Appendix — Ridgeway v. Pfizer, Inc.

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APPENDIX

PERTINENT PROVISIONS OF THE

RULES INVOLVED

Rule 23 of the Federal Rules of Civil Procedure in pertinent

part provides:

(a) Prerequisites to a Class Action. One or more mem-

bers of a class may sue or be sued as representative par-

ties on behalf of all only if (1) the class is so numerous

that joinder of all members is impracticable, (2) there are

questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are typ-

ical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect

the interests of the class.

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of sub-

division (a) are satisfied, and in addition:

* * *

(3) the court finds that the questions of law or fact

common to the members of the class predominate over

any questions affecting only individual members and

that a class action is superior to other available meth-

ods for the fair and efficient adjudication of the con-

troversy.

(c) Determination by Order Whether Class Action to

be Maintained; Notice; Judgment; Actions Conducted

Partially as Class Actions.

«x * *

(2) In any class action maintained under subdivision

(b)(3), the court shall direct to the members of the

class the best notice practicable under the circum-

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stances, including individual notice to all members

who can be identified through reasonable effort. The

notice shall advise each member that (A) the court

will exclude the member from the class if the member

so requests by a specified date; (B) the judgment,

whether favorable or not, will include all members

who do not request exclusion; and (C) any member

who does not request exclusion may, if the member

desires, enter an appearance through counsel.

* * *

(d) Orders in Conduct Actions. In the conduct of

actions to which this rule applies, the court may make

appropriate orders: . . . (2) requiring, for the protection

of the members of the class or otherwise for the fair con-

duct of the action, that notice be given in such manner as

the court may direct to some or all of the members. . .

of the opportunity of members. . . to intervene and pre-

sent claims or defenses, or otherwise to come into the

action; (3) imposing conditions on the representative

parties or on intervenors .

(e) Dismissal or Compromise. A class action shall not

be dismissed or compromised without the approval of the

court, and notice of the proposed dismissal or compro-

mise shall be given to all members of the class in such

manner as the court directs.

Rule 24 of the Federal Rules of Civil Procedure in pertinent

part provides:

(a) Intervention of Right. Upon timely application any-

one shall be permitted to intervene in an action: . .

(2) when the applicant claims an interest relating to the

property or transaction which is the subject of the action

and the applicant is so situated that the disposition of

the action may as a practical matter impair or impede

the applicant’s ability to protect that interest, unless the

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applicant’s interest is adequately represented by existing

parties.

(b) Permissive Intervention. Upon timely application

anyone may be permitted to intervene in an action: .

(2) when an applicant’s claim or defense and the main

action have a question of law or factin common. . . . In

exercising its discretion the court shall consider whether

the intervention will unduly delay or prejudice the adju-

dication of the rights of the original parties.

Rule 60(b) of the Federal Rules of Civil Procedure in per-

tinent part provides:

(b) Mistakes; Inmadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, Etc. On motion

and upon such terms as are just, the court may relieve a

party or a party’s legal representative from a final judg-

ment, order, or proceeding for the following reasons:

. . . (2) newly discovered evidence which by due dili-

gence could not have been discovered in time to move

for a new trial under Rule 59(b); (3) fraud (whether

heretofore denominated intrinsic or extrinsic), misrep-

resentation, or other misconduct of an adverse party;

. . or (6) any other reason justifying relief from the

Operation of a judgment. The motion shall be made

within a reasonable time, and for reasons (1), (2), and (3)

not more than one year after the judgment, order, or pro-

ceeding was entered ortaken. . . . This rule does not

limit the power of a court to entertain an independent

action to relieve a party from a judgment, order, or pro-

ceeding, . . . or to set aside a judgment for fraud upon

the court.

Rule 3 of the Federal Rules of Appellate Procedure in per-

tinent part provides:

(c) Content of the Notice of Appeal. A notice of appeal

must specify the party or parties taking the appeal by

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naming each appellant in either the caption or the body

of the notice of appeal. . . . In aclass action, whether

or not the class has been certified, it is sufficient for the

notice to name one person qualified to bring the appeal

as representative of the class.

Sa

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. C-1-91-256

ARTHUR RAY BOWLING, et al.,

Plaintiffs,

—vs.—

PFIZER, INC., et al.,

Defendants.

ORDER

This matter is before the Court on the following pleadings:

the Objections of Sidkoff, Pincus & Green (the “Green firm”)

(doc. 315), the Defendants’ Initial Response (doc. 318), the

Plaintiffs’ Initial Response (doc. 319), the Green firm’s

Motion to Supplement (doc. 320), the Motion by Special

Counsel John T. Johnson to extend time (doc. 324), the Plain-

tiffs’ Response (doc. 325), the non-opposition Plaintiffs’

Response (doc. 326), the Defendants’ Response (doc. 327),

the Defendants’ Addendum (doc. 328), the Defendants’

Motion to Supplement (doc. 329), the Plaintiffs’ Notice of

Filing Original Affidavit of John T. Johnson (doc. 330), the

Defendants’ Memorandum in Opposition to non-opposition

Plaintiffs (doc. 331), the Green firm’s Response to John T.

