Opinion
Case No. 05-12309-JNF.
October 5, 2006
TRUSTEE'S MOTION TO RETAIN SPECIAL COUNSEL TO PURSUE PERSONAL INJURY CLAIM
To the Honorable Joan N. Feeney, Chief United States Bankruptcy Judge:
Harold B. Murphy, the duly appointed trustee ("Trustee") in the above-captioned case, respectfully requests the entry of an Order authorizing the retention of Joshua A. Jones and the firm of Aylstock, Witkin, Sasser, PLC ("Aylstock"), to represent the Trustee in pursuing a products liability claim arising from the Debtor's prepetition usage of the diet drug(s) Pondimin and/or Redux, in connection with "Phen-Fen" Litigation. In support thereof, the Trustee states as follows:
1. On March 24, 2005 (the "Petition Date"), the Debtor commenced a bankruptcy case by filing a petition for relief under Chapter 7 of the United States Bankruptcy Code ("Bankruptcy Code").
2. Thereafter, a bankruptcy estate (the "Estate") was created.
3. The Section 341 meeting of creditors was conducted on or about May 12, 2005. The Trustee's investigation of the Debtor's financial affairs revealed no unencumbered, nonexempt assets available for administration. Consequently, on or about May 17, 2006, the Trustee filed his Report of No Distribution. On July 18, 2005, an order entered discharging the Debtor.
4. On August 4, 2005, the Debtor's case was closed.
5. By motion dated June 19, 2006, the Trustee moved to reopen the case to administer a previously undisclosed asset, that is, the Debtor's claims arising out of the Phen-Fen litigation. The motion to reopen the case was approved by order dated June 19, 2006.
6. It is necessary that the Trustee employ special counsel to represent the estate in connection with the Debtor's claims arising from her usage of the diet drug(s) Pondimin and/or Redux.
7. The Debtor was represented pre-petition by Aylstock, Witkin Sasser PLC.
8. The proposed special counsel has been actively involved in the products liability case since prior to the commencement of the bankruptcy case.
9. The proposed special counsel is thoroughly familiar with the facts at issue in this case and has substantial expertise in conducting litigation of this nature.
10. As set forth in the attached affidavit of Joshua Jones, proposed special counsel does not hold or represent any interest adverse to the estate, and the Trustee believes the employment of Joshua A. Jones and Aylstock, Witkin Sasser PLC as special counsel to the Trustee would be in the best interest of the estate.
11. The proposed special counsel has agreed to be compensated on a contingency fee arrangement based upon the net recovery in the case. In consideration for services rendered in the product liability litigation, the Trustee has agreed to pay Aylstock, Witkin Sasser PLC a sum equal to forty percent (40%) of all cash recovered for the Trustee, whether by settlement, trial, or otherwise, plus reasonable costs. The compensation arrangement set forth herein is consistent with the fee arrangements which Aylstock, Witkin Sasser PLC has reached with other plaintiffs in the Phen-Fen litigation. Aylstock has further agreed that in no event shall its aggregate fees, costs and expenses exceed fifty percent (50%) of the cash recovery otherwise payable to the Trustee.
12. The bankruptcy estate will not be required to pay a retainer or advance any sums for costs or expenses. Costs and reasonable expenses incurred will be paid from any recovery.
13. The proposed special counsel agrees to be compensated in accordance with 11 U.S.C. § 330 and subject to notice to creditors and Court approval.
WHEREFORE, the Trustee respectfully requests the entry of an Order:
1. Authorizing the retention of Joshua A. Jones and Aylstock, Witkin Sasser, PLC as special counsel to represent the Trustee in litigation against Wyeth Pharmaceuticals, formerly American Home Products Corporation, and subsidiaries for a products liability claim asserted by the Debtor and arising from the Debtor's prepetition usage of the diet drug(s) Pondimin and/or Redux; and
2. Granting such other relief as is just and proper.
AFFIDAVIT OF PROPOSED SPECIAL COUNSEL IN SUPPORT OF TRUSTEE'S MOTION TO EMPLOY SPECIAL COUNSEL
BEFORE ME, the undersigned authority, personally appeared Joshua A. Jones of Aylstock, Witkin Sasser PLC, who, being first duly sworn, deposes and says:
1. I am an attorney admitted to practice in the State of Florida.
2. I am an attorney with the law firm of Aylstock, Witkin Sasser, PLC with offices located at 4400 Bayou Boulevard, Suite 58, Pensacola, Florida 32503.
