Summary
certifying class and approving settlement for plaintiffs alleging injury due to ingestion of Dexatrim
Summary of this case from In re PhenylpropanolamineOpinion
[Copyrighted Material Omitted]
Arthur Sherman, Sherman Salkow & Petoyan, Los Angeles, CA, Christina A Lopez-Fountain, Lopez Hodes Restaino, Milman & Skikos, Newport Beach, CA, Christopher A Seeger, Seeger Weiss (N.Y.), New York, NY, James F Green, Ashcraft & Gerel, Washington, DC, Lance Eugene Palmer, Levinson Friedman, Seattle, Michael W Heaviside, Ashcraft & Gerel (DC), Washington, DC, Ramon Rossi Lopez, Lopez Hodes Restaino, Milman Skikos & Polos, Newport Beach, CA, Richard S Lewis, Cohen Milstein Hausfeld & Toll, Washington, DC, Ron Michael Meneo, Early Ludwick & Sweeney, New Haven, CT, Stephen A Weiss, Seegwe Weiss LLP, New York, NY, for John Park, Danza Honeyblue, Plaintiffs.
Peter Simshauser, Skadden Arps Slate Meagher & Flom, Los Angeles, CA, Chester Crews Townsend, Miller & Martin, Chattanooga, TN, John J Petrullo, Buchalter Nemer Fields & Younger, Mary G Whitaker, Lewis D'Amato Brisbois & Bisgaard, Los Angeles, CA, Rodney L Umberger, Jr, Williams Kastner & Gibbs, Jan Catherine Kirkwood, Williams Kastner & Gibbs (SEA), Seattle, for Thompson Medical Company Inc, Delaco Company, Chattem Inc, John 1-10 Does, Defendants.
MEMORANDUM AND ORDER
ROTHSTEIN, District Judge.
I. Introduction
This matter comes before the court on the joint motion of plaintiffs and defendant Chattem, Inc. (" Chattem" ), for approval of a proposed Class Action Settlement Agreement (the " Settlement" or " Settlement Agreement" ) and for certification of the Settlement class (the " Class" ) pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure (" the Joint Motion" ). For the reasons discussed below, the court concludes that the requirements of Fed.R.Civ.P. 23 have been satisfied, and that the Settlement is fair, reasonable and adequate. Therefore, the court grants the Joint Motion, certifies the Class, and approves the Settlement pursuant to Fed.R.Civ.P. 23(e).
A. Background and Procedural History
The Settlement involves Dexatrim® products containing phenylpropanolamine (" PPA" ) alleged to have been ingested on or after December 21, 1998 (" Dexatrim® Products" ). Chattem marketed Dexatrim® Products from December 21, 1998, until Chattem withdrew the product from the market in November 2000. The withdrawal of PPA-containing products from the market was precipitated by Food & Drug Administration (" FDA" ) concern about the results of a case-control study, the Hemorrhagic Stroke Project (" HSP" ), which suggested that the ingestion of PPA might be associated with an increased risk of hemorrhagic stroke. Following publication of the HSP, plaintiffs throughout the United States filed suit against Chattem and the other manufacturers of PPA-containing products, alleging a variety of injuries stemming from the ingestion of PPA. Many of these cases have been removed to federal court on the basis of diversity jurisdiction.
On December 21, 1998, Chattem purchased the Dexatrim® product line from Thompson Medical Company, Inc. (" Thompson" ). Thompson subsequently merged with The Delaco Company (" Delaco" ), which assumed Thompson's liabilities. On February 12, 2004, Delaco filed a Petition for Bankruptcy in United States Bankruptcy Court for the Southern District of New York. Although Delaco is not party to this Settlement, it has reached a Memorandum of Understanding with the plaintiffs that is very similar to the plaintiffs' agreement with Chattem.
Products marketed, distributed and/or manufactured by Thompson Medical Company, Inc. (succeeded by The Delaco Company) that contained phenylpropanolamine include, but are not limited to, the brand names Dexatrim®, Control®, Appedrine®, Prolamine®, Anorexin®, Coffee, Tea, and a New Me®, Grapefruit Plus® and Vita Slim® . All of these products are collectively referred to throughout this document as " Dexatrim" .
This list does not included cases naming Chattem, Inc. in which the plaintiff's date of injury is prior to December 21, 1998 because these plaintiffs are not Settlement Class Members.
In August 2001, the Judicial Panel on Multidistrict Litigation consolidated and transferred all pending federal PPA litigation to this court as Multidistrict Litigation (" MDL" ) No. 1407. Since the creation of MDL 1407, extensive fact discovery has been completed as to many MDL defendants, including Chattem. Federal proceedings have been complemented by extensive activity in state courts, including coordinated proceedings in California, New Jersey, Pennsylvania and Texas. In addition to overseeing the discovery process, this court has decided issues concerning the admissibility of scientific evidence regarding PPA. With the court now in the process of remanding MDL 1407 cases to transferor courts for trial, the PPA claims against Chattem are mature and ripe for settlement.
In early 2003, the court held a hearing regarding the admissibility of plaintiffs' expert opinions as to general causation pursuant to Federal Rules of Evidence 702 and 703 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court heard several days of live testimony and argument, and found that generic opinions that PPA can cause hemorrhagic and ischemic stroke are admissible, but that opinions that PPA can cause cardiac, or certain other injuries, are not.
" Other Injuries" are limited to seizures, transient ischemic attacks and hypertensive crisis where medical documentation contemporaneous with the injury establishes the injury and indicates that the Plaintiff consumed Dexatrim within the 96 hours prior to the injury.
B. Settlement Negotiations
Beginning in December 2002, Chattem and a subcommittee of the MDL Plaintiffs' Steering Committee (now " Class Counsel" ) began initial settlement negotiations. During these preliminary discussions, Chattem and Class Counsel developed the concept of the uniform Dexatrim® Case Scoring System and Matrix (" Matrix" ) to value each case. Over the next nine months, counsel refined the Matrix and debated values, often engaging in heated negotiations. Eventually, the parties reached an impasse, and agreed to hire John E. Keefe, a former New Jersey judge, to assist them in reaching settlement. The considerable efforts of Judge Keefe, Chattem, and Class Counsel finally resulted in the parties presenting the court with an executed Memorandum of Understanding on December 18, 2003, and in public announcement of the Settlement by Chattem the following day. Over the next few months, the parties hammered out the remaining details of the Settlement and the Settlement Agreement. On April 13, 2004, the parties filed a Motion for Preliminary Approval of the Settlement. In an order dated April 23, 2004, the court preliminarily approved the Settlement pending a fairness hearing, temporarily certified the Class pursuant to Rule 23(b)(3), and authorized notice to be given to the Class.
During this period of time, Sidmak Laboratories, Inc. (" Sidmak" ) agreed to become part of the Settlement. Sidmak executed an Amended Memorandum of Understanding on February 18, 2004, and is a Released Party pursuant to Section 1.1(xx)(iii) of the Settlement Agreement. Sidmak has been acquired by Pliva, a Croatian company.
" Cardiac Injuries" means myocardial infarction/heart attack.
C. The Settlement
1. The Class
Pursuant to the Settlement Agreement, the
‘ Settlement Class' shall mean all Dexatrim® Product Users who sustained bodily injury on or after December 21, 1998 allegedly as a result of his or her ingestion of a Dexatrim® Product, and their associated Derivative Claimants and Representative Claimants. The Settlement Class specifically includes Dexatrim® Product Users who have or may have claims with respect to injuries not yet manifested, as well as those persons who seek medical monitoring for potential future injuries that have not yet manifested. The Settlement Class shall expressly exclude any person or entity that entered into a settlement with Chattem (which included a release) related to claims arising out of the use of a Dexatrim® Product. The Settlement Class shall also expressly exclude any individual (and their associated Derivative Claimants and Representative Claimants) against whom any court has entered judgment or dismissal with prejudice in an action related to a Dexatrim® Product on or before the Preliminary Approval Date, regardless of whether such judgment or dismissal is the subject of a motion for reconsideration, motion to alter, amend or set aside the judgment or similar motion; or an appeal.
Settlement Agreement, § 1.1(bbb).
2. Notice of Settlement
Chattem and Class Counsel designed a notice procedure with the goal of providing actual notice to all potential members of the class (" Class Members" ) whose addresses were known or reasonably could be located, and to provide publication notice to reach potential Class Members whose whereabouts were unknown. To disseminate individual notice where feasible, Chattem's counsel mailed 504 individual notice packets to known potential claimants. Chattem published advertisements to notify unknown potential Class Members of the existence of the Settlement (the " Summary Notice" ). The Summary Notice appeared seven times in USA Today, and once in Parade magazine. In addition, notice was published in 31 regional newspapers between May 24, 2004 and June 22, 2004. The combined national and regional newspaper advertisements reached a readership of roughly 150 million people, and cost over $500,000. In addition to the 504 notice packets initially mailed, the Claims Administrator mailed 496 notice packets to persons who requested them by telephone, mail, or via a website created by the Claims Administrator to facilitate the administration of the Settlement.
3. Main Provisions of the Settlement Agreement
In accordance with the Settlement Agreement, eligible Class Members receive payment from the Class Benefit Fund and may also be eligible to receive payment from an Extraordinary Damages Fund. The Class Benefit Fund provides compensation to each eligible Class Member ranging between $100 and $5,000,000, depending on the type and severity of the injury claimed, the Class Member's age and other liability and damages factors. Under the Matrix, claims of stroke and non-stroke injuries are treated somewhat differently.
Hemorrhagic and ischemic stroke claims are subject to a comprehensive evaluation consisting of four components: (1) product identification; (2) temporal relationship of ingestion to injury; (3) liability and causation; and (4) damages. The " Final Case Score" is the sum of these separate elements, and determines the Class Member's " Matrix Level." A Class Member's base " Settlement Compensation" (before adjustment) is determined based on the Matrix Level and the Class Member's age at the time of the stroke.
In contrast, claims for non-stroke injuries are subjected to two threshold inquiries: product identification and temporal relationship. If a cardiac injury claim, or other type of injury claim satisfies both these inquiries, the claim is eligible for a base Settlement Compensation (before adjustment) of between $100 and $2,000, depending on the Class Member's age at the time of injury. These diminished settlement values reflect this court's ruling that evidence regarding cardiac, and several other types of injuries is not admissible. See Section I(A), fn. 2, above.
Base Settlement Compensation may be reduced in three circumstances: (1) where the Class Member's injury is an ischemic (as opposed to a hemorrhagic) stroke; (2) where there is a defense related to statute of limitations; and (3) where co-defendants are potentially liable for the plaintiff's injuries.
The Settlement Compensation for a Class Member suffering from an ischemic stroke is reduced by 15% as the result of a compromise based on this court's Daubert ruling that proof of purported PPA-ischemic stroke association poses more difficult questions under Daubert than are presented by proving a link between PPA and hemorrhagic stroke.
" Stroke Injuries" means hemorrhagic stroke and ischemic stroke, but does not mean transient ischemic attacks.
In addition to receiving payment from the Benefit Fund, certain Class Members are eligible to receive payment from the Extraordinary Damages Fund. This Fund exists to compensate Class Members who have incurred more than $250,000 in non-reimbursed economic damages.
4. Claims Administration
A " Class Counsel Claims Coordinator," a " Chattem Claims Coordinator" and a third party " Claims Administrator" will coordinate and administer the Settlement under the supervision of a Special Master. To receive benefits, a Class Member must complete a Benefit Claim Form and, in certain circumstances, a Supplemental Claim Form. Once a Class Member submits the required forms, the Class Member (or their counsel) and the Chattem Claims Coordinator meet and confer to determine the benefits the Class Member is entitled to receive under the Matrix. If, after meeting and conferring, the Class Member and the Chattem Claims Coordinator are unable to agree on fair compensation, the Class Member may either accept the Chattem Claims' Coordinator's benefit determination, or challenge it within 30 days. If challenged, the matter will be decided in a binding arbitration by the Special Master appointed by the court.
Pursuant to Section 4.2(i) of the Settlement Agreement, the losing party is required to pay a penalty of at least $10,000 of the cost of the arbitration to the Settlement Trust. However, Chattem and Class Counsel since have consented to allow Judge Keefe the discretion to set the penalty on a case by case basis, without regard to a minimum amount. See Section II(C)(4), below.
" Blood Toxicology Test" means a toxicology test performed for either; (i) phenylpropanolamine specifically; or (ii) sympathomimetic amines generally (provided that the nature or protocol of the test for sympathomimetic amines would reasonably be expected to identify phenylpropanolamine if it were present in the bloodstream); and the blood for the toxicology test must have been drawn: (a) within 34 hours of the alleged ingestion of sustained-released Dexatrim; or (b) within 24 hours of the alleged ingestion of immediate release Dexatrim.
Pursuant to Section 2.4 of the Settlement Agreement, Chattem was required to create the Initial Chattem Settlement Trust (the " Trust" ), and to fund any shortfall that might arise if its insurers failed to provide their respective shares of the funding. By order dated April 13, 2004, this court directed Chattem to fulfill its obligations, and Chattem complied by depositing $60,885,000 into the Trust. Subsequently, on April 23, 2004, the court issued a Writ of Attachment and took possession of the Trust for the benefit of the Class.
5. Opt-Outs
The Settlement has an impressively high participation rate. According to Chattem and Class Counsel, Chattem has received 387 claims, and only 16 Class Members have elected to opt out of the Settlement. Three objections to the Settlement were filed, one by nonsettling defendants, and two by small groups of purported Class Members. See Sections I(A)-(F), below.
6. Effect of the Settlement on Contingency Fee Agreements
The Settlement does not alter contingency fee agreements entered into before December 21, 2003. However, attorneys who entered into contingency fee agreements after December 21, 2003, are entitled only to reasonable fees for completing claim forms and for consulting with their clients, such fees not to exceed 10% of the Plaintiff's total Settlement Compensation, or $10,000, whichever is less.
7. Contribution and Indemnity for Nonsettling Defendants
The Settlement Agreement contains a release and dismissal of contribution and indemnity claims by nonsettling defendants, and a bar order:
Consistent with the provisions of Article 8 of this Settlement Agreement, the releases herein shall extinguish any claims for contribution and/or indemnification against Chattem or the other Released Parties.
Section 6.2 of the Settlement Agreement.
The parties hereby agree to request that the Court enter an order finding this Settlement Agreement to be a good faith settlement and barring and enjoining, to the extent permitted by applicable law, the commencement and prosecution of any contribution and/or indemnification claim or action by or on behalf of any ... entity against Chattem or any other Released Party for reimbursement for payments made or to be made to or on behalf of any ... Class Member for Dexatrim® Products Related claims, actions or injuries[.]
Section 6.3 of the Settlement Agreement.
8. Attorneys' Fees
Case Management Order (" CMO" ) 8 was entered on July 9, 2002, and established the Plaintiffs' Litigation Expense Fund to compensate and reimburse the Plaintiffs' Steering Committee (" PSC" ) and other authorized attorneys for services performed and expenses incurred for the common benefit of MDL plaintiffs. Pursuant to CMO 8, 4% of any amount paid in connection with the settlement of a federal action associated with MDL 1407 must be paid into the MDL Fee and Cost Account (" MDL Account" ). Class Counsel filed a motion asking the court to modify CMO 8 to increase the percentage paid into the MDL Account from 4% to 8% on amounts that are paid in this Settlement. Class Counsel seek this modification in consideration of the effort put forth by the PSC subcommittee to conceive of, and implement, the global settlement of Dexatrim claims in MDL 1407. The court's ruling on this motion will be contained in a forthcoming order.
9. Fairness Hearing
On August 26, 2004, the court conducted a fairness hearing to determine whether the proposed class should be certified, and whether the settlement was fair, adequate and reasonable. All interested parties were afforded an opportunity to be heard.
II. Discussion
A. Objectors
Three groups filed objections to the Settlement and appeared at the fairness hearing. First, a group calling themselves the " nonsettling defendants" submitted a limited objection to the Settlement based on certain language in the bar order. The court overruled this objection in an order dated October 26, 2004. This objection and the court's ruling are reviewed in Section II(C)(3), below.
In addition, two small groups of purported Class Members filed objections to the Settlement. First, Mose Wiley, Arla Grathwohl, Judy Broadway and Joyce Waterman-Reynolds (" the Wiley Objectors" ), represented by Lewis Saul & Associates, filed an objection seeking discovery from Class Counsel. These objectors contend that notice was inadequate, that the Class does not satisfy the requirements of Rule 23, and that the terms of the Settlement are not fair, adequate and reasonable. The court is satisfied that the Wiley Objectors are Class Members, and that their objection was timely filed. These objections are addressed in relevant sections below.
The " Daunt Objectors" are a group of five persons: Sharon Daunt; Etrenda Davis; Phyllis Clark; Victoria Collins; and Ophelia Hill. The Daunt Objectors were represented at the fairness hearing by Jamie B. Mathey and Robert W. Bishop of Bishop & Associates, P.S.C. Chattem and Class Counsel assert that the Daunt Objectors' objection is untimely. The court's April 23, 2004 order stated that any objections to the Settlement " must be filed in this Court and served on all parties by July 7, 2004." The Daunt Objectors did not file an objection until July 12, 2004, when the court received, via U.S. mail, a Notice of Intention to Appear at Fairness Hearing, and the Objections of Sharon Daunt, Etrenda Davis, Phyllis Clark, Victoria Collins and Ophelia Hill to the Proposed Class Action Settlement. Included in this mailing was an opt-out letter from Sharon Daunt. More untimely filings trickled in from the Daunt Objectors over the coming weeks. On July 30, 2004, the court received, via U.S. mail, the Objectors' Motion for an Order Allowing them to File Their Letters of Signs and Symptoms Out of Time (which inexplicably offered no explanation for the failure to submit these letters in a timely fashion), and Objectors' Notice of Filing opt-out letters of the remaining four objectors. Finally, on August 11, 2004, the court received by electronic filing the Supplemental Objections of Sharon Daunt, Etrenda Davis, Phyllis Clark, Victoria Collins and Ophelia Hill to the Proposed Class Action Settlement (" Supplemental Daunt Objection" ).
It is worth noting that the Daunt Objectors' opt-out letters are remarkable for their failure to assert any injury compensable under the Matrix. For example, Sharon Daunt claims that taking Dexatrim with PPA caused her " to become very dizzy, [her] heart to race, and also caused [her] to become very sick to [her] stomach. These symptoms scared [her] and caused [her] to have a panic attack, fearing [she] was having a heart attack." Victoria Collins claims that taking Dexatrim with PPA " caused [her] heart to flutter and race, and also made [her] feel very scared and nervous." Phyllis Clark, Etrenda Davis and Ophelia Hill's letters recount substantially similar experiences.
The terms " onset of symptoms", " injury" and " stroke" are used interchangeably throughout this document, unless the context suggests otherwise.
At the fairness hearing, the court questioned Mr. Mathey and Mr. Bishop regarding the lateness of their filings. Mr. Bishop explained that he had understood the notice to require only that objections be postmarked, not filed, by July 7, 2004. Counsel for Chattem confirmed that the notice did indicate that objections could be postmarked by July 7, 2004, but stressed that this was an unintentional inconsistency, and that it had not been Chattem and Class Counsel's intention to override the court's order. Mr. Bishop argued that objectors " look at a notice and they believe that notice is what they're supposed to do." Mr. Bishop, presumably, was referring only to the documents received by the court on July 12, 2004, and did not hazard an explanation as to the untimeliness of the filings received in the ensuing weeks. Addressing Mr. Bishop, the court deemed the Daunt objections untimely, concluding that " there is a distinction between you and the people who come to you to object[,]" and that counsel are " required to really understand ... the rules of the court [.]" The court noted that it would deal with the objections made by the Daunt Objectors to the extent that they overlapped with the objections timely filed by the Wiley Objectors.
B. Class Certification
In general, parties seeking certification of a class must satisfy two sets of requirements, those set forth in Fed.R.Civ.P. 23(a) and Fed.R.Civ.P. 23(b). First, Rule 23(a) requires that (1) the proposed class be sufficiently numerous; (2) there be at least one common question of fact or law; (3) the named plaintiff's claims be typical of the class as a whole; and (4) the named plaintiff adequately represent the class. Second, a class action may be maintained only if it meets one of the three criteria set forth in Rule 23(b). Chattem and Class Counsel seek certification pursuant to Rule 23(b)(3), which allows a class action where
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 methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest in the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against any members of the class; (C) the desirability or undesirability of concentrating the litigation in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
These general standards for class certification are applicable to certifying a class action for settlement, with one exception. A district judge faced with a request to certify a settlement class " need not inquire whether the case, if tried, would present intractable management problems[.]" Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The Amchem court added, however, that the settlement context demands " undiluted, even heightened, attention" to " unwarranted or overbroad class definitions." Id. See also Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998) (calling for " a higher standard of fairness" in reviewing a settlement negotiated before class certification).
1. Requirements of Rule 23(a)
For the reasons set forth below, the court finds that the Class satisfies all requirements of Rule 23(a).
a. Numerosity
The court is convinced that the Class is sufficiently numerous. Rule 23(a)(1) permits class action treatment only if " the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). The Wiley Objectors argue that joinder is practicable in this situation, because all Class Members can be identified. This contention is unpersuasive. It is certainly the case that if all the members of the class could not be identified, that factor would militate in favor of class certification. See, e.g., Moeller v. Taco Bell Corporation, 220 F.R.D. 604, 608 (N.D.Cal.2004) (fact that class is difficult to identify supports class certification). However, it does not follow that where all class members have been identified, class certification should be denied. Rather, the key issue is whether joinder is practicable, and in this case, in which the Class includes claimants with pending actions in state, as well as federal, courts, both the size and geographic diversity of the Class render joinder impracticable. See Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 709 F.2d 1521, 1544 (D.C.Cir.1983) (" courts have considered, in addition to the size of the class, the geographical diversity of the class members" that could render joinder of class members impracticable).
b. Commonality
Rule 23(a)(2) requires that questions of law or fact be common to the class. This requirement can be satisfied, where class members' claims have divergent facts, by the existence of a shared legal issue, or it can be satisfied where there are disparate legal remedies available to the claimants, but where there is a common core of salient facts. Hanlon, 150 F.3d at 1019. The mere existence of individual questions does not defeat satisfaction of the commonality requirement. Id.
The court finds that the commonality requirement is easily met in this case. All members of the Class allege injuries resulting from the ingestion of a Dexatrim® product containing PPA. This commonality raises many common questions including: whether Dexatrim® caused hemorrhagic strokes, ischemic strokes, or other injuries; whether Dexatrim® Products were defective and/or unreasonably dangerous; at what point Chattem learned of the alleged defect in its Dexatrim® Products; and whether Chattem took action in a timely fashion upon learning of the alleged defect.
c. Typicality
Rule 23(a)(3) requires the claims of the representative plaintiffs to be typical of the claims of the class. Typicality hinges on the similarity between the representative plaintiffs' claims and those of class members. Hanlon, 150 F.3d at 1020. This Class has two proposed representatives, who, according to Chattem and Class Counsel, " exemplify various characteristics of other Class Members." One proposed representative plaintiff, Danza Honeyblue, is a 56 year-old female who alleges that she sustained a hemorrhagic stroke as a result of ingesting Dexatrim® . The other is Jon Park, a 45 year-old male who alleges that he sustained an ischemic stroke after using Dexatrim® . Chattem and Class Counsel assert that the proposed representatives are not subject to any unique defenses which would eliminate the typicality of their claims.
The Wiley Objectors argue that the Class representatives' claims are not typical of those of the Class because the representatives are both holders of claims made or lawsuits filed prior to November 6, 2003, rather than claims made or lawsuits filed after that date. Under the Matrix, plaintiffs who made claims or filed lawsuits after November 6, 2003, and after the statute of limitations had run in either the forum state or the plaintiffs' state of residence at the time of injury, are subject to severe limitations on their recovery. The Wiley Objectors also contend that the representative parties, as stroke victims, are not representative of those claimants who suffered other types of injuries.
November 6, 2003, is three years from the date the FDA requested that the manufacturers of PPA-containing products voluntarily withdraw such products from the market.
This deduction applies where a plaintiff ingested Dexatrim one hour or less before the injury and did not ingest Dexatrim at any other time in the 96 hours before the injury. In the event that a plaintiff ingested Dexatrim one hour or less before the injury and consumed Dexatrim more than one hour, but less than 96 hours, before the injury, the time of the dose that was taken more than one hour, but less than 96 hours, before the injury should be used for scoring this factor. The following examples illustrate how this factor is to be scored: (i) if Plaintiff consumed Dexatrim 35 minutes before the injury and had not consumed any PPA product at any other time in the week preceding the injury, the score for this factor would be -1 (0-60 minutes); (ii) if Plaintiff consumed Dexatrim 35 minutes before the injury and also consumed Dexatrim 7 hours before the injury, without taking any PPA in between, the score for this factor would be 0 (61 minutes-24 hours); (iii) if Plaintiff consumed Dexatrim 35 minutes before the injury and also consumed Dexatrim 36 hours before the injury, with no doses of PPA in between, then the score for this factor would be -1 (24-72 hours); (iv) if Plaintiff consumed Dexatrim 35 minutes before the injury and also consumed Dexatrim 98 hours before the injury, with no doses of PPA in between, then the score for this factor would be - 1 (0-60 minutes).
The objectors would have to do more than simply point to these, or other, differences to defeat typicality. Typicality does not require that the claims of the class representatives be identical to those of the other class members. Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.2003). In fact, representative claims are " typical if they are reasonably co-extensive" with those of other class members. Hanlon, 150 F.3d at 1020. The court is of the opinion that the claims of the Class representatives, although not identical, are indeed typical of the claims of the Class as a whole.
d. Adequacy
Rule 23(a)(4) requires that a class representative fairly and adequately protect the interests of the class. Whether there is adequate representation is determined by the answers to two questions: " (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon, 150 F.3d at 1020 (citation omitted). Rule 23(a)(4)'s second requirement is easily satisfied because it is uncontested that the proposed representatives are represented by competent attorneys with extensive experience in mass tort litigation.
Regarding the first requirement, the parties assert that the proposed Class representatives' interests are neither antagonistic to, nor in conflict with, the interests of other Class Members. Chattem and Class Counsel contend that so long as all Class Members are united in asserting a common right, such as achieving the maximum possible recovery, Class interests are not antagonistic. In so arguing, the parties seek to distinguish the Settlement from the one at issue in Amchem, in which the Supreme Court affirmed the Third Circuit's ruling vacating district court certification of a class, in part because the interests of present (asbestos) claimants conflicted with those of potential future claimants. Amchem, 521 U.S. at 625-28, 117 S.Ct. 2231. In this case, because there is no scientific evidence of latent injuries from the ingestion of PPA, there is no class of potential future claimants, as in Amchem, in whose interests it would be to preserve Chattem's resources for the future. Here, there is no reason to believe that the named plaintiffs and their counsel have any conflicts of interest with other Class Members.
The Wiley Objectors nonetheless urge the court to take note of several purported conflicts in the Settlement, including, for example, the difference in treatment between various types of claims under the Matrix, and the parties' decision to file the Matrix under seal, which the objectors contend concealed from Class Members the disadvantage of having failed to make a claim or file suit by November 6, 2003. The Wiley Objectors seek the opportunity to conduct discovery regarding these alleged conflicts.
First, disparate treatment of claims is obviously necessary if claims are to be valued and a settlement is to occur. Placing a lower value on claims that would have been barred by a defense of statute of limitations is hardly evidence of a conflict. The court is of the opinion that such disparate treatment under the Matrix is the product of intense, arms-length negotiations. Second, these objectors have offered no evidence that the Matrix was filed under seal for the purpose of concealing the potential disadvantages of the Settlement, rather than simply to allow the parties time to work out its finer points prior to making it public. In the absence of evidence of collusion, the court overrules these objections, and denies the Wiley Objectors' request for discovery. See White v. National Football League, 822 F.Supp. 1389, 1429 (D.Minn.1993), aff'd, 41 F.3d 402 (8th Cir.1994), cert. denied sub nom. Jones v. National Football League, 515 U.S. 1137, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1995) (" if there is no evidence of collusion in the negotiation process, objectors have no right to seek discovery concerning the negotiations of a class action settlement" ) (citations omitted). Finally, it is beyond dispute that the named plaintiffs and their counsel have prosecuted these actions vigorously on behalf of the Class. The court finds that class representatives Ms. Honeyblue and Mr. Park fairly and adequately protect the interests of the Class as a whole.
2. Rule 23(b)(3)
As explained above, Rule 23(b) permits the maintenance of a class action only if the action satisfies the prerequisites of Rule 23(a), and if it meets one of three alternative criteria set forth in Rule 23(b). The subsection of Rule 23(b) on which the Settlement is grounded is Rule 23(b)(3), which permits a class action if " the court finds that 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 methods for the fair and efficient adjudication of the controversy." For the following reasons, the court finds that the Class satisfies the requirements of Rule 23(b)(3).
a. Predominance
The Rule 23(b)(3) predominance inquiry tests whether the Class is sufficiently cohesive to warrant adjudication by representation. Amchem, 521 U.S. at 623, 117 S.Ct. 2231. Chattem and Class Counsel argue that the Class involves a common injury type, a common body of science, and allegations involving a common course of conduct by the defendant. They point out that any individual differences among the claims of Class Members stemming from, for example, different state laws, would have more import in the context of litigation than settlement. Finally, Chattem and Class Counsel argue that because the Matrix specifically addresses issues of product identification, causation, injury and damages, it effectively nullifies those issues which otherwise would be considered individual, allowing common issues to predominate.
The Wiley Objectors argue that the Settlement does not do enough to address material differences between different categories of injury, and that the structure of the Settlement has bred antagonism between Class Members by drawing arbitrary distinctions between different types of claims. But these distinctions are hardly arbitrary. They are the result of hard-fought negotiations between Chattem and Class Counsel, and of compromises reached with the intervention of a skilled and respected mediator. The court finds this objection to be frivolous, and that the Class is sufficiently cohesive to warrant adjudication by representation.
b. Superiority
Rule 23(b)(3) requires that a class action must be " superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). In making a finding under this rule, the court may consider the interest of members of the class in individually controlling the prosecution or defense of separate actions, the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, and the desirability or undesirability of concentrating the litigation of the claims in the particular forum. Id. Chattem and Class Counsel argue that a class action is the superior method of effectuating the Settlement because the alternative would be the individual trial or settlement of hundreds of cases. In addition, the parties argue that certification of the Class will serve judicial economy, and that the Judicial Panel on Multidistrict Litigation has already addressed the third factor by concentrating the litigation of the claims in this particular forum.
The Wiley Objectors contend that Class Counsel represent most of the identified Class Members, and that this was an incentive for Class Counsel to reach an agreement advantageous to their clients at the expense of unidentified Class Members. This objection is frivolous and it is overruled. There is no evidence that Class Counsel shirked their duty to any members of the Class. On the contrary, the parties have presented the court with persuasive evidence that the Settlement Agreement was reached as a result of fair negotiations by competent, experienced counsel. It is absolutely clear that a class action is superior to other available methods for the fair and efficient adjudication of this controversy, and therefore, the court finds that the superiority requirement is satisfied. The court hereby certifies the Class pursuant to Rule 23(b)(3).
C. Fairness and Adequacy of the Settlement
1. General Considerations
Rule 23(e) requires the Court to determine whether a settlement is " fundamentally fair, adequate and reasonable." Hanlon, 150 F.3d at 1026. In exercising its discretion to approve the settlement of a class action, the Ninth Circuit has held that a district court should balance the following factors:
(1) the strength of the plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement.
Id. (Citation omitted.) It is this court's opinion that a balance of these factors weighs in favor of approving the Settlement.