Johnson’s Motion to Extend Time (doc. 332), the Green

Firm’s Reply (doc. 333), and the Notice of Filing (doc. 334).

EE CS

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PRELIMINARY MATTERS

Before dealing with the guts of the issues before this Court,

we must first tend to some housekeeping matters. Because the

Green firm has a brief due in the Sixth Circuit, this Court

agreed to give this matter expedited consideration. Conse-

quently, we requested the Plaintiffs and the Defendants to

respond regarding this Court’s jurisdiction to consider this

matter. After examining the arguments of all parties, we

required the Plaintiffs and the Defendants to respond to the

merits of the Green firm’s Motion by March 15, 1993. The

Defendants then asked if they could have until March 16,

1993 to respond. As the Green firm had no objections, we

acceded to the Defendants’ request.

The Defendants filed the substance of their Response on

March 16, 1993. The Defendants, however, have asked to sup-

plement their Response. Because we already granted the

Defendants an extension of time, their Motion to Supplement

is denied (doc. 329). Similarly, Special Counsel John T. John-

son’s Motion for an extension of time is denied (doc. 324).

Mr. Johnson was informed of this decision by phone in order

to allow him to file his materials, which he did through affi-

davit.' Finally, the Green firm’s Motion to Supplement to

include Exhibit F is granted, as the Defendants and the Plain-

tiffs have had the opportunity to examine Exhibit F before fil-

ing their respective Responses.

BACKGROUND

The parties to this class action settled this litigation. Under

Fed. R. Civ. P. 23(e), this Court held a fairness hearing over

the course of several days. On August 19, 1992, this Court

issued an Order finding the settlement between the parties to

be fair, adequate, and reasonable. Bowling v. Pfizer, 143

\

In the future, the Court asks that, if possible, special counsel

work with lead counsel in filing one set of pleadings with the Court.

A

Ta

F.R.D. 141 (S.D. Ohio 1992) (doc. 250). Because objectors to

the settlement filed two appeals with the United States Court

of Appeals for the Sixth Circuit, this Court stated on Novem-

ber 9, 1992 that because of doubts over its jurisdiction, this

Court would not decide any of the pending motions in the

case until the Court clearly possessed jurisdiction. See doc.

297. Since then, the Court has tended only to a few adminis-

trative aspects of this case. See e.g., doc. 315 (approving of

payment to Special Master); doc. 323 (authorizing the Special

Master to disburse funds to the Internal Revenue Service, as

required under the law).

DISCUSSION

The Green firm has asked this Court to reopen this case.

See Fed. R. Civ. P. 60(b). Before we consider the merits of

this motion, we must determine whether this Court has juris-

diction to act. This Court’s jurisdiction is in doubt because

the Green firm has filed two appeals in the Sixth Circuit.

Jurisdiction

Ordinarily, a trial court loses jurisdiction of a case once a

party files a notice of appeal. First Nat’! Bank v. Hirsch, 535

F.2d 343, 345 n.1 (6th Cir. 1976). However, when a party

seeks to reopen a case under Fed. R. Civ. P. 60, a district

court does retain some power. The extent of the district

court’s power in this Circuit is ambiguous. Some cases hold

that the district court can formally deny a Rule 60(b) motion.

See e.g., Schewchun v. Edwards, 815 F.2d 79 (6th Cir. 1987)

(published in WESTLAW) (“[t]he district court, however, can

consider a Rule 60(b) motion despite the filing of a notice of

appeal”) (emphasis added). Other cases have held that a dis-

trict court may examine the merits of the motion and indicate

to the Court of Appeals whether the district court wishes to

have jurisdiction over the case again. See e.g., Smith v. Com-

8a

bustion Engineering, Inc., 843 F.2d 1392 (6th Cir. 1988)

(published in WESTLAW) (dismissed an appeal from a denial

of a Rule 60(b) motion because the district court did not have

jurisdiction to deny a Rule 60(b) motion). Under either

approach, if a district court indicates that it wishes to consider

fully the Rule 60 motion, the court of appeals generally will

remand the case to the district court before considering the

appeal. Hirsch, 535 F.2d at 343; see also Flynt v. Brownfield,

Bowen & Bally, 726 F. Supp. 1106, 1108-09 (S.D. Ohio

1989).?

Because this Court does not wish to risk infringing upon

the jurisdiction of our parent court, we will not actually rule

upon the Green firm’s Rule 60(b) motion. Instead, this Court

will indicate in this Order whether we wish the Court of

Appeals to remand the case back to this Court.

