, 19101, or by calling the Trust at 1-800-386-2070. The Trust is directed to pay the costs of the Notice directed to be issued pursuant to this paragraph out of the Settlement Fund, upon presentation to the Trust of invoices for printing and postage relating to the Notice.
5. The Seventh Amendment Opt-Out/Objection Period shall commence on the date that is 15 days from the date of this Order and shall continue for 60 days thereafter. Any Diet Drug Recipient (or Representative Claimant) who is a Category One Class Member or Category Two Class member wishing to opt out of the Seventh Amendment, and thereby remain subject to the terms of the Settlement Agreement as they existed before the Execution Date of the Seventh Amendment, must notify Wyeth of the intention to do so in a notice postmarked or delivered to Wyeth (c/o Brown Greer PLC, P.O. Box 85006, Richmond, VA 23285-5006) no later than ____, 2004, which is the last day of the Seventh Amendment Opt-Out/Objection Period.
To be effective, a Seventh Amendment Opt-Out notice must (i) clearly identify the name of the Class Member exercising the Seventh Amendment Opt-Out right, the Class Members's DDR Number and Social Security number, and the attorney for such Class Member, if any; (ii) unequivocally state the Class Member's intention to opt-out of the Seventh Amendment; and (iii) be signed by the Diet Drug Recipient (or Representative Claimant). Class Members may use the Form attached as Exhibit G to the Seventh Amendment, which shall be considered sufficient for this purpose. The Trust is ordered to make that Seventh Amendment Opt-Out Form available on the Trust's official website in a manner that can be read and printed within 5 days of the date of entry of this order.
6. The Court will hold a formal hearing (the "Seventh Amendment Hearing") to determine whether finally to approve the Seventh Amendment under the same standard that would be applicable under Fed.R.Civ.P. 23(e) and to address any other related matters deemed appropriate by the Court. The Seventh Amendment Hearing will be held at ____ o'clock a.m./p.m. on ____, 2004, at the United States District Court for the Eastern District of Pennsylvania, 601 Market Street, Philadelphia, PA 19106.
7. Any Class Member wishing to object to any aspect of the Seventh Amendment must submit specific and detailed written objections in support of those objections. All such written comments must be filed with the Clerk of the Court and served upon Wyeth and Class Counsel at the following addresses no later than the close of the Seventh Amendment Opt-Out/Objection Period set forth in Paragraph 5 of this order:
Class Counsel Wyeth c/o Arnold Levin c/o Brown Greer PLC 510 Walnut Street, Ste. 500 P.O. Box 85006 Philadelphia, PA 19106 Richmond, VA 23285-5006
United States District Court for the Eastern District of Pennsylvania Office of the Clerk of Court 601 Market Street, Room 2609 Philadelphia, PA 19106-1797
Any Class Member who does not make an objection in the manner and within the time provided herein shall be deemed to have waived such objection and shall be forever foreclosed from making any objection to the proposed Seventh Amendment.
8. To maintain orderly proceedings and to afford a reasonable opportunity to be heard to those who wish it, any Class Member who has filed an objection pursuant to Paragraph 7 of the Order and who wishes to appear at the Seventh Amendment Hearing in person or through his or her attorney must submit a written request for an opportunity to be heard within the time prescribed in the previous paragraph for submitting an objection to the Seventh Amendment. Such written requests to speak at the hearing must be filed with the Clerk of the Court and mailed to the addresses specified in the Notice. Such requests must also specify the interest of the Class Member, whether the Class Member is represented by counsel and, if so, identify such counsel.
9. The Court appoints Heffler, Radetich Saitta, L.L.P., as Fund Administrator for purposes of administering the terms of the Seventh Amendment, pursuant to the terms of a Fund Administrator Agreement to be approved by the Court.
10. The Court appoints PNC Bank, N.A., as Escrow Agent for purposes of receiving, investing, and disbursing the Supplemental Class Settlement Fund, pursuant to the terms of an escrow agreement to be approved by the Court.