First, in the months following the negotiation of Matrix values, several defense verdicts were reached in state court PPA cases. The Settlement, therefore, was negotiated at an opportune time for plaintiffs, and it is likely that this fact added value to their claims. Second, settlement of these claims is far more efficient for claimants, Chattem and the judicial system, than the prosecution of separate actions. It is well understood that mass tort litigation places an unusual strain on court dockets, and each of these claims, absent the Settlement, could result in costly, time-consuming proceedings.
Third, because this court has already declined to certify litigation classes in MDL 1407, the Class could not be maintained for trial. If the Settlement is not approved, each of these actions would have to be adjudicated on an individual basis. Fourth, the amount offered in settlement is substantial. Chattem has deposited over $60 million into a settlement trust, and it has arranged for continual funding should the need arise. Fifth, litigation against Chattem is sufficiently mature, and settlement is appropriate at this stage. Sixth, Class Counsel, as well as counsel for Chattem, many of whom are extremely experienced in the area of mass tort litigation, are supportive of the Settlement. Further, it is obvious that the Settlement is the result of protracted, and sometimes difficult, negotiations; there is no evidence of collusion. Finally, the Class Members themselves have effectively voted heavily in favor of the Settlement, by not opting out. In fact, 95% of Class Members have chosen to take part in the Settlement. The court finds that a balance of these factors weighs heavily in favor of approving the Settlement.
2. Wiley Objectors
The Wiley Objectors claim that the Settlement is unfair, inadequate, and unreasonable. First, they reprise their objection to the disparate treatment of claims made or lawsuits filed after November 6, 2003, because, they claim this date " has no material relevance to ... settlement value." But as explained above, November 6, 2003, is not an arbitrary date; it was the third anniversary of the November 6, 2000, withdrawal of PPA-containing products from the market. Given that personal injury statutes of limitations are typically no longer than three years, and that the withdrawal of a product would commence the running of a statute under a liberal injury discovery rule, it was reasonable for the parties to compromise that claims not filed by November 6, 2003, faced serious obstacles. This is particularly true because there is no scientific evidence suggesting latent effects from the ingestion of PPA. The court finds that the disparate treatment of claims on this basis is not arbitrary.
In a related objection, these objectors argue that discounts based on statutes of limitations in what are referred to as No Conflict/False Conflict cases are unfair. This category includes cases in which (1) the forum state and the state of the plaintiff's residence at the time of injury have the same discovery rule for statute of limitations purposes, (2) the plaintiff filed suit prior to the expiration of the statute, assuming that such a statute began to run on November 6, 2000, pursuant to a discovery rule, but (3) where the action would have been time-barred but for the discovery rule. Under the Matrix, claims that fall into this category are discounted by 13%. The Wiley Objectors insist that this discount will result in an arbitrary allocation of funds. The court must point out again that the Settlement was the result of over a year of negotiations, and that it is simply not tenable to argue that this sort of negotiated compromise renders the Settlement unfair because it allocates amounts among Class Members. This objection is overruled.
The Wiley Objectors also take issue with the Matrix's release of derivative claims without compensation, where, as in this case, derivative claims may be significant. Payments made under the Matrix, however, are intended to encompass all damages stemming from one injury, direct or derivative. The court overrules this objection, which verges on the frivolous.
These objectors also claim that the Extraordinary Damages Fund is inadequate because it only covers non-reimbursed and non-reimbursable expenses and therefore discriminates against insured claimants. Chattem and Class Counsel note that " the U.S. Congress did the same thing when it created the September 11th Compensation Fund. The Fund required the Special Master in charge of distributing the money to deduct all ‘ collateral source compensation’ ( e.g., benefits from other government programs, insurance benefits, etc.) from the award." The court is of the opinion that the distinction between insured and uninsured claimants is an appropriate one, and is a reasonable method of allocating funds. This objection is overruled.
The Wiley Objectors take issue with the limitations placed on certain contingency fee agreements under the Settlement. The Settlement Agreement provides that attorneys entering into contingency agreements after December 21, 2003, are entitled only to reasonable fees for filling out claim forms and consulting with their clients, with a cap of 10% of the total compensation, or $10,000, whichever is less. These objectors contend that nullification of these contingency fee contracts is unfair, because it may have discouraged attorneys from advertising for claimants. Chattem and Class Counsel announced the Settlement on Friday, December 19, 2003. Once Chattem and Class Counsel publicly announced the terms of the Settlement, there was no longer any real risk associated with taking on a Dexatrim® case against Chattem. Since it is this court's opinion that it is not only reasonable, but sensible, to limit contingency fees where, as here, the risk to plaintiffs' counsel was essentially nullified by the Settlement, this objection is overruled.
Finally, the Wiley Objectors objected to both the content and the dissemination of notice of the Settlement. Rule 23(c)(2)(B) provides that in any class action maintained under Rule 23(b)(3), " the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." In addition, the notice should describe, fairly and accurately and in a neutral manner, the claims and parties in the litigation, and the terms of the settlement. Due process requires that the notice make clear the options available to potential class members, including the right to opt out. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), cert. denied, 487 U.S. 1223, 108 S.Ct. 2883, 101 L.Ed.2d 918 (1988). Chattem's extensive notice campaign was preliminarily approved by the court in an order dated April 23, 2004. At that time, the court approved the manner of disseminating notice, and found that pursuant to Rule 23(c)(2)(B),
the notice concisely and clearly states in plain easy to understand language the nature of the action, the definition of the class certified, the class claims, issues or defenses, that a class member may enter an appearance through counsel if the member so desires, that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and the binding effect of a class judgment on class members under Rule 23(c)(3).
The Wiley Objectors contend that the extent of the notice was inadequate. Here, although the notice given to unidentified class members was published in 30 local newspapers, USA Today and Parade magazine, the Wiley Objectors point out that some notice programs have employed public relations campaigns " involving media releases and communications to government agencies and medical organizations, facilities and personnel, and more recently on-line facilities." The Wiley Objectors also claim that the content of the notice was inadequate, since the terms of the proposed settlement are less favorable to claimants whose lawsuits or claims were filed after November 6, 2003, but (they assert) that the notice failed to make that distinction sufficiently clear.
Chattem and Class Counsel argue that " [t]he Wiley Objectors simply prove the point that no matter how extensive a notice campaign is, more can always be done." The court agrees. The applicable standard is not the best conceivable notice, but the best notice practicable under the circumstances. The Supreme Court has held that Rule 23(c)(2)(B) requires notice to be " ‘ reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ " Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 173, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The Wiley Objectors have done nothing more than draw the court's attention to a few tactics that Chattem did not happen to employ in this notice campaign; in so doing, they have not shown that the notice provided was inadequate in any way, or that it was not reasonably calculated to inform interested parties of the Settlement. This objection is therefore overruled.
3. Nonsettling Defendants' Objection
The majority of the cases against Chattem include allegations against other defendants. The nonsettling defendants objected to the language in Sections 6.2 and 6.3 of the Settlement Agreement, set forth in Section I(C)(7), above, on the basis that the provisions could have the effect of cutting off a co-defendant's contribution rights where (1) Chattem is determined to have paid less than its proportional share, and (2) the relevant jurisdiction employs a pro tanto rule. After reviewing the briefing on this objection and hearing oral argument, the court ordered the nonsettling defendants to meet with Chattem and Class Counsel to reach agreement on this issue. The nonsettling defendants, Chattem and Class Counsel failed in this regard, and filed separate briefs proposing clarifying language for this court's Final Order and Judgment.
The nonsettling defendants insisted on language explicitly stating that the bar order does not circumvent the application of state law allowing contribution. Chattem and Class Counsel in turn expressed concern that the nonsettling defendants were attempting to " provide for the unfettered right to maintain claims for indemnification and contribution against Chattem and the other Released Parties[,]" a goal incompatible with the finality sought by the parties to the Settlement. Chattem and Class Counsel pointed out that only three of the 387 claims in the Settlement involve a co-ingestion case in a pro tanto jurisdiction, but in an effort at compromise, Chattem and Class Counsel proposed additional language giving the nonsettling defendants the right to apply to this court for relief:
Despite the bar set forth herein, this Court retains jurisdiction to enforce and interpret the terms of this Final Order and Judgment. If in a particular case, no judgment reduction, set off or other credit is available to the nonsettling defendant under applicable state law and the settlement extinguishes otherwise applicable state law rights of indemnity and/or contribution, the non-settling defendant may file a motion with the Court, and if found warranted, the Court may fashion an appropriate remedy that is consistent with the settlement agreement and the finality sought by that agreement and by this Final Order and Judgment.
The court ruled, in an order dated October 26, 2004, that the additional language proposed by Chattem and Class Counsel substantially protects the rights of the nonsettling defendants, particularly where the likelihood of the nonsettling defendants being prejudiced is so low. This ruling is reflected in the Final Order and Judgment that follows.
4. Penalty to Losing Party in the Event of Arbitration
At the fairness hearing, the court expressed some concern to Chattem and Class Counsel about a provision in the Settlement Agreement relating to a claimant's right to challenge a benefit determination. Pursuant to the Settlement Agreement, if such a challenge is lodged, the matter will be decided in a binding arbitration by a Special Master. Section 4.2(i) of the Settlement Agreement provides that the losing party is required to pay a penalty of at least $10,000 of the cost of the arbitration to the Trust. The court questioned the parties regarding how they reached agreement on the amount of the penalty. After a short colloquy, the parties indicated their agreement to leave the amount of any penalty to the sole discretion of the Special Master, without regard to a minimum amount. The court, having overruled all objections lodged, and having found that the Settlement is fair, adequate and reasonable, hereby approves the Settlement.
Although this issue was among those that the Daunt Objectors attempted to raise, the court had been prepared to raise this issue sua sponte.
The following examples illustrate how this factor is to be scored: (i) if Plaintiff took PPA on the day of the injury, but had not consumed PPA for 14 days or more prior to that dose, the score for this factor is +2; (ii) if Plaintiff took PPA on the day of the injury, and had consumed PPA every other day for a week prior to that dose, the score for this factor would be 0; (iii) if Plaintiff took PPA for 5 days in a row, stopped taking PPA for 2 days, then resumed taking PPA and the injury occurred on the day that Plaintiff returned taking Dexatrim, the score for this factor would be -1.
D. Anti-Injunction Act
In the instant case, because certain Class Members have pending cases in state courts, and because the Settlement is conditioned on all Class Members being enjoined from pursuing their claims outside the settlement context, an injunction is necessary to implement this court's ruling certifying the Class and approving the Settlement. Upon the court's entry of its Final Order and Judgment, therefore, Class Members, including those with pending actions in state court, will be enjoined from pursuing their claims further.
Although the Anti-Injunction Act, 28 U.S.C. § 2283 (the " Act" ) generally prohibits federal courts from enjoining state court actions, there are three circumstances where such an injunction is appropriate: where " expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. This court's injunction is permissible pursuant to the third exception to the Act, referred to as the relitigation exception, which applies upon entry of final judgment, and " was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court." Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988).
FINAL ORDER AND JUDGMENT
Accordingly, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. The following Class is CERTIFIED, for settlement purposes only, under Fed.R.Civ.P. 23(a), 23(b)(3), and 23(e) in Park v. Chattem, Inc., et al., Case No. 02-755 (the " Action" ) and is defined as follows:
All Dexatrim® Product Users who sustained bodily injury on or after December 21, 1998 allegedly as a result of his or her ingestion of a Dexatrim® Product, and their associated Derivative Claimants and Representative Claimants. The Settlement Class shall expressly exclude any person or entity that entered into a settlement with Chattem (which included a release) related to claims arising out of the use of a Dexatrim® Product. The Settlement Class shall also expressly exclude any individual (and their associated Derivative Claimants and Representative Claimants) against whom any court has entered judgment or dismissal with prejudice in an action related to a Dexatrim® Product on or before the Preliminary Approval Date, regardless of whether such judgment or dismissal is the subject of a motion for reconsideration, motion to alter, amend or set aside the judgment or similar motion; or an appeal.
Dexatrim® Product Users are all persons who ingested one or more Dexatrim® Products on or after December 21, 1998 and who were citizens or residents of the United States at the time of their alleged injury.
Dexatrim® Product means all appetite suppressant products bearing the trademark Dexatrim® marketed, distributed and/or manufactured by Chattem, Inc. and/or The Delaco Company, as successor by merger to Thompson Medical Company, Inc. that contained Phenylpropanolamine.
2. As used herein, " Settled Claims" shall include any and all claims, including assigned claims, whether known or unknown, asserted or unasserted, regardless of the legal theory, existing now or arising in the future by any or all members of the Settlement Class arising out of or relating to any of the Dexatrim® Products or their development, manufacture, formulation, testing, distribution, marketing, labeling, regulatory submissions, advertising, sale, or ingestion.
3. Danza Honeyblue and John Park are appointed representatives of the Class. Seeger Weiss LLP is appointed as lead Class Counsel. Ashcraft & Gerel; Herman, Mathis, Casey, Kitchens & Gerel; Early, Ludwick & Sweeney, LLC; and Lopez, Hodes, Restaino, Milman & Skikos are appointed as Class Counsel.
4. The Settlement is hereby APPROVED and shall be consummated in accordance with the terms and provisions of the Settlement Agreement. The Settlement Agreement has been entered into in good faith, following arms-length and non-collusive negotiations. The Settlement is fair, reasonable, adequate, and in the best interests of the Class. A true and correct copy of the Class Action Settlement Agreement is attached hereto and incorporated herein by reference as Exhibit A. All terms used in this Final Order and Judgment shall be interpreted in accordance with the definitions set forth in the Class Action Settlement Agreement.
5. The Court finds that the manner of publication of the Summary Notice along with the direct mailing of notice to all known class members is the best notice practicable under the circumstances. Accordingly, the Court hereby APPROVES both the form and procedure of the publication of the Summary Notice of the Settlement and the direct mailing of notice to all known members of the Class.
6. Except for the cases specifically identified in Exhibit D to this Final Order and Judgment, all cases that were transferred to this court for coordinated pretrial proceedings under MDL No. 1407 (" MDL 1407" ), or that are pending in any U.S. District Court against Chattem involving Dexatrim® Products are hereby DISMISSED as to Chattem and all other Released Parties, with prejudice. A list of all cases where such dismissals will occur is attached hereto and incorporated herein by reference as Exhibit B.
7. All Class Members who did not expressly opt out of the settlement are hereby permanently BARRED and ENJOINED from initiating, continuing, asserting or otherwise prosecuting any actions against Chattem or the Released Parties arising from or related to any Settled Claims.
8. All Class Members who did not expressly opt-out of the Settlement and who are plaintiffs in any action pending in any state court against Chattem or any other Released Party relating to, concerning or arising from a Released Claim, are hereby ORDERED to take such actions as may be necessary to effect a dismissal with prejudice of each such case within 60 days of the entry of this Final Order and Judgment.
9. A list of all Class Members who have filed claims in accordance with this court's April 23, 2004 Order Granting Conditional Certification of Settlement Class and who may seek benefits in accordance with the terms and provisions of the Settlement is attached hereto and incorporated herein by reference as Exhibit C.
10. A list of all Class Members who have timely and properly opted out of the settlement and therefore may pursue or continue to pursue actions against Chattem and the Released Parties, is attached hereto and incorporated herein by reference as Exhibit D.
11. The nonsettling defendants in MDL 1407 and all other persons or entities are permanently barred and enjoined from initiating, asserting or prosecuting any claims or actions, including claims for contribution, non-contractual indemnity, or subrogation, against Chattem and any other Released Party for reimbursement of payments made to or on behalf of any Class Member for any Settled Claims. This Final Order and Judgment shall not be construed to bar claims by nonsettling defendants based on a contract between a nonsettling defendant and a Released Party. Furthermore, the approval for this Settlement and this bar order shall not be construed as precluding a nonsettling defendant from enforcing any judgment reduction, credit or setoff right otherwise available to them under applicable state law. Despite the bar set forth herein, this court retains jurisdiction to enforce and interpret the terms of this Final Order and Judgment. If in a particular case no judgment reduction, set off or other credit is available to the nonsettling defendant under applicable state law and the settlement extinguishes otherwise applicable state law rights of indemnity and/or contribution, the nonsettling defendant may file a motion with the court, and if found warranted, the court may fashion an appropriate remedy that is consistent with the Settlement Agreement and the finality sought by that agreement and by this Final Order and Judgment.
12. Despite the language in Section 4.2(i) of the Settlement Agreement providing that the losing party in an arbitration challenging a Chattem Claims Coordinator's benefit determination will be required to pay a penalty of at least $10,000 of the cost of the arbitration, the parties have consented to give the Special Master the discretion to set the penalty, on a case by case basis, without regard to a minimum amount.
13. The Settlement, this Final Order and Judgment, and all papers related to the Settlement are not, and shall not in any event be, an admission by Chattem, the Released Parties, or any other person, of any liability or wrongdoing whatsoever, and shall not be offered as evidence of any claimed liability or wrongdoing whatsoever in this or any future proceeding. Conversely, the Settlement, this Final Order and Judgment, and all papers related to the Settlement are not, and shall not in any event, be deemed or construed as an admission or concession by plaintiffs or any Class Member regarding the merits of their claims or the defenses asserted by Chattem or any of the Released Parties.
14. The parties are directed to carry out their obligations under the Settlement forthwith.
15. This court retains continuing and exclusive jurisdiction over the parties to the Settlement, including Chattem and the other Released Parties, and all Class Members, to administer, supervise, construe, and enforce the Settlement and this Final Order and Judgment in accordance with their terms for the mutual benefit of the parties and the Settlement Class. The Court retains continuing and exclusive jurisdiction for purposes of, among other things, approval of the Condition Definitions and Compensation Schedule, supervision and administration of the Compensation Program, the payment of attorney fees and expenses and awards to Class Members, and matters concerning claims administration and the distribution of settlement funds and payment of related fees and expenses until the effectuation of the Settlement in accordance with the Settlement Agreement has been accomplished.
16. The Honorable John F. Keefe is hereby appointed as Special Master to effectuate and implement the terms of the Settlement.
17. Within 30 days of the entry of this Final Order and Judgment, the parties shall present the court with a Final Settlement Trust Agreement for approval. The Final Settlement Trust Agreement shall specifically set forth the terms on which a Class Member may make a payment draw against the trust and the terms that trigger the trustee's obligation to make payment. Until the court approves the Final Settlement Trust Agreement, the attachment the court has placed on the Initial Settlement Trust shall remain in place.
18. This Final Order and Judgment is binding on all Class Members.
19. The clerk of the court is directed to enter forthwith this Final Order and Judgment as a final judgment under Fed.R.Civ.P. 54(b).
EXHIBIT A-CLASS ACTION SETTLEMENT AGREEMENT
CLASS ACTION SETTLEMENT AGREEMENT
Between
CHATTEM, INC.,
and
CLASS COUNSEL ON BEHALF OF CLASS REPRESENTATIVES
IN RE PHENYLPROPANOLAMINE (PPA) PRODUCTS LIABILITYLITIGATION
Case No. 2:01-and-1407 (MDL No. 1407)
dated as of
April 13, 2004
TABLE OF CONTENTS
RECITALS
571
ARTICLE 1-DEFINITIONS
571
Section 1.1
Definitions
571
ARTICLE 2-CHATTEM SETTLEMENT TRUST ANDFUNDS
576
Section 2.1
Establishment Of Chattem Settlement Trust
576
Section 2.2
Funding
576
Section 2.3
Establishment Of Benefit Funds
577
Section 2.4
Funding Extentions
577
Section 2.5
Other Provisions
577
ARTICLE 3-CLASS MEMBER RIGHTS ANDBENEFITS
578
Section 3.1
Benefit Payments To Class Members
578
Section 3.2
Payment Of Benefits
578
Section 3.3
Extraordinary Damages Benefits
578
Section 3.4
Opt-Out Rights
579
ARTICLE 4-CLAIMS ADMINISTRATION
579
Section 4.1
Benefit Claim Forms
579
Section 4.2
Benefit Determination
580
Section 4.3
Extraordinary Damage Benefit Claim Form
582
Section 4.4
Extraordinary Damages Benefit Determination
582
Section 4.5
Liens
582
Section 4.6
Claims Administration Procedures
583
Section 4.7
General Claims Administration Matters
583
Section 4.8
Fraudulent Claims
584
ARTICLE 5-ATTORNEYS' FEES
584
Section 5.1
Existing Contingency Fee Agreements
584
Section 5.2
Plaintiff's Litigation Expense Fund
584
Section 5.3
Any Other Attorneys Fees or Costs
584
ARTICLE 6-GENERAL TERMINATION ANDRELEASE
584
Section 6.1
Good Faith Settlement
585
Section 6.2
Release
585
Section 6.3
Requests to the Trial Court
585
Section 6.4
No Recovery from Released Parties Outside ThisAgreement
585
Section 6.5
Claim Forms
585
ARTICLE 7-CONTINUING JURISDICTION
586
Section 7.1
Trial Court Retains Jurisdiction
586
ARTICLE 8-TERMINATION
586
Section 8.1
Termination By Chattem
586
ARTICLE 9-SETTLEMENT IMPLEMENTATION
587
Section 9.1
General
587
Section 9.2
Approval Process Provisions
587
Section 9.3
Conditions
587
ARTICLE 10-ASSIGNMENT OF CLAIMS
588
Section 10.1
Class Members' Claims Against Alps
588
Section 10.2
Recovery From Alps
588
Section 10.3
Duty To Cooperate With Assigned Claims
588
ARTICLE 11-MISCELLANEOUS
588
Section 11.1
Confidential Information
588
Section 11.2
Successors and Assigns
589
Section 11.3
Use of Settlement and Negotiations in Other Proceedings
589
Section 11.4
No Admission of Liability or Lack of Merit
589
Section 11.5
Titles and Headings
589
Section 11.6
Distribution of Remaining Funds
589
Section 11.7
Notice to Parties
589
Section 11.8
Receipt of Documentation
590
Section 11.9
No Third Party Beneficiaries
590
Section 11.10
Entire Agreement
590
Section 11.11
Governing Law
591
Section 11.13
Original Signatures
591
Section 11.14
Severance of Agreement
591
CLASS ACTION SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT, dated as of April 13, 2004(this " Settlement Agreement " or" Class Action Settlement " or" Settlement " ) is entered into byand between Chattem, Inc., a Tennessee corporation(" Chattem " ) on behalf of itselfand the other Released Parties hereunder, and theundersigned Class Counsel on behalf of the ClassRepresentatives. The Class Representatives, togetherwith Chattem, are sometimes referred to herein as the" Parties. "
RECITALS
WHEREAS, Chattem and the Class Representatives herebyagree to a class action settlement subject to theapproval of the Trial Court, with respect to ClassMembers in the United States which would resolve, onthe terms set forth in this Settlement Agreement,Settled Claims against Chattem and other ReleasedParties arising from Dexatrim® Products, pending invarious courts, including but not limited to claimswhich have been made in the actions that have been orwill be transferred for coordinated or consolidatedpretrial proceedings to the United States DistrictCourt for the Western District of Washington at Seattle( In Re Phenylpropanolamine (PPA) ProductsLiability Litigation (MDL No. 1407)), and innumerous other federal and state courts.
WHEREAS, this Settlement Agreement shall not beconstrued as evidence of or as an admission by any ofthe Released Parties of any liability or wrongdoingwhatsoever or as an admission by the ClassRepresentatives or Class Members of any lack of meritin their claims.
NOW, THEREFORE, Chattem and the Class Representativeshereby agree, subject to Final Judicial Approval,compliance with applicable legal requirements, andother conditions, all as set forth below, that theSettled Claims against Chattem and other ReleasedParties, as defined herein, will be settled,compromised and released, in accordance with thefollowing terms.
ARTICLE 1-DEFINITIONS
Section 1.1 Definitions
For purposes of this Settlement Agreement the followingterms shall have the meanings set forth in this ArticleI. Terms used in the singular shall be deemed toinclude the plural and vice verse.
(a.)
" $ " shall denote United Statesdollars.
(b.)
" Aggregate Opt-Out Matrix Value "shall have the meaning set forth in Section 8.1(b).
(c.)
" Business Day " shall mean any dayother than Saturday, Sunday or any U.S. federal holidayor any other day that the Trustee is closed.
(d.)
" Benefit Claim Form " shall havethe meaning set forth in Section 4.1(a).
(e.)
" Benefit Claim Form Deadline "shall mean the date that the Trial Court sets as thelast day for Class Members to submit a Benefit ClaimForm.
(f.)
" Benefit Fund " shall have themeaning set forth in Section 2.3(a).
(g.)
" Case Scoring Component(s) " shallmean one or more components on the applicable CaseScoring Worksheet.
(h.)
" Case Scoring Worksheet " shallmean the " Matrix Scoring Worksheet forHemorrhagic Stroke Cases," attached as Exhibit Eto Annex I, the " Matrix Scoring Worksheet forIschemic Stroke Cases," attached as Exhibit F toAnnex I, or the " Matrix Scoring Worksheet forOther Injuries and Cardiac Injuries," attached asExhibit G to Annex I.
(i.)
" Chattem Settlement Claim Number "shall have the meaning set forth in Section 4.2(b).
(j.)
" Chattem " shall mean Chattem,Inc., a Tennessee corporation.
(k.)
" Chattem Claims Coordinator " shallmean Miller & Martin PLLC and its agents, and/orany other person(s), or entity(ies) selected by Chattemto coordinate the administration of claims on behalf ofChattem.
( l .)
" Claims Administrator " shall meanthe person(s) or entity(ies) to be appointed by theCourt and his/her, or its agents, to administer claimsunder this Settlement Agreement.
(m.)
" Class Action Settlement " or" Settlement " shall have themeaning set forth in the Preamble.
(n.)
" Class Counsel " shall mean theseattorneys executing this Settlement Agreement on behalfof the Class Representatives, or such other attorneysas shall be approved by the Court as counsel to theSettlement Class.
( o .)
" Class Counsel Claims Coordinator "shall mean the person, persons, or entity selected byClass Counsel and approved by the Court, to coordinatethe administration of claims on behalf of ClassMembers.
(p.)
" Class Members " shall mean membersof the Settlement Class.
(q.)
" Class Representatives " shall meanJon Park and Danza Honeyblue, or different persons asshall be designated by the Court as theRepresentative(s) of the Settlement Class, in theaction in Federal District Court captioned In RePhenylpropanolamine (PPA) Products LiabilityLitigation (MDL No. 1407).
(r.)
" Continuing Funding Date " shallhave the meaning set forth in Section 2.2( o).
(s.)
" Continuing Funding Amount " shallhave the meaning set forth in Section 2.2(c).
(t.)
" Court " and/or " TrialCourt " and/or " Federal DistrictCourt " means the United States DistrictCourt for the Western District of Washington atSeattle.
(u.)
" Derivative Claimant " shall meanany person asserting the right to sue Chattemindependently or derivatively, by reason of theirpersonal or family relationship with a Dexatrim®Product User.
(v.)
" Dexatrim® Case Scoring System andMatrix " or " Matrix "shall mean that document titled " Dexatrim®Case Scoring System and Matrix" attached hereto asAnnex I.
(w.)
" Dexatrim® Product Users "shall mean persons who ingested one or moreDexatrim® Products on or after December 21, 1998and who were citizens or residents of the United Statesat the time of their alleged injury.
(x.)
" Dexatrim® Products " shallmean all appetite suppressant products bearing thetrademark Dexatrim® marketed, distributed and/ormanufactured by Chattem, Inc., and/or The DelacoCompany, as successor by merger to Thompson MedicalCompany, Inc. that contained Phenylpropanolamine.
(y.)
" Documented Unreimbursed or UnreimbursableEconomic Damages " shall have the meaning setforth in Section 3.3(c).
(z.)
" EDF Distribution Recommendation "shall have the meaning set forth in Section 4.4(a).
(aa.)
" Extraordinary Damage Fund Benefit ClaimForm " and " EDF Benefit ClaimForm " shall have the meaning set forth inSection 4.3(a).
(bb.)
" Extraordinary Damages Fund " and" EDF " shall have the meaning setforth in Section 2.3(b). The Extraordinary Damages Fundis sometimes referred to in the Matrix as the "Extraordinary Injury Fund," and those two termsmay be used interchangeably. It is expressly understoodthat, although the Matrix provides that anExtraordinary Injury Fund in the amount of $12.5million will be established, Class Members under thisSettlement Agreement are entitled to only $5.0 millionand Chattem is not required to pay more than $5.0million to the Extraordinary Damages Fund. Any amountgreater than $5.0 million that is referenced in theMatrix is referring to an amount paid by another partyfor the benefit of persons other than Class Members.
(cc.)
" Fairness Hearing Date " means thedate on which the Fairness Hearing takes place.
(dd.)
" Fairness Hearing " means thehearing conducted by the Court to determine thefairness, adequacy and reasonableness of thisSettlement Agreement under Fed.R.Civ.P. 23(e).
(ee.)
" Final Benefit Determination "shall have the meaning set forth in Section 4.2(d).
(ff.)
" Final Chattem Settlement Trust "shall mean a trust established to receive funds to betransferred from the Initial Chattem Settlement Trustand paid by or on behalf of Chattem or the otherReleased Parties, pursuant to the terms of thisSettlement Agreement and the Final Settlement TrustAgreement.
(gg.)
" Final EDF Distribution Determination" shall have the meaning set forth in Section4.4(c).
(hh.)
" Final Judicial Approval Date "shall mean the date on which Final Judicial Approvaloccurs.
(ii.)
" Final Judicial Approval " refersto the approval of the Settlement Agreement by theCourt and such approval becoming final by theexhaustion of all available appeals, including writs ofcertiorari to the United States Supreme Court. FinalJudicial Approval shall be deemed not to have beenobtained in the event that Trial Court Approval isdenied, and the period for appealing such denial hasexpired without any such appeal having been taken.
(jj.)
" Final Settlement Trust Agreement "shall mean the Final Settlement Trust Agreement in theform to be agreed to by the Parties and approved by theTrial Court.
(kk.)
" Initial Chattem Settlement Trust "shall mean a trust established to receive funds to bepaid by or on behalf of Chattem and the other ReleasedParties as provided in this Settlement Agreement,pursuant to the Initial Settlement Trust Agreement.
( ll .)
" Initial Funding Date " shall havethe meaning set forth in Section 2.2(a).
(mm.)
" Initial Funding Amount " shallhave the meaning set forth in Section 2.2(a).
(nn.)
" Initial Settlement Trust Agreement" shall mean the document attached hereto as AnnexII.
( oo .)
" Matrix Levels " shall mean thehorizontal rows on the " Injury Matrix,"attached as Exhibit A to Annex I.
(pp.)
" Notice " shall have the meaningset forth in Section 9.2(a).
(qq.)
" Opt-Out Deadline " shall mean thedate and time preset by the Trial Court, which is thelast day on which Class Members may exercise theOpt-Out Right.
(rr.)
" Opt-Out Right " shall have themeaning set forth in Section 3.4(a).
(ss.)
" Parties " shall have the meaningset forth in the preamble.
(tt.)
" Plaintiffs' Counsel " and" Class Member's Counsel " shallmean any attorney who represents one or more individualClass Members.
(uu.)
" Preliminary Approval " shall meanthe conditional certification of the proposed class forsettlement purposes and the preliminary approval ofthis Settlement Agreement by the Trial Court.
(vv.)
" Preliminary Approval Date " shallmean the date on which the Preliminary Approval occurs.
(ww.)
" Preliminary Benefit Determination" shall have the meaning set forth in Section4.2(a).
(xx.)