Standard

The Federal Rules allow a court to reopen a case following

a Final Judgment in the case under certain limited reasons,

including: (1) mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence that which could not

2 The Green firm contends that “this Court can consider the sub-

stantive matters Defendants intend to raise only after the case shall have

been remanded by the Sixth Circuit.” Objectors’ Reply, doc. 321, at 2.

While this Court may not be able to rule upon the Green firm’s Rule

60(b) motion, we do have the authority and obligation to indicate to the

Court of Appeals whether this Court is inclined to grant the Green firm’s

motion. For this Court to make a rational decision, we must examine the

merits of the Rule 60(b) motion.

The Green firm contends that this Court should automatically ask the

Sixth Circuit to remand the case because a Rule 60(b) motion has been

filed. The Green firm reasons that only with a remand can this Court

examine the merits of their Motion. We do not think this Court should

adopt such a rigid, per se rule. If this Court did automatically request a

remand upon the filing of a Rule 60(b) motion, then a litigant purpose-

fully could delay an appeal by filing a Rule 60(b) motion(s).

9a

reasonably have been discovered; (3) fraud, misrepresenta-

tion, or other misconduct; (4) a void judgment; (5) the judg-

ment has been satisfied, released, or discharged; or (6) any

other reason justifying relief from the operation of the judg-

ment. Fed. R. Civ. P. 60(b).

To prevail on a Rule 60(b) motion, “[t]he moving party has

an extremely difficult burden to overcome.” Wilson v. Upjohn

Co., 808 F. Supp. 1321, 1323 (S.D. Ohio 1992) (Spiegel, J.).

Rule 60(b) motions may be granted only in extraordinary sit-

uations and must be weighed against the public interest in

protecting the finality of judgments. See e.g., Nemaizer v.

Baker, 793 F.2d 58, 61 (2d Cir. 1986); Fertilizer Corp. of

India v. IDI Management, Inc., 530 F. Supp. 542, 545 (S.D.

Ohio 1982) (Spiegel, J.). We must also take into consideration

the immediate needs of thousands of class members for some

form of relief while this litigation festers.

Newly Discovered Evidence

Because this Court is not going to grant or deny the Green

firm’s Rule 60(b) Motion in this Order, we are not going

to discuss at length every point in the Green firm’s Motion.

Instead, we will save a more thorough discussion of the Green

firm’s Motion until this Court possesses jurisdiction to actu-

ally rule upon their Motion.

This Court has examined the Green firm’s motion. After

reading and considering their arguments, we ask that the Sixth

Circuit retain jurisdiction of this case. We base this request

upon a number of factors.

1. Some of the matters raised by the Green firm were

already considered by this Court. For instance, this Court has

ruled that discovery of the negotiations behind this settlement

are inappropriate unless there is some evidence of collusion.

Furthermore, the Green firm makes another argument con-

cerning the law. As pointed out before, only one court, Khan

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v. Shiley, Inc., 217 Cal. App. 3d 848, 266 Cal. Rptr. 106

(1990), has allowed an implantee with a fully functioning

heart valve past the summary judgment stage. Dozens of other

courts have rejected claims involving fully functioning heart

valves. In fact, Mr. Green, himself, has conceded that his

clients’ claims in Pennsylvania probably would not survive

summary judgment. Taylor v. Shiley, Transcript of Hearing,

Dec. 29, 1992, at 51-2.

2. Many of the “newly discovered” matters discussed by

the Green firm were actually known by the Green firm, or

with reasonable diligence could have been discovered at the

time of the fairness hearing. For example, the Green firm

points to the alleged evidence of Pfizer’s fraud discovered by

John T. Johnson. In his affidavit, Mr. Johnson states “I have

had numerous discussions with Mr. Green, some going back

to 1988, in which I explained to him all of Pfizer’s and

Shiley’s fraudulent schemes. . . .” Doc. 330, at 2, at 95.

3. In approving the settlement of this class action, this

Court found the settlement, as a whole, to be fair, adequate,

and reasonable. We realized that Pfizer had some weaknesses

in their case. Otherwise, we doubt that Pfizer would have set-

tled—especially not for the amount of money involved in this

settlement. When this Court held its fairness hearing, this

Court was well aware that some Plaintiffs’ counsel had

accused the Defendants of fraud. We took the evidence sup-

porting this accusation into account when we approved the

parties’ settlement.