11. The Court appoints the Seventh Amendment Liaison Committee ("SALC"), comprised of Jerry Alexander, Esquire; James Doyle, Esquire; Tony Martinez, Esquire; Ellen Presby, Esquire; and Wayne Spivey, Esquire, who shall serve as the chair of the Committee.
12. The Court appoints Dean Karalis, M.D., F.A.C.C., Gregg Reis, M.D., F.A.C.C., and Frank Silvestry, M.D., F.A.C.C., jointly to serve as members of the Medical Review Coordinating Committee ("MRCC"), pursuant to the terms of an agreement to be approved by the Court.
13. Consideration of each of the Motions and additional matters included and described in Exhibit A hereto are stayed until such time as Wyeth exercises its Walkaway Right or it is determined that the Seventh Amendment will not obtain Trial Court Approval.
14. Except as set forth in the order titled "Modification of Stay Relating to Matrix Level I and II Claims," as to all claims that are Pre-Stay Payable PADLs the Trust's Claims Integrity Program, all Enforcement Actions, and all Show Cause Proceedings are hereby stayed until such time as the Court determines whether to approve the Seventh Amendment.
15. The Trust's Claims Integrity Program and all discovery, motion practice, and other proceedings with respect to claims by Category One Class Members and Category Two Class Members are stayed until the end of the Seventh Amendment Opt-Out/Objection Period as to all such Class Members; and thereafter the operation of the Trust's Claims Integrity Program and all discovery, motion practice and other proceedings with respect to Claims by Category One Class Members and Category Two Class Members who have not opted out of the Seventh Amendment are stayed until such time as Wyeth exercises its Walkaway Right or it is determined that the Seventh Amendment will not obtain Trial Court Approval or it is judicially determined that the Seventh Amendment will not obtain Final Judicial Approval, provided, however, that the Trust will continue to audit all claims and will have the right to investigate whether there have been any material misrepresentations of fact made in connection with claims for Matrix Compensation Benefits or Seventh Amendment Matrix Compensation Benefits at Matrix Levels III, IV and V. For this purpose, an investigation, claim or assertion of material misrepresentation shall not be based solely on: (i) whether the Echocardiogram Tape or Disk (or any copy thereof) was allegedly obtained without adequate physician supervision; (ii) the identity of the person or entity that performed the Echocardiogram; or (iii) the identity of the attorney(s) representing the claimant, and lack of adequate physician supervision with respect to an Echocardiogram Tape or Disk shall not constitute a material misrepresentation of fact.
16. The initiation and prosecution of all Enforcement Actions are stayed until such time as Wyeth exercises its Seventh Amendment Walkaway Right, or it is determined that the Seventh Amendment will not obtain Trial Court Approval, or it is judicially determined that the Seventh Amendment will not obtain Final Judicial Approval.
17. The processing of all claims for Matrix Level I and Matrix Level II Benefits under the Settlement Agreement, except claims subject to a Trust Determination Denying Matrix Benefits and claims subject to a Pre-Stay Payable PADL, are stayed until the end of the Seventh Amendment Opt-Out/Objection Period; and thereafter the processing of all claims for Matrix Level I and Matrix Level II Benefits under the Settlement Agreement with respect to claims by Category One and Category Two Class Members who have not opted out of the Seventh Amendment are stayed until such time as Wyeth exercises its Walkaway Right, or it is determined that the Seventh Amendment will not obtain Trial Court Approval, or it is judicially determined that the Seventh Amendment will not obtain Final Judicial Approval, provided that such stays shall not prevent Class Members from completing claims pursuant to Sections VII, VIII and XIV of the Seventh Amendment or from making claims pursuant to Section III.C of the Seventh Amendment.
18. All Category One Class Members, their counsel, and anyone acting on their behalf are restrained and enjoined from having any communication or contact of any kind with any Participating Physician and the MRCC with respect to any of their functions under the Seventh Amendment, except to the extent that Class Counsel and the SALC, acting jointly, in their official capacities, and without reference to any specific claims that will be subject to Medical Review under the Seventh Amendment, may assist the MRCC in performing those activities specified in Section XV.J of the Seventh Amendment.