" Released Parties " shall mean:
(i)
Chattem, Inc. and each of its past, present and futuredirect or indirect parent companies, subsidiaries,affiliates, divisions, joint venturers, predecessors,successors, and assigns;
(ii)
The Delaco Company, as successor by merger to ThompsonMedical Company, Inc. (" Delaco " )and each of its past, present and future direct orindirect parent companies, subsidiaries, affiliates,divisions, joint venturers, predecessors, successors,and assigns;
(iii)
Sidmak Laboratories, Inc. (" Sidmak" ) andeach of its past, present and future direct or indirectparent companies, subsidiaries, affiliates, divisions,joint venturers, predecessors, successors, and assigns;
(iv)
suppliers of the raw material Phenylpropanolaminehydrochloride used in the manufacture of Dexatrim®Products (including, without limitation, Sidmak);however, it is expressly understood that AlpsPharmaceutical Ind. Co., Ltd. (" Alps" ) is not a Released Party;
(v)
suppliers of materials other than Phenylpropanolamine,machines or equipment used in the manufacture ofDexatrim® Products;
(vi)
Chattem's contact manufacturers of finishedDexatrim® Products (including, without limitation,Sidmak);
(vii)
any and all distributors of Dexatrim® Products,including, without limitation, wholesale distributors,private label distributors, retail distributors,pharmacies and pharmacists;
(viii)
any other person or entity (specifically including theConsumer Healthcare Products Association and itspredecessors (" CHPA" )) involved in thedevelopment, design, manufacture, formulation, testing,distribution, marketing, labeling, regulatorysubmissions, advertising or sale of Dexatrim®Products (including, without limitation, consultants toDelaco or Chattem); however, nothing in thissub-section shall affect the rights of individuals frompursuing their claims against CHPA to the extent thoseclaims do not relate to a Dexatrim® Product; and
(ix)
for each entity identified above, all of its past,present and future direct or indirect parent companies,subsidiaries, affiliates, divisions, joint venturers,predecessors, successors, and assigns and,collectively, all of their past, present and futuredirectors, officers, employees, agents, attorneys,shareholders, underwriters and insurers, and for eachperson identified above, all of his, her, or theirrespective past, present or future heirs, estates andpersonal representatives.
(yy.)
" Representative Claimant " shallmean an estate, administrator or other legalrepresentative, trust or " special needstrust" of a Dexatrim® Product User orDerivative Claimant. For the purpose of clarity, theparties acknowledge that Representative Claimants areentitled to any and all rights and benefits under thisSettlement Agreement that the represented Dexatrim®Product Users and/or Derivative Claimant would havereceived hereunder regardless of any state law to thecontrary.
(zz.)
" Settled Claims " shall mean anyand all claims, including assigned claims, whetherknown or unknown, asserted or unasserted, regardless ofthe legal theory, existing now or arising in the futureby any or all members of the Settlement Class arisingout of or relating to any of the Dexatrim® Productsor their development, manufacture, formulation,testing, distribution, marketing, labeling, regulatorysubmissions, advertising, sale, or ingestion. These" Settled Claims " include, withoutlimitation and by way of example, all claims fordamages or remedies of whatever kind or character,known or unknown, that are now recognized by law orthat may be created or recognized in the future bystatute, regulation, judicial decision, or in any othermanner, for:
(i)
personal injury and/or bodily injury, damage, death,fear of disease or injury, mental or physical pain orsuffering, emotional or mental harm, or loss ofenjoyment of life;
(ii)
loss of wages, income, earnings, and earning capacity,medical expenses, doctor, hospital, nursing, and drugbills;
(iii)
loss of support, services, consortium, companionship,society or affection, or damage to familial relations,by spouses, parents, children, other relatives or" significant others" of Class Members;
(iv)
wrongful death and survival actions;
(v)
medical screening and monitoring, injunctive anddeclaratory relief;
(vi)
consumer fraud, refunds, unfair business practices,deceptive trade practices, Unfair and Deceptive Actsand Practices (" UDAP, " ) unjustenrichment, disgorgement and other similar claimswhether arising under statute, regulation, or judicialdecision;
(vii)
compensatory damages, punitive, exemplary, statutoryand other multiple damages or penalties of any kindincluding, without limitation, economic or businesslosses or disgorgement of profits arising out ofpersonal injury;
(viii)
pre-judgment or post-judgment interest; and/or
(ix)
attorneys' fees, costs of court or litigationexpenses.
(aaa.)
" Settlement Agreement " shall meanthis document and all attachments, appendices, andannexes thereto.
(bbb.)
" Settlement Class " shall mean allDexatrim® Product Users who sustained bodily injuryon or after December 21, 1998 allegedly as a result ofhis or her ingestion of a Dexatrim® Product, andtheir associated Derivative Claimants andRepresentative Claimants. The Settlement Class shallexpressly exclude any person or entity that enteredinto a settlement with Chattem (which included arelease) related to claims arising out of the use of aDexatrim® Product. The Settlement Class shall alsoexpressly exclude any individual (and their associatedDerivative Claimants and Representative Claimants)against whom any court has entered judgment ordismissal with prejudice in an action related to aDexatrim® Product on or before the PreliminaryApproval Date, regardless of whether such judgment ordismissal is the subject of a motion forreconsideration, motion to alter, amend, or set asidethe judgment or similar motion, or an appeal.
(ccc.)
" Special Master " shall have themeaning set forth in Section 4.2(c) and, in addition,shall perform the functions assigned to the "Administrator" and the " EIFAdministrator" in the Matrix.
(ddd.)
" Supplemental Benefit Claim Form "shall have the meaning set forth in Section 4.1(c).
(eee.)
" Total Matrix Score " shall havethe meaning set forth in Section VI of Annex I.
(fff.)
" Trial Court Approval Date " shallmean the date upon which Trial Court Approval occurs.
(ggg.)
" Trial Court Approval " shall meanthe granting, by order entered on the docket thereof,of the approval of the Settlement Agreement by theTrial Court.
(hhh.)
" Trustee " shall mean that personor entity approved by the Court as Trustee of theInitial Chattem Settlement Trust and/or the FinalChattem Settlement Trust in accordance with the InitialSettlement Trust Agreement and the Final SettlementTrust Agreement, and any successor Trustee and willserve subject to the jurisdiction and supervision ofthe Court.
ARTICLE 2-CHATTEM SETTLEMENT TRUST AND FUNDS
Section 2.1 Establishment Of Chattem Settlement Trust
(a) Initial Chattem Settlement Trust. On orbefore the Preliminary Approval Date, Chattem shallcreate the Initial Chattem Settlement Trust to receiveamounts to be paid by or on behalf of Chattem and theother Released Parties. There shall be a singlecorporate Trustee of the Initial Chattem SettlementTrust. Such Trustee shall be a bank organized and doingbusiness under the laws of the United States ofAmerica, any State thereof or the District of Columbia,authorized under such laws to exercise corporate trustpowers, having a combined capital and surplus of atleast $100,000,000, subject to supervision andexamination by federal or state authority and shall beappointed by Chattem (with the consent of ClassCounsel, such consent not to be unreasonably withheld),subject to the approval of the Court. The InitialSettlement Trust Agreement, attached hereto as AnnexII, sets forth the duties and obligations of theTrustee.
(b) Final Chattem Settlement Trust. No laterthan thirty (30) days after the Trial Court ApprovalDate, the Final Chattem Settlement Trust will beestablished on terms that are mutually agreeable to theParties. The Final Chattem Settlement Trust willreceive and administer amounts to be transferred fromthe Initial Chattem Settlement Trust in accordance withthe terms of a Final Settlement Trust Agreement agreedto by the Parties.
(c) In the event that this Settlement Agreement isterminated in accordance with Article 8 hereunder or inthe event that all conditions specified in Section 9.3hereunder are not satisfied or waived by Chattem,Chattem shall have the exclusive right to all fundsdeposited into or property transferred to the InitialChattem Settlement Trust.
(d) Chattem shall have the right to the funds depositedinto or property transferred to the Initial ChattemSettlement Trust and the Final Chattem Settlement Trustin accordance with Section 11.6 hereunder.
Section 2.2 Funding
(a) Funding of Initial Chattem SettlementTrust. On or before the date that is twenty (20)days after the Preliminary Approval Date (the "Initial Funding Date " ). Chattem shalldeliver to the Initial Chattem Settlement Trust$60,885,000 (the " Initial Funding Amount" ).
(b) Funding of Final Chattem Settlement Trust.Within five (5) days after the later of: (i) the TrialCourt Approval Date, and (ii) the date on which theFinal Chattem Settlement Trust is created, the Trusteeof the Initial Chattem Settlement Trust shalldeliver all assets contained in the Initial ChattemSettlement Trust to the Final Chattem SettlementTrust.
(c) Continuing Funding. The Trustee of theFinal Chattem Settlement Trust shall notify Chattemimmediately after the balance of the Benefit Fund fallsbelow $5 million. Within fifteen (15) days after thedate that the Trustee notifies Chattem that the balanceof the Benefit Fund has fallen below $5 million ("Continuing Funding Date " ), Chattemshall deposit into the Final Chattem Settlement Trustthe sum that will cause the balance of the Benefit Fundto be at least the total of (x) $5 million, plus (y)the sum that represents the total dollar amount of allFinal Benefit Determinations for which a payment hasnot been issued as of the Continuing Funding Date(" Continuing Funding Amount " ).
Section 2.3 Establishment Of Benefit Funds
(a) Benefit Fund. The Trustee of the FinalChattem Settlement Trust shall initially allocate$60,885,000 of the Initial Funding Amount to theBenefit Fund. The Trustee of the Final ChattemSettlement Trust shall allocate all Continuing FundingAmounts to the Benefit Fund. The Trustee of the FinalChattem Settlement Trust also shall allocate to theBenefit Fund that portion, if any, of the Assigned AlpsClaims expressly allocated to the Benefit Fund inSection 10.2.
(b) Extraordinary Damages Fund. Within fifteen(15) days after a Final Benefit Determination isrendered for all Class Members who submitted a BenefitClaim Form, the Trustee of the Final Chattem SettlementTrust shall allocate $5.0 million from the Benefit Fundto the Extraordinary Damages Fund. The Trustee of theFinal Chattem Settlement Trust also shall allocate tothe Extraordinary Damages Fund that portion, if any, ofthe Assigned Alps Claims expressly allocated to theExtraordinary Damages Fund in Section 10.2. The Trusteeof the Final Chattem Settlement Trust also shallallocate any interest that accrues on or after theTrial Court Approval Date on funds on deposit in eitherthe Initial Settlement Trust or the Final ChattemSettlement Trust to the Extraordinary Damages Fund.
Section 2.4 Funding Extensions
(a) If Kemper Insurance Company fails to deliver all orany portion of $37.5 million and/or General StarIndemnity Company fails to deliver all or any portionof $22.5 million to Chattem or the Initial ChattemSettlement Trust on or before the Initial Funding Date,the Initial Funding Amount due on the Initial FundingDate shall be reduced by that portion not delivered byKemper Insurance Company and/or General Star IndemnityCompany; however, within ninety (90) days after theInitial Funding Date, or longer if ordered by the TrialCourt, Chattem shall deposit into the Initial ChattemSettlement Trust an amount equal to such reducedportion.
(b) If any action by a third party causes any portionof the amount deposited by Kemper Insurance Companyinto the Initial Settlement Trust and/or the FinalChattem Settlement Trust to be unavailable to payclaims, the Continuing Funding Date specified inSection 2.2(c) shall be extended by ninety (90) days,or longer if ordered by the Trial Court.
Section 2.5 Other Provisions
(a) The Parties agree that the Final Chattem SettlementTrust is being established to resolve or satisfy one ormore contested or uncontested claims that have resultedor may result from an event (or related series ofevents) that has occurred and has given rise to claimsasserting liability arising out of a tort. The InitialChattem Settlement Trust and the Final ChattemSettlement Trust shall be structured and managedpursuant to the Initial Settlement Trust Agreement andthe Final Settlement Trust Agreement, respectively, andwill contain customary provisions for such trustsincluding obligations of the Final Chattem SettlementTrust to provide such information to Chattem and ClassCounsel as Chattem or Class Counsel shall reasonablyrequest for financial, legal, regulatory and taxpurposes.
(b) The Parties agree that all of the amounts beingpaid to or on behalf of Class Members pursuant to theterms of this Settlement Agreement are being paid asdamages (other than punitive damages) on account ofalleged personal physical injuries or alleged physicalsickness of the members of the Settlement Class,including physical injuries or physical sicknessresulting from alleged emotional harm, as described in26 U.S.C. § 104(a)(2). The Parties further agree thatthe claims set forth in the definition of SettledClaims in Article 1 have their origin in such allegedphysical personal injuries or physical sickness.
(c) Chattem shall not have any financial obligationsunder this Settlement Agreement other than the paymentobligations explicitly set forth in this SettlementAgreement. Neither Chattem nor any of the otherReleased Parties shall have any liability to any ClassMember arising from the handling of claims by theTrustee, the Claims Administrator, the Chattem ClaimsCoordinator, or the Class Counsel Claims Coordinator.
(d) All cash and property transferred into the InitialChattem Settlement Trust and the Final ChattemSettlement Trust shall be the sole property of theInitial Chattem Settlement Trust and the Final ChattemSettlement Trust, respectively, and shall be exemptfrom Chattem's creditors. All of the assets in theFinal Chattem Settlement Trust shall be pledged tosecure the performance of all of Chattem'sobligations under this Settlement Agreement.
(e) The Trustee shall withhold and pay over such taxesas may be required and shall fulfill all tax filingobligations, including applicable reporting obligationswith respect to all distributions and payments pursuantto the terms of this Settlement Agreement. The InitialChattem Settlement Trust and the Final ChattemSettlement Trust each shall be responsible for allfees, taxes and other costs of administration of therespective Trusts, including, without limitation, taxeson any income or gain earned on any assets in therespective Trusts.
ARTICLE 3-CLASS MEMBER RIGHTS AND BENEFITS
Section 3.1 Benefit Payments To Class Members
The portion, if any, of the Benefit Fund to which aClass Member is entitled shall be determined pursuantto the terms of the Dexatrim® Case Scoring Systemand Matrix, attached hereto as Annex I.
Section 3.2 Payment Of Benefits
Payments made pursuant to Section 3.1 shall be made assoon as practical, but in no event later than thirty(30) days after the date on which a Final BenefitDetermination is made pursuant to Section 4.2(d) orSection 4.2(e).
Section 3.3 Extraordinary Damages Benefits
(a) In addition to the benefits set forth in Section3.1, Class Members may be eligible to receiveadditional compensation under this Settlement Agreement(" Extraordinary Damage Fund Benefits" or " EDF Benefits " ). TheEDF Benefits, if any, to which a Class Member isentitled shall be determined pursuant to the terms ofthe Dexatrim® Case Scoring System and Matrix, andare sometimes referred to in the Matrix as the "EIF Award."
(b) Class Members are eligible to receive EDF Benefitsif the Class Member; (1) sustained a hemorrhagic strokeor an ischemic stroke, (2) has a Final DeterminationMatrix Level of IV, V, or VI, and (3) has DocumentedUnreimbursed or Unreimbursable Economic Damages of atleast $250,000.
(c) " Documented Unreimbursed orUnreimbursable Economic Damages " means thefollowing items, but only to the extent that theyrelate to a hemorrhagic or ischemic stroke that wascaused by the ingestion of a Dexatrim® Product: (1)non-reimbursed out-of-pocket past medical expenses, (2)non-reimbursable future medical expenses, (3)non-reimbursable future living expenses, (4)non-reimbursed past lost wages; (5) non-reimbursablefuture lost wages, (6) non-reimbursable loss of earningcapacity (both past and future), and (7) the amountthat a Class Member is required to pay a third party toextinguish a lien for medical expenses. Documentationmay consist of medical records, billing records, taxreturns, social security earnings statements, expertreports (e.g. economists, life care planners,neurologists, physiatrists, etc.) or any otherdocumentation or evidence found acceptable by the ClassCounsel Claims Coordinator.
Section 3.4 Opt-Out Rights
(a) All Class Members (except as provided in Section3.4(b) below) are eligible to opt out of the Settlementrepresented by this Settlement Agreement (the "Opt-Out Right " ). Each Class Memberwishing to exercise an Opt-Out Right must submit awritten letter, signed by the Class Member, thatincludes the following information: (i) his or hername, address and telephone number; (ii) with respectto each Dexatrim® Product, the date of ingestion;(iii) with respect to each Dexatrim® Product, thelot number and product number, if available; (iv)whether such Class Member is represented by counsel andif so, the name, address and telephone number of his orher lawyer; and (v) the type of injury alleged(hemorrhagic stroke, ischemic stroke, cardiac injury,or other injury). A copy of the letter must be sent toan address that is set forth in the Notice andpostmarked no later than the Opt-Out Deadline, as setby the Trial Court. The Claims Administrator shallpromptly forward copies of all such letters to Chattemand to Class Counsel and shall file a list of all suchClass Members who exercise an Opt-Out Right with theCourt.
(b) In the event that there is both a Dexatrim®Product User or a Representative Claimant and one ormore Derivative Claimants, the Dexatrim® ProductUser's or the Representative Claimant'sexercise or failure to exercise an Opt-Out Right shallbe binding on the associated Derivative Claimant(s).
ARTICLE 4-CLAIMS ADMINISTRATION
Section 4.1 Benefit Claim Forms
(a) Each Class Member claiming benefits must submit aclaim form (" Benefit Claim Form " )attached hereto as Annex III, to the ClaimsAdministrator on or before the Benefit Claim FormDeadline. The Class Member must complete the portionsof the Benefit Claim Form relating to the category(ies)that the Class Member believes entitle him or her toBenefits under Section 3.1. Any Class Member who doesnot submit a Benefit Claim Form on or before theBenefit Claim Form Deadline shall not be eligible toreceive any benefits under this Settlement Agreement.
(b) Within thirty (30) days after the ClaimsAdministrator receives a Benefit Claim Form, the ClaimsAdministrator shall: (i) assign a unique identifyingnumber to the claim (" Chattem SettlementClaim Number " ) where one has not alreadybeen assigned; and (ii) if necessary, notify the ClassMember or the Class Member's Counsel regarding thenature of any deficiency in the Benefit Claim Form.Benefit Claim Forms that fail to provide requiredinformation and/or documentation shall not beconsidered " complete." Within thirty (30)days after receiving a complete Benefit Claim Form, orearlier if requested by the Chattem Claims Coordinator,the Claims Administrator shall provide a copy of thecomplete Benefit Claim Form and any other informationor documentation submitted by the Class Member with theBenefit Claim Form to the Chattem Claims Coordinator.
(c) Within thirty (30) days after the Chattem ClaimsCoordinator receives a complete Benefit Claims Formfrom the Claims Administrator, or upon Final JudicialApproval, whichever is later, the Claims Administratorshall, at the request of the Chattem ClaimsCoordinator, request the additional information anddocumentation specified in the Supplemental BenefitClaim Form attached hereto as Annex IV ("Supplemental Benefit Claim Form " ). TheClaims Administrator shall establish a deadline bywhich the Class Member must complete the SupplementalBenefit Claim Form. This deadline shall be a date thatis no less than one hundred and twenty (120) days fromthe date the Claims Administrator mails theSupplemental Benefit Claim Form to the Class Member.
(d) Each Class Member to whom it is sent must completethe Supplemental Benefit Claim Form and return it alongwith all requested documentation to the ClaimsAdministrator on or before the deadline set forth inthe Supplemental Benefit Claim Form. Any Class Memberwho is required to submit a Supplemental Claim Form andwho does not submit a Supplemental Claim Form on orbefore the deadline shall not be eligible to receiveany benefits under this Settlement Agreement.
(e) Within thirty (30) days after the ClaimsAdministrator receives a Supplemental Benefit ClaimForm, the Claims Administrator shall notify the ClassMember or the Class Member's Counsel of anyadditional information that is necessary to make apreliminary determination as to the benefit, if any, towhich the Class Member is entitled. A SupplementalBenefit Claim Form shall be deemed "complete" when the Class Member has submitted allinformation and documentation specified in theSupplemental Claim Form Completeness Checklist,attached hereto as Annex IV. Within thirty (30) daysafter receiving a complete Supplemental Benefit ClaimForm, or earlier if requested by the Chattem ClaimsCoordinator, the Claims Administrator shall provide tothe Chattem Claims Coordinator a copy of the completeSupplemental Benefit Claim Form and any otherinformation or documentation submitted by the ClassMember with the Supplemental Benefit Claim Form.
Section 4.2 Benefit Determination
(a) As soon as practicable, but in no event more thanone hundred and twenty (120) days after receiving acomplete Benefit Claim Form and, if applicable, acomplete Supplemental Benefit Claim Form, the ChattemClaims Coordinator shall meet and confer with the ClassMember or the Class Member's Counsel to make apreliminary determination as to whether the ClassMember is entitled to any benefits, and if so, thebenefit to which the Class Member is entitled (the" Preliminary Benefit Determination" ). The Preliminary Benefit Determination shallbe determined pursuant to the terms of theDexatrim® Case Scoring System and Matrix. If, aftermeeting and conferring in good faith pursuant to thisSection 4.2(a), the Chattem Claims Coordinator and theClass Member or Class Member's Counsel are unableto agree on a Preliminary Benefit Determination, theChattem Claims Coordinator shall provide the ClaimsAdministrator with a completed Case Scoring Worksheetrepresenting the Chattem Claims Coordinator'sPreliminary Benefit Determination.
(b) Within ten (10) days of receiving the ChattemClaims Coordinator's Preliminary BenefitDetermination described in Section 4.2(a), the ClaimsAdministrator shall mail, via Certified Mail-ReturnReceipt Requested, notice to the Class Member or theClass Member's Counsel of such determination, andshall attach the completed Case Scoring Worksheet.
(c) Within thirty (30) days after the date on which theClaims Administrator mails notice of the Chattem ClaimsCoordinator's Preliminary Benefit Determination tothe applicable Class Member or the Class Member'sCounsel, the Class Member may challenge the ChattemClaims Coordinator's Preliminary BenefitDetermination. To challenge the Chattem ClaimsCoordinator's Preliminary Benefit Determination,the Class Member must submit a complete Case ScoringWorksheet along with a narrative description that is nomore than ten (10) pages in length, excluding exhibits,and that: (i) identifies the specific Case ScoringComponent(s) in the Chattem Claims Coordinator'sPreliminary Benefit Determination that the Class Memberis challenging; and (ii) for each Case ScoringComponent that the Class Member is challenging, statesthe Total Matrix Score the Class Member believes isaccurate and sets forth all facts and arguments insupport of the Total Matrix Score that the Class Memberbelieves is accurate.
(d) If the Class Member does not challenge the ChattemClaims Coordinator's Preliminary BenefitDetermination within the time frame set forth inSection 4.2(c), the Chattem Claims Coordinator'sPreliminary Benefit Determination shall constitute afinal and binding determination of all benefits(except, if applicable, EDF Benefits pursuant toSection 3.3) to which that Class Member is entitled(" Final Benefit Determination " ).The Final Benefit Determination shall be determinedpursuant to the terms of the Dexatrim® Case ScoringSystem and Matrix. If the Class Member challenges theChattem Claims Coordinator's Preliminary BenefitDetermination as set forth in Section 4.2( o), the Special Master described in Section 4.2(e) shallmake a Final Benefit Determination in accordance withSection 4.2( o ).
(e) The Parties shall request that the Trial Courtappoint Judge John Keefe (Ret.) as a Special Master to,among other things, make final determinations when aClass Member challenges the Chattem ClaimsCoordinator's Preliminary Benefit Determination(" Special Master " ). The TrialCourt has the authority to remove the Special Masterand to appoint more than one Special Master. TheSpecial Master shall be compensated a reasonable feefor his time from the Benefit Fund. For each challengeof a Preliminary Benefit Determination, the SpecialMaster shall meet and confer with the Chattem ClaimsCoordinator and the applicable Class Member or ClassMember's Counsel and shall determine the scope ofdiscovery and schedule an arbitration hearing at adate, time, and place of the Special Master'schoosing, which should be no later than one hundred andtwenty (120) days after the " meet andconfer" with the Special Master. Neither the ClassMember nor the Chattem Claims Coordinator needpersonally appear at the " meet and confer"with the Special Master or the arbitration hearing, andeither side may appear by telephone. The Special Mastershall have the discretion to create reasonable andordinary procedural rules and requirements for thearbitration. Within thirty (30) days after thearbitration hearing set forth in this Section 4.2(e),the Special Master shall render a Final BenefitDetermination based on the application of the Matrixand the guidelines set forth in this Agreement.
(f) The Chattem Claims Coordinator shall be entitled toobtain reasonable discovery related to any Class Memberwho challenges a Preliminary Benefit Determination. Thescope of such discovery shall be limited to the CaseScoring Component(s) challenged by the Class Member andmay specifically include, but is not limited to, accessto the Class Member's medical records and theability to take oral depositions of the Class Memberand the medical providers that diagnosed and treatedthe injury for which the Class Member seeks benefits.Class Members are also entitled to obtain reasonablediscovery limited to the Case Scoring Component(s)challenged by the Class Member; however, it isexpressly understood that Class Members are notentitled to obtain any discovery from any ReleasedParties. The Special Master shall resolve any disputesregarding the scope of the Chattem ClaimsCoordinator's right to discovery. The SpecialMaster shall allow a reasonable time for the ChattemClaims Coordinator to conduct discovery prior to thearbitration hearing date described in Section 4.2(c).
(g) The arbitration pursuant to Section 4.2(e) shall belimited to deciding only the Case Scoring Component(s)challenged by the Class Member at the time he or shesubmitted his or her challenge pursuant to Section4.2(c). All Case Scoring Components not challenged bythe Class Member in the time permitted by Section4.2(c) shall be deemed conclusively established. TheSpecial Master shall conduct a de novo review of theCase Scoring Component(s) challenged by the ClassMember, and neither party bears any higher burden thanthe other party.
(h) The Special Master shall have the sole discretionto exclude any evidence from the arbitration hearingdescribed in Section 4.2(e). The Special Master shallexclude all evidence that would have been responsive tothe Benefit Claim Form or the Supplemental BenefitClaim Form, but was not submitted by the Class Memberto the Claims Administrator on or before the date thatthe Class Member's Benefit Claim Form orSupplemental Benefit Claim Form was due; however, theSpecial Master has the authority to make exceptions tothis exclusionary rule upon the showing of good cause.
(i) When making a Final Determination, the SpecialMaster shall make a decision with respect to each CaseScoring Component(s) challenged by the Class Member.The Special Master shall then complete a Case ScoringWorksheet and arrive at Matrix Level to which the ClassMember is assigned and the Settlement CompensationAmount to which the Class Member is entitled. Afterdetermining the Settlement Compensation Amount to whichthe Class Member is entitled, the Special Master shallchoose between: (a) the Settlement Compensation Amountin the Case Scoring Worksheet submitted with theChattem Claims Coordinator's Preliminary BenefitDetermination, and (b) the Settlement CompensationAmount in the Case Scoring Worksheet submitted by theClass Member at the time he or she challenged theChattem Claims Coordinator's Preliminary BenefitDetermination. The Special Master shall select the oneof the two Settlement Compensation Amounts that theSpecial Master finds most reasonable and appropriatepursuant to the application of the Dexatrim® CaseScoring System and Matrix and the guidelines set forthin this Agreement. If the Special Master chooses theamount submitted by the Chattem Claims Coordinator, theClass Member shall pay a penalty to the Final ChattemSettlement Trust, and if the Special Master chooses theamount submitted by the Class Member, Chattem shall paya penalty to the Final Chattem Settlement Trust. Suchpenalty shall be decided by the Special Master, but inno event shall the penalty be less than $10,000.
Section 4.3 Extraordinary Damage Benefit Claim Form
(a) Each Class Member claiming benefits under Section3.3 must submit a complete claim form for payment ofbenefits out of the Extraordinary Damage Fund ("EDF Benefit Claim Form " ) attachedhereto as Annex VI, to the Claims Administrator. Thedeadline to submit an EDF Benefit Claim Form shall bethe date the Class Member is required to submit aSupplemental Benefit Claim Form. Any Class Member whodoes not submit an EDF Benefit Claim Form on or beforethis deadline shall not be eligible to receive EDFBenefits.
(b) Within thirty (30) days after the ClaimsAdministrator receives an EDF Benefit Claim Form, theClaims Administrator shall: (I) if necessary, notifythe Class Member or the Class Member's Counselregarding the nature of any deficiency in the EDFBenefit Claim Form; and (II) serve a copy of the EDFBenefit Claim Form and any other information ordocumentation submitted by the Class Member with theEDF Benefit Claim Form to the Class Counsel ClaimsCoordinator and the Chattem Claims Coordinator. EDFBenefit Claim Forms shall be deemed "complete" when the Class Member has submitted allinformation and documentation specified on the EDFBenefit Claim Form Completeness Checklist, attachedhereto as Annex VI. Class Members shall be required tocorrect any deficiencies within thirty (30) days afterthey are notified of such deficiencies.
(c) Within sixty (60) days after the Chattem ClaimsCoordinator and the Class Counsel Claims Coordinatorreceive an EDF Benefit Form from the ClaimsAdministrator, the Chattem Claims Coordinator and theClass Counsel Claims Coordinator shall meet and conferto determine if sufficient information exists to make apreliminary determination as to the EDF Benefit, ifany, to which the Class Member is entitled. If eitherthe Class Counsel Claims Coordinator or the ChattemClaims Coordinator believes that additional informationis required before making such determination, suchinformation shall be requested from the Class Member orClass Member's Counsel, if any. When the ChattemClaims Coordinator and the Class Counsel ClaimsCoordinator agree that sufficient information exists tomake a preliminary determination as to the EDF Benefit,if any, to which the Class Member is entitled, the EDFBenefit Claim Form shall be considered "complete."
Section 4.4 Extraordinary Damages Benefit Determination
(a) Within thirty (30) days after a Final BenefitDetermination is rendered for all Class Members whosubmitted a Benefit Claim Form, the Chattem ClaimsCoordinator and the Class Counsel Claims Coordinatorshall meet and confer and make a recommendation as tothe distribution of the Extraordinary Damages Fund (the" EDF Distribution Recommendation "). The EDF Distribution Recommendation shall bedetermined pursuant to the terms of the Dexatrim®Case Scoring System and Matrix.
(b) Within five (5) days of making the EDF DistributionRecommendation described in Section 4.4(a), the ClassCounsel Claims Coordinator shall provide the SpecialMaster with a copy of the EDF DistributionRecommendation and a copy of all EDF Benefit ClaimsForms submitted by Class Members. The Class CounselClaims Coordinator shall also serve a copy of the EDFDistribution Recommendation on all Class Members whosubmitted in EDF Benefit Claim Form. Any such ClassMember may submit an alternative recommendation to theSpecial Master.
(c) Within sixty (60) days after the date that theClass Counsel Claims Coordinator mails notice of theEDF Distribution Recommendation, the Special Mastershall make a final and binding determination as to thedistribution of the Extraordinary Damages Fund ("Final EDF Distribution Determination " ).The Final EDF Distribution Determination shall bedetermined pursuant to the terms of the Dexatrim®Case Scoring System and Matrix.
Section 4.5 Liens
(a) Liens In General. Class Members are eachresponsible for any and all claims or liens, past,present or future, known or unknown, by any person,entity, insurance carrier, company, business, firm,corporation or governmental entity or agency(including, but not limited to government liens) as aresult of any injury the Class Member alleges arisesout of the Class Member's ingestion of aDexatrim® Product.
(b) Government Liens. If the Chattem ClaimsCoordinator or the Class Counsel Claims Coordinator isaware that a state or federal government agency mayhave a lien on benefits due to a Class Member, theClaims Administrator shall withhold that amount, asordered by the Trial Court, that is reasonablynecessary to satisfy such lien(s). In order tofacilitate this process and to ensure government liensare identified, the name, date of birth, and socialsecurity number of each class member shall be madeavailable for the inspection of the appropriategovernment agency.
(c) Lien Hearing. The Parties shall requestthat the Trial Court hold a hearing for the purpose ofdetermining the amounts owed to state or federalgovernmental agencies to satisfy liens related to anySettled Claim.