4. The Green firm devotes considerable attention to the

study funded by Pfizer conducted at the Beaumont Hospital in

Michigan. We first noted that, fortunately, research is ongo-

ing with regard to the Bjork-Shiley convexo/concave heart

valve. Research results subsequent to this Court’s approval of

the settlement are not relevant. If this Court were to consider

; This Court noted with great interest Mr. Green’s characterization

before Judge Lord of the settlement and the fairness hearing in this case.

lla

such research, then we would discourage companies from

conducting potentially beneficial research after settling liti-

gation. With regard to research conducted before the settle-

ment, it appears that Pfizer and class counsel revealed this

research in pleadings with the Court and at the fairness hear-

ing. See e.g., Affidavit of Dr. Roger Sachs, attached as Exh.

A to doc. 327; Letter from David A. Klingsberg to Kenneth

Kasdan, attached as Exh. B to doc. 327.

5. The Green firm also points out that class members who

opted out of the settlement may be in a better position to lit-

igate or receive more favorable settlement terms now than

they were when this Court approved the settlement. We do not

believe this is of relevance. At the time of the fairness hear-

ing, the mission of this Court was to determine if the settle-

ment was fair, adequate, and reasonable at the time. We found

that it was. If the Green firm’s argument is taken to its logi-

cal extreme, then the Defendants could likewise argue that the

Judgment should be reopened based upon favorable devel-

opments in the law. That, however, is not how settlements

work. Settlements allow parties to pay a certain sum to avoid

the risk of paying a potentially larger sum as a result of trial.

6. The Green firm maintains in their Reply brief that the

proponents of the settlement may have mentioned certain

facts, but that the proponents did not fully explain the rami-

fications of those facts. With reasonable diligence, the Green

firm could have ferreted out these facts, especially in light of

the fact that the Green firm has been pursuing heart valve lit-

igation against Pfizer for many years.

7. Much of the “newly discovered evidence” noted by the

Green firm consists of newspaper articles. However, this

Court has been reluctant to use newspaper articles as evidence

to support a Rule 60(b) motion. See Wilson v. Upjohn Co.,

808 F. Supp. 1321, 1323 n.2 (S.D. Ohio 1992) (Spiegel, J.).

8. During the fairness hearing and in writing up our Order

this Court attempted to scrutinize the proposed settlement.

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Based upon the Green firm’s arguments, we doubt that the

public policy favoring the finality of judgments should be

upset in this case, after this Court’s careful consideration of

the parties’ settlement.

CONCLUSION

We have not ruled upon the Green firm’s Rule 60(b)

Motion. However, after examining the grounds for their

motion, we ask that the United States Court of Appeals for the

Sixth Circuit retain jurisdiction of this case in order to decide

the pending appeals.

SO ORDERED.

Dated: __ 3/26/93 /s/_ S. Arthur Spiegel

S. Arthur Spiegel

United States District Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. C-1-91-256

ARTHUR RAY BOWLING, et al.,

Plaintiffs,

PFIZER, INC., ef al..

Defendants.

ORDER LIFTING STAY DENYING MOTIONS

TO INTERVENE AND AUTHORIZING

DISTRIBUTION OF FUNDS

This matter is before the Court on:

I. the Motion by the Pennsylvania Class Objectors for

an Order to Alter or Amend Order Dated April 14,

1994 (doc. 371), the Plaintiff Class’s Response

(doc. 378), the Defendants’ Response (doc. 380),

and the Motion of the Pennsylvania Class Objectors

for Ruling on Pending Motion (417), to which the

Plaintiff Class (doc. 422), as well as the Defendants

(doc. 423) have responded;

II. the Motion by Class Members Gary Crane et al. to

Intervene (doc. 373), the Plaintiff Class’s Response

(doc. 373) and the Defendants’ Response (doc.

384); and the Motion of Class Members Gary Crane

et al. for Discovery and Briefing Schedule on Attor-

ney’s Fees (376).

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III. In addition the Special Masters/Trustees have sub-

mitted the Notice of Mailing to Class Members and

for Publication (doc. 397).

I. PENNSYLVANIA CLASS OBJECTORS’

MOTIONS TO INTERVENE

Previously, the Pennsylvania Class Objectors (“PCO”) have

filed a Motion to Intervene (doc. 265), which we denied by

our Order of April 5, 1994 (doc. 363). The PCO also filed a

Motion to Reconsider (doc. 315), which we denied by Order

of April 12, 1994 (doc. 368). In addition the PCO has taken

numerous appeals to the Sixth Circuit, all of which have been

dismissed. Finally, the United States Supreme Court has

denied certiorari to the PCO.