19. The SALC, the Fund Administrator, the Escrow Agent, the MRCC and the Participating Physicians are hereby designated as "Authorized Persons" entitled to such Confidential Information under Pretrial Order No. 2683 as is reasonably necessary to implement the Seventh Amendment and to carry out their duties and obligations under the Seventh Amendment subject to all the restrictions in Pretrial Order No. 2683, including the limitation in Paragraph 5(d) of that Order.
20. The Court hereby authorizes and approves the indemnification and immunity of the Fund Administrator, the MRCC, and the Participating Physicians as provided in Section IV.E of the Seventh Amendment.
21. Each Party to the Seventh Amendment and every Class Member, including without limitation, Class Members who have exercised an Intermediate Opt-Out, a Back-End Opt-Out, a Sixth Amendment Opt-Out or a Seventh Amendment Opt-Out are permanently restrained and enjoined (i) from seeking to use or using any statement, transaction or proceeding in connection with the negotiation, execution, approval or implementation of the Seventh Amendment or any term or provision thereof for the purpose of seeking to establish or dispute that, under the terms of the Settlement Agreement as it existed prior to the Seventh Amendment, any person is eligible to exercise an Intermediate Opt-Out, Back-End Opt-Out or Sixth Amendment Opt-Out, is entitled to compensation in a judicial proceeding or is eligible for Matrix Compensation Benefits; (ii) from offering and/or introducing any statement, transaction or proceeding in connection with the negotiation, execution, approval or implementation of the Seventh Amendment or any term or provision thereof in any judicial proceeding to support a claim that Wyeth is or is not or should be or should not be found culpable or liable for any Settled Claim. The restrictions of this Paragraph shall not apply to any party in an action or proceeding in which any adverse party is for any reason not subject to these restrictions.
22. The Trust is hereby directed to provide all Diet Drug Recipients, within 30 days after a written request, a copy of an Echocardiogram conducted on such Diet Drug Recipient in the Trust's Screening Program, if not previously provided by the Trust.
Exhibit A MATTERS SUBJECT TO STAY IN DISTRICT COURT [As of 8/03/04]
Docket/ Ite Case Date Proceeding Subject Matter m Number Filed 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. Bacon v. Overseth, et als. 47. Castle et als. v. Richard L. Mueller, M.D. 48. Castle et als. v. Linda J. Crouse, M.D.
1131 5/28/04 The AHP Settlement Trust's Matrix Benefits Motion to Enforce the Stay Against Claimant Grady Weiszbrod or, in the Alternative, the AHP Settlement Trust's Motion for Leave to File its Opposition to Grady Weiszbrod's Motion to Strike Application for Order to Show Cause 1122 5/20/04 Motion to Strike Application of the Matrix Benefits AHP Settlement Trust as Untimely Filed, by Grady Weiszbrod. (B-II) 1111 5/10/04 Memorandum by The Law Firm of Matrix Benefits Braunberger, Boud Draper, P.C., in opposition to Wyeth's expedited motion for entry of Court approved procedure to preserve settlement funding and to address the pervasive abuse of the Matrix Claims process, in opposition to Wyeth's motion for temporary stay of processing and payment of "non-priority" Matrix Claims to preserve available settlement funding; in opposition to Wyeth's emergency motion for a temporary stay of processing and payment of Level I and II Matrix Claims to address the massive number of illegitimate claims filed with the Settlement Trust and agreeing in part with Class Counsels memo in responding to the points set forth above 1110 5/10/04 Sur-Reply in further