(d) Attorney Liens. If the Class Member statesthat he or she is represented by counsel in the BenefitClaim Form, the Claims Administrator shall endeavor tomake all benefits payable made in the name of the ClassMember and the attorney(s) identified by the ClassMember in the Benefit Claim Form. However, none of theReleased Parties nor the Claims Administrator shall beresponsible for any failure to do so. Any notice ofrepresentation or change in representation other thanthat which is made in the Benefit Claim Form shall notchange the application of this section.
(e) Indemnity. Any Class Member who receivesBenefits from this Settlement Agreement shall berequired to indemnify and hold harmless the ReleasedParties and Class Counsel (but only in their capacityas Class Counsel) from any and all claims, demands,causes of action, of any and every nature whatsoever,made by any person, entity, firm or corporationclaiming by, through or under such Class Member, byright of assignment or subrogation, in connection withthe Released Claims, or by virtue of having paid orreimbursed medical expenses or other compensationarising out of or related to such Class Member'salleged use of a Dexatrim Product.
Section 4.6 Claims Administration Procedures
(a) Any disagreement as to the interpretation of theSettlement Agreement or the Matrix as they relate todeciding the benefits, if any, to which a Class Memberis entitled shall be resolved by the Special Master.Class Counsel, the Claims Administrator, and Chattemmay request that the Special Master issue an opinion toresolve an actual controversy regarding theinterpretation of the Settlement Agreement or theMatrix.
(b) The Special Master shall, where necessary, createClaims Administration Procedures that provide specificdetails about how claims are administered. The ClaimsAdministration Procedures promulgated by the SpecialMaster shall comply with the terms set forth in theSettlement Agreement and the Matrix.
Section 4.7 General Claims Administration Matters
(a) Any and all materials submitted by a Class Memberpursuant to this Article 4 shall be deemed submitted onthe date that such material is post-marked. In theabsence of a post-mark or if such post-mark isillegible, the date of receipt shall be the date suchmaterial is deemed submitted.
(b) None of Chattem, the Claims Administrator, theInitial Chattem Settlement Trust, the Final ChattemSettlement Trust, the Chattem Claims Coordinator, orthe Class Counsel Claims Coordinator shall beresponsible for or in any way accept any liability withrespect to deficient Claim Forms.
(c) None of the Claims Administrator, the ChattemClaims Coordinator nor the Class Counsel ClaimsCoordinator shall be liable to the Initial ChattemSettlement Trust or the Final Chattem Settlement Trustto any person holding a personal injury claim or to anyother person except for the Claims Administrator's,the Chattem Claims Coordinator's or the ClassCounsel Claims Coordinator's own breach of trustcommitted in had faith or for willful misconduct. Noneof the Claims Administrator, the Chattem ClaimsCoordinator or the Class Counsel Claims Coordinatorshall be liable for any act or omission of any of theirrespective officers, agents, employees, consultants, orother Representative unless the Claims Administrator,the Chattem Claims Coordinator or the Class CounselClaims Coordinator acts with bad faith or willfulmisconduct in the selection or retention of suchofficer, agent, employee, consultant, or otherrepresentative.
(d) The provisions of this Section 4.7 shall apply toall persons or entities engaged by the ClaimsAdministrator, the Chattem Claims Coordinator, and theClass Counsel Claims Coordinator to render servicesrelating to the Settlement.
(e) The Claims Administrator shall be compensatedreasonable fees from the Benefit Fund.
Section 4.8 Fraudulent Claims
(a) In the event that the Special Master determinesthat any Class Member has submitted a fraudulent claimor allegation, the Special Master may reduce thebenefits to which the Class Member may be entitledunder this Settlement Agreement by any amount deemedappropriate by the Special Master. In addition toreducing or eliminating a Class Member's benefits,the Special Master, in his or her discretion, may referand recommend to the Trial Court or any otherappropriate court, monetary or injunctive sanctionsagainst the Class Member and/or the Class Member'sCounsel including, but not limited to, forfeiture ofattorney fees and costs, or the institution ofgrievance proceedings.
(b) Nothing in this Settlement Agreement shall restrictthe Chattem Claims Coordinator from obtaining discoveryrelated to suspected fraudulent claims, as permitted bythe Special Master.
ARTICLE 5-ATTORNEYS' FEES
Section 5.1 Existing Contingency Fee Agreements
(a) Attorneys who entered into contingency feeagreements with Class Members after December 21, 2003are entitled only to reasonable fees for filling outclaim forms and consulting with their clients, up to acap of 10% of the Class Member's Total SettlementCompensation, or $10,000, whichever is less. It ishereby understood that any date that any differentprovision in the Matrix is replaced with thisprovision.
(b) Except as set forth in Section 5.1(a), nothing inthis agreement is intended to void or to otherwisealter reasonable contingent fee contracts.
Section 5.2 Plaintiff's Litigation Expense Fund
(a) Before making any payment to any Class Member underthis Settlement Agreement, the Trustee of the FinalChattem Settlement Trust shall deduct that amount, ifany, required by MDL 1407 Amended Case Management OrderNo. 8 and 16 Establishing Plaintiff's LitigationExpense Fund.
(b) The Trustee of the Final Chattem Settlement Trustshall deposit all amounts deducted in accordance withSection 5.2(a) to the MDL 1407 Fee and Cost Account inaccordance with MDL 1407 Amended Case Management OrderNo. 8 and 16 Establishing Plaintiff's LitigationExpense Fund.
(c) For the purposes of applying MDL 1407 Amended CaseManagement Order No. 8 and 16 EstablishingPlaintiff's Litigation Expense Fund, all claimssettled by this Settlement Agreement are deemed to besettled within the jurisdiction of the Trial Court.
Section 5.3 Any Other Attorneys Fees or Costs
Class Counsel agree that they will not seek anyattorneys fees or costs from any of the ReleasedParties; however, the Released Parties agree that theywill not object to any reasonable application by ClassCounsel for common benefit fees from other sources.
ARTICLE 6-GENERAL TERMINATION AND RELEASE
Section 6.1 Good Faith Settlement
The Parties agree that this Settlement Agreement ismade in good faith and in accordance with the laws ofthe jurisdictions in which Dexatrim® ProductsRelated lawsuits have been filed. If required by anycourt or tribunal, Class Counsel agree to cooperatewith Chattem and the other Released Parties byproviding affidavits and/or testimony concerning thecircumstances of the settlement contemplated by thisSettlement Agreement and attesting to the fact that itis a good faith settlement.
Section 6.2 Release
(a) Unless this Settlement Agreement shall have beenterminated in accordance with Article 8 hereof, afterthe Court approves this Settlement Agreement as a goodfaith, fair, adequate and reasonable settlement, theParties hereby agree that every Settled Claim of eachClass Member (other than a Class Member who exercisesan Opt-Out Right pursuant to Section 3.4) shall beconclusively compromised, settled and released as toChattem and each other Released Party. Such releasesshall remain effective regardless of changes in thecircumstances or condition of Chattem, the otherReleased Parties or such Class Members, discovery ofnew or additional facts, or changes in applicable law.In making such releases each Class Member (other than aClass Member who exercises an Opt-Out Right pursuant toSection 3.4) shall be deemed to expressly acknowledgeand waive all rights that such Class Member may haveunder any statute, regulation or common law principlethat would limit the effect of the release provided inthis Settlement Agreement to those claims actuallyknown and/or suspected to exist at the time the releaseis giving, including, without limitation, theprovisions of Section 1542 of the Civil Code of theState of California (notwithstanding that thisSettlement Agreement does not provide for theapplication of California law), which provides that" [a] general release does not extend to claimswhich the creditor does not know or suspect exist inhis favor at the time of executing the release, whichif known by him must have materially affected hissettlement with the debtor." Consistent with theprovisions of Article 8 of this Settlement Agreement,the releases herein shall extinguish any claims forcontribution and/or indemnification against Chattem orthe other Released Parties.
(b) By entering into this Settlement Agreement, ClassMembers agree that they have no standing to pursueclaims under any of the Released Parties' insurancepolicies or rights under those policies with regard toany insurance proceeds or any other obligations owed orpotentially owed under the policies, and any agreementbetween the Released Party(ies) and any of theirinsurers regarding such policies, coverage limits andpayments of insurance proceeds shall be binding on theClass Members.
Section 6.3 Requests to the Trial Court
The Parties hereby agree to request that the Courtenter an order finding this Settlement Agreement to bea good faith settlement and barring and enjoining, tothe extent permitted by applicable law, thecommencement and prosecution of any contribution and/orindemnification claim or action by or on behalf of anyClass Member (other than a Class Member who exercisesan Opt-Out Right pursuant to Section 3.4) or entityagainst Chattem or any other Released Party forreimbursement for payments made or to be made to or onbehalf of any such Class Member for Dexatrim®Products Related claims, actions or injuries, or forexpenses incurred in defending against any such claims,actions or proceedings. The Parties agree that Chattemand the other Released Parties shall be entitled todismissal with prejudice of any claims against them byor on behalf of any Class Member (other than a ClassMember who exercises an Opt-Out Right pursuant toSection 3.4) that violate or are inconsistent with thisbar.
Section 6.4 No Recovery from Released Parties OutsideThis Agreement
The Parties agree that no Class Member (other thanClass Members who properly and timely exercise theirOpt-Out Rights) may recover, directly or indirectly,any sums from Chattem or any other Released Party otherthan those received under this Settlement Agreement.
Section 6.5 Claim Forms
Each Class Member (other than a Class Member whoexercises an Opt-Out Right pursuant to Section 3.4)otherwise entitled to receive benefits under thisSettlement Agreement shall be required, as a furthercondition to receive benefits hereunder, to execute anddeliver a complete Benefit Claim Form and, ifapplicable, a complete Supplemental Claim Form and, ifapplicable, a complete EDF Benefit Claim Form by thedeadlines set forth in Article 4.
ARTICLE 7-CONTINUING JURISDICTION
Section 7.1 Trial Court Retains Jurisdiction
The Court shall retain exclusive and continuingjurisdiction of the Complaint, the Parties, all ClassMembers (other than a Class Member who exercises anOpt-Out Right pursuant to Section 3.4), Chattem and theother Released Parties, and over this SettlementAgreement with respect to the performance of the termsand conditions of the Settlement Agreement, to assurethat all disbursements are properly made in accordancewith the terms of the Settlement Agreement, and tointerpret and enforce the terms, conditions andobligations of this Settlement Agreement. Other thanprovided herein, the Court shall have the power toapprove the designation, appointment and removal ofauditors, consultants and disbursing agents, theChattem Claims Coordinator, the Class Counsel ClaimsCoordinator, and the execution of contracts asnecessary and appropriate to assure the administrationof this Settlement Agreement. Any dispute that arisesunder this Settlement Agreement shall be submitted tothe Court. If any dispute is so submitted, each partyconcerned shall be entitled to seven (7) days'written notice (or otherwise as the Court may for goodcause direct) and the opportunity to submit evidenceand to be heard on oral argument as the Court maydirect. To the extent that additional or differentprocedures for dispute resolution are provided, orstandards to be applied in connection therewith aredevised, under any other provision of this SettlementAgreement, such other provisions shall control.
ARTICLE 8-TERMINATION
Section 8.1 Termination By Chattem
(a) In the event that more than one hundred and ninety(190) Class Members submit a Benefit Claim Form thatalleges either an ischemic stroke or a hemorrhagicstroke, Chattem shall have the option to terminate andwithdraw from this Settlement Agreement at any timeprior to 5:00 p.m. Pacific Time on the date that isfive (5) days prior to the Fairness Hearing Date. TheFairness Hearing shall be set on a date that is atleast 50 days after the Benefit Claim Form Deadline.
(b) In the event that the aggregate benefits which allpersons who exercised the Opt-Out Right and who allegeeither a hemorrhagic stroke or an ischemic stroke wouldhave received pursuant to the Dexatrim® CaseScoring System and Matrix if those persons had notexercised the Opt-Out Right (" AggregateOpt-Out Matrix Value " ) exceed $13,750,000,Chattem shall have the option to terminate and withdrawfrom this Settlement Agreement at any time prior to5:00 p.m. Pacific Time on the date that is five (5)days prior to the Fairness Hearing Date.
(c) If Chattem intends to terminate this SettlementAgreement pursuant to Section 8.1(b), Chattem shallfile a Notice of Termination with the Trial Court andserve it on Class Counsel by fax and U.S. mail on orbefore the date that is five (5) days prior to theFairness Hearing Date. If Chattem terminates thisSettlement Agreement under any provision, the FairnessHearing shall be cancelled. If Class Counsel believesthat the Aggregate Opt-Out Matrix Value does not exceed$13,750,000, Class Counsel may object to Chattem'stermination of this Agreement by filing a Notice ofObjection to Termination with the Trial Court andserving it on the Special Master and Chattem by fax andU.S. Mail within three (3) days of the date on whichChattem filed and served its Notice of Termination. IfClass Counsel files a Notice of Objection toTermination, the Special Master shall, after a hearingwith the Chattem Claims Coordinator and Class Counsel,make a final and binding determination of the AggregateOpt-Out Matrix Value. If the Special Master determinesthat the Aggregate Opt-Out Matrix Value did not exceed$13,750,000, the Trial Court shall re-schedule theFairness Hearing to an appropriate date and make allorders necessary and related thereto.
(d) Any proceedings before the Special Master todetermine the Aggregate Opt-Out Matrix Value, as wellas all documents related thereto, shall remainconfidential and shall not be used for any purposeother than to determine the Aggregate Opt-Out MatrixValue for purposes of this termination provision.
(e) If Chattem exercises its right to terminate andwithdraw from this Settlement Agreement, it shall givewritten notice to the Court and to Class Counsel.
(f) In the event that any of the conditions set forthin Section 9.3 have not been satisfied or waived byChattem, as applicable (and such conditions are nolonger capable of being satisfied), Chattem shall havethe right to terminate and withdraw from thisSettlement Agreement by written notice to the Court andClass Counsel.
(g) In the event that Chattem terminates and withdrawsfrom this Settlement Agreement in accordance with thisSection 8, no Party shall have any further obligationshereunder.
ARTICLE 9-SETTLEMENT IMPLEMENTATION
Section 9.1 General
(a) In order to become effective, this SettlementAgreement must receive Final Judicial Approval.
Section 9.2 Approval Process Provisions
(a) After the date of this Settlement Agreement, theParties shall file a joint motion requestingpreliminary approval of the Settlement Agreement andapproval of the forms of notice (the "Notice " ).
(b) Chattem shall consent to class certification forsettlement purposes only; however, Chattem shall retainits right to contest class certification for anypurposes other than the approval of this SettlementAgreement.
(c) The Parties shall cooperate and assist in all ofthe filings and proceedings relating to the obtainingTrial Court Approval and in any further filings andproceedings necessary to obtain Final Judicial Approvalof the Settlement, and in any related appeals.
(d) Upon Final Judicial Approval, the Class Counsel andall Class Members shall cooperate with Chattem and anyother Released Party to cause the dismissal, withprejudice and without costs, of any action againstChattem or any Released Party assenting a Settled Claimbrought by or on behalf of any Class Member (other thana Class Member who exercises an Opt-Out Right pursuantto Section 3.4) entitled to benefits hereunder,including but not limited to class actions, whether ornot certified as such, which are pending in any Stateor federal court. Upon Trial Court Approval, the ClassCounsel and all such Class Members shall cooperate withChattem and any other Released Party to cause furtherproceedings in all such settled actions to be stayedpending Final Judicial Approval.
Section 9.3 Conditions
(a)
Chattem's obligations under this SettlementAgreement will be subject to the following conditions:
(i)
Trial Court Approval of the Settlement, which approvalorder or orders shall:
(1)
Confirm the certification of the Settlement Class,under Fed.R.Civ.P. 23(a), 23(b)(2) and 23(b)(3) forsettlement purposes only;
(2)
Confirm the appointment of the Class Representatives asthe Representatives of the Settlement Class;
(3)
Approve this Settlement Agreement in its entiretypursuant to Fed.R.Civ.P. 23(e) as fair, reasonable,adequate, and non-collusive;
(4)
Dismiss with prejudice and without costs all claims andactions asserting Settled Claims against any ReleasedParty pending before the Court (other than claims andactions of a Class Member who exercises an Opt-OutRight pursuant to Section 3.4);
(5)
Bar and enjoin all Class Members (other than a ClassMember who exercises an Opt-Out Right pursuant toSection 3.4) entitled to benefits hereunder fromasserting and/or continuing to prosecute againstChattem or any other Released Party any and all SettledClaims which the Class Member (other than a ClassMember who exercises an Opt-Out Right pursuant toSection 3.4) had, has, or may have in the future in anyfederal or State court;
(6)
Reserve the Court's continuing and exclusivejurisdiction over the Parties, including Chattem andthe Class Members (other than a Class Member whoexercises an Opt-Out Right pursuant to Section 3.4), toadminister, supervise, interpret, and enforce thisSettlement Agreement in accordance with its terms andto supervise the operation of the Initial ChattemSettlement Trust and the Final Chattem SettlementTrust; and
(7)
Enter such other orders as are needed to effectuate theterms of the Settlement Agreement; and
(ii)
Final Judicial Approval of this Settlement Agreement.
ARTICLE 10-ASSIGNMENT OF CLAIMS
Section 10.1 Class Members' Claims Against Alps
Class Members hereby assign to Chattem, effective uponFinal Judicial Approval, any and all claims againstAlps Pharmaceutical Ind. Co., Ltd., regardless of legaltheory, that arise out of or relate to any of theDexatrim® Products or their development,manufacture, formulation, testing, distribution,marketing, labeling, regulatory submissions,advertising, sale, or ingestion. (" AssignedAlps Claims " ).
Section 10.2 Recovery From Alps
Class Counsel may reach a settlement agreement of theAssigned Alps Claims at any time prior to the date thatis fourteen (14) days prior to Trial Court Approval,provided that Alps agrees to pay a sum acceptable toChattem (in consultation with Class Counsel) into theInitial Chattem Settlement Trust. Half of any amountpaid by Alps in satisfaction of such agreement shall beallocated to the Extraordinary Damages Fund and theother half shall be allocated to the Benefit Fund.
Section 10.3 Duty to Cooperate With Assigned Claims
Other than expressly provided in Section 10.2, ClassMembers and Class Counsel shall take no action thatcompromises Chattem's ability to prosecute theAssigned Alps Claims. Class Members and Class Counselshall use reasonable efforts to cooperate with Chattemin the prosecution of these claims.
ARTICLE 11-MISCELLANEOUS
Section 11.1 Confidential Information
Any information provided by or regarding a Class Memberor otherwise obtained pursuant to this SettlementAgreement shall be kept confidential and shall not bedisclosed except to appropriate persons to the extentnecessary to process Claims or provide benefits underthis Settlement Agreement or as otherwise expresslyprovided in this Settlement Agreement (including, butnot limited to, information to be released inconnection with the determination of government liensin accordance with Section 4.5(b). All Class Membersshall be deemed to have consented to the disclosure ofthis information for these purposes.
Section 11.2 Successors and Assigns
This Settlement Agreement shall be binding on thesuccessors and assigns of the Parties.
Section 11.3 Use of Settlement and Negotiations inOther Proceedings
The Parties to the Settlement, including Chattem, theother Released Parties, or any Class Member, shall notseek to introduce and/or offer the terms of theSettlement Agreement, any statement, transaction orproceeding in connection with the negotiation,execution or implementation of this SettlementAgreement, any statements in the Notice documentsdelivered in connection with this Settlement Agreement,stipulations, agreements, or admissions made or enteredinto in connection with the fairness hearing or anyfinding of fact or conclusion of law made by the TrialCourt, or otherwise rely on the terms of thisSettlement Agreement, in any judicial proceeding,except insofar as it is necessary to enforce the termsof the Settlement Agreement (or in connection with thedetermination of any income tax liability of a Party).If a Class Member who is not entitled to benefitshereunder seeks to introduce and/or offer any of thematters described herein in any proceeding, therestrictions of this Section 11.3 shall not beapplicable to Chattem and the other Released Partieswith respect to that Class Member. If a Class Memberwho has timely and properly exercised an Opt-Out Rightseeks to introduce and/or offer any of the mattersdescribed herein in any proceeding, the restrictions ofthis Section 11.3 shall not be applicable to Chattemand the other Released Parties with respect to thatClass Member.
Section 11.4 No Admission of Liability or Lack of Merit
Neither this Settlement Agreement nor any Annex,document or instrument delivered hereunder nor any ofthe statements in the notice documents in connectionherewith, nor any statement, transaction or proceedingin connection with the negotiation, execution orimplementation of this Settlement Agreement, isintended to be or shall be construed as or deemed to beevidence of an admission or concession by Chattem, orthe Released Parties of any liability or wrongdoing orof the truth of any allegations asserted by anyplaintiff against it or them, or as an admission by theClass Representatives or members of the SettlementClass of any lack of merit in their claims, and no suchstatement, transaction or proceeding shall beadmissible in evidence for any such purpose except forpurposes of obtaining approval of this SettlementAgreement in this or any other proceeding.
Section 11.5 Titles and Headings
The headings of the sections and paragraphs of thisSettlement Agreement are included for convenience onlyand shall not be deemed to constitute part of thisSettlement Agreement or to affect its construction.
Section 11.6 Distribution of Remaining Funds
(a) After all claims are paid in accordance withSection 3.2 and all appeals are resolved in accordancewith Section 4.2(f), any finds remaining in the BenefitFund shall be paid to Chattem.
(b) If, after all claims are paid in accordance withSection 3.3, any funds remain in the ExtraordinaryDamages Fund, Class Counsel shall propose an equitabledistribution plan for approval by the Trial Count.
Section 11.7 Notice to Parties
Any notice, request, instruction or other document tobe given by any Party to another Party shall be inwriting and delivered personally or sent by FederalExpress or facsimile (which such facsimile notice shallbe deemed effective as of the time of receipt ofconfirmation by the sending party) as follows, or asotherwise instructed by a notice delivered to the otherParty pursuant to this subsection:
If to Chattem:
Miller & Martin PLLC
Suite 1000 Volunteer Building
832 Georgia Avenue
Chattanooga, TN 37402-2289
Attention: Roger Dickson, Esq.
C. Crews Townsend, Esq.
Facsimile: (423) 785-8480
If to the Class Representatives or ClassCounsel:
Christopher Seeger and Stephen Weiss
Seeger Welss LLP
One William Street
New York, N.Y. 10004
Facsimile: (212) 584-0799
With copies to:
James Green and Mike Heaviside
Ashcraft & Gerel LLP
2000 L Street, N.W. Suite 400
Washington, D.C. 20036
Facsimile: (202) 416-6392
Ramon Rossi Lopez,
Lopez, Hodes, Restaino, Milman & Skikos
450 Newport Center Drive
Second Floor
Newport Beach, California 92660
Facsimile: (949) 640-8294
Ron Michael Meneo
Early, Ludwick & Sweeney, LLC
One Century Tower
265 Church Street
New Haven, CT 06508-1866
Facsimile: (203) 785-1671
Section 11.8 Receipt of Documentation
Unless otherwise specified, any form or otherdocumentation required to be submitted under thisSettlement Agreement shall be deemed timely if it ispostmarked on or before the date by which it isrequired to be submitted under this SettlementAgreement.
Section 11.9 No Third Party Beneficiaries
No provision of this Settlement Agreement or any Annexhereto is intended to create any third-partybeneficiary to this Settlement Agreement, except theReleased Parties.
Section 11.10 Entire Agreement
This Settlement Agreement contains the entire agreementbetween the Parties with respect to the subject matterhereof and, except as specifically set forth herein ortherein, supersedes and cancels all previousagreements, negotiations, and commitments in writingsbetween the Parties hereto with respect to the subjectmatter hereof. This Settlement Agreement may not bechanged or modified in any manner unless in writing andsigned by a duly authorized officer of Chattem and by aduly authorized representative of the ClassRepresentatives.
Section 11.11 Governing Law
This Settlement Agreement shall be governed by andconstrued in accordance with the laws of the State ofTennessee without regard to conflict of laws principlesthereunder.
Section 11.12 Certification of Different Classes
In the event that the Court approves a certification ofthe Settlement Class other than that contemplated bythis Settlement Agreement, the parties hereby agreethat they shall amend this Settlement Agreement toreflect such certification.
Section 11.13 Original Signatures
This Settlement Agreement may be signed in multiplecounterparts, each of which shall be deemed to be anoriginal and all of which shall be deemed to be one andthe same instrument.
Section 11.14 Severance of Agreement
Chattem, prior to Trial Court Approval and with themutual consent of the other Parties and the Court, mayseparate the Settlement Class and this SettlementAgreement into separate Settlement Classes andSettlement Agreements.
(Image Omitted) Exh. A Annex I
IN WITNESS WHEREOF, the Parties have duly executed thisClass Action Settlement Agreement among Chattem and theClass Representatives, by their respective counsel asset forth below, as of the 13th day of April, 2004.
FOR SETTLEMENT ONLY
Dexatrim Case Scoring System & Matrix
For the Chattem Dexatrim Class Action Settlement
This Dexatrim Case Scoring System and Matrix (the " Chattem Matrix" or the " Matrix" ) is the system for scoring claims to be submitted pursuant to the Dexatrim Class Action Settlement (" DCAS" ). In addition to Plaintiffs, the Matrix applies only to Chattem, Inc. and Sidmak Laboratories, Inc. (the " Dexatrim Defendants" ). The Chattem Matrix cannot be used for any purposes in contravention of Federal Rule of Evidence 408. The Chattem Matrix does not reflect, and is not intended to reflect, the litigation positions of either the Dexatrim Defendants or Plaintiffs and is intended solely to facilitate the resolution of the litigation brought by Plaintiffs who allege injuries based on ingestion of Dexatrim appetite-suppressant products that contained phenylpropanolamine (" PPA" ).1
I. The Dexatrim Case Scoring System & Matrix
A. Overview of the Scoring System
In order to distinguish between cases and grade them consistently, the attached Matrix is based on a Case Scoring System. This System has seven components:
1. Product Identification;
2. Temporal Relationship;
3. The Liability and Causation Score;
4. The Damages Score;
5. Adjustment for Ischemic Stroke
6. Adjustment for Statute of Limitations; and
7. Adjustment for Other Independent, Potentially Liable Defendants.
Product Identification and Temporal Relationship are threshold inquiries. If a case passes the Product Identification and Temporal Relationship threshold inquiries, the resulting scores from each component (Product Identification; Temporal Relationship; Liability and Causation Score; Damages Score) are then added together to arrive at a Total Matrix Score.
The range of possible Total Matrix Scores are then assigned to a Matrix Level of Severity. The resulting Settlement Amount is then adjusted in the event that other independent, potentially liable defendants are involved in the lawsuit, and adjusted by the remoteness of the filing of Plaintiff's Complaint to Plaintiff's injury. Unless otherwise noted, scoring within each category is not cumulative. Within a scoring category, the point value that results in the greatest addition or greatest deduction is to be applied (e.g., A plaintiff who uses 4 pills per day for 6 months receives a deduction of -3 for Overdose, but not an additional deduction of -1 for Disregard of Labeling).
B. The Matrix
The Matrix has a vertical axis consisting of: (i) injuries other than stroke or cardiac (" Other Injuries" ) 2, (ii) " Cardiac Injuries" 3 and (iii) seven levels of " Stroke Injuries" 4-with Level 0 assigned the least and Level VI the highest level of resulting severity. The horizontal axis of the Matrix consists of six (6) age ranges, with the Plaintiff's age at the date of injury as the focal point as follows:
0-20 years
21-29 years
30-39 years
40-49 years
50-59 years
60 and older
A range of values has been ascribed to each injury type and stroke level. The values have then been assigned in equal amounts across the horizontal axis (" Age Increments" ). The Matrix is attached as Exhibit A.
II. Product Identification
This component of the Case Scoring System operates as a threshold issue. If a Plaintiff scores " -3" on this issue, that Plaintiff is not eligible for further consideration under the Matrix. If a Plaintiff scores " -2" or higher, the score is incorporated into the Case Scoring System for Stroke Injuries or Cardiac Injuries.
Factor
Score
Positive product identification
0
( e.g., initial injury hospitalization recordsrefer to brand name of PPA product sold by ThompsonMedical or Chattem; blood toxicology test 5 specifically for PPA ispositive, packaging from ingested product )
Testimony of plaintiff or third party who haspersonal knowledge
-1
Urinalysis Negative for PPA
-1
(Urinalysis test performed for either: (i)phenylpropanolamine specifically; or (ii)sympathomimetic amines generally (provided that thenature or protocol of the test for sympathomimeticamines would reasonably be expected to identifyphenylpropanolamine if it were present in the urine);and the urine for the toxicology test must have beendrawn within 18 hours of the alleged ingestion ofDexatrim.)
Strong evidence that plaintiff did not use Dexatrim
-2
( e.g., incorrect description of product, medicalrecords from initial hospitalization for injury reflectuse of non-prescription product (except OTC painmedication taken in response to symptoms relating tostroke) but do not mention OTC appetite suppressants orthe brand name of PPA product sold by Thompson Medicalor Chattem)
No product identification
-3
Conclusive evidence that plaintiff did not use Dexatrim
-3
( e.g., alleged ingestion predates manufacture ofproduct, blood toxicology test specifically for PPA isnegative )
III. Temporal Relationship of Last Dose of Dexatrim to Onset of Symptoms
This component of the Case Scoring System also operates as a threshold issue. If a Plaintiff scores " -3" on this issue, that Plaintiff is not eligible for further consideration under the Matrix and shall receive $200 in Settlement Compensation for Stroke Injuries or Cardiac Injuries, and zero compensation for Other Injuries. If a Plaintiff scores " -2" or higher, the score is incorporated into the Case Scoring System for Stroke Injuries or Cardiac Injuries. Temporal relationship is to be established by showing that the alleged ingestion of Dexatrim occurred within 96 hours of the onset of symptoms (it being understood that such onset of symptoms must be established through medical records that were generated at or about the time of the onset of symptoms).6
Time between alleged
ingestion of Dexatrim and
Time between alleged ingestion of Dexatrim and the onset of symptoms
Score
0 minutes-60 minutes 7
-1
> 60 minutes-24 hours
0
> 24 hours-72 hours
-1
> 73 hours-96 hours
-2
IV. Liability/Causation Score
> 96 hours
-3
This component of the Case Scoring System operates to assign a separate score for factors that influence the relative strength of the Plaintiff's case. This component is broken down into three sections: General Liability/Causation Factors that apply to all cases, and sections for the specific injuries Hemorrhagic Stroke and Ischemic Stroke. Other Injuries and Cardiac Injuries are to be scored under Sections II, III, VIII, IX, and are exempt from scoring under Sections IV, V, VI, VII, X, and XI. A scoring sheet for Hemorrhagic Stroke is attached at Exhibit E, a scoring sheet for Ischemic Stroke is attached at E Adjustment for Statute of Limitations Exhibit F, a scoring sheet for Other Injuries and Cardiac Injuries is attached at Exhibit G.
A. General Liability/Causation Factors
Score
Exposure to PPA 8
Use of PPA within 24 hours of injury and no use of PPAduring preceding 14 days
+2
Use of PPA within 48 hours of injury and no use of PPAduring preceding 14 days
+1
Use of PPA within 0-48 hours and intermittent use ofPPA during preceding 14 days, ( without 3 or moreconsecutive days of use the latest of which occurredwithin 96 hours of injury )
0
Use of PPA for 3 or more consecutive days prior toinjury, the latest of which occurred within 96 hours ofinjury
-1
Date of Injury (Warning)
Before June 1, 1994
0
June 1, 1994-May 10, 2000
-2
After May 10, 2000
0
Misuse of Product
-3
Disregard of labeling
-1
( Use for more than 3 consecutive months; use ofmore than one pill within 24 hours; use by person under12; use by person between 12-18 or over 60 withoutconsultation of doctor; use while being treated fordepression or eating disorder; use by person with heartdisease, diabetes, thyroid disease, pregnancy, nursinga baby without consultation of doctor; use by someonewith nervousness, dizziness, sleeplessness,palpitations, headache; concomitant use of any otherPPA product; or use within 2 weeks of use of MAOL)
B.