Certiorari has been denied, all appeals have been exhausted

and the judgment of this Court approving the settlement is

final. The parties in co-operation with the Special Masters/

Trustees are moving toward the implementation of the set-

tlement and the class members will soon begin to enjoy the

benefits of their lawsuit. The PCO has delayed the imple-

mentation of the settlement for over two years with their

series of appeals. The PCO now has moved this Court to

amend our Order of April 5, 1994, in which we denied the

PCO’s Motion to Intervene. In the alternative, the PCO

request that we grant their renewed Motion to Intervene

and/or grant relief from judgment under Rule 60(b) or to grant

permission for the filing of an amended 60(b) motion. The

admitted aim of the PCO’s motions is to be allowed to inter-

vene in order to file another round of appeals, which would

again significantly delay the implementation of the settle-

ment. The PCO has had an opportunity to make their objec-

tions to the settlement and those objections have been

carefully considered. it is time now for the implementation of

the settlement for the benefit of the Plaintiffs’ Class. The tens

of thousands of class members who are waiting for the set-

15a

tlement’s benefits have waited long enough. Furthermore, our

understanding of the Sixth Circuit’s rulings in the PCO’s pre-

vious appeals indicates that even if we allowed the PCO to

intervene at this point, their opportunity for appeal has long

past.

A. TIMELINESS OF THE PCO’S MOTIONS

“An application for permissive or intervention of right must

be timely.” Michigan Ass'n for Retarded Citizens v. Smith,

657 F.2d 102, 105 (6th Cir. 1981). If untimely, intervention

must be denied. /d. Timeliness in a matter within the sound

discretion of the district court. Jd. The Sixth Circuit has artic-

ulated the factors “which are particularly probative in deter-

mining whether intervention is timely.” Stotts v. Memphis Fire

Dept., 679 F.2d 579, 582 (6th Cir. 1982). Those factors are:

1) the purpose for which intervention is sought; 2) the

length of time preceding the application for intervention

during which the proposed intervenor knew or reason-

ably should have known of his interest in the case; 3) the

prejudice to the original parties due to the proposed

intervenor’s failure after he knew of or reasonably

should have known of his interest in the case to apply

promptly for intervention; 4) the existence of unusual

circumstances militating against or in favor of inter-

vention; and 5) the point to which the suit has

progressed.

Id. (citing Retarded Citizens, 657 F.2d at 105). We will exam-

ine these in order.

1. The Purpose for Intervention

The PCO’s stated purpose in seeking intervention is to pur-

sue a course of further appeals, aimed at overturning this

Court’s approval of the settlement in this case. The PCO in

their Motion for the Court to Rule on Pending Motion have

16a

made an impassioned plea that justice requires that their

objections to class certification and to the settlement be revis-

ited. They argue further that unless we grant their motion to

intervene they will be deprived of their opportunity to be

heard. However, the record of this case indicates that this

Court has afforded the PCO ample opportunity to be heard

and has in turn carefully considered and responded to each

objection they have raised.

The PCO has had the opportunity to raise their arguments

before this Court in numerous documents. In addition, Mr.

Green spoke at length at the fairness hearing. In our Order

Finding the Proposed Settlement to be Fair, we devoted forty

pages to objections raised by the PCO. Document 250 at 18-

58, August 19, 1992. Finally, we note that the Plaintiffs’

Class, in their Memorandum in Opposition to the PCO’s

motion to amend cites us to the record in the PCO’s original

case in Pennsylvania in which counsel for the PCO applauded

the Bowling settlement, explaining why the PCO had not

opted out of this case, as they were entitled to under the set-

tlement. The Plaintiffs’ Class reports that counsel for the PCO

told Judge Lord:

[A]lthough our clients were offered the opportunity to

opt [out] of the Bowling case, they elected to stay in the

case and obtain the benefits from the Bowling settlement

. . . One of our clients has been identified as a can-

didate for a re-operation which means that her Pfizer

heart valve would be removed and a new heart valve

implanted. Under the Bowling settlement, this client

could expect to receive substantial compensation and to

thus be able to afford the procedure. Accordingly, the

prospect of waiting many, many years for a resolution of

the Taylor case, compared to the relief provided by a

prompt implementation of the Bowling settlement was

something that the client considered. The other client

who has a working valve is also in a fragile state of

health.

17a

Memorandum of Plaintiffs’ Class at 4,n.4, Document 422, (cit-

ing a hearing in Taylor v. Shiley held on December 29, 1992).

The PCO’s stated purpose in seeking to intervene is to

attack the fairness of the settlement. But the PCO has had

ample opportunity to do this before this Court. The Sixth Cir-

cuit has clearly delineated our responsibility in this situation

in the Stotts case. There the Court of Appeals was reviewing

a situation very similar to that now before us, where indi-

viduals sought to intervene to object to a consent decree that

the district court had already approved:

[T]he court afforded the proposed intervenors an oppor-

tunity to air their objections to the 1980 Decree. This is

all that the court was required to do given its determi-

nation that the 1980 Decree was reasonable.

Stotts, 679 F.2d at 584 (emphasis added). This Court has given

the PCO ample opportunity to “air their objections,” and has

considered and responded to each.