support of CIP Loncar Associates' motion to deny The AHP Settlement Trust's motion to stay payment of all post-audit claims where the Claimant relies upon A Green Form, CAP4 verification, or other document signed by John P. Orchard, M.D 205509 5/3/04 Almeda Nipper's Motion for an Matrix Benefits Order Directing the Trust to Pay her Matrix Claim that Received Final Post-Audit Determination (B-II) 1081 4/30/04 Motion to Suspend Deadlines Set in Audit Rules Audit Rules 4,8,9,11,14,16 and 18 1078 4/28/04 Certain Class Members' Matrix Benefits Submission of Report of Expert And Memorandum: A. In Opposition to Wyeth's Expedited Motion for Entry of a Court Approved Procedure to Preserve Settlement Funding and to Address the Pervasive Abuse of the Matrix Claims Process; B. In Opposition to Wyeth's Motion for a Temporary Stay of Processing and Payment of "Non-Priority" Matrix Claims to Preserve Available Settlement Funding; C. In Response to Report by Wyeth on Matrix Claims and Fund A Benefits Processing by the AHP Settlement Trust; D. In Opposition to Wyeth's Emergency Motion for a Temporary Stay of Processing and Payment of Level I and II Matrix Claims to Address the Massive Number of Illegitimate Claims filed with the Settlement Trust; and E. In Response to Class Counsel's Memorandum in Partial Opposition to Wyeth's Emergency Motion for a Temporary Stay of Processing and Payment of Level I and II Matrix Claims to Address the Massive Number of Illegitimate Claims filed with the Settlement Trust 1063 4/26/04 Will Pollard's Motion to Compel CIP/Matrix Benefits Payment and to Enforce the Settlement Agreement and PTOs 1415 and 2807 Against the AHP Settlement Trust 1057 4/23/04 AHP Settlement Trust's Motion to CIP Dismiss Claims Filed by Barbara J. Asbill, et al. (Leonard Claims) 1044 4/16/04 AHP Settlement Trust's Motion to CIP Dismiss Claims Filed by Mindy K. Anderson, et al. (Liston Claims) 1041 4/16/04 Claimant's Motion to Compel the CIP Wyeth Settlement Trust to Process Their Claims that were Attested to by Dr. Linda Crouse Dr. Richard Mueller, but were not Among Claims Addressed in PTO 2640 1040 4/16/04 Claimant Joseph Procopio's Motion Matrix Benefits to Compel Payment of Claim 1038 4/15/04 Motion for Relief from Medical CIP Practices Questionnaires (by Frances M. Milligan). 1029 4/14/04 Motion for Relief from Medical CIP Practices Questionnaires (Michael L. Hodges) 1020 4/8/04 Certain Class Members' Matrix Benefits Emergency Motion for Order Directing the AHP Settlement Trust to Include Certain Data in its Report Regarding the Audit of Matrix Claims 994 4/1/04 Certain Class Members' Motion to CIP Compel the AHP Settlement Trust to Accept Sworn Affidavits in Lieu of Medical Practices Questionnaires (Petroff Associates, Shrager, Spivey Sachs) 990 3/31/04 Certain Class Members' Motion for CIP Protective Order and to Compel Claims Processing and Objections to Medical Practices Questionnaire (Baron Budd) 987 3/30/04 Wyeth's Emergency Motion for a Matrix Benefits Temporary Stay of Processing and Payment of Level I and Level II Matrix Claims to Address the Massive Number of Illegitimate Claims Filed With the Settlement 974 3/26/04 John Bacon III's Motion to Compel CIP/Matrix Benefits the AHP Settlement Trust to Pay Matrix Benefits upon the Trust Auditor's Findings 971 3/24/04 AHP Settlement Trust's Motion to CIP/Matrix Benefits Stay Payment of all Post-Audit Claims where the Claimant Relies upon a Green Form, CAP 4 Verification, or Other Document Signed by John P. Orchard 943 3/10/04 AHP Settlement Trust's Motion to CIP Compel the Production of Certain Documents, and Responses to Certain Deposition Questions from Kip Petroff and Douglas Welmaker USDC 3/3/04 Michael Hodge's Motion to Quash CIP