Head trauma within 7 days of onset
Severe (Glasgow coma scale 8 or less)
-10
Moderate (Glasgow coma scale 9-12)
-4
Mild (Glasgow coma scale 13-15)
0
Medically documented but not severity not noted
-1
Prior hemorrhagic stroke
-3
Prior ischemic stroke
-1
-1
Chronic Hypertension
Previously Diagnosed and Uncontrolled
-4
Previously Diagnosed and Controlled
-1
Previously Unknown
-2
( Medically diagnosed at time of stroke withpreviously undiagnosed chronic hypertension )
Diameter 24 mm or greater
-7
Diameter 10-23 mm
-4
Diameter less than 10 mm
-1
Diameter not measured
-3
Family History
-1
AVM
Medically Documented at stroke site
-6
Medically Documented not at stroke site
-3
Family History
-1
Brain tumors
Medically Documented at stroke site
-6
Medically Documented not at stroke site
-3
Family History
-1
Leukemia, Medically Documented
-4
Pre-existing bleeding disorders, Medically Documented
-3
( hemophilia, Disseminated IntravascularCoagulation, Sickle Cell Anemia, any disease causingcoagulopathy or autoanticoagulation )
Use of anticoagulants, within 7 days of injury
-1
( Use of prescribed anticoagulants (e.g. Heparin,Coumadin, Warfarin; excluding aspirin))
Age
66 and older
-3
55-65
-1
18-54
0
1-17
+3
Cocaine/PCP Use/Unprescribed Amphetamine
Within 24 hours of injury
-7
Within 24-96 hours of injury
-4
Prescribed Amphetamine
Within 24 hours of injury
-4
Within 24-96 hours of injury
-2
Other illicit drug use
Within 24 hours of injury
-1
No smoking
0
1-20 cigarettes per day
-1
Over 20 cigarettes per day
-3
0-5 drinks per day
0
Over 5 drinks per day
-3
At or within 6 hours of onset
+1
Other
0
C. Ischemic Stroke Factors (Use Score Sheet at Exhibit F)
Head trauma within 7 days of onset
Severe (Glasgow coma scale 8 or less)
-6
Moderate (Glasgow coma scale 9-12)
-3
Mild (Glasgow coma scale 13-15)
0
Medically documented but not severity not noted
-1
Prior Transient Ischemic Attack
0-2 years
-4
3-5 years
-3
over 5 years
-2
Prior ischemic stroke
-3
Prior hemorrhagic stroke
-1
-1
Chronic Hypertension
Previously Diagnosed and Uncontrolled
-4
Previously Diagnosed and Controlled
-1
Previously Unknown
-2
( Medically diagnosed at time of stroke withpreviously undiagnosed chronic hypertension )
Brain tumors
Medically Documented at, or near, stroke site
-6
Medically Documented not at stroke site
-3
Family History
-1
-4
(Systemic cancer, i.e., cancer with documentedmestastasizes and/or distant lymph node infiltration ORcancer in situ treated with chemotherapy)
Coronary Artery Disease
-4
Carotid Artery Disease/Stenosis
Severe
-4
(stenosis > = 70%; diastolic vel. >79cm/sec and systolic vel.>125cm/sec)
Moderate
-2
(stenosis 50-69%; systolic vel. >124cm/sec)
Mild
0
(stenosis < 50%)
Severity unknown, but disease medically documented
-2
Prior myocardial infarction
0-30 days
-5
31 days-1 year
-3
more than 1 year to 2 years
-1
more than 2 years
0
unspecified
-1
Heart Disease or Defect
-4
Cerebral Venous Thrombosis
-3
Peripheral Arterial Disease
medical records note as severe, symptomatic, or containreference to claudication
-3
mild or moderate or condition not defined
-1
Previous Embolism
Medically Documented organic embolism at any time
-3
(excluding reference to a suspected embolism inmedical records without proof of a rest having beenperformed)
Embolism caused by trauma within 30 days prior tostroke
-2
Embolism caused by trauma more than 30 days prior tostroke
0
Atrial fibrillation (preexisting and medicallydocumented history at initial hospitalization forstroke), concurrent with stroke
-1
-2
Cholesterol problems
-1
(High blood cholesterol (240 mg/dL or higher), high LDLcholesterol (greater than 100 mg/dL), or low HDLcholesterol (less than 40 mg/dL))
Diabetes Type I
Onset more than 6 years preceding stroke
-4
Onset between 3 and 6 years preceding stroke
-2
Onset within 3 years preceding stroke
0
Unknown
-2
Diabetes Type II
Onset more than 8 years preceding stroke
-4
Onset between 4 and 8 years preceding stroke
-2
Onset within 4 years preceding stroke
0
Unknown
-2
Previously Diagnosed and Uncontrolled
-3
-2
Previously Diagnosed and Controlled
-1
Unknown
-2
Age
66 and older
-3
55-65
-1
18-54
0
1-17
+3
Gender
Women
0
Men
-1
Heroin/Cocaine/PCP Use/Unprescribed Amphetamine
Within 24 hours of injury
-7
Within 24-96 hours of injury
-4
Prescribed Amphetamine
Within 24 hours of injury
-4
Within 24-96 hours of injury
-2
Other illicit drug use
Within 24 hours of injury
-1
No smoking
0
1-20 cigarettes per day
-1
Over 20 cigarettes per day
-3
Concomitant use of oral contraceptives and cigarettesmoking in any amount
-1
( within the 2 years prior to stroke )
0-5 drinks per day
0
V. Damages Score for Strokes
Over 5 drinks per day
-3
" Daily dose" means the dosage indicated on the labeling of the PPA product(s) ingested. For instance, the daily dose of Maximum Strength Dexatrim is one 75 mg time-released capsule per 24 hours period; cough/cold medicines commonly recommend four 25 mg immediate release doses per 24 hour period. For purposes of this factor, using the above-described daily doses, four 25 mg doses of a PPA containing cough/cold medicines (1 daily dose) and two 75 mg Dexatrim pills (2 daily doses) within a 24 hour period (3 daily doses total) is an overdose. Conversely, using the above-described daily doses, two 25 mg doses of a PPA containing cough/cold medicine (1/2 daily dose) and two 75 mg Dexatrim pills (2 daily doses) within a 24 hour period (2 1/2 daily doses total) is not an overdose, but, rather, is disregard of labeling.
" Hemorrhagic Stroke" means primary hemorrhagic stroke. In other words, an ischemic stroke that results in a hemorrhagic conversion will not be scored under this Section IV.B., but rather will be scored under Section IV.C., the ischemic stroke factors portion of the Dexatrim Scoring System & Matrix.
Prior stroke does not include cardiac injuries, seizures, transient ischemic attacks, hypertensive crises, or any injury other than hemorrhagic ischemic stroke.
Family history of stroke only applies if Plaintiff does not receive deductions for Chronic Hypertension, Aneurysm AVM, Brain Tumors, Leukemia or Pre-Existing Bleeding Disorders.
" Stroke site" means the location in the brain in which the bleed or blockage occurred.
The largest quantity of cigarettes regularly smoked within the period of five years prior to the stroke should be used for scoring purposes. For example, if Plaintiff smoked 1 ppd for three years immediately preceding the stroke, and smoked 1 1/2 ppd for two years before that (4 and 5 years before the stroke), then the score for this factor is - 3. By way of further example, if Plaintiff quit smoking within the two years immediately preceding the stroke, and smoked 15 cigarettes per day for two years before that (3 and 4 years before the stroke), then the score for this factor is -1.
The largest quantity of alcohol regularly consumed within the period of five years prior to the stroke should be used for scoring purposes. For example, if Plaintiff consumed 3 drinks per day for the three years immediately preceding the stroke, and drank 6 drinks per day for two years before that (4 and 5 years before the stroke), then the score for this factor is -3.
Documentary evidence of any such exercise and/or exertion must have been in existence prior to the date that the MOU was signed.
Prior stroke does not include cardiac injuries, seizures, transient ischemic attacks, hypertensive crisis, or any injury other than hemorrhagic or ischemic stroke.
Family history of stroke only applies if Plaintiff does not receive deductions for Chronic Hypertension, Brain Tumors, Cancer, Coronary Artery Disease, Carotid Artery Disease/Stenosis, Prior Myocardial Infraction, Heart Disease or Defect, Cerebral Venous Thrombosis, Peripheral Artery Disease, Pervious Embolism, Atrial Fibrillation, Cholesterol Problems, or Diabetes.
This deduction does not apply to primary brain tumors, which are addressed in the Matrix as a separate category.
Right-sided valvular disease is excluded, unless the medical records show that it actually was the cause of stroke.
" Major Surgery" means intra-abdominal, knee or hip surgery (specifically excluding arthroscopic surgery) or any surgical procedure that involves general anesthesia or respiratory assistance, or is generally recognized to carry a risk of a thrombotic or embolic event (vaginal childbirth is excluded unless a general anesthecia or respiratory assistance was required). " Major Trauma" means serious bodily injury or shock that is generally recognized to carry a risk of a thrombotic or embolic event. This factor is not to be considered if a Plaintiff receives a score for head trauma or prior embolism caused by trauma.
Bleeding/Clotting disorder does not include clotting problems from a surgical procedure or trauma that occurred 14 days prior to stroke.
Discontinuance must have been upon medical advice. Discontinuance without medical advise is considered " uncontrolled."
The largest quantity of cigarettes regularly smoked for the period of five years prior to the stroke should be used for scoring purposes. For example, if Plaintiff smoked 1 ppd for three years immediately preceding the stroke, and smoked 1 1/2 ppd for two years before that (4 and 5 years before the stroke), then the score for this factor is -3. By way of further example, if Plaintiff quit smoking within the two years immediately preceding the stroke, and smoked 15 cigarettes per day for two years before that (3 and 4 years before the stroke), then the score for this factor is - 1.
The largest quantity of alcohol regularly consumed within the period of five years prior to the stroke should be used for scoring purposes. For example, if Plaintiff consumed 3 drinks per day for the three years immediately preceding the stroke, and drank 6 drinks per day for two years before that (4 and 5 years before the stroke), then the score for this factor is -3.
A. Overview
The Damages Score for Strokes is a combination of the first 2 Components for AHA's Stroke Classification System, the Barthel Index which measures Basic Activities of Daily Living (" BADL" ) and the Lawton/Brody Scale, which measures Instrumental Activities of Daily Living (" IADL" ). If Plaintiff has suffered more than one stroke, the damages calculation is made only from the stroke which Plaintiff alleges was preceded by Dexatrim ingestion by 96 hours or less.
B. Components of AHA Stroke Classification System
1. Number of Domains Impaired. The domains evaluated are: Motor, Sensory, Vision, Language, Cognition and Affect. See Exhibit B for a description of each domain. The AHA classification is 0 to 3 as follows:
- 0 = 0 domains impaired
- 1 = 1 domain impaired
- 2 = 2 domains impaired, and
- 3 = more than 2 domains impaired
2. Severity of Impairment. -See Exhibit B for a description of the three grades:
A. No or minimal deficit due to stroke in any domain
B. Mild to moderate deficit due to stroke in 1 or more domain
C. Severe deficit due to stroke in 1 or more domains
C.
Basic Activities of Daily Living. -See Exhibit C for a description of guidelines.
Feeding
unable
0
needs help cutting, spreading butter, etc., or requiresmodified diet
5
independent
10
Bathing
dependent
0
independent (or in shower)
5
Grooming
needs to help with personal care
0
independent face/hair/teeth/shaving (implementsprovided)
5
Dressing
dependent
0
needs help but can do about half unaided
5
independent (including buttons, zips, laces, etc.)
10
Bowels
incontinent (or needs to be given enemas)
0
occasional accident
5
continent
10
Bladder
incontinent, or catheterized and unable to manage alone
0
occasional accident
5
continent
10
Toilet Use
dependent
0
needs some help, but can do something alone
5
independent (on and off, dressing, wiping)
10
Transfers (bed to chair, and back)
unable, no sitting balance
0
major help (one or two people, physical), can sit
5
minor help (verbal or physical)
10
independent
15
Mobility (on level surfaces)
immobile or < 50 yards
0
wheelchair independent, including corners, > 50yards
5
walks with help of one person (verbal or physical) >50 yards
10
independent (but may use any aid) > 50 yards
15
Stairs
unable
0
needs help (verbal, physical, carrying aid)
5
D. Instrumental Activities of Daily Living.
independent
10
Ability to Use a Telephone
Operates telephone on own initiative
1
Dials a few well known numbers
1
Answers telephone but does not dial
1
Does not use telephone at all
0
Shopping
Takes care of all shopping needs independently
1
Shops independently for small purchases
0
Needs to be accompanied on any shopping trip
0
Completely unable to shop
0
Food Preparation
Plans, prepares, and serves adequate mealsindependently
1
Prepares adequate meals if supplied with ingredients
0
Prepares meals but does not maintain adequate diet
0
Needs to have meals prepared and served
0
Housekeeping
Maintains house alone or with occasional assistance
1
Performs light daily tasks such as dish washing, bedmaking
1
Performs light daily tasks but cannot maintainacceptable level of cleanliness
1
Needs help with all home maintenance tasks
1
Does not participate in any housekeeping tasks
0
Laundry
Does personal laundry completely
1
Launders small items
1
All laundry must be done by others
0
Mode of Transportation
Travels independently on public transportation ordrives own car
1
Arranges own travel via taxi, but does not otherwiseuse public transportation
1
Travels on public transport when accompanied by another
1
Travel limited to taxi or vehicle with assistance ofanother
0
Does not travel at all
0
Responsibility for Own Medication
Is responsible for taking medication in correct dosageat correct time
1
Takes responsibility if medication is prepared inadvance in separate dosages (may need reminding)
0
Is not capable of dispensing own medication
0
Ability to Handle Finances
Manages financial matters independently
1
Manages day-to-day purchases, but needs help withbanking major transactions
1
E. Scoring
Incapable of making financial decisions or handlingmoney
0
For purposes of scoring, the first two components (Number of Domains Impaired and Severity of Impairment) are evaluated as of the date of discharge from the Plaintiff's initial hospitalization and at six months after the stroke. If six month records are not available, use the records as close to six months as possible that were created more than six months after the stroke, but not more than nine months after the stroke. If no records exist that were created between six months and nine months after the stroke, use records as close to six months after the stroke as possible that were created between three and six months after the stroke. If records between three and six months after the stroke are unavailable, use the next closest records, but the final score will be subject to review by the Administrator.
For purposes of scoring, the second two components (Basic Activities of Daily Living and Instrumental Activities of Daily Living) are evaluated as of one year after the stroke. If one year records are not available, use the records as close to one year as possible that were created more than one year after the stroke, but not more than eighteen months after the stroke. If no records exist that were created between one year and eighteen months after the stroke, use records as close to one year after the stroke as possible that were created between six months and one year after the stroke. If records between six months and one year after the stroke are unavailable, use the next closest records, but the final score will be subject to review by the Administrator.
1. Domain/Severity Score
Calculate the Domain/Severity Score as follows:
• Determine the Number of Domains Impaired and Severity of Impairment as of the day the Plaintiff was released from in-patient care (acute care and in-patient rehabilitation). Using the tables below at Section IV.E.4.(1). and IV.E.4.(2)., assign the appropriate score for each component. • Add the scores together to arrive at the " Discharge Score." • Next, calculate the Number of Domains Impaired and the Severity of Impairment as of 6 months after the stroke. Using the tables below at Section IV.E.4.(1). and IV.E.4.(2)., assign the appropriate score for each component. • Add the scores together to arrive at the " 6 Month Score." • Average the Discharge Score and the 6 Month Score to arrive at the " Average Score." • If the Average Score is more than 3 points lower than the Discharge Score, subtract 3 points from the Discharge Score to arrive at the " Domain/Severity Score." • If the Average Score is 3 or less points lower then the Discharge Score, the Average Score is the Domain/Severity Score.
For instance, if the Discharge Score is 18 and the 6 Month Score is 10, the Average Score would be 14 and the Domain/Severity Score is 15. If, however, the Discharge Score is 18 and the 6 Month Score is 12, the Average Score would be 15 and the Domain/Severity Score would be 15.
2. BADL/IADL Scores
Calculate the BADL Score by determining Plaintiff's level of functioning one year after the stroke and assigning the appropriate point values as indicated in Section IV.C. Add the points for the BADL component and using the table below at Section IV.E.4.(3)., compute the BADL Score.
Calculate the IADL Score by determining Plaintiff's level of functioning one year after the stroke and assigning the appropriate-point values as indicated in Section IV.D. Add the points for the IADL component and using the table below at Section IV.E.4.(4)., compute the IADL Score.
3. Total Damages Score
Calculate the Total Damage Score by adding together the Domain/Severity Score, BADL Score, IADL Score, Inpatient Treatment Score, and Outpatient Rehabilitation Score.
number
4.
Component Subpart
of Points
(1)
Number of Domains Impaired
0
+
2
1
+
4
2
+
6
3 or more
+
8
(2)
Severity of Impairment
A
+
2
B
+
6
C
+
10
(3)
BADL Factors
81-100
+
2
61-80
+
3
41-60
+
4
21-40
+
5
0-20
+
6
(4)
IADL Factors
7-8
+
2
5-6
+
3
3-4
+
5
0-2
+
6
5.
Inpatient Treatment
Less than one day
0
1-14 days
+
1
15-28 days
+
2
More than 28 days
+
3
6.
Outpatient Rehabilitation for stroke relateddeficits
None
0
1-60 days
+
1
Using this system, the Damages Score for any one case can range from a low of 8 to a maximum of 35.
More than 60 days
+
2
F. Plaintiffs Who Leave Medical Treatment Against Medical Advice
In the event that medical records show that Plaintiff left his or her initial hospitalization against medical advice, Plaintiff's Total Adjusted Settlement Compensation shall be reduced by 10%.
If Plaintiff believes that the Total Adjusted Settlement Compensation should be reduced by 5% or less, or should not be reduced, Plaintiff shall have the opportunity to challenge the 10% adjustment and shall have the burden of proof by clear and convincing evidence (that was generated prior to the date of the MOU) that the Total Adjusted Settlement Compensation should be reduced by 5% or less, or not reduced at all.
If a Dexatrim Defendant believes that the Total Adjusted Settlement Compensation should be reduced by 15% or more, the Dexatrim Defendant shall have the opportunity to challenge the 10% adjustment and shall have the burden of proof by clear and convincing evidence (that was generated prior to the date of the MOU) that the Total Adjusted Settlement Compensation should be further reduced. In no event shall the Total Adjusted Settlement Compensation be reduced by more than 50%.
Adjustments to the Total Adjusted Settlement Compensation shall be within the sole discretion of the Settlement Administrator. The parties shall meet and confer prior to any arbitration proceeding.
G. Deceased Plaintiffs
Deceased Plaintiffs, whose death was causally related to their stroke, will be scored according to the Scoring Criteria, however, they will be assigned a Damages Score of 35. Ten years will be added to a Deceased Plaintiff's age at injury for purposes of placing that plaintiff on the Matrix. For plaintiffs who were 60 or older at the age of injury, their Settlement Compensation shall be reduced by one Age Increment for the category into which they are placed by virtue of their Total Matrix Score.
VI. The Total Matrix Score
The Product Identification, Temporal Relationship, Liability and Causation Factors Scores and the Damages Score are then added together to arrive at a combined Total Matrix Score. A Case Scoring Sheet is attached as Exhibit C. Once a Total Matrix Score is determined, the case is assigned to a particular Matrix Level as follows:
Matrix Level
Scoring Range
Level 0
less than 0 points
Level I
0-5 points
Level II
6-10 points
Level III
11-17 points
Level IV
18-24 points
Level V
25-37 points
VII. Adjustment for Ischemic Stroke Cases
Level VI
To be eligible for Level VI, Plaintiffs must have positive product identification (i.e., a score of 0 on Product Identification). Deceased Plaintiffs are not eligible for Level VI.
After calculating the appropriate matrix level for ischemic stroke cases, the Gross Settlement Compensation is to be reduced by 15%.
VIII. Adjustment for Statute of Limitations/Repose
After calculation of the Settlement Compensation, a reduction of the Settlement Compensation shall be made based on the application of the following principles that relate to statutes of limitations and repose that apply to a particular claim. Attached as Exhibit D is a list of the applicable time frames from the statutes of limitations and statutes of repose for each state. Upon review, the time frames set forth in Exhibit D may only be altered by the Settlement Administrator.
A. Cases filed prior to the announcement of the settlement
0%
Timely cases: The lawsuit was filed before theapplicable statute of limitations had run assuming nodiscovery rule in the forum state and state ofPlaintiff's residence at the time of injury.
66%
No discovery rule or discovery of injurycases: Both the forum state and the state ofresidence at the time of injury do not recognize adiscovery rule (or recognizes only a rule of discoveryof injury) for statute of limitations purposes. Thelawsuit was filed after the statute of limitations hadrun.
13%
No Conflict/False Conflict cases: The forumstate and the state of Plaintiff's residence at thetime of the injury recognize the same discovery rulefor statute of limitations purposes. The lawsuit wasfiled within the applicable statute of limitationsassuming the statute of limitations commenced onNovember 6, 2000, pursuant to a discovery rule, butafter the statute of limitations had run withoutrespect to any discovery rule.
15%
Conflict cases: The forum state and the stateof Plaintiff's residence at the time of the injuryrecognize different laws regarding discovery orlimitations rules. The lawsuit was filed within theapplicable statute of limitations assuming the statuteof limitations commenced on November 6, 2000, pursuantto a discovery rule, but after the statute oflimitations: (i) had run without respect to anydiscovery rule; and (ii) had run in either of the forumor residence states.
66%
Untimely cases: The lawsuit was filed afterthe applicable statute of limitations had run assuminga discovery rule in both the forum state and state ofPlaintiff's residence at the time of injurystarting on November 6, 2000.
$200
In Stroke Injury and Cardiac Injury cases where theforum and residence both have a statute of repose thatwould bar the lawsuit, or the forum state's statuteof repose would bar the lawsuit.
$100
In Other Injury cases where the forum and residenceboth have a statute of repose that would bar thelawsuit, or the forum state's statute of reposewould bar the lawsuit.
66%
In cases in which a statute of repose in the residencestate would bar the lawsuit and the forum state is notFL, NY, or NJ.
25%
In cases in which a statute of repose in the residencestate would bar the lawsuit and the forum state is FL,NY, or NJ.
B. Lawsuits Filed or Claims Made After November 6, 2003
If a claim is made or a lawsuit is filed after November 6, 2003, and after the statute of limitations had run in either the forum state or the state of plaintiff's residence at the time of the injury, the amount of the award shall be not more than $200 for Stroke Injuries and Cardiac Injuries, and not more than $100 for Other Injuries, provided Plaintiff's ingestion of Dexatrim or OTC appetite suppressant is documented in the medical records of the initial hospitalization. If Plaintiff's ingestion of Dexatrim or OTC appetite suppressant is not documented in the medical records of the initial hospitalization, Plaintiff is not eligible for any compensation under this Dexatrim Scoring System and Matrix. For purposes of this sub-section VII.B., all statutes of limitations shall be deemed to have commenced on the later of November 6, 2000, or the date of injury.
Attorneys who entered into contingency fee agreements after November 6, 2003, are entitled only to reasonable fees for filling out claim forms and consulting with their clients, up to a cap of 10% of Plaintiff's Total Settlement Compensation, or $10,000, whichever is less. IX. Adjustment for Other Independent, Potentially Liable Defendants
Several Plaintiffs claim that they took other products at or near the time that they ingested Dexatrim. In those cases in which another PPA or ephedrine product is implicated an adjustment to the Plaintiff's Settlement Compensation under this Matrix shall be made as follows:
Legal or factual contentions made by Plaintiffs in Complaints, Fact Sheets, Affirmations, deposition testimony, and other documents will be strictly construed against the Plaintiffs so that this provision applies.
1 other
2 other
3 other
product
products
products
Same day (0-24 hours) co-ingestion
-40%
-45%
-50%
Dexatrim ingestion stopped between 24.96 hours prior toinjury, other product(s) consumed between 0-24 hoursprior to injury
-55%
-65%
-75%
Other product(s) stopped between 24-96 hours prior toinjury, Dexatrim consumed between 0-24 hours prior toinjury
-15%
-25%
-35%
X. Application of Adjustments
Adjustments for Ischemic Stroke, Statutes of Limitations/Repose, and other Independent, Potentially Liable Defendants (Co-Ingestion Adjustment) are to be applied sequentially as follows:
Ischemic Adjustment-Reduce Gross Settlement Compensation by 15%
Statute of Limitations/Repose Adjustment-After Ischemic Stroke Adjustment is applied, reduce net subtotal by the applicable Statute of Limitations/Repose adjustment, but if Ischemic Stroke Adjustment is inapplicable, reduce Gross Settlement Compensation by the applicable Statute of Limitations/Repose Adjustment.
Co-Ingestion Adjustment-After Ischemic Stroke Adjustment is applied, and/or after Statute of Limitations/Repose Adjustment is applied, reduce net subtotal by the applicable Co-Ingestion Adjustment; but if neither Ischemic Stroke Adjustment nor Statute of Limitations/Repose Adjustment is applicable, reduce Gross Settlement Compensation by the applicable Co-Ingestion Adjustment.
XI. Extraordinary Injury Fund
A. Eligibility Requirements for the Extraordinary Injury Fund
An Extraordinary Injury Fund (the " EIF" ) in the amount of $5 million will be established from which any Plaintiff who meets the eligibility requirements set forth in this Section X (an " Eligible Plaintiff" ) shall receive an amount equal to his/her Documented Non-Reimbursed/Non-Reimbursable Economic Damages (as defined below), subject to the following adjustments (the " EIF Award" ):
1. First, such Eligible Plaintiff's Documented Non-Reimbursed/Non-Reimbursable Economic Damages shall be subject to reduction by the same percentage adjustments set forth in Section V F. (Plaintiffs Who Leave Medical Treatment Against Medical Advice), Section IX (Adjustment for Other Independent, Potentially Liable Defendants), Section VIII (Adjustment for Statute of Limitations/Repose), and Section VII (Adjustment for Ischemic Stroke Cases) to which such Eligible Plaintiff's Gross Settlement Compensation is subject under this Dexatrim Case Scoring System and Matrix;
2. Second, if the total of all Eligible Plaintiffs' Documented Non-Reimbursed/Non-Reimbursable Economic Damages, after adjustment pursuant to Paragraph 1 above, exceeds $5 million, each Eligible Plaintiff's Documented Non-Reimbursed/Non-Reimbursable Economic Damages (after any applicable adjustment pursuant to Paragraph 1) of the $5 million EIF fund shall be the product of $5 million multiplied by a fraction:
(1) the numerator of which shall be the Eligible Plaintiff's Documented Non-Reimbursed/Non-Reimbursable Economic Damages (after any applicable adjustment pursuant to Paragraph 1); and
(2) the denominator of which shall be the total of all Eligible Plaintiffs' Documented Non-Reimbursed/Non-Reimbursable Economic Damages, after any applicable adjustment pursuant to Paragraph 1.
In order for a Plaintiff to receive an EIF Award, he or she (a) must fall within Matrix Levels IV, V or VI; and (b) must have documented, Non-Reimbursed/Non-Reimbursable Economic Damages (as defined below) totaling at least $250,000.
" Non-Reimbursed/Non-Reimbursable Economic Damages" is comprised of any one or more of the following Documented categories:
" Documented" means medical records, billing records, tax returns, social security earnings statements, expert reports (e.g. economists, Life Care planners, neurologists, physiatrists, etc.) or any other documentation or evidence requested by, or otherwise found acceptable by, the EIF Administrator.
• Non-reimbursed out-of-pocket past medical expenses;
• Non-reimbursable future medical expenses;
• Non-reimbursable future living expenses;
• Non-reimbursed lost wages;
• Non-reimbursable future lost wages;
• Non-reimbursable loss of earning capacity (both past and future); and
• Other documented non-reimbursed/non-reimbursable economic damages.
Any and all determination(s) regarding a Plaintiff's eligibility and EIF Award amounts will be made by the EIF Administrator, as identified by the parties in the applicable Settlement Agreement(s) or other document(s).
XII. Miscellaneous Provisions
A. Attorney Fees & Costs
Plaintiffs' attorney fees and costs will be paid only from the Total Adjusted Settlement Compensation (including any EIF Award) awarded to individual Plaintiffs. That the Dexatrim Defendants will set aside from the Total Adjusted Settlement Compensation and pay to the MDL assessment fund the amount required by CMOs 8 and 16. The Dexatrim Defendants will not contribute to any other separate fund for attorney's fees or costs.
B. Liens
Plaintiffs will be responsible for all lien payments.
C. Derivative Claims
The treatment of an injured plaintiff (" Primary Claimant" ) under the settlement shall be cumulative of the derivative claims of any spouse, child or other individuals related to, or who have some other personal relationship with the Primary Claimant. The derivative claims of such related parties shall be deemed released by the treatment afforded the claims of the Primary Claimant under the settlement.
XIII. Administration
A. Administrator
The Parties shall employ a mutually-acceptable Administrator. The Administrator shall, where necessary, create Claims Administration Procedures that provide specific details about how claims are administered. The Claims Administration Procedures promulgated by the Administrator shall comply with the terms set forth in the Matrix and other relevant documents.
B. Amended or Changed Factual Allegations
Any amendment or change to factual allegations (other than those required by CMO 15 and 15A) after the date of the MOU shall be subject to a rebuttable presumption that the change should be disregarded for purposes of calculating Plaintiff's Total Adjusted Settlement Compensation under this Dexatrim Scoring System & Matrix. The presumption can be overcome by clear and convincing evidence at the sole discretion of the Administrator.
C. Fraudulent Claims or Allegations
In the event that the Administrator determines that any Plaintiff has submitted fraudulent claims or allegations, the Administrator may reduce the amount of that Plaintiff's Total Adjusted Settlement Compensation by any amount deemed appropriate by the Administrator. In addition to reducing or eliminating a Plaintiff's compensation under the settlement, the Administrator, in his or her discretion, may refer and recommend to the MDL Court or any other appropriate court, monetary or injunctive sanctions against the Plaintiff or Plaintiff's counsel including, but not limited to, forfeiture of attorney fees and costs, or the institution of grievance proceedings.
Exh. A Annex I Exhibit A
(Image Omitted) Exh. A Annex I Exhibit B
EXHIBIT B
Components of the Domains/Severity Score
The six domains that are to be considered for scoring purposes are listed and described below. Under each description of the domain is the description of the severity of impairment that is to be considered for each domain. To establish the severity of impairment, documentary evidence (including medical records) from the initial hospitalization and at or about six months after injury, or a sworn statement from Plaintiff's treating physician must show at least one of the components listed under the appropriate deficit level.
Plaintiff's most severe injury under each domain should be used for scoring purposes. For example, a Plaintiff who has minor to partial paralysis of face ( mild to moderate deficit under Motor Domain ) and negligible or no movement of the left arm ( severe deficit under Motor Domain ) should be scored as having a severe deficit.
• Motor: Motor impairments are the most prevalent of all deficits seen after stroke, usually with involvement of the face, arm, and leg, alone or in various combinations. Motor functions assessed in the AHA.SOC include cranial nerve function (including speech and swallowing), muscle power and tone, reflexes, balance, gait, coordination, and apraxia.
Severity of impairment
No or minimal deficit: normal movement of face and limbs; no drift in arms (arm holds 90 degrees for full 10 seconds); no drift in legs (leg hold at 30 degrees for 5 seconds); normal extension of fingers; no ataxia of limbs.