2. The Delay in Moving for Intervention

The PCO argues that they moved to intervene as soon as

they realized that their failure to intervene would present a

problem in their attempts to appeal the judgment of this

Court. Essentially, the PCO’s complaint is with the Court of

Appeals. At the level of this district court, the PCO has been

given every opportunity to present their case, even at this late

date. Therefore, we are not inclined to grant this motion to

intervene over two years after our approval of the settlement

in order to provide the PCO with an opportunity to further

delay its implementation.

3. Prejudice to the Parties

The third factor to be considered in determining whether a

motion to intervene is timely is “the prejudice to the original

Parties due to the proposed intervenor’s failure after he knew

of or reasonably should have known of his interest in the case

18a

to apply promptly for intervention.” Stotts, 679 F.2d at 582.

By far the most compelling reason to deny the PCO the

opportunity to intervene is to immediately begin the imple-

mentation of the settlement. The Parties have the right to the

compensation provided under the settlement. The research

provided for should begin at once. Below, we authorize the

first distribution from the Consultation Fund. The Special

Masters/ Trustees intend to disburse these funds in the next

month. To postpone the benefits of the settlement for another

round of appeals would indeed be prejudicial to the members

of the class.

In our Order of April 5, 1994, which the PCO now request

that we alter, we denied the PCO’s motion to Intervene

because of the substantial delay between approval of the

settlement and return of this case to this Court, and the

fact that intervention at this point would be prejudicial

totheclass....

Order at 1, Document 363. The reasoning that we applied in

that order becomes more urgent with every passing day.

4. Unusual Circumstances

The fourth factor for timeliness provided by the Sixth Cir-

cuit is “the existence of unusual circumstances militating

against or in favor of intervention.” Stotts, 679 F.2d at 582.

One of the most creative aspects of this settlement is the open

ended nature of the Defendants’ liability. For example the

Defendants will remain liable for all fractures, regardless of

the number. Another example is the continuing duty to replen-

ish the Patient Benefit Fund to insure permanent availability

of replacement surgeries. Finally, in several circumstances,

the settlement offers Plaintiffs the opportunity to bring sep-

arate suit if he or she is not satisfied with the benefits pro-

vided under the settlement.

19a

Besides the unusual flexibility of the settlement itself, this

Court retains continuing jurisdiction over the operation of the

settlement. The Court has appointed able and conscientious

Special Masters/Trustees who also keep a watchful eye on

the fairness of the settlement’s implementation, and who reg-

ularly report to the Court. In addition the Special Mas-

ters/Trustees have assembled a Supervisory Panel composed

of some of the most respected physicians in the field and a

Foreign Fracture Panel of comparable expertise. Therefore,

even if some of the PCO’s wildly speculative predictions of

problems with implementation of the settlement should sur-

face, we are confident that the Court, in its continuing

control, with the help and guidance of the competent pro-

fessionals now assembled is prepared to address them.

5. The Point to Which the Suit Has Progressed

After considering timeliness in terms of the previous four

factors the Sixth Circuit’s directs us to consider “the point at

which the suit has progressed.” Michigan Ass’n for Retarded

Citizens, 657 F.2d at 105. It is now over three years since the

beginning of this litigation. The PCO first appeared in this

case nearly two and one half years ago. The settlement has

been approved for over two years. Notice has been sent to the

class members. Objections and opt-outs have been completed.

The Supervisory and Foreign Fracture Panels have bene

appointed and have been working for months. The first dis-

tribution from the Supervisory fund is only weeks away. The

interest of justice would not be served by intervention at this

time.

B. LEGAL INFIRMITIES IN PCO’S ARGUMENTS

1. Objecting and Appearing Does Not Make the PCO a Party

The PCO argues that intervention would merely formalize

its status as an intervenor, because they appeared and objected

20a

at the fairness hearing. The Green firm argued to the Court of

Appeals:

[FJor all purposes, the court below treated appellants as

parties in this case. Appellants ... vigorously

participated extensively in the Fairness Hearings them-

selves. . . . The doctrine of de facto intervention

is clearly applicable to appellants... .

Appellants’ Response to Appellees’-Defendants’ Motion to

Dismiss Appeal at 29. However, the Sixth Circuit rejected that

argument, stating that “[b]ecause the appellants are unnamed

class members who neglected to intervene in the proceedings

below, they lack standing to pursue this appeal.” Bowling v.

Pfizer, Inc., No. 92-3973 slip op. at 1 (6th Cir. Dec. 21, 1993),

(citing Guthrie v. Evans, 815 F.2d 626, 627-28 (11th Cir. 1987);

Croyden Associates, v. Alleco, Inc., 969 F.2d 675, 568-79 (8th

Cir. 1992); Walker v. City of Mesquite, 858 F.2d 10071, 1073-

75 (Sth Cir. 1988)). The PCO argued unsuccessfully to the

Sixth Circuit that because this Court allowed the PCO to par-

ticipate to the fullest extent possible, the PCO should be con-

sidered parties for the purposes of appeal. Ironically, now the

PCO returns to this Court charging that their participation in

the fairness hearing was inadequate.