District Subpoena, or, in the Alternative, of Motion for Protective Order Kansas (Donna Dicken) USDC 3/1/04 Shawn Raver's Motion to Quash CIP ND of Subpoena and for Protective Order Texas (Donna Dicken) 881 2/13/04 Wyeth's Joinder in the AHP CIP Settlement Trust's Motion to Stay Payment of All Claims with which George Fleming is or has been associated as Counsel 858 2/2/04 Joinder by Wyeth in the Motion to CIP Disqualify All Petroff and Associates' Echocardiograms from Supporting Claims for Benefits and Motion to Stay Payment of All Claims submitted by Petroff and Associates as either Primary or Co-counsel and for Expedited Discovery 848 1/27/04 AHP Settlement Trust's Motion to CIP Stay Payment of all Claims with which George Fleming is or has been associated as Counsel 844 1/27/04 Wyeth's Expedited Motion for Matrix Benefits Entry of a CAP to Preserve Settlement Funding and to Address the Pervasive Abuse of the Matrix Claims Process 843 1/27/04 Wyeth's Motion for a Temporary Matrix Benefits Stay of Processing of "Non-Priority" Matrix Claims to Preserve Settlement Funding 814 1/16/04 AHP Settlement Trust's Motion to CIP Disqualify all Petroff Associates' Echocardiograms from Supporting Claims for Benefits 815 1/16/04 AHP Settlement Trust's Motion to CIP Stay Payment of all Claims submitted by Petroff Associates as Primary Counsel or Co-Counsel and for Expedited Discovery 807 1/16/04 Wyeth's Motion for Leave to take CIP Discovery Regarding Echocardiogram Companies 791 1/14/04 FA Claimant's Objections to the Matrix Benefits/CIP Trust's Global Discovery, Motion for Protective Order and Opposition to Claims Processing Stay 746 12/29/0 Motion to Permit Discovery CIP 3 Regarding Additional Echocardiogram Companies 723 12/22/0 Claimant's Motion to Compel Class Private Echocardiograms/Deficiencies 3 Counsel to Disclose Evidence Relating to the Independent Echocardiographic Reviews Allegedly Performed by their Experts 700 12/19/0 Certain Class Members' Motion to CIP/Trust Operations 3 Compel Compliance with Court Plan Order 3047 701 12/19/0 Certain Class Members' Motion to EchoMotion 3 Compel Production of Documents Echocardiograms relating to Echocardiogram Screenings 601 11/19/0 Motion to Disqualify all CIP 3 Echo Motion Echocardiograms from Supporting Claims for Benefits 600 11/19/0 AHP Settlement Trust's Motion to CIP 3 Stay Payment of all Claims Supported by EchoMotion Echocardiograms 599 11/19/0 Class Member's Emergency Matrix Benefits 3 Motion in Support of Approval of CAP 6 467 10/20/0 Claimant Linda Morales's Motion Matrix Benefits 3 to Compel the AHP Settlement Trust to Pay Matrix Benefits (A-II) upon the Stipulation between the Parties and the Prior Orders of this Court 357 9/22/03 Certain Class Members' Motion for CIP/Trust Operation Plan Access to Court and Renewed Motion for Reconsideration of PTO 2683 101 6/19/03 Motion to Enforce Settlement Matrix Benefits Agreement, filed on behalf of Darlene Nesbitt 48 6/4/03 FA Motion and Memorandum in Matrix Benefits Support to Change the Trust's Procedures to Ensure Timely Payment of Fund B Matrix Claims Not 3/17/03 Motion of Claimant Samye Ellis for Matrix Benefits Available Specific Performance, Memorandum of Law and Form of Order Not 3/19/03 Plaintiff's Motion to Compel Matrix Benefits Available Tentative Determination on Matrix Compensation Benefits Claim, filed on behalf of Nicole Fusco 04-1388 3/31/04 Civil Complaint filed by Napoli, CIP Kaiser, Bern Associates on behalf of Mr. Bacon against the Trust, the Trustees, and Richard L. Scheff captioned 03-6163 11/10/0 Complaint alleging fraud and CIP 3 intentional misrepresentations captioned 03-5252 9/18/03 Complaint alleging violations of CIP federal RICO statutes and fraud captioned