Mild to moderate deficit: minor to partial paralysis of face (asymmetry with smiling and spontaneous speech, or definite weakness, but some movement remains); or arm drift (e.g. arm holds 90 degrees, but drifts down before full 10 seconds); or arm has some effort against gravity, but cannot get to or maintain 90 degrees; or leg drift (e.g. leg holds at 30 degrees but falls by end of 5 seconds); or leg has some effort against gravity but falls to bed before 5 seconds; or some extension of fingers, but full extension in 5 seconds not attainable; or ataxia present in one limb.
Severe deficit: substantial paralysis of one or both sides of the face (absence of facial movement in the upper and lower face); limbs have negligible or no effort against gravity or negligible or no movement; negligible or no voluntary extension of fingers; or ataxia present in more than one limb.
• Sensory: Sensory deficits range from loss of primary sensations to more complex loss of perception. Patients may describe numbness, tingling, or altered sensitivity. The more complex sensory losses include astereognosis, agrapha, and extinction to double simultaneous stimuli.
Severity of impairment
No or minimal deficit: normal, no sensory loss
Mild to moderate deficit: Plaintiff experiences some numbness, tingling or altered sensitivity. With pinprick test, Plaintiff feels pinprick (or other pain/tactile evaluation) is less sharp or is dull on the affected side; or there is a loss of superficial pain but Plaintiff is aware that he/she is being touched.
Severe deficit: Plaintiff is not aware of being touched in the face, arm or leg.
• Vision: Stroke can cause monocular visual loss, partial or complete hemianopia, or cortical blindness.
Severity of impairment
No or minimal deficit: no visual loss
Mild to moderate deficit: partial hemianopia (vision loss in up to half the field)
Severe deficit: substantial, complete or bilateral hemianopia (vision loss in more than half the field)
• Language: Dysphasia may be exhibited by disturbances in word-finding, comprehension, naming, repetition, fluency, reading, or writing. Severity of Impairment
No or minimal deficit: no impairment
Mild to moderate deficit: some obvious loss of fluency or facility of comprehension without significant limitation on ideas expressed or form of expression; or word-finding difficulty, or reduction of speech and/or comprehension makes conversation difficult. Slurs words, and, at worst, can be understood with some difficulty.
Severe deficit: all verbal communication is through fragmentary expression, great need for inference, questioning and guessing by the listener. Range of information that can be exchanged is limited; listener carries the burden of communication. Slurring of words makes speech unintelligible.
• Cognition: Stroke can cause impairments in memory, attention, orientation, calculation abilities, intelligence and construction. It is important to assess ability to learn and retain new information in the cognitive evaluation.
Severity of impairment
No or minimal deficit: Impairment levels are compatible with all useful functioning.
Mild to moderate deficit: Impairment levels are compatible with some, but not all, useful functioning-Plaintiff experienced at least one of the following: 1) impaired ability to understand, remember, or carry out instructions; 2) impaired ability to maintain attention for extended periods of time; 3) impaired ability to sustain an ordinary routine without special supervision; or 4) impaired ability to perform tasks at a consistent pace without an unreasonable number of rest periods; 5) moderate decrease from pre-stroke intelligence; or 6) impaired ability to safely operate a motor vehicle (assuming the loss is not the result of an impairment in a different domain, such as motor skills or vision).
Severe deficit: Impairment levels preclude or significantly impede useful functioning-Plaintiff experienced at least one of the following: 1) inability to understand, remember, or carry out instructions; 2) inability to maintain attention for extended periods of time; 3) inability to sustain an ordinary routine without special supervision; 4) inability to perform tasks at a consistent pace without an unreasonable number of rest periods; 5) significant decrease from pre-stroke intelligence; or 6) complete loss of the ability to safely operate a motor vehicle (assuming the loss is not the result of an impairment in a different domain, such as motor skills or vision).
• Affect: Depression is the most common affective disturbance seen after stroke. It tends to be observed more often in the months after stroke than during the acute event. Symptoms may include loss of energy, lack of interests, loss of motivation, listlessness, loss of appetite, insomnia, sexual dysfunction, irritability, lack of inhibition, anxiety, apathy, withdrawal from social activities, or emotional disturbances.
Assessment of affect and/or depression is based on the Plaintiff's ability to engage in useful functioning, which includes activities of daily living, social functioning, concentration, and adaptation. Limitation in one's activities of daily living must be related to the affect disorder flowing from the stroke, as opposed to impairment from some other domain. " Social functioning" refers to an individual's capacity to interact appropriately and communicate effectively with other individuals. Concentration is necessary for task completion, which refers to the ability to sustain focused attention long enough the permit a timely completion of tasks commonly found in activities of daily living or work setting. Adaptation refers to one's ability to adapt to stressful circumstances.
Severity of Impairment
No or minimal deficit: Impairment levels are compatible with all useful functioning.
Mild to moderate deficit: Impairment levels are compatible with some, but not all, useful functioning-Plaintiff experienced at least one of the following: 1) impaired ability to function in activities of daily living and requires dependency on another person for care; 2) impaired ability to engage in meaningful social contact with others; 3) impaired ability to attend to any conversation or any productive task; or 4) impaired ability to tolerate any change in routines or in environment; or 5) limited ability to resume pre-stroke sexual activity.
Severe deficit: Impairment levels preclude or significantly impede useful functioning-Plaintiff experienced at least one of the following: 1) inability to function in activities of daily living and requires dependency on another person for care; 2) negligible or no ability to engage in meaningful social contact with others; 3) negligible or no ability to attend to any conversation or any productive task; 4) negligible or no tolerance for any change at all in routines or in environment; or 5) inability to resume pre-stroke sexual activity.
Exh. A Annex I Exhibit C
Exhibit C
The Barthel ADL Index: Guidelines
The index should be used as a record of what a patient does, not as a record of what a patient could do.
The main aim is to establish degree of independence from any help, physical or verbal, however minor and for whatever reason.
The need for supervision renders the patient not independent.
A patient's performance should be established using the best available evidence. Asking the patient, friends/relatives and nurses are the usual sources, but direct observation and common sense are also important. However direct testing is not needed.
Usually the patient's performance over the preceding 24-48 hours is important, but occasionally longer periods will be relevant.
Middle categories imply that the patient supplies over 50 per cent of the effort.
Use of aids to be independent is allowed.
Exh. A Annex I Exhibit D
Exhibit D
Applicable Statutes of Limitation and Repose
STATE
SOL
SOR
Alabama
2N
N/A
Alaska
2D
N/A
Arizona
2D
N/A
Arkansas
3D
N/A
California
1D
N/A
Colorado
2D
N/A
Connecticut
3D
N/A
Delaware
2N
N/A
DC
3D
N/A
Florida
4D
N/A
Georgia
2D
10R
Hawaii
2D
N/A
Idaho
2N
N/A
Illinois
2N
10R
Indiana
2D
10R
Iowa
2D
15R
Kansas
2N
N/A
Kentucky
1D
8R
Louisiana
1D
N/A
Maine
6N
N/A
Maryland
3D
N/A
Massachusetts
3D
N/A
Michigan
3D
N/A
Minnesota
6D
N/A
Mississippi
3D
N/A
Missouri
5D
N/A
Montana
3D
N/A
Nebraska
4N
N/A
Nevada
2D
N/A
New Hampshire
3D
N/A
New Jersey
2D
N/A
New Mexico
3D
N/A
New York
3N
N/A
North Carolina
3N
6R
North Dakota
6N
N/A
Ohio
2D
N/A
Oklahoma
2D
N/A
Oregon
2N
8R
Pennsylvania
2D
N/A
Rhode Island
3D
N/A
South Carolina
3D
N/A
South Dakota
3N
N/A
Tennessee
1D
6R
Texas
2D
N/A
Utah
4D
N/A
Vermont
3D
N/A
Virginia
2N
N/A
Washington
3D
N/A
West Virginia
2D
N/A
Wisconsin
3D
N/A
Wyoming
4D
N/A
Exh. A Annex I Exhibit E
* " D" indicates a discovery rule; "N" indicates no discovery rule or discovery ofinjury; " R" indicates statute of repose.Thus, 3D means the state has a 3 year statute oflimitations and a discovery rule that requiresdiscovery of cause or wrongdoing.
Exhibit E
Matrix Scoring Worksheet for Hemorrhagic Stroke Cases
Plaintiff Name:
Date of Injury:
Rating
Score
Part II-Product Identification Score
Part III-Temporal Relationship Score
Part IV-Liability/Causation Score
Exposure to PPA
Date of Injury
Misuse of Product
Head trauma
Prior stroke
Hypertension
Aneurysm
AVM
Brain tumors
Leukemia
Bleeding disorders
Anticoagulants
Age
Cocaine/Amphetamine/PCP Use
Prescribed Amphetamine
Other illicit drug use
Smoking
Alcohol consumption
Exercise & Exertion
Product ID, Temporal Relationship, Liability/CausationSubtotal:
Continued
Plaintiff Name:
Date of Injury:
Rating
Score
Part V-Damages Score
Discharge
6 Month
Number of Domains Affected
Level of Severity
Subtotal:
Average Score:
Domain/Severity Score:
BADL Factors
Feeding
Bathing
Grooming
Dressing
Bowels
Bladder
Toilet Use
Transfers
Mobility
Stairs
BADL Total:
IADL Factors
Telephone
Shopping
Food Preparation
Housekeeping
Laundry
Mode of Transportation
Responsibility for Medication
Ability to Handle Finances
IADL Total:
Inpatient Treatment
Outpatient Rehabilitation
Damages Score Subtotal:
Product ID, Temporal Relationship, Liability/CausationSubtotal:
Total Matrix Score:
Matrix Level:
Age on Stroke Date:
Gross Settlement Compensation:
Continued
Part VIII-Statute of Limitations/Repose Adjustment (ifapplicable)
Time elapsed from injury to filing:
__ years, __ months
Residence
Forum
__% deduction from Gross Settlement Compensation
Adjustument for statute of limitations/repose:
Subtotal:
Part IX-Co-Ingestion Adjustment (if applicable)
Products Ingested
Date and Time of Ingestion
__% deduction from Statute of Limitation AdjustmentSubtotal
Adjustment for co-ingestion:
Exh. A Annex I Exhibit F
Total Adjusted Settlement Compensation:
Exhibit F
Matrix Scoring Worksheet for Ischemic Stroke Cases
Plaintiff Name:
Date of Injury:
Rating
Score
Part II-Product Identification Score
Part III-Temporal Relationship Score
Part IV-Liability/Causation Score
Exposure to PPA
Date of Injury
Misuse of Product
Head trauma
Prior Transient Ischemic Attacks
Prior Stroke
Hypertension
Brain tumors
Cancer
Coronary Artery Disease
Carotid Artery Disease/Stenosis
Prior Myocardial Infection
Heart Disease or Defect
Cerebral Venous Thrombosis
Peripheral Arterial Disease
Previous Embolism
Atrial Fibrillation
Major Surgery/Trauma
Cholesterol Problems
Diabetes
Bleeding/Clotting Disorders
Age
Gender
Heroin/Cocaine/PCP Use/Unprescribed Amphetamine
Prescribed Amphetamine
Other illicit drug use
Smoking
Oral Contraceptive + smoking
Alcohol consumption
Product ID, Temporal Relationship, Liability/CausationSubtotal:
Continued
Part V-Damages Score
Discharge
6 Month
Number of Domains Affected
Level of Severity
Subtotal:
Average Score:
Domain/Severity Score:
Plaintiff Name:
Date of Injury:
Rating
Score
BADL Factors
Feeding
Bathing
Grooming
Dressing
Bowels
Bladder
Toilet Use
Transfers
Mobility
Stairs
BADL Total:
IADL Factors
Telephone
Shopping
Food Preparation
Housekeeping
Laundry
Mode of Transportation
Responsibility for Medication
Ability to Handle Finances
IADL Total:
Inpatient Treatment
Outpatient Rehabilitation
Damages Score Subtotals:
Product ID, Temporal Relationship, Liability/CausationSubtotal:
Total Matrix Score:
Matrix Level:
Age on Stroke Date:
Gross Settlement Compensation:
Continued
Part VII-Ischemic Stroke Adjustment
15% deduction from Gross Settlement Compensation:
Adjustment for Ischemic stroke:
Subtotal:
Part VIII-Statute of Limitations/Repose Adjustment (ifapplicable)
Time elapsed from injury to filing:
__years, __months
Residence
Forum
__% deduction from Ischemic Stroke Adjustment Subtotal
Adjustment for statute of limitations/repose:
Subtotal:
Part IX-Co-Ingestion Adjustment (if applicable)
Plaintiff Name:
Date of Injury:
Rating
Score
Products Ingested
Date and Time of Ingestion
__% deduction from Statute of Limitations AdjustmentSubtotal:
Adjustment for co-ingestion:
Exh. A Annex I Exhibit G
Total Adjusted Settlement Compensation:
Exhibit G
Matrix Scoring Worksheet for Other Injuries and CardiacInjuries
Plaintiff Name:
Date of Injury:
Rating
Score
Part II-Product Identification Score
Part III-Temporal Relationship Score
Matrix Level:
Age on Stroke Date:
Gross Settlement Compensation:
Part VIII-Statute of Limitations/Repose Adjustment (ifapplicable)
Time elapsed from injury to filing:
__years, __ months
Residence
Forum
__% deduction from Gross Settlement Compensation:
Adjustment for statute of limitations/repose:
Subtotal:
Part IX-Co-Ingestion Adjustment (if applicable)
Products Ingested
Date and Time of Ingestion
__% deduction from Statute of Limitations AdjustmentSubtotal:
Adjustment for co-ingestion:
Exh. A. Annex II
Total Adjusted Settlement Compensation:
IN RE DEXATRIM CLASS SETTLEMENT BENEFIT CLAIM FORM
Please provide the following information for eachindividual on whose behalf a claim is being made. Youmust complete the entire form. Reference to the terms" Claimant" or " You" refer to theperson who used Dexatrim® . To make a claim, theClaimant must have ingested Dexatrim on or afterDecember 21, 1998 and suffered injury. If this form isbeing completed on behalf of a Claimant (e.g., by arepresentative on behalf of a deceased person or minor)please complete section 1 f. below.
1.
CLAIMANT INFORMATION.
a.
Last Name _____________ First Name _____________ MiddleName _______________
b.
Address, Telephone Number and E-Mail Address:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
c.
Date of Birth:_________________________________________________________________________
d.
Social SecurityNumber:_________________________________________________________________________
e.
Sex: M___ F___
f.
Is this form being completed in a representativecapacity (e.g., on behalf of a deceased person orminor)? Yes _____ No _____
If Yes, please complete the following:
i)
Names of Claimant's Representative:_______________________________________________________________________
ii)
Address:______________________________________________________________________________________________________________________________________________
iii)
Your relationship to deceased or representedperson:_______________________________________________________________________
iv)
If you were appointed by a court, state the date youwere appointed and the court that appointed you.
_______________________________________________________________________
v)
If you represent a decedent's estate, state thedate of death of thedecedent:_______________________________________________________________________
_______________________________________________________________________
g.
Has a lawsuit previously been filed on your behalf? Yes_____ No _____
If the answer is Yes, please identify the style of thelawsuit together with the docket number and court wherefiled:_________________________________________________________________________
h.
Are you currently employed? Yes _____ No _____
i.
Has the Claimant or Claimant's representative hiredan attorney? Yes _____ No _____
If the answer is Yes, please provide the name, address,telephone number and e-mail address of your attorney:
_________________________________________________________________________
_________________________________________________________________________
2.
PRODUCT INFORMATION.
a.
Identify the Dexatrim® product that you claimcaused your injury (e.g., Dexatrim® VitaminC/CaffeineFree):_________________________________________________________________________
b.
Are you or your attorney in possession of the packageof the Dexatrim® that you allege caused yourinjuries? Yes _____ No _____
If Yes, please retain the package and provide with thisform a copy of the front, back, and sides of theDexatrim® box together with a copy of the silverfoil blister pack. Failure to retain the package maynegatively impact the amount of your settlement.
c.
Please provide the lot number and expiration dateappearing on the package of the Dexatrim® that youallege caused your injuries:
_________________________________________________________________________
d.
When did you purchase the Dexatrim® that you allegecaused your injuries?_________________________________________________________________________
_________________________________________________________________________
e.
Where did you purchase the Dexatrim that you allegecaused yourinjuries?_________________________________________________________________________
f.
Please list all medications (prescription orover the counter) and dietary supplements (includingDexatrim® ) you took during the 4 days leading upto the date of your injury and the dates and times youtook them.
Name of Medication:
Date(s) and Time(s) of Day Ingested:
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
3.
YOUR INJURY.
a.
State the date you were injured as a result of takingDexatrim®._________________________________________________________________________
b.
Place an " X" by the type(s) of injury youhave suffered as a result of taking Dexatrim® ;
___
hemorrhagic Stroke
___
ischemic Stroke
___
cardiac (e.g., heart attack, arrhythmia,cardiomyopathy)
___
seizure
___
transient Ischemic Attack or TIA
___
psychosis
___
other
c.
Please describe the injury yousuffered._________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
d.
If the Claimant is deceased, does the Claimant'sestate contend the death was caused by the ingestion ofDexatrim® containing PPA? Yes _____ No _____
e.
Have any of your medical bills related to the treatmentof your injuries been paid for by anygovernment-sponsored health care plan (e.g. Medicare,Medicaid, Veteran's Administration, Champus,Tricare)? Yes _____ No _____
If yes, please state:
(i)
the government plan(s) that have paid benefits (e.g.Medicaid):_____________________________________________________________________
_____________________________________________________________________.
(ii)
the address and telephone number of the governmentoffice(s) where you submitted applications or claimsfor benefits:_____________________________________________________________________
_____________________________________________________________________.
f.
Please complete the attached Authorization for Medicalrecords relating to the treatment of your injuries.
g.
Please identify on the attached List of MedicalProviders the name and address of all medicalhealthcare providers that the claimant was treated by,examined by or consulted with; (i) during the 10 yearsimmediately before his/her injury; and (ii) in regardto treatment for his/her injury, during the three yearsafter the injury.
h.
The Claimant's or Claimant's Representative, bysigning below, hereby consents to the disclosure of theinformation contained herein to the extent necessary toprocess claims for benefits including, but not limitedto, the disclosure to any Federal or state governmentbody or agency.
CERTIFICATION
I certify under penalty of perjury that all of theinformation provided in this Preliminary Claim Form istrue and correct to the best of my knowledge,information and belief.
____________________________________
____________________________________
Signature of Claimant
Date
or Claimant's Representative
[This form must be signed by the Claimant or, if theclaimant is deceased or a minor, the Claimant'sRepresentative.]
In Re: Phenylpropanolamine (PPA) Product LiabilityLitigation
Release of Claims
Every Settled Claim of each Class Member (other than aClass Member who exercises an Opt-Out Right) shall beconclusively compromised, settled and released as toChattem and each other Released Party.
" Settled Claim " means any and all claims,including assigned claims, whether known or unknown,asserted or unasserted, regardless of the legal theory,existing now or arising in the future by any or allmembers of the Settlement Class arising out of orrelating to any of the Dexatrim® Products or theirdevelopment, manufacture, formulation, testing,distribution, marketing, labeling, regulatorysubmissions, advertising, sale, or ingestion. These" Settled Claims " include, withoutlimitation and by way of example, all claims fordamages or remedies of whatever kind or character,known or unknown, that are now recognized by law orthat may be created or recognized in the future bystatute, regulation, judicial decision, or in any othermanner, for:
(i)
personal injury and/or bodily injury, damage, death,fear of disease or injury, mental or physical pain orsuffering, emotional or mental harm, or loss ofenjoyment of life;
(ii)
loss of wages, income, earnings, and earning capacity,medical expenses, doctor, hospital, nursing, and drugbills;
(iii)
loss of support, services, consortium, companionship,society or affection, or damage to familial relations,by spouses, parents, children, other relatives or" significant others" of Class Members;
(iv)
wrongful death and survival actions;
(v)
medical screening and monitoring, injunctive anddeclaratory relief;
(vi)
consumer fraud, refunds, unfair business practices,deceptive trade practices, Unfair and Deceptive Actsand Practices (" UDAP, " ) unjustenrichment, disgorgement and other similar claimswhether arising under statute, regulation, or judicialdecision;
(vii)
compensatory damages, punitive, exemplary, statutoryand other multiple damages or penalties of any kindincluding, without limitation, economic or businesslosses or disgorgement of profits arising out ofpersonal injury;
(viii)
pre-judgment or post-judgment interest; and/or
(ix)
attorneys' fees, costs of court or litigationexpenses.
"Released Parties " means:
(i)
Chattem, Inc. and each of its past, present and futuredirect or indirect parent companies, subsidiaries,affiliates, divisions, joint venturers, predecessors,successors, and assigns;
(ii)
The Delaco Company, as successor by merger to ThompsonMedical Company, Inc. (" Delaco " )and each of its past, present and future direct orindirect parent companies, subsidiaries, affiliates,divisions, joint venturers, predecessors, successors,and assigns;
(iii)
Sidmak Laboratories, Inc. (" Sidmak" ) andeach of its past, present and future direct or indirectparent companies, subsidiaries, affiliates, divisions,joint venturers, predecessors, successors, and assigns;
(iv)
suppliers of the raw material Phenylpropanolaminehydrochloride used in the manufacture of Dexatrim®Products (including, without limitation, Sidmak);however, it is expressly understood that AlpsPharmaceutical Ind. Co., Ltd. (" Alps" ) is not a Released Party;
(v)
suppliers of materials other than Phenylpropanolamine,machines or equipment used in the manufacture ofDexatrim® Products;
(vi)
Chattem's contract manufacturers of finishedDexatrim® Products (including, without limitation,Sidmak);
(vii)
any and all distributors of Dexatrim® Products,including without limitation, wholesale distributors,private label distributors, retail distributors,pharmacies and pharmacists;
(viii)
any other person or entity (specifically including theConsumer Healthcare Products Association and itspredecessors (" CHPA" )) involved in thedevelopment, design, manufacture, formulation, testing,distribution, marketing, labeling, regulatorysubmissions, advertising or sale of Dexatrim®Products (including, without limitation, consultants toDelaco or Chattem); however, nothing in thissub-section shall affect the rights of individuals frompursuing their claims against CHPA to the extent thoseclaims do not relate to a Dexatrim® Product; and
(ix)
for each entity identified above, all of its past,present and future direct or indirect parent companies,subsidiaries, affiliates, divisions, joint venturers,predecessors, successors, and assigns and,collectively, all of their past, present and futuredirectors, officers, employees, agents, attorneys,shareholders, underwriters and insurers, and for eachperson identified above, all of his, her, or theirrespective past, present or future heirs, estates andpersonal representatives.
"Dexatrim Product " means all appetite suppressantproducts bearing the trademark Dexatrim® marketed,distributed and/or manufactured by Chattem, Inc.,and/or The Delaco Company, as successor by merger toThompson Medical Company, Inc. that containedPhenylpropanolamine.
______________________________________
full Name
______________________________________
social Security Number
______________________________________
date of Birth
IN RE: PHENYLPROPANOLAMINE (" PPA" ) PRODUCTSLIABILITY LITIGATION
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
MDL NO. 1407
Chattem Class Action Settlement
AUTHORIZATION FOR RELEASE OF MEDICAL RECORDS
In compliance with HIPAA, 45 CFR § 164.508
DO NOT COMPLETE THIS SECTION
TO:
_________________________________
lines
Name of Entity
_________________________________
Address
_________________________________
City, State and Zip Code
You are hereby authorized to release my entire medicalrecords file to the defendant or its authorizedrepresentative listed below (" RecordRequestor" ). This release authorizes you tofurnish copies of all medical records, including butnot limited to medical reports and notes, laboratoryreports, pathology slides, reports, notes andspecimens, radiographic films, CT scans, X-rays, MRIfilms, MRA films, correspondence, progress notes,prescription records, echocardiographic recordings,written statements, employment records, wage records,insurance, Medicaid, Medicare, and disability records,and medical bills regarding my injuries, diseases,diagnoses, or treatment, specifically including but notlimited to HIV/AIDS testing or treatment, drug testing,drug or alcohol abuse treatment, marriage or familycounseling, as well as psychological/psychiatrictreatment, notes and evaluations. Please note that thisauthorization is not limited in any way to the recordsor treatments specified above. This authorization doesnot permit you to disclose anything other thandocuments and records to anyone.
This authorization is being given at my request inconjunction with the civil litigation matter listedabove. You are hereby authorized to release theserecords to the following Record Requestor for their usein the above-entitled litigation. The defendants haveagreed to pay reasonable charges to supply copies ofsuch records. All documents should be provided to:
(Records Requestor)
DO NOT COMPLETE THIS SECTION
_________________________________
lines
_________________________________
I intend that this authorization shall be continuing innature. If information responsive to this authorizationis created, learned or discovered at any time in thefuture, either by you or another party, you mustproduce such information to the requestor at that time.Further, I hereby agree that a photostatic copy of thisauthorization may serve as an original.
This authorization shall not be valid unless the RecordRequestor named above has executed the acknowledgementat the bottom of this authorization.
I understand that this authorization pertains directlyto the civil litigation referenced above. Therefore,this authorization shall expire upon the finalresolution by all parties of the aforementioned civillitigation, either by final adjudication, finalsettlement agreement, final judicial dismissal, or byother final judicial order, including, but not limitedto the resolution of any and all appeals.
I understand that any documents or records released byyou could potentially be re-disclosed by theaforementioned Record Requestor, and that anyinformation re-disclosed by that party is not subjectto this authorization or the regulations imposed by 45CFR § 164.508.
I understand that you will not condition treatment,payment, enrollment or eligibility for benefits on mysigning this authorization.
I understand that I have the right to revoke thisauthorization at any time by providing to you a writtenrevocation stating my intentions, and if I do exercisesuch revocation, I agree to simultaneously provide acopy of such revocation to the Record Requestor. I alsounderstand that any revocation of this authorizationshall not affect any disclosures that were made priorto my written revocation.
This authorization is executed and served in compliancewith the Federal Regulations governing the release ofprivate health information as outlined under 45 CFR §164.508.
____________________________________
Date: ____________________________________
Claimant, Guardian or Personal
Representative Signature
_____________________________________________________________________________
Description of the Guardian's or PersonalRepresentative's Authority to Act for the Claimant.
____________________________________
date : ____________________________________
Witness Signature
LIST OF MEDICAL PROVIDERS
(Use Additional Sheets if Necessary)
1.
Name:__________________________________________________________________________
Specialty:__________________________________________________________________________
Street Address:__________________________________________________________________________
City, State, Zip Code:__________________________________________________________________________
2.
Name:__________________________________________________________________________
Specialty:__________________________________________________________________________
Street Address:__________________________________________________________________________
City, State, Zip Code:__________________________________________________________________________
3.
Name:__________________________________________________________________________
Specialty:__________________________________________________________________________
Street Address:__________________________________________________________________________
City, State, Zip Code:__________________________________________________________________________
4.
Name:__________________________________________________________________________
Specialty:__________________________________________________________________________
Street Address:__________________________________________________________________________
City, State, Zip Code:__________________________________________________________________________
5.
Name:__________________________________________________________________________
Specialty:__________________________________________________________________________
Street Address:__________________________________________________________________________
City, State, Zip Code:__________________________________________________________________________
6.
Name:__________________________________________________________________________
Specialty:__________________________________________________________________________
Street Address:__________________________________________________________________________
Exh. A Annex III
City, State, Zip Code:__________________________________________________________________________
SUPPLEMENTAL BENEFIT CLAIM FORM QUESTIONNAIRE
In re Phenylpropanolamine (PPA) Products LiabilityLitigation
Case No. 2-01-md-1407 (MDL No. 1407)
United States District court for
The Western District of Washington
Please carefully read the instructions included withthis Questionnaire before completing it. ThisQuestionnaire should be used by a party who hassubmitted a claim alleging physical injury or death (an" Injured Party" ) related to his or her useof Dexatrim on or after December 21, 1998. The term" Dexatrim" shall mean Dexatrim thatcontained PPA. In order to be paid or to have yourclaim allowed, complete ALL applicable questions andattach ALL required documents and supportinginformation to the Questionnaire. IN ORDER TO BE VALID,THE QUESTIONNAIRE MUST BE SIGNED BY THE CLAIMANT OR THECLAIMANT'S AUTHORIZED AGENT OR THE CLAIMANT'SATTORNEY.
Send your completed Questionnaire and all requireddocuments and supporting information to:
Chattem Claims Administrator
P.O. Box 1776
Richmond, VA 23218-1776
YOUR QUESTIONNAIRE AND ALL REQUIRED SUPPORTINGDOCUMENTS MUST BE POSTMARKED BY NO LATER THAN 5:00 P.M.EASTERN TIME ON__________, 2004
The instructions accompanying this Questionnaire formare incorporated herein and should be carefullyreviewed before you complete your Questionnaire. Allinformation included in your Questionnaire, and allsupporting documents submitted with your Questionnaire,constitute statements made under penalty of perjury,and false statements are punishable by a fine of up to$500,000 or imprisonment or both.
PART I. IDENTIFYING INFORMATION
1.
Injured Party. Complete the followinginformation for the Injured Party.
_______________________
______
__________________
First Name
M.I.
Last Name
____________________________________________________________
All other names that the Injured Party has ever used
____________________________________________________________
Street Address
_______________________
______
__________________
City
State
Zip Code
_______________________
______________________________
Telephone Number
Email Address
_______________________
______________________________
Birth Date (MM/DD/YYYY)
Social Security Number
_______________________
Gender
2.
Representative. If you are completingthis Questionnaire on behalf of an Injured Party whomyou represent, as his or her estate, administrator,other legal representative, heir or beneficiary, etc.(a " Representative" ), complete thefollowing information:
_______________________
______
__________________
First Name
M.I.
Last Name
____________________________________________________________
Street Address
_______________________
______
__________________
City
State
Zip Code
_______________________
______________________________
Telephone Number
Email Address
_____________________________
Your relationship to the Injured Party
If you are a Representative, attach a copy of the courtorder or other official document appointing you theInjured Party's legal representative.
If you are representing a deceased Injured Party'sestate, attach a certified or official copy of thedeath certificate along with any letters ofadministration, probate or surrogate's certificate.State the place and date of death.
_______________________
______________________________
Place of Death
Date of Death (MM/DD/YYYY)
3.
Representation by Counsel. Completethe following information if you are represented bylegal counsel:
____________________________________________________________
Attorney's Name
____________________________________________________________
Law Firm
____________________________________________________________
Street Address
_______________________
______
__________________
City
State
Zip Code
_______________________
______________________________
Telephone Number
Facsimile Number
_______________________
______________________________
Email Address
State Bar Number (if applicable)
PART II. LITIGATION HISTORY
4.
Does the Injured Party have or has the Injured Partyever had a lawsuit pending in any court related to theinjuries allegedly resulting from ingesting Dexatrim?
___No (If no, skip to question 8)
___Yes (If yes, complete the following information andattach a copy of the complaint)
_________________________________________
Jurisdiction/Court in which the case is or was pending
_________________________________________
Docket or Case Number
_________________________________________
Date Original Complaint was Filed (MM/DD/YYYY)
5.
Does the Injured Party have a lawsuit pending in Inre: Phenylpropanolamine (PPA) Products LiabilityLitigation MDL 1407 (W.D.Wa.), New Jersey statecourt, California state court, New York City SupremeCourt, or in the Philadelphia Court of Common Pleas?
___No (If no, skip to next question)
___Yes (If yes, attach a copy of the completedPlaintiffs' Fact Sheet and all medical records andauthorizations required by the Plaintiffs' FactSheet, unless already served on defense counsel.)
6.
Has the Injured Party settled a claim related to aninjury that you believe was caused by PPA?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
__________________________________
Date of Settlement (MM/DD/YYYY)
__________________________________
Settling Defendant(s)
7.