3. Pre-petition, the Debtor, Claudia Velloso-Potts, was represented by Aylstock, Witkin Sasser PLC, in seeking recovery on a Products Liability Claim arising from the Debtor's usage of the diet drug(s) Pondimin and/or Redux, in connection with "Phen-Fen" Litigation.
4. I recognize and understand that the Debtor's interest in the claim, which I am being employed to pursue on behalf of the bankruptcy estate, became the property of the bankruptcy estate upon the filing of the Debtor's bankruptcy petition pursuant to 11 U.S.C. § 541, and that the bankruptcy Trustee for this estate is the owner and holder of the claim and only party authorized to make decisions as to settlement of this claim prior to an adjudication on the merits.
5. I acknowledge and understand that any settlement which the Trustee agrees to prior to an adjudication on the merits, is subject to the Bankruptcy Court's approval after notice to creditors and interested parties in the case.
6. I further acknowledge and understand that all settlement proceeds and any other recoveries made in connection with the tort claim are property of the bankruptcy estate with disbursements of any such proceeds derived there from, being subject to further Order of the Bankruptcy Court.
7. I agree to notify the tortfeasor, any insurance providers, any potential defendants and/or responsible parties, or any attorneys representing any of the preceding of the Debtor's bankruptcy filing and the Trustee's ownership interest in this tort claim. I will provide the Trustee with copies of such notification contemporaneously with such notification being made.
8. I am authorized to make this Affidavit on behalf of Aylstock, Witkin Sasser, PLC, and myself and have personal knowledge of this information contained herein.
9. Neither I, nor the law firm of Aylstock, Witkin Sasser, PLC, hold or represent any interest adverse to the bankruptcy estate, and the law firm of Aylstock, Witkin Sasser, PLC and I are disinterested as required by 11 U.S.C. § 101(14), 327 (a).
10. Neither I, nor the law firm of Aylstock, Witkin Sasser, PLC, have any connection with the Debtor, creditors, the United States Trustee, or any persons in his office or any other interested parties in this case which has not been disclosed.
11. I have not agreed to share with any person (other than members of my firm) the compensation to be paid for the services rendered in this case.
12. I have not received a retainer in connection with this matter.
13. I shall amend this statement immediately upon my learning that any of the within representations are incorrect or there is any change in circumstance relating thereto.
14. I have reviewed the provisions of MLBR 2016-1.
FURTHER AFFIANT SAYETH NAUGHT
DECLARATION REGARDING ELECTRONIC FILING
I, Joshua A. Jones, Esq., hereby declare under penalty of perjury that all of the information contained in the Affidavit of Proposed Special Counsel in Support of Trustee's Motion to Employ Special Counsel (the "Document"), filed electronically is true and correct. I understand that this DECLARATION is to be filed with the Clerk of Court electronically concurrently with the electronic filing of this Document. I understand that failure to file this DECLARATION may cause the Document to be struck and any request contained or relying thereon to be denied, without further notice.
I further understand that pursuant to the Massachusetts Electronic Filing Local Rule (MEFLR)-7(b) all paper documents containing original signatures executed under the penalties of perjury and filed electronically with the Court are the property of the bankruptcy estate and shall be maintained by the authorized CM/ECF Registered User for a period of five (5) years after the closing of this case.
I certify that the affiant signed this form before I submitted the Document, I gave the affiant a copy of the Document and this declaration, and I have followed all other electronic filing requirements currently established by local rule and standing order. This declaration is based on all information of which I have knowledge and my signature below constitutes my certification of the foregoing under Fed.R.Bankr.P. 9011. I have reviewed and will comply with the provisions of MEFR 7.