2. Intervention Will Not Accomplish the PCO’s Goals

The PCO seeks to intervene so that it can once again

attempt to appeal from our approval of the settlement. But as

the Defendants point out, intervention will not give the PCO

the right to appeal. The time for appeal of that judgment has

now passed. See Jenkins v. State of Missouri, 967 F.2d 1245,

1248 (8th Cir.) (where the district court granted the motion to

intervene, and the court of appeals held that “granting the

group intervenor status cannot breathe life into rights already

foregone”). The PCO argues without authority that we can

grant them intervenor status which relates back to the time

which they filed their first appeal. Even if we were inclined

2la

to so rule, it is extremely hopeful speculation on the part of

the PCO that the court of appeals would allow them to revive

their appeal. The Sixth Circuit’s own language in one of the

PCO’s prior appeals would seem to rule out the effectiveness

of “retroactive” intervention:

The lack of intervenor status at the time of the appeal

Suggests that the appellants were not “parties” when they

brought the notice of appeal.

Bowling v. Pfizer, Inc., No. 94-3519 (6th Cir. August 8, 1994)

(citing Fed. R. App. P. 3(c); Jenkins v. Missouri, 967 F.2d 1245

(8th Cir.) cert. denied, 113 S. Ct. 811 (1992)).

C. THE PCO’S OTHER ARGUMENTS

Although we believe that the reasoning set forth above is

determinative of the PCO’s motion now before us, we feel

compelled to address briefly some of the more inflammatory

accusations which the PCO makes in the Motion of the PA

Class Objectors for Expedited Consideration and Raising

Matters Under Fed. R. Civ. Pro. 60(b)(2)(3) and (6) (doc.

315). The PCO declares that we should amend our judgment

in light of new evidence, discovered after our ruling that the

settlement is fair. The PCO claims that their “new evidence”

proves that a fraud was perpetrated on this Court by the mis-

representations of class counsel and counsel for the Defen-

dants. In fact, we have heard many of these arguments before

from the PCO, others are based on the PCO continued mis-

understanding of the details of the settlement, and some are

based on “new evidence” which in fact was brought forward

by the parties and considered by the Court in the process of

approving the settlement.

Running throughout the PCO arguments is the theme that

Class Counsel and the Defendants colluded to fashion a set-

tlement which was favorable to the Defendants. This objec-

tion was considered at length in our August 19, 1992 order

22a

approving the settlement. In that order, we studied the PCO’s

allegations carefully and discovered that the PCO provided no

real evidence to support these allegations. However, admitting

that proof of collusion was difficult, we focused on the set-

tlement itself to discover if it in fact was fair. In doing so we

followed the guidance of the United States Court of Appeals

for the Fifth Circuit, which has stated:

It is, ultimately, in the settlement terms that the class

representatives’ judgment and the adequacy of their rep-

resentation is either vindicated or found wanting. If the

terms themselves are fair, reasonable, and adequate, the

district court may fairly assume that they were negoti-

ated by competent and adequate counsel; in such cases,

whether another team of negotiators might have accom-

plished a better settlement is a matter equally comprised

of conjecture and irrelevance.

In re Corrugated Antitrust Litigation, 643 F.2d 195, 212 (Sth

Cir.) cert. denied, 456 U.S. 998 (1982). Having examined the

settlement and found it fair, we find no basis for the PCO’s

bold allegations of collusion and fraud on the Court, particu-

larly in the absence of any real evidence presented by the PCO.

One of the PCO’s specific arguments is that the Court in

approving the settlement failed to consider the strength of the

class’s fraud claims. Principally, this claim is based on the

opinion of Professor Oscar Gray that the Plaintiffs’ Class’s

fraud claim was stronger than was represented to the Court. In

addition, the PCO claims that Class Counsel John T. Johnson

and others withheld information concerning the Defendants’

alleged fraud. However, the Court was well aware of Class

Counsel Johnson’s discoveries. The relative strength of the

Plaintiffs’ Class’s fraud claim was considered at length by the

Court. We acknowledge that the issue is far from certain, and

is an appropriate subject for legal argument. However, we are

satisfied that the relative strengths and weaknesses of the

23a

Plaintiffs’ Class’s fraud claims were weighed by the parties in

reaching the settlement, and by the Court in approving it.