Has the Injured Party received any judgment against anydefendant for any lawsuit related to an injury that youbelieve was caused by PPA?
___No (If no, skip to next question)
___Yes (If yes, complete the following information andattach a copy of the judgment:)
__________________________________
Date of Judgment (MM/DD/YYYY)
__________________________________
Liable Defendant(s)
PART III. PRODUCT IDENTIFICATION AND INGESTIONINFORMATION
8.
Indicate all of the over-the-counter products theInjured Party took during the 60 days prior to the dateof the injury, the number of pills, tablets, capsulesor teaspoons consumed, and the dates and times at whicheach product was consumed (please attach additionalsheets, if necessary). With respect to the dosage,answering " as recommended" or " asdirected" is not a sufficient answer and theQuestionnaire will not be considered complete until thespecific information is provided.
_________________
______
________________
_____
Product
Dosage
Date (MM/DD/YYYY)
Time
_________________
______
________________
_____
Product
Dosage
Date (MM/DD/YYYY)
Time
_________________
______
________________
_____
Product
Dosage
Date (MM/DD/YYYY)
Time
_________________
______
________________
_____
Product
Dosage
Date (MM/DD/YYYY)
Time
9.
Indicate the date and time that the Injured Party lasttook Dexatrim prior to his or her injury.
______________________________
__________________
__________________
Date (MM/DD/YYYY)
Time (hour: min. am/pm)
Product taken
10.
Indicate the date on which the Injured Party purchasedor obtained the Dexatrim that you claim is responsiblefor his or her injury.
______________________________
Date (MM/DD/YYYY)
11.
Indicate the place or person from which the InjuredParty purchased or obtained the Dexatrim that you claimis responsible for his or her injury.
____________________________________
Name of store or person from whom obtained
____________________________________
Address
____________________________________
Address
____________________________________
City, State, Zip Code
12.
Indicate all dates that the Injured Party took Dexatrimfor the six months prior to his or her injury.
______________________________
______________________________
Date (MM/DD/YYYY)
Date (MM/DD/YYYY)
______________________________
______________________________
Date (MM/DD/YYYY)
Date (MM/DD/YYYY)
______________________________
______________________________
Date (MM/DD/YYYY)
Date (MM/DD/YYYY)
______________________________
______________________________
Date (MM/DD/YYYY)
Date (MM/DD/YYYY)
13.
Describe in detail the particular Dexatrim product andpackaging that the Injured Party claims to have takenbefore his or her injury (including, color of pills,color of packaging, type of pills).
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
14.
Which of the following are you submitting with thisQuestionnaire as proof that the Injured Party took:Dexatrim? Attach a copy of the proof that the InjuredParty took Dexatrim. (Check all that apply)
__
Dexatrim product packaging
__
Medical records from initial hospitalization referringto a Dexatrim product
__
Sworn Testimony from a person who has personalknowledge that the Injured Party took Dexatrim(including without limitation a declaration underpenalty of perjury as recognized by applicable statelaw, notarized affidavit or other sworn writtentestimony).
15.
Did a care provider perform a toxicology test for thepresence of PPA during the Injured Party's initialhospitalization for his or her injury?
___No (If no, skip to the next question)
___Yes (If yes, attach a copy of the toxicology test)
PART IV. INJURY INFORMATION
16.
Indicate by checking the appropriate box the injurythat the Injured Party claims to have sustained as aresult of taking Dexatrim.
[ ]
Hemorrhagic Stroke
[ ]
Ischemic Stroke (not transient ischemic attack)
[ ]
Heart Attack: please describe______________________________________________________________________
[ ]
Other: please describe______________________________________________________________________
17.
Indicate the date and time at which the Injured Partybegan feeling symptoms that he or she believes wereassociated with his or her injury.
______________________________
______________________________
Date of Onset (MM/DD/YYYY)
Time of Onset (hour: min. am/pm)
PART IV.A. HEMORRHAGIC STROKE INFORMATION
18.
Does the Injured Party claim to have sustained ahemorrhagic stroke that was caused by the ingestion ofDexatrim?
___No (If no, skip to Part IV.B.)
___Yes (If yes, attach all available medical recordsrelating to the stroke, all available medical recordsgenerated for 3 years immediately after the stroke, allavailable medical records for 10 years immediatelyprior to the stroke, and executed, notarizedHIPPA-compliant authorizations permitting Chattem, itslegal counsel or the Chattem Claims Coordinator toobtain any necessary medical records. Failure toinclude all requested available medical records andauthorizations will not result in your Questionnairebeing deemed untimely, but your claim may bedisallowed, or payments on account of your claim willnot be made until and unless the documents aresubmitted.
19.
Did the Injured Party ever have a stroke before thestroke that the Injured Party alleges was caused by theingestion of Dexatrim?
___No (If no, skip to next question)
___Yes (If yes, indicate the type of stroke that theInjured Party previously sustained and attach allmedical records related to that stroke)
___Hemorrhagic Stroke
___Ischemic Stroke
20.
Did the Injured Party's mother, father,grandmother, grandfather or sibling ever have a stroke,aneurysm, arteriovenous malformation (AVM), or braintumors?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
______________________________
______________________________
Condition
Relationship (mother, father, etc.)
______________________________
______________________________
Condition
Relationship (mother, father, etc.)
______________________________
______________________________
Condition
Relationship (mother, father, etc.)
______________________________
______________________________
Condition
Relationship (mother, father, etc.)
21.
Check any of the conditions listed below that theInjured Party have had at any time in his or her life.List the date that the Injured Party first experiencedeach condition that applies, the doctor who disgnosedeach condition, and attach all medical records relatedto each condition.
Condition
Date (MM/DD/YYYY)
Doctor
[ ] Head Trauma
________________
________________
[ ] Hypertension
________________
________________
[ ] Aneurysm
________________
________________
[ ] Arteriovenous Malformation (AVM)
________________
________________
[ ] Brain Tumors
________________
________________
[ ] Leukemia
________________
________________
[ ] Bleeding Disorders
________________
________________
22.
List each medication (both prescription andover-the-counter) that the Injured Party has takenbefore his or her stroke for any of the conditionslisted in question 21. State the name of themedication, the date(s) taken, the daily dosage taken,and where the Injured Party obtained the medications(please attach additional sheets, if necessary). Withrespect to dosage, answering " asrecommended" or " as directed" is not asufficient answer and the Questionnaire will not beconsidered complete and your claim will not beprocessed for payment until the specific information isprovided.
Medication
Date (MM/DD/YYYY)
Daily Dosage
Obtained From
_______
________________
_________
___________
_______
________________
_________
___________
_______
________________
_________
___________
_______
________________
_________
___________
23.
Did the Injured Party take blood thinning medication oranticoagulants?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
Medication
Date (MM/DD/YYYY)
Dosage
______________________________
________________
_____
______________________________
________________
_____
______________________________
________________
_____
______________________________
________________
_____
Name of doctor(s) or healthcare professional(s) whoprescribed the blood thinner or anticoagulant?
_____________________________________________________
Doctor or Healthcare Professional
_____________________________________________________
Address
_____________________________________________________
City, State, Zip Code
24.
Did the Injured Party use cocaine, PCP, or any otheramphetamine that was not prescribed by a doctor duringthe 90 days before his or her stroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
25.
Did the Injured Party take an amphetamine that wasprescribed by a doctor during the 90 days before his orher stroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
Name of doctor or healthcare professional whoprescribed the amphetamines?
________________________________________
Doctor or Healthcare Professional
________________________________________
Address
________________________________________
City, State, Zip Code
________________________________________
Doctor or Healthcare Professional
________________________________________
Address
________________________________________
City, State, Zip Code
________________________________________
Doctor or Healthcare Professional
________________________________________
Address
________________________________________
City, State, Zip Code
26.
Other than information previously provided in answersto this Questionnaire, did the Injured Party use anyother drugs (legal or illegal), medicines,over-the-counter products (for example, appetitesuppressants, cough-cold medicines, nutritionalsupplements, weight loss products, vitamins) within 7days before the onset of symptoms of his or her stroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
27.
Did the Injured Party smoke cigarettes, cigars or pipetobacco at any time in the 5 years before his or herstroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
What is the greatest amount of cigarettes that theInjured Party regularly smoked per day in the 5 yearsbefore his or her stroke?
____________________________
Greatest Amount
What is the greatest amount of cigars that the InjuredParty regularly smoked per day in the 5 years beforehis or her stroke?
____________________________
Greatest Amount
What is the greatest amount of pipe tobacco that theInjured Party regularly smoked per day in the 5 yearsbefore his or her stroke?
____________________________
Greatest Amount
28.
Did the Injured Party drink alcohol at any time in the5 years before his or her stroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
What is the greatest amount of alcohol that the InjuredParty drank per day regularly in the 5 years before hisor her stroke?
____________________________
Greatest Amount
29.
Describe in detail the Injured Party's activitiesfor the 6 hours before he or she felt the onset of hisor her stroke:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
PART IV.B. ISCHEMIC STROKE INFORMATION
30.
Does the Injured Party claim to have sustained anischemic stroke that was caused by the ingestion ofDexatrim?
___No (If no, skip to Part V)
___Yes (If yes, attach all available medical recordsrelating to the stroke, all available medical recordsgenerated for 3 years immediately after the stroke, allavailable medical records for 10 years immediatelyprior to the stroke, and executed, notarizedHIPPA-compliant authorizations permitting Chattem, itslegal counsel or the Chattem Claims Coordinator toobtain any necessary medical records. Failure toinclude all requested available medical records andauthorizations will not result in your Questionnairebeing deemed untimely, but your claim may bedisallowed, or payments on account of your claim willnot be made until and unless the documents aresubmitted.
31.
Did the Injured Party ever have a stroke before thestroke that the Injured Party alleges was caused by theingestion of Dexatrim?
___No (If no, skip to next question)
___Yes (If yes, indicate the type of stroke that theInjured Party previously sustained and attach allavailable medical records related to that stroke)
___Hemorrhagic Stroke
___Ischemic Stroke
32.
Did the Injured Party's mother, father,grandmother, grandfather or any sibling ever have astroke, aneurysm, arteriovenous malformation (AVM), orbrain tumor?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
____________________
______________________________
Condition
Relationship (mother, father, etc.)
____________________
______________________________
Condition
Relationship (mother, father, etc.)
____________________
______________________________
Condition
Relationship (mother, father, etc.)
____________________
______________________________
Condition
Relationship (mother, father, etc.)
33.
Check any of the conditions listed below that theInjured Party had at any time before his or her stroke.List the date that the Injured Party first experiencedeach condition that applies, the doctor who diagnosedeach condition, and attach all available medicalrecords related to each condition.
Condition
Date (MM/DD/YYYY)
Doctor
[ ] Head Trauma
________________
___________________
[ ] Transient Ischemic Attack (TIA)
________________
___________________
[ ] Hypertension
________________
___________________
[ ] Brain Tumors
________________
___________________
[ ] Cancer (describe: _______________)
________________
___________________
[ ] Coronary Artery Disease
________________
___________________
[ ] Carotid Artery Disease
________________
___________________
[ ] Heart Attack
________________
___________________
[ ] Heart Disease
________________
___________________
[ ] Heart Defect (describe: __________)
________________
___________________
[ ] Cerebral Venons Thrombosis
________________
___________________
[ ] Embolism
________________
___________________
[ ] Atrial Fibrillation
________________
___________________
[ ] Major Surgery or trauma 14 days before stroke
________________
___________________
[ ] Cholesterol problems
________________
___________________
[ ] Diabetes (what type __________)
________________
___________________
[ ] Bleeding or Clotting Disorders
________________
___________________
34.
List each medication (both prescription andover-the-counter) that the Injured Party has taken forany of the conditions listed in question 33. State thename of the medication, the date(s) taken, the dailydosage taken, and where the Injured Party obtained themedications (please attach additional sheets, ifnecessary). With respect to dosage, answering, "as recommended" or " as directed" is nota sufficient answer and your Questionnaire will not beconsidered complete and your claim will not beprocessed for payment until the specific information isprovided.
_______
________________
_________
_______________________
Medication
Date (MM/DD/YYYY)
Daily Dosage
Obtained From
_______
________________
_________
_______________________
Medication
Date (MM/DD/YYYY)
Daily Dosage
Obtained From
_______
________________
_________
_______________________
Medication
Date (MM/DD/YYYY)
Daily Dosage
Obtained From
_______
________________
_________
_______________________
Medication
Date (MM/DD/YYYY)
Daily Dosage
Obtained From
35.
Did the Injured Party use heroin, cocaine, PCP, or anyamphetamine that was not prescribed by a doctor duringthe 90 days before his or her stroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
36.
Did the Injured Party take an amphetamine that wasprescribed by a doctor during the 90 days before his orher stroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
______________________________
______________________________
Name of Drug
Date(s) (MM/DD/YYYY)
Name of doctor or health care professional whoprescribed the amphetamines?
________________________________________
Doctor or Healthcare Professional
________________________________________
Address
________________________________________
City, State, Zip Code
________________________________________
Doctor or Healthcare Professional
________________________________________
Address
________________________________________
City, State, Zip Code
________________________________________
Doctor or Healthcare Professional
________________________________________
Address
________________________________________
City, State, Zip Code
37.
Other than information previously provided in answersto this Questionnaire, did the Injured Party use anyother drugs (legal or illegal), medicines,over-the-counter products (for example, appetitesuppressants, cough-cold medicines, nutritionalsupplements, weight loss products, vitamins) within 7days before the onset of symptoms of his or her stroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
______________
________________
_________________
_________
Name of Product
Date (MM/DD/YYYY)
Time (hour:min. am/pm
Dosage
38.
Did the Injured Party smoke cigarettes, cigars or pipetobacco at any time in the 5 years before his or herstroke?
___No (If no, skip to next question)
___Yes (If yes, complete the following information:)
What is the greatest amount of cigarettes that theInjured Party regularly smoked per day in the 5 yearsbefore his or her stroke?
____________________________
Greatest Amount
What is the greatest amount of cigars that the InjuredParty regularly smoked per day in the 5 years beforehis or her stroke?
____________________________
Greatest Amount
What is the greatest amount of pipe tobacco that theInjured Party regularly smoked per day in the 5 yearsbefore his or her stroke?
____________________________
Greatest Amount
39.
Did the Injured Party take oral contraceptives duringthe 5 years before his or her stroke?
___No (If no, skip to next question)
___Yes (If yes, when _______________)
date
40.
Did the Injured Party drink alcohol at any time in the5 years before his or her stroke?
___No (If no, skip to next question)
___Yes (If yes, complets the following information:)
What is the greatest amount and least amount of alcoholthat the Injured Party drank per day regularly in the 5years before his or her stroke?
______________________________
______________________________
Greatest Amount
Least Amount
PART V. MEDICAL INFORMATION
41.
List every medical healthcare provider that the InjuredParty was treated by, examined by or consulted with:(i) during the 10 years immediately before his/herinjury: and (ii) in regard to treatment for his/herinjury, during the three years after the injury.
______________________________
______________________________
Healthcare Provider's Name
Healthcare Provider's Name
______________________________
______________________________
Address
Address
______________________________
______________________________
City, State, Zip Code
City, State, Zip Code
______________________________
______________________________
Healthcare Provider's Name
Healthcare Provider's Name
______________________________
______________________________
Address
Address
______________________________
______________________________
City, State, Zip Code
City, State, Zip Code
______________________________
______________________________
Healthcare Provider's Name
Healthcare Provider's Name
______________________________
______________________________
Address
Address
______________________________
______________________________
City, State, Zip Code
City, State, Zip Code
______________________________
______________________________
Healthcare Provider's Name
Healthcare Provider's Name
______________________________
______________________________
Address
Address
______________________________
______________________________
City, State, Zip Code
City, State, Zip Code
42.
List every prescription medication that the InjuredParty has taken for the 3 years immediately after hisor her injury and for the 10 years immediately prior tohis or her injury. Also list the place where themedication was obtained and the doctor/healthcareprovider who prescribed the drug. (Use additionalsheets if necessary)
____________________
____________________
____________________
Prescription Medication
Obtained From
Prescribing Healthcare Provider
____________________
____________________
____________________
Daily Dosage
Address
Address
____________________
____________________
Address
Address
____________________
____________________
City, State, Zip Code
City, State, Zip Code
____________________
____________________
____________________
Prescription Medication
Obtained From
Prescribing Healthcare Provider
____________________
____________________
____________________
Daily Dosage
Address
Address
____________________
____________________
Address
Address
____________________
____________________
City, State, Zip Code
City, State, Zip Code
____________________
____________________
____________________
Prescription Medication
Obtained From
Prescribing Healthcare Provider
____________________
____________________
____________________
Daily Dosage
Address
Address
____________________
____________________
Address
Address
____________________
____________________
City, State, Zip Code
City, State, Zip Code
____________________
____________________
____________________
Prescription Medication
Obtained From
Prescribing Healthcare Provider
____________________
____________________
____________________
Daily Dosage
Address
Address
____________________
____________________
Address
Address
____________________
____________________
City, State, Zip Code
City, State, Zip Code
____________________
____________________
____________________
Prescription Medication
Obtained From
Prescribing Healthcare Provider
____________________
____________________
____________________
Daily Dosage
Address
Address
____________________
____________________
Address
Address
____________________
____________________
City, State, Zip Code
City, State, Zip Code
PART VI. MATRIX SCORE
43.
Have you scored the Injured Party's claim under theDexatrim Scoring System & Matrix attached hereto?
___No (If no, you must score your claim and submit theappropriate fully completed score sheet included in theDexatrim Scoring System & Matrix or your claim maybe disallowed and you will not receive any payment foryour claim.)
___Yes (If yes, complete the following information andsubmit your completed score sheet with thisQuestionnaire.)
____________________________
Damages Score
______________________________________________
Product ID, Temporal Relationship, Liability/CausationScore
____________________________
Total Matrix Score
____________________________
Matrix Level
____________________________
Age at Injury
____________________________
Adjustment for Ischemic Stroke
____________________________
Adjustment for Statute of Limitations
____________________________
Adjustment for Co-Ingestion
PART VII. MEDICAL EXPENSES PAID BY INSURANCE ORGOVERNMENT SPONSORED HEALTH PLAN
44.
Has any federal or state-sponsored health care benefitprogram (e.g. Medicare, Medicaid, VeteransAdministration, Champus, Tricare) provided medicalcoverage or health benefits to the Injured Party forhis or her injuries?
___No (If no, proceed to next question.)
___Yes (If yes, complete the following information andprovide copies of all documentation reflecting amountsof benefits provided to the Injured Party or on his orher behalf.)
a.
State the name of the government-sponsored program:__________.
b.
State the amount of health benefits provided to theInjured Party or on the Injured Party's behalf$____________.
45.
Has any health Insurance company or health managementorganization (HMO) provided medical coverage or healthbenefits to the Injured Party for his or her Injuries?
___No (If no, proceed to next question.)
___Yes (If yes, complete the following information andprovide copies of all documentation reflecting amountsof benefits provided to the Injured Party or on his orher behalf.)
a.
State the name of the insurance company or HMO__________.
b.
State the Injured Party's membership number orgroup number __________.
c.
Provide an executed, notarized HIPPA-compliantauthorization for the claims administrator to obtainrecords from the insurance company or HMO.
46.
Does any insurance company, government entity, or otherentity have a lien against any settlement proceedsobtained by the Injured Party?
___No (If no, proceed to next question.)
___Yes (If yes, complete the following information andprovide copies of all documentation reflecting amountsof liens.)
a.
State the name of the party or entity who holds thelien __________.
b.
State the amount of the lien $____________.
IT IS YOUR RESPONSIBILITY TO DETERMINE THE AMOUNT OFGOVERNMENT HEALTH BENEFITS PROVIDED TO THE INJUREDPARTY AND THE AMOUNT OF ANY LIENS AGAINST THESETTLEMENT PROCEEDS. ALL LIENS AND DEMANDS FROMGOVERNMENT-SPONSORED HEALTH CARE BENEFIT PROGRAMS ARETHE RESPONSIBILITY OF THE INJURED PARTY, YOUR CLAIMWILL NOT BE PAID UNTIL THIS INFORMATION IS PROVIDED.
PART VIII. MISCELLANEOUS
47.
Document Submission. All documents submitted in supportof a claim must be page numbered and each page must beclearly labeled with the Injured Party's name andlast four digits of his or her Social Security Number.
48.
Changes to Injured Party's or Representative'sContact Information. Injured Parties or Representativesmust provide updated names, addresses, and telephonenumbers in order to ensure processing of their claim.Failure to provide updates may result in a delay inpayment of your claim or inability to pay your claim.
49.
Confidentiality. The person(s) signing below herebyconsent(s) to the disclosure of the informationcontained herein to the extent necessary to processclaims for benefits including, but not limited to, thedisclosure to any Federal or state government body oragency.
50.
Documents. You must submit the following documents withyour Questionnaire in order for it to be complete.Failure to include these documents will not result inyour Questionnaire being deemed untimely, but yourclaim may be disallowed, or payments on account of yourclaim will not be made until and unless the followingdocuments are submitted:
•
Medical Records (as requested)
•
Certificate of official capacity (if Representative isfiling form)
•
Death Certificate (if applicable)
•
Proof of product identification
•
Signed HIPPA-Compliant Authorizations for the Releaseof Medical Records
•
Plaintiffs' Fact Sheet (if applicable)
•
Judgments (if applicable)
•
Applicable Score sheet from Dexatrim Scoring System& Matrix and supporting documentation
FURTHER RECORDS, AUTHORIZATIONS, DISCLOSURES, ORQUESTIONS MAY BE SOUGHT BY THE CLAIMS ADMINISTRATOR,CHATTEM OR OTHER AUTHORIZED PARTY TO VERIFY CLAIMS.
51.
Declaration Under Penalty of Perjury. Each personsigning this Questionaire acknowledges and understandsthat this form is an official document sanctioned bythe United States District Court for the WesternDistrict of Washington. After reviewing the informationthat has been provided on this form, includinginformation that was supplied by a physician or anattorney, each person signing this form declares underpenalty of perjury that all of the information providedin this form is true and correct to the best of theperson's knowledge and belief. False statements arepunishable by a fine of up to $500,000 or imprisonmentor both.
_________________________
____________________
Signature of Injured Party
Date (MM/DD/YYYY)
_________________________
____________________
Signature of Representative
Date (MM/DD/YYYY)
INSTRUCTIONS FOR COMPLETING THE SUPPLEMENTAL CLAIMQUESTIONNAIRE
Any party asserting a claim (an " Injured PartyClaim" ) based on his or her ingestion of Dexatrimoccurring on or after December 21, 1998 was required tosubmit a completed Preliminary Claim Form postmarked onor before July 7, 2004.
If you filed an Injured Party Claim, you are requiredto complete and return this Questionnaire to theChattem Claims Administrator or so that it ispostmarked on or before _______________, or yourInjured Party Claim will be barred and you will notreceive any payment for your Injured Party Claim, AnyRelated Claim will be barred and the claimant will notbe entitled to any payment on account of his or herRelated Claim if a completed Questionnaire regardingthe Injured Party from whom the Related Claim derivesis not received by the Chattem Claims Administrator.
If you need additional Questionnaires, or have anyquestions regarding the Questionnaire or the status ofyour claim, you may contact the Chattem ClaimsAdministrator at 1-866-866-1729.
The following definitions apply to the Questionnaire,and are provided for your assistance in completing it.
Injured Party. A party asserting a claim based on his or her allegedphysical injury or wrongful death related to his orher use of a Dexatrim product on or after December21, 1998.
Questionnaire. The personalinjury questionnaire required to be completed andreturned to the Chattem Claims Administrator. TheQuestionnaire is an integral part of the Proof ofClaim. Failure to timely submit a completedQuestionnaire, notwithstanding timely submission of acompleted Personal Injury Proof of Claim Form mayresult in the disallowance of the Injured Party'sclaim.
Representative. A personcompleting this Questionnaire on behalf of an InjuredParty he or she represents. For example, anadministrator, heir or beneficiary, or other legalrepresentative. ToxicologyText. A test performed by a medicalprofessional on either blood or urine to detect thepresence of a substance in the body.
If the claimant has more information than fits in thespace provided on any part of the Questionnaire, pleasemake additional copies of the applicable pages beforewriting on them.
Please type or print clearly and useblack or blue ink.
Be accurate and truthful. ThisQuestionnaire is an official court document that youare submitting under penalty of perjury and may be usedas evidence in any legal proceedings regarding yourclaim. The penalty for presenting afraudulent claim is a fine of up to $500,000 orimprisonment or both.
Make a copy of your completed Questionnaire and keep acopy for your records. Send only the originalQuestionnaire to the Chattem Claims Administrator atthe following address:
Chattem Claims Administrator
P.O. Box 1776
Richmond, VA 23218-1776
If you wish to receive confirmation that Questionnairewas received, enclose a copy of the completedQuestionnaire and a self-addressed return envelope withapplicable postage. Keep this confirmation for yourrecords-It is your only proof that your Questionnairewas received.
Submitting a fully-completed Questionnaire requiresthat the claimant attach copies of any and all medicalrecords supporting all claimed injuries or conditionsrelated to the Injured Party's use of a Dexatrimproduct, such as copies of discharge summaries,emergency medical technician reports, CT scans, MRIs,rehabilitation records, etc. You must submit thefollowing documents with your Questionnaire in orderfor it to be complete. Failure to submit thesedocuments may result in disallowance or delay of yourclaim, and you may not be entitled to any payment onyour claim:
•
Medical Records (as requested)
•
Certificate of official capacity (If Representative isfiling form)
•
Death Certificate (if applicable)
•
Proof of product identification
•
Signed HIPPA-compliant Authorizations for the Releaseof Medical Records
•
Plaintiffs' Fact Sheet (if applicable)
•
Judgments (if applicable)
•
Applicable Score Sheet from Dexatrim Scoring System& Matrix and supporting documentation
Exh. A Annex IV
You may be required to provide additional informationif Chattem, in its sole discretion, decides that yourQuestionnaire was unclear or unresponsive. Failure toprovide such additional information at Chattem'srequest may result in the disallowance of your claim.
Annex IV
COMPLETION CHECKLIST
SUPPLEMENTAL BENEFIT CLAIM FORM
QUESTIONNAIRE FOR USE BY CHATTEM CLAIMS ADMINISTRATOR
Not
Completed
Applicable
Response
Part I.
IDENTIFYING INFORMATION.
1.
Injured Party.
[ ]
[ ]
2.
Representative.
[ ]
[ ]
3.
Representation by counsel.
[ ]
Part II.
LITIGATION HISTORY.
4.
Lawsuits related to Dexatrim?
[ ]
5.
MDL Lawsuits?
[ ]
6.
Settled PPA claim.
[ ]
7.
Judgment against PPA defendant.
[ ]
10.
Date of purchase of Dexatrim.
11.
Identifies seller or provider of Dexatrim.
[ ]
12.
Identifies dates of ingestion of Dexatrim for sixmonths prior to injury.
[ ]
13.
Description of Dexatrim product ingested.
[ ]
14.
Proof of Dexatrim ingestion.
[ ]
15.
Toxicology test.
[ ]
Part IV.
INJURY INFORMATION.
16.
Identified type of injury.
[ ]
17.
Date and time of onset of symptoms.
[ ]
A.
Hemorrhagic Stroke Information.
[ ]
18.
If injured party did not have hemorrhagic stroke, skipto IV.B.
[ ]
19.
Prior stroke.
[ ]
20.
Family history of stroke, aneurysm, AVM or brain tumor.
[ ]
21.
Stroke risk conditions.
[ ]
22.
Medications taken for conditions listed in Item 21
[ ]
23.
Ingestion of blood thinning medications oranticoagulants.
[ ]
24.
Ingestion of cocaine or PCP or other nonprescribedamphetamine.
[ ]
25.
Prescribed amphetamine.
[ ]
26.
Use of other drugs within seven days before onset ofstroke symptoms.
[ ]
27.
Tobacco history.
[ ]
28.
Alcohol consumption.
[ ]
29.
Injured party's activities six hours prior tostroke.
[ ]
B.
Ischemic stroke information.
[ ]
30.
If injured party did not have an ischemic stroke skipto V.
[ ]
31.
Prior stroke and type.
[ ]
32.
Family history of stroke, aneurysm or brain tumor.
[ ]
33.
Stroke risk conditions.
[ ]
34.
Medications taken for conditions listed in Item 33.
35.
Use of heroine, cocaine, or PCP, or any amphetamine notprescribed within 90 days before stroke.
[ ]
36.
Ingestion of prescribed amphetamine within ninety days.
[ ]
37.
Use of other drugs within seven days before onset ofsymptoms.
[ ]
38.
Tobacco history.
[ ]
39.
Use of oral contraceptives.
[ ]
40.
Alcohol consumption.
[ ]
Part V.
MEDICAL INFORMATION.
41.
Lists health care providers 10 years prior/3 yearsafter injury.
[ ]
42.
List of prescription medications 10 years prior/3 yearsafter.
[ ]
Part VI.
43.
MATRIX SCORE.
[ ]
Part VII.
MEDICAL EXPENSES PAID BY INSURANCE ORGOVERNMENT-SPONSORED HEALTH PLAN.
[ ]
44.
Benefits paid by Federal or State Sponsored Health CareBenefit Program.
[ ]
45.
Medical expenses paid by health insurance.
[ ]
46.
Existence of liens by government entity or insurancecompany.
[ ]
Part VIII.
MISCELLANEOUS.
47.
Consent of confidentiality.
[ ]
48.
Documents submitted:
[ ]
Medical records
Certificate of official capacity
[ ]
[ ]
Proof of product ID.
Signed HIPPA compliant authorization.
Plaintiff's fact sheet.
[ ]
[ ]
Judgments.
[ ]
[ ]
Matrix score.
[ ]
49.
All documents submitted in support of claim are pagenumbered and clearly labeled with injured party'sname and last four digits of Social Security number
[ ]
Exh. A Annex V
50.
Signature under penalty of perjury.
[ ]
ANNEX V
EXTRAORDINARY DAMAGE FUND CLAIM FORM
In re Phenylpropanolamine (PPA) Products LiabilityLitigation
Case No. 2:01-md-1407 (MDL No. 1407)
United States District Court for
The Western District of Washington
This Form must be completed by any party submitting aclaim against Chattem's Extraordinary Damage Fund(" EDF" ). To be eligible for an EDF award, aclaimant must fall within Matrix Levels IV, V, or VIand must have documented,non-reimbursed/non-reimbursable economic damagestotaling at least $250,000.00. For more informationregarding the EDF, see Section XI of the Dexatrim CaseScoring Systems and Matrix. In order to be valid, thisForm must be signed by the claimant or theclaimants' authorized agent or the claimants'attorney, and must attach all documented evidence.
Please send your completed EDF Claim Form and allrequired documents and supporting information to:
If by mail:
If by hand or overnight delivery:
YOUR COMPLETED EDF CLAIM FORM MUST BE POSTMARKED NOLATER THAN
____________________, 2004, ALL INFORMATION INCLUDED INTHIS FORM, AND ALL
SUPPORTING DOCUMENTS SUBMITTED WITH THIS FORM,CONSTITUTE STATEMENTS
MADE UNDER PENALTY OF PERJURY, AND FALSE STATEMENTS AREPUNISHABLE BY A
FINE OR IMPRISONMENT OR BOTH.
PART I.
IDENTIFYING INFORMATION.
A.
Chattem Settlement ClaimNumber:_______________________________________________________________
B.
Name of injuredparty:_______________________________________________________________
PART II.
DOCUMENTED NON-REIMBURSED/NON-REIMBURSABLE ECONOMICDAMAGES.