Another major accusation of the PCO is that the Court was

deceived concerning the Defendants’ prior medical research

and in particular the Beaumont study. Here the PCO relies on

articles appearing in the New York Times in the fall of 1992,

shortly after the settlement was approved. Those articles, as

characterized by the PCO, claim that the Defendants had per-

fected a method for detecting defective valves, using sophis-

ticated X-ray techniques. The articles claim that the screening

process would be quite costly and the PCO argues that they

are significantly more expensive than is provided for in the

settlement.

By the PCO’s own admission “the Court, sui sponte, raised

the issue of the stories relating to Beaumont that had appeared

in The New York Times and the Wall Street Journal... .”

Motion of the PCO at 34, Document 315. The Court was sat-

isfied by the response of the parties concerning the Beaumont

studies. Counsel for the Class indicated that the Beaumont

study was part of the Defendants’ ongoing research toward

identifying defective valves, that the techniques developed

there did not yet constitute a practical technique for detecting

defective valves, and that that research would be handed over

to the independent Supervisory Panel, one of whose duties is

to direct research under the settlement. Having met with the

now empaneled Supervisory Panel, the Court is satisfied that

this independent group of top-flight medical experts will

examine the Beaumont research and make the appropriate

reports to the Court.

We further note that many decisions remain for this Court,

the Special Masters/Trustees and the expert panels, before the

settlement can be fully implemented. Significant among them

are the nature and amount of diagnostic testing which will be

provided. This in turn is dependent upon the research and rec-

ommendations of the Supervisory Panel. Such basic issues as

24a

what constitutes a fracture and who should be eligible for

replacement surgery are yet to be decided. The Court is most

anxious to embark upon this stage of the case and to begin to

see the settlement actually benefit the class members. For this

very practical reason, in addition to the legal requirements

discussed above, the Court must deny the PCO’s motions.

Il. GARY CRANE ET AL.’S MOTIONS

Class members Gary Crane, Gene Randall, and amicus

curiae Public Citizen have moved for a discovery and brief-

ing schedule on attorney’s fees. Previously, we have stayed all

matters concerning attorney’s fees pending the decision of the

United Stats Supreme Court in regard to certiorari. Since the

Supreme Court has now declined to grant certiorari, we

hereby lift that stay. Parties may conduct discovery in regard

to attorney’s fees until June 1, 1995. All motions in regard to

attorney’s fees must be filed with the Court by July 15, 1995.

Class members Gary Crane, Gene Randall, and Gerard

Benadik have also moved to intervene. These class members

seek to intervene in respect to “the attorney’s fees issue,” and

“any other post-settlement matter upon which there might be

an appealable issue.” At the same time these movants admit

that they “have no outstanding objections to the settlement

other than the fees issues.”

We have already given the movants’ counsel, who appeared

as amicus curiae at the fairness hearings, the right to appear

with respect to attorney’s fees. They are entitled to participate

in the briefing of the attorney’s fees issue and to make

appearances at any hearings the Court may conduct in regard

to such matters. However, for the same reason stated above in

regard to the Pennsylvania Class Objectors, we decline to

grant their Motion to Intervene.

25a

Ill. INITIAL DISTRIBUTION OF

CONSULTATION FUND

The Special Masters/Trustees have submitted for approval

a Notice for Mailing to Class Members and for Publication.

We hereby approve that notice. The Special Masters/ Trustees

have proposed that the first of two distributions from the Con-

sultation Fund be made in December, 1994. We hereby

approve that first distribution. In making that distribution, we

order the Special Masters/Trustees to hold in reserve at least

twenty-five percent (25%) of the Consultation Fund for the

purposes of future payment of attorney’s fees and expenses.

We do this out of an abundance of caution. This percentage

does not represents the Court’s future intentions in regard to

attorney’s fees. That decision will be made at a later date after

the Court has had the opportunity to review the briefs on the

subject of attorney’s fees, the filing of which we have autho-

rized above. Furthermore, the fact that we are reserving this

amount from the Consultation Fund does not represent a deci-

sion to preclude the use of monies from the other funds for

the purpose of attorney’s fees.

CONCLUSION

Accordingly, for good cause shown and in the interest of

justice, the Motion by the Pennsylvania Class Objectors for

an Order to Alter or Amend Order Dated April 14, 1994 (doc.

371) is DENIED. The Motion by Class Members Gary Crane et

al. to Intervene (doc. 373) is likewise DENIED. The Motion of

Class Members Gary Crane et al. for Discovery and Briefing

Schedule on Attorney’s Fees (376) is GRANTED as described

above. Finally, the Special Masters/Trustees’ Notice of Mail-

ing to Class Members and for Publication (doc. 397) is

APPROVED and the Special Masters/Trustees’ request to par-

tially distribute monies from the Consultation Fund is

APPROVED with the limitations set forth above.

SO ORDERED.

Dated: Nov. 23, 1994 /s/_S. Arthur Spiegel

S. Arthur Spiegel

United States District Judge