Please complete the following information concerningyour documented non-reimbursed/non-reimbursableeconomic damages that you have incurred or will incuras a result of your stroke. For purposes of this Form,the term " Documented" means medical records,billing records, tax returns, social security earningstatements, expert reports (e.g., economists, life careplanners, neurologists, psychiatrists, etc.), or anyother documentation or evidence requested by, orotherwise found acceptable by the Chattem ClaimsAdministrator.
Please attach copies of all documents that support yourcalculation of non-reimbursed/non-reimbursable economicdamages relating to your stroke. You must submit alldocumentation with this Form in order for it to becomplete.
A.
State the amount of non-reimbursed out of pocket pastmedical expenses, if any, you have incurred:
_______________________________________________________________
B.
State the amount of non-reimbursable future medicalexpenses, if any, you expect to incur:
_______________________________________________________________
C.
State the amount of our non-reimbursable future livingexpenses, if any, you expect to incur:
_______________________________________________________________
D.
State the amount of your non-reimbursed lost wages, ifany, you have incurred:
_______________________________________________________________
E.
State the amount of your non-reimbursable future lostwages, if any, you expect to incur:
_______________________________________________________________
F.
State the amount of your non-reimbursable loss ofearning capacity, if any (both past and future):
_______________________________________________________________
G.
Please describe and state the amount of any otherdocumented non-reimbursed/non-reimbursable economicdamages, if any, you claim to have suffered:
_______________________________________________________________
ANY DOLLAR AMOUNT STATED IN ITEMS A-G ABOVE WILL BEDISREGARDED UNLESS IT IS SPECIFICALLY SUPPORTED BYDOCUMENTED EVIDENCE ATTACHED TO THIS FORM.
FURTHER RECORDS, OR DISCLOSURES, OR QUESTIONS MAY BESOUGHT BY THE CLAIMS ADMINISTRATOR, CHATTEM OR OTHERAUTHORIZED PARTY TO VERIFY YOUR EDF CLAIM.
PART III.
Declaration of Penalty ofPerjury. Each person signing this EDFClaim Form acknowledges and understands that this formis an official document sanctioned by the United StatesDistrict Court for the Western District of Washington.After reviewing the information that has been providedon this form, including information that was suppliedby a physician or an attorney, each person signing thisform shall declare under penalty of perjury that all ofthe information provided in this form is true andcorrect to the best of the person's knowledge andbelief. False statements are punishable by a fine of upto $500,000 or imprisonment or both.
I declare under penalty of perjury under the laws ofthe United States of America that the information Iprovided in this form is true and correct.
________________________________
________________________________
Signature of Injured Party
Date (MM/DD/YYYY)
________________________________
________________________________
Exh. A Annex VI
Signature of Representative
Date (MM/DD/YYYY)
COMPLETION CHECKLIST
EXTRAORDINARY DAMAGE FUND CLAIM FORM
FOR USE BY CHATTEM CLAIMS ADMINISTRATOR
not
Completed
Applicable
Response
Part I.
IDENTIFYING INFORMATION.
Claim Number
[ ]
Name of injured party
[ ]
PART II.
DOCUMENTED NON-REIMBURSED/ NON-REIMBURSABLE ECONOMICDAMAGES.
A.
Non-reimbursed out of pocket medical Expenses
[ ]
[ ]
Supporting Documentation Provided
[ ]
B.
Non-reimbursable future medical Expenses
[ ]
[ ]
Supporting Documentation Provided
[ ]
C.
Non-reimbursable future living Expenses
[ ]
[ ]
Supporting Documentation Provided
[ ]
D.
Non-reimbursed lost wages
[ ]
[ ]
Supporting Documentation Provided
[ ]
E.
Non-reimbursable future lost wages
[ ]
[ ]
Supporting Documentation Provided
[ ]
F.
Non-reimbursable loss of earning capacity
[ ]
[ ]
Supporting Documentation Provided
[ ]
G.
Miscellaneous non-reimbursed/non-reimbursable economicdamages
[ ]
[ ]
Supporting Documentation Provided
[ ]
Exhibit B 1
PART III.
SIGNATURE UNDER PENALTY OF PERJURY
[ ]
FEDERAL CASES THAT THE FINAL ORDER and JUDGMENTDISMISSES
Docket #
Plaintiff Name
State
Dismissed Parties
Sidmak Laboratories, Inc.
C03-368
Aderholt, Charles
AL
Pliva D.D.
Sobel NV
Chattem Inc.
C04-413
Alewel, Kimberly
MO
Sidmak Laboratories, Inc. and/or Pliva, Inc.
C02-027
Ambrose, Kenneth (for the estate of Angela Ambrose)
LA
Thompson Medical Company
C01-2152
Antoine, Dorothy
LA
Chattem, Inc.
Chattem, Inc.
The Delaco Company f/k/a Thompson Medical Company, Inc.
Thompson Medical Company, Inc.
C03-226
Anzalone, Margie
OH
Charles T. Noonan
Sidmak Laboratories, Inc.
Sobel NV
Pliva Prague
C03-3098
Ashton, Joyce
LA
Chattem, Inc.
C04-414
Baeseman, Katherine
MO
Chattem, Inc.
Sidmak Laboratories, Inc. and/or Pliva, Inc.
C03-224
Bardlett, Michelle
NV
Chattem, Inc.
Thompson Medical Company, Inc.
Chattem, Inc.
Delaco Company f/k/a Thompson Medical Company, Inc.
C03-859
Bass, John Martin
MS
Sidmak Laboratories, Inc.
Sobel N.V.
Pliva d.d.
C03-3291
Baynes, Velma
MS
Chattem, Inc.
Wal-Mart Stores, Inc.
Chattem, Inc.
Signal Investment and Management
The Delaco Company
C04-1140
Belt, Judy
MO
Sidmak Laboratories, Inc.
Sobel NV
Pam Holdings, Inc. f/k/a Sobel Holdings, Inc.
Plivaa D.D.
Chattem, Inc.
C04-685
Bohahan, Letitia
AR
The Delaco Company
Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories, Inc.
C03-3125
Breite, Shirley
MO
Chattem, Inc.
The Delaco Company
C04-412
Brice, LaKisher
MO
Chattem, Inc.
The Delaco Company f/k/a Thompson Medical Company, Inc.
Chattem, Inc.
C03-212
Brisco, Shonda
NJ
Sidmak Laboratories, Inc.
The Delaco Company
Thompson Medical Company, Inc.
Chattem, Inc., (Successor in Interest to)
C04-084
Broadway, Estella
MS
The Delaco Co., (Successory by Merger to)
Thompson Medical Company
Chattem, Inc.
C04-689
Broadway, Judy
AR
Chattem, Inc. Consumer Products Division
Chattem Chemicals, Inc.
Wal-Mart Stores, Inc.
Chattem, Inc.
C03-497
Brown, Philip
PA
The Delaco Company
Thompson Medical Company, Inc.
Thompson Medical
Chattem, Inc.
C04-686
Brown-Clark, Joanna
AR
The Delaco Company f/k/a Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories Inc.
C03-3468
Bryan, Louise
SC
Chattem, Inc.
C04-399
Bullock, Eddie (Alford)
MS
Chattem, Inc.
C04-399
Butler, Eddie (Alford)
MS
Chattem, Inc.
C02-1729
Cage, Gloria
LA
Chattem, Inc.
C03-2492
Campbell, Pamaula
MS
Chattem, Inc.
C04-783
Cannion, Jessie
MS
Chattem, Inc.
C04-415
Carter, Kathy
MO
Chattem, Inc.
Sidmak Laboratories, Inc. and/or Pliva, Inc.
C04-399
Carter, Lovell (Alford)
MS
Chattem, Inc.
C04-399
Catlin, Janice (Alford)
MS
Chattem, Inc.
C03-476
Cervas-Meyer, Katherine Anne
TX
Chattem, Inc.
Kroger Texas, L.P.
C01-1640
Clark, Shirley Ann
AL
Chattem, Inc.
The Delaco Company f/k/a Thompson Medical Company, Inc.
C04-399
Coachman, Victoria (Alford)
MS
Chattem, Inc.
C04-1142
Cocklin, Dan C.
MS
Chattem, Inc.
The Delaco Co., f/k/a Thompson Medical Co., Inc.
C02-891
Craft, Wallace
LA
Chattem, Inc.
Thompson Medical Co., Inc.
Chattem Inc.
Delaco Co. f/k/a Thompson Medical Co., Inc.
Sidmak Laboratories, Inc.
C01-1836
Crawford, Roy G.
AL
Sobel, NV
Signal Investment & Management Co.
Pam Holdings, Inc. (DE)
Pam Holdings, Inc. (NJ)
Plivaa D.D.
Chattem, Inc.
C03-1131
Crothers, Judith E.
PA
Sidmak Laboratories, Inc.
Sobel NV
Pliva Prague
Chattem, Inc.
Signal Investment and Management
The Delaco Company
C04-074
Davis, Elnora
MS
Sidmark Laboratories, Inc.
Sobel NV
Pam Holdings, Inc. f/k/a Sobel Holdings, Inc.
Plivaa D.D.
C04-248
Davis, Geniece M.
IN
Chattem, Inc.
The Delaco Company (formerly Thompson Medical Company,Inc.)
C04-785
Dawkins, Leslie (for the estate of Helen Dawkins)
MS
Chattem, Inc.
Chattem, Inc.
C02-1013
DeLucia, Mary
CA
Thompson Medical Company, Inc.
The Delaco Company
Sav-On Drug Stores (a subsidiary of American DrugStores, Inc.)
American Drug Stores, Inc.
C03-3115
Derigo, Thanh
MS
Chattem, Inc.
C04-399
Donald, Bryant (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C02-1703
Draper, Grace
CA
Thompson Medical Company, Inc.
The Delaco Company
C01-1702
Drayton, Shirley J.
MS
Chattem, Inc.
Chattem, Inc.
EDAR C04-99
Dunn, Curtis
AR
The Delaco Company f/k/a Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories, Inc.
C04-399
England, Maggie M. (Alford)
MS
Chattem, Inc.
C04-399
England, Major Aaron (Alford)
MS
Chattem, Inc.
Chattem, Inc.
Chattem, Inc. Consumer Products Division
C04-381
Erbes, Jocelyn
MN
Chattem Chemicals, Inc.
The Delaco Company
Thompson Medical Company, Inc.
C04-399
Erwin, Irene (Alford)
MS
Chattem, Inc.
C04-399
Evans, Harvey W. (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C03-2468
Fitzmaurice, Marilyn
AR
The Delaco Company f/k/a Thompson Medical Company, Inc.
Wal-Mart Stores, Inc.
C04-399
Fleming, David (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C02-2021
Ford, Judith
NC
The Delaco Company, (Successor by Merger to)
Thompson Medical Company, Inc.
Chattem, Inc.
C02-1518
Forrest, Gall (for the estate of Charles Forrest)
FL
The Delaco Corporation (as Successor in Interest to)
Thompson Medical Company, Inc.
Walgreen Co.
C04-1110
Gatlin, Lossie
MN
Chattem, Inc.
C04-399
Gatlin, Nathaniel (Alford)
MS
Chattem, Inc.
Chattem, Inc.
The Delaco Company
C03-1013
Gregory, Janet
NJ
Sidmak Laboratories, Inc.
Sobel NV
Signal Investment & Management
Pam Holdings, Inc. f/k/a Sobel Holdings, Inc.
Plivaa D.D.
C01-2154
Hammond, Ernestine
LA
Chattem, Inc.
C04-868
Hammond, Wanda
DC
Chattem, Inc.
C04-399
Hannah, Linda (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C03-3555
Harper, Ollie Mae
MS
Thompson Medical Company, Inc.
Sumrall Drug Store, Inc.
Chattem, Inc.
C04-153
Harris, Freddie G.
MS
The Delaco Company
Thompson Medical Company, Inc.
C04-399
Harvey, Dewitt Jr. (Alford)
MS
Chattem, Inc.
C02-1023
Heroy, Lenise
NY
Chattem, Inc.
C03-1101
Hills, Alverta
MS
Chattem, Inc. (individually and as successor ininterest to)
Thompson Medical Company, Inc.
Chattem, Inc.
C03-216
Hunt, Angela
NJ
Sidmak Laboratories, Inc.
The Delaco Company (successor by merger to ThompsonMedical Company, Inc.)
Thompson Medical Company, Inc.
C03-3093
Jackson, Rosie (a/k/a Rosa)
LA
Chattem, Inc.
C02-345
Jackson, Vera
LA
Chattem, Inc.
C03-3091
James, Karen
LA
Chattem, Inc.
C03-1742
Johnson, Gloria
LA
Chattem, Inc.
Thompson Medical Company, Inc.
C04-1176
Johnson, Mae Willie
MS
Chattem, Inc.
The Delaco Co., f/k/a Thompson Medical Co., Inc.
C04-896
Jones, Mollie
DC
Chattem, Inc.
C04-399
Jordan, Albert (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C03-3874
Joseph, Brendra
AR
The Delaco Company f/k/a Thompson Medical Company, Inc.
Wal-Mart Stores, Inc.
Chattem, Inc.
C03-2156
Keller, Brenda
LA
The Delaco Company
Thompson Medical Company, Inc.
Chattem, Inc.
C04-1363
Kelly, Sigrett
MS
Sidmak Laboratories, Inc.
The Delaco Company
C02-2148
Lacey, Betty
LA
Chattem, Inc.
Chattem, Inc.
C03-362
Lampkin, Tony Ray
AL
Sidmak Laboratories, Inc.
Sobel NV
Pliva D.D.
Chattem, Inc.
EDAR C04-99
Lankford, Jackie (Dunn)
AR
The Delaco Company f/k/a Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories, Inc.
Chattem, Inc.
The Delaco Company
Sidmak Laboratories, Inc.
C03-1128
Lankford, Tonni
NJ
Sobel NV
Signal Investment & Management
Pam Holdings, Inc. f/k/a Sobel Holdings, Inc.
Plivaa D.D.
Chattem, Inc.
C03-1439
Lea, Angela
TX
The Delaco Company f/k/a Thompson Medical Company, Inc.
Walgreens Company
H.E. Butt Grocery Company d/b/a HEB
Chattem, Inc.
C02-2018
Lee, Karen
LA
The Delaco Co. (Successor by merger into)
Thompson Medical Co., Inc.
Chattem, Inc.
C04-1357
Lewis, Sally
FL
The Delaco Company
Sidmak Laboratories, Inc.
Walgreen Company
C04-399
Lilly, Robert (Alford)
MS
Chattem, Inc.
C03-3809
Lott, Alisa
MS
Chattem, Inc.
C03-3055
Mack, Willie Mae
MS
Chattem, Inc.
C04-399
Marshall, Odell (Alford)
MS
Chattem, Inc.
C04-399
Mayfield, Mary (Alford)
MS
Chattem, Inc.
C03-3455
McCook, Edith
AL
Chattem, Inc.
Delaco Company (f/k/a Thompson Medical Co.)
C02-352
McCray, Justine
LA
Chattem, Inc.
Chattem, Inc.
Sidmak Laboratories, Inc.
C03-215
McKinley, Tanya
NJ
The Delaco Company (successor by merger to ThompsonMedical Company, Inc.)
Thompson Medical Company
C04-548
McLemore (Weaver), Eva
MO
Chattem, Inc.
Schnuck Markets, Inc.
C03-3024
Miles, Debbie
MS
Chattem, Inc.
C03-3480
Miller, Daffney
AL
Chattem, Inc.
Delaco Company (f/k/a Thompson Medical Co.)
Chattem, Inc.
C03-1745
Miller, Ida
LA
Delaco Company, (successory by merger to)
Thompson Medical Company, Inc.
C02-342
Miller, James Brandon
CA
Chattem, Inc.
Thompson Medical Company, Inc.
Chattem, Inc.
C02-917
Miller, Veronica Ann
TX
Thompson Medical Company, Inc.
Delaco Company (as successor by merger to ThompsonMedical Company, Inc.)
C04-399
Mitchell, Catherine (Alford)
MS
Chattem, Inc.
Chattem, Inc.
Sidmak Laboratories, Inc.
Sobel, N.V.
C03-2485
Mitchell, Dorothy
MS
Signal Investment & Management Co.
Pam Holdings, Inc. (DE)
Pam Holdings, Inc. (NJ)
Plivaa D.D.
C04-1172
Monk, Bobbie Genette
MS
Chattem, Inc.
The Delaco Company f/k/a Thompson Medical Company, Inc.
Chattem, Inc.
C03-2506
Moody, Carol
TX
The Delaco Company f/k/a Thomspon Medical Company, Inc.
H.E. Butt Grocery Company d/b/a HEB
Chattem, Inc.
Signal Investment & Management
Pam Holdings, Inc. f/k/a Sobel Holdings, Inc.
C03-2857
Moore, Tanya Rae
NB
Plivaa D.D.
The Delaco Company
Sidmak Laboratories, Inc.
Sobel NV
C04-399
Murphy, Billy (Alford)
MS
Chattem, Inc.
C02-2589
Nail, Richard
AL
Chattem, Inc.
The Delaco Company (f/k/a Thompson Medical Company,Inc.)
Chattem, Inc.
C03-3553
Owens, Lisa Yolanda
MS
Thompson Medical Company, Inc.
Medisave d/b/a Super Discount Drugs, Inc.
C03-3027
Owens, Wiletta
MS
Chattem, Inc.
Chattem, Inc.
C03-2845
Pagel, Mary Lorraine
FL
The Delaco Company
Sidmak Laboratories
Chattem, Inc.
C02-755
Park, Jon
CA
Thompson Medical Company, Inc.
The Delaco Company
Chattem, Inc.
C04-991
Pitt, Viola L.
MO
The Delaco Company f/k/a Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories, Inc.
Chattem, Inc.
C04-700
Pringle, Betty F.
DC
The Delaco Company f/k/a Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories Inc.
C04-399
Raby, Mittle (Alford)
MS
Chattem, Inc.
C03-3056
Rainey, Betty
MS
Chattem, Inc.
C04-399
Reddick, Rufus (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C03-1728
Reinninger, Billie
LA
Delaco Company (successor by merger to)
Thompson Medical Company
C04-399
Riley, Larry (Alford)
MS
Chattem, Inc.
C04-399
Rodgers, Voncille (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C04-1363
Rominger, Barbara
MS
Sidmak Laboratories, Inc.
The Delaco Company
C02-509
Romo, Cheryl
CA
Chattem, Inc.
C03-2317
Rosebud, Delores
AL
Chattem, Inc.
The Delaco Company
C03-587
Rouse, Lori
AR
Chattem, Inc.
C04-399
Rowell, Era (Alford)
MS
Chattem, Inc.
C04-399
Royster, Vinnie (Lucindy Ruthledge) (Alford)
MS
Chattem, Inc.
Chattem, Inc.
C04-879
Russell, Tracy
MO
The Delaco Company f/k/a Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories, Inc.
Chattem, Inc.
C02-1012
Salazar, Louis
CA
Thompson medical Company, Inc.
Sav-On Drug Stores
American Drug Stores Inc. a/k/a Albertson's
Sidmak Laboratories, Inc.
Chattem, Inc.
C03-3551
Sangster, Carolyn
MS
Thompson Medical Company, Inc.
Wal-Mart, Inc. d/b/a Wal-Mart Store
C04-399
Sawyer, William (Alford)
MS
Chattem, Inc.
C04-092
Saxon, Annie
SC
Chattem, Inc.
Revco Discount Drug Centers, Inc.
C03-589
Schaal, Marilyn
AR
Chattem, Inc.
C03-860
Shandy, Bo Drax
MS
Chattem, Inc.
Eckerd Corporation d/b/a Eckerd Drugs
C03-1101
Shealey, Curley
MS
Chattem, Inc.
Thompson Medical Company, Inc.
Chattem, Inc.
C03-3879
Siemer, Timi
MO
The Delaco Company f/k/a Thompson Medical Company, Inc.
Schnuck Markets, Inc.
Chattem, Inc.
C01-2144
Simmons, Deloris
MD
The Delaco Company f/k/a Thompson Medical Company, Inc.
Pliva, Inc. f/k/a Sidmak Laboratories, Inc.
C01-1882
Smith, Almer Glynn
TX
Chattem, Inc.
C04-399
Smith, Bobby (Alford)
MS
Chattem, Inc.
Chattem, Inc.
The Delaco Company
8:04-CV-88-EAJ
Sidmark Laboratories, Inc.
(Middle District,
Sosebee, Charlotte
FL
Sobel NV
Tampa Division)
Signal Investment and Management
Pam Holdings, Inc (f/k/a)
Sobel Holdings, Inc.
Plivaa D.D.
C02-910
Sparks, Jessie
LA
Chattem, Inc.
Chattem, Inc.
The Delaco Company
Sidmak Laboratories, Inc.
C03-1121
Sparks, Sue
NJ
Sobel NV
Signal Investment & Management Co.
Pam Holdings, Inc. f/k/a Sobel Holdings, Inc.
Plivaa D.D.
C04-399
Starks, Elaine (Alford)
MS
Chattem, Inc.
C03-2492
Street, Hall
MS
Chattem, Inc.
C01-2138
Strickley, Judith F.
KY
Chattem, Inc.
Chattem, Inc.
The Delaco Co. (f/k/a Thompson Medical Company, Inc.)
Sidmak Laboratories, Inc.
C02-2625
Tanner, Alma
TX
Sobel, NV
Signal Investment & Management Co.
Pam Holdings, Inc. (DE)
Pam Holdings, Ind. (NJ)
Plivaa D.D.
C04-399
Taylor, Wille (Alford)
MS
Chattem, Inc.
Chattem, Inc.
Chattem, Inc. Consumer Products Division
C04-380
Teixeira, Linda
MN
Chattem Chemicals, Inc.
The Delaco Company
Thompson Medical Company, Inc.
C03-3284
Thomas, Dorothy
MS
Chattem, Inc.
Chattem, Inc.
C04-396
Thomas, Dorothyette (for the estate of
MS
The Delaco Co. (f/k/a)
Linda Marie Jones)
Thompson Medical Co., Inc.
C04-399
Thomas, Inell (Alford)
MS
Chattem, Inc.
C04-399
Thomas, Robert (Alford)
MS
Chattem, Inc.
Chattem, Inc.
The Delaco Company
Sidmark Laboratories, Inc.
C04-134
Thompson, Brenda
AL
Sobel NV
Signal Investment and Management
Pam Holdings, Inc. f/k/a Sobel Holdings, Inc.
Plivaa D.D.
C01-2162
Thompson, Karen
LA
Chattem, Inc.
C04-1082
Thompson, Nathaniel W.
MS
Chattem, Inc.
C04-399
Thurmond, Rosie (Alford)
MS
Chattem, Inc.
Chattem, Inc.
WDAR C04-100
Tolbert, Larry
AR
The Delaco Company (f/k/a Thompson Medical Company,Inc.)
Pliva, Inc. (f/k/a Sidmak Laboratories, Inc.)
Chattem, Inc.
C03-2506
Trevino, Zulema
TX
The Delaco Company f/k/a Thompson Medical Company, Inc.
H.E. Butt Grocery Company d/b/a HEB
C04-399
Tyson, Della (Alford)
MS
Chattem, Inc.
C04-546
Walker, Benito
MO
Chattem, Inc.
Schnuck Markets, Inc.
Chattem, Inc.
C02-2268
Warhul, Lillian
GA
The Delaco Corporation, Successor in Interest toThompson Medical Company,
Inc.
Thompson Medical Company, Inc.
Chattem, Inc.
Chattem, Inc. Consumer Products Division
C04-405
Waterman-Reynolds, Joyce
AR
Chattem Chemicals, Inc.
Wal-Mart Stores, Inc.
The Delaco Company (f/k/a Thompson Medical Company.Inc.)
C04-399
Watson, Myrtle (Lilly Cunningham)
MS
Chattem, Inc.
(Alford)
Chattem Inc.
The Delaco Company f/k/a Thompson medical
C04-840
Whitehorn, Jonell
MO
Sidmak Laboratories, Inc.
Schnuck Supermarkets, Inc. (a/k/a Schnucks, Inc., a/k/aSchnuck Holding
Company a/k/a Schnucks Food & Drugs) d/b/a Schnucks
C04-399
Whitehurst, Mary (Alford)
MS
Chattem, Inc.
Chattem, Inc.
The Delaco Company f/k/a Thompson Medical Company, Inc.
Sidmak Laboratories, Inc.
C02-537
Woodward, Ethen
KY
Sobel, NV
Signal Investment & Management Co.
Pam Holdings, Inc. (DE)
Plivaa D.D.
Chattem, Inc.
C03-1737
Young, Charlotte
LA
Thompson Medical Company, Inc.
The Delaco Company
C04-399
Young, Cynthia (Alford)
MS
Chattem, Inc.
Exhibit C
C04-399
Young, Reginald (Alford)
MS
Chattem, Inc.
CLASS MEMBERS ELGIBLE TO PARTICIPATE IN SETTLEMENTPROCESS
Class
Resident
Docket # (if any)
Claim
#Name
State
899
Alcom, Kenneth
TX
438
Aleem, Saleem
CA
C04-413
219
Alewel, Kimberly
MO
743
Alexander, Melinda
AL
C02-027
360
Ambrose, Angela
LA
476
Ames, Betty
AZ
PA
13
Anen, George
VA
C01-2152
21
Antoine, Dorothy
LA
C03-226
121
Anzalone, Margie
OH
827
Aragon, Suzanne
UT
C03-3098
129
Ashton, Joyce
MD
952
Austin, Bertha
AL
341
Baduske, William
NJ
C04-414
217
Baeseman, Katherine
MO
1024
Baker, Shannon
TX
1023
Bal, Gurpreet
CA
LA
29
Bardales, Andres
LA
C03-224
141
Bardlett, Michelle
NV
692
Barrett, Charlotte
CA
620
Baskerville, Ruth
AL
C03-859
157
Bass, John Martin
MS
C03-3291
131
Baynes, Velma
MS
891
Bell, Earlean
TN
C04-1140
291
Belt, Judy
MO
1041
Bequillard, Aldana
FL
993
Billingsley, Mia
AZ
934
Bishop, Lynn
TN
1004
Bixler, Yvonne
TX
NJ
105
Blacklidge, Darlene
AZ
484
Blakely, Sharon
MO
877
Bodal, Victoria
FL
1014
Bolda, Lisa
TX
1035
Bowe, George
MO
348
Braxton, Aaron
CA
1021
Breeswine, Garry
NM
C03-3125
207
Breite, Shirley
MO
C04-412
235
Brice, Lakisher
MO
C03-212
145
Brisco, Shonda
TX
C04-084
285
Broadway, Estella
MS
C04-689
470
Broadway, Judy
TX
NJ
17
Brown, Anna
NJ
PA
113
Brown, Philip
PA
700
Brown, Rickey
KS
1046
Brown, Vickie
IA
C03-3468
203
Bryan, Louise
SC
445
Burton, William
CA
NJ
109
Busby, Angela
OK
C02-1729
63
Cage, Gloria
LA
LA
61
Cain, Kenneth
LA
640
Caldwell, Kimmerly
SC
1036
Caley, Melinda
MO
C04-783
461
Cannion, Jessie
AL
995
Carey, Tammi
MI
911
Carlson, Starrlett
AL
C04-415
215
Carter, Kathy
MO
602
Castello, Melvin
CA
697
Causey, Virgle
MS
C03-476
125
Cervas-Meyer, Katherine
TX
818
Christopher, Jose Raul
FL
936
Clark, Edward
UT
577
Clark, Patricia
MS
1028
Clark, Phyllis
FL
C01-1540
7
Clark, Shirley
AL
419
Clegg, Sharon
IN
C04-1142
277
Cocklin, Dan
MS
722
Coger, Essie
IL
996
Cole, Janet
CA
954
Coleman, Alvetre
CA
939
Coleman, Earl
CA
799
Collazo, Mildred
FL
NJ
149
Collins, Cherise
NM
1027
Collins, Victoria
FL
888
Conner, Donna
NC
997
Cook, James
FL
994
Cooley, Sharde
CA
981
Copeland, Harry
MD
332
Cordick, William
AZ
1047
Cotey, Stephen Ray
FL
C02-091
27
Craft, Wallace
LA
1003
Crawford, Beverly
CA
C01-1636
9
Crawford, Roy
KS
C03-1131
169
Crothers, Judith
PA
632
Curtis, Cheryl
IL
324
Daranyl, Peter
CA
948
Darensbourg, Percy
CA
1030
Daunt, Sharon
KY
661
David, Sandra
FL
C04-074
225
Davis, Elnora
MS
1029
Davis, Etrenda
FL
C04-248
459
Davis, Genlece
IL
C04-785
247
Dawkins, Leslie
AL
710
Delgado, Beverly
OK
C02-1013
53
DeLucia, Mary
CA
1037
Dennis, Joseph
MN
745
Dent, Lorann
GA
C03-3115
433
Derigo, Thanh
FL
1040
Dixon, Leasha
APO, AE
987
Dixon, Tasha
CA
C02-1703
41
Draper, Grace
CA
C01-1702
15
Drayton, Shirley
MS
973
Dunivant, Patsy
AL
448
Ellenburg, Joyce
MO
727
Elliot, Tom
PA
NJ
127
Esguerra, Gloria
VA
609
Etheridge, Minnie
AL
629
Etheridge, Sophie
AL
976
Evans, Henry
CA
992
Evans, Minnie
CA
PA
75
Evans, Regina
PA
979
Evans, Sharon
MI
836
Evans, Stephanie
CA
421
Ewing, Connie
IL
868
Ewing, Patricia
IL
873
Farmer, Mary
AL
988
Field, Brent
OR
951
Fielder, Thelma
CA
978
Finley, Christopher
CA
C03-2466
432
Fitzmaurice, Marilyn
AR
541
Flowers, Ann
CA
C02-2021
31
Ford, Judith
NC
C02-1518
71
Forrest, Charles
FL
NJ
83
Forrest, Patsy
TN
847
Fox, Elaine
FL
TX
143
Frances, Mary
TX
456
Freeman, Alexzander
CA
846
Gambrel, Edith
IN
349
Garrett, Donald
TX
351
Gatewood, Helen
CA
949
Gearon, James
IL
985
Gilmore, Willie
CA
352
Glasper, Andrea
CA
350
Glasper, Jack Thomas
CA
343
Glasper, Robert
CA
398
Glasper, Roy Lee
CA
1020
Grantz, Patricia
KS
977
Grathwohl, Carla
ME
843
Green, Bobby
AR
C03-1013
491
Gregory, Janet
FL
659
Guidry, Cassandra
LA
887
Hall, Robin
CA
397
Hall, Valerie
CA
C01-2154
19
Hammond, Ernestine
LA
C04-868
276
Hammond, Wanda
MS
884
Hardy, Karlan
TX
NV
3
Harper, Charles
NV
C03-3555
427
Harper, Ollie
MS
FL
289
Harris, Billie
FL
C04-153
281
Harris, Freddie
MS
999
Hash, Robert
VA
1016
Hawkins, Brigette
MI
778
Henderson, Rodney
CA
929
Henley, Suemeko
MS
C02-1023
59
Heroy, Lenise
NY
924
Hike, Connie
GA
PA
97
Hill, Lenrea Moss
NC
1026
Hill, Ophella
FL
764
Hodges, Nancy
NC
881
Holloway, Delfhine
AL
NJ
155
Honeyblue, Danza
NJ
1009
Houston, Eddie
CA
413
Houston, Robert
CA
C03-216
139
Hunt, Angela
IN
695
Ivery, Rachel
GA
C03-3093
425
Jackson, Rosie
LA
C03-3091
103
James, Karen
LA
950
Jenkins, Etta
CA
984
Johnson, Alice
CA
926
Johnson, Dovine
CA
918
Johnson, Ed
FL
774
Johnson, Fred
MO
409
Johnson, Fred C.
FL
C03-1742
39
Johnson, Gloria
LA
C04-1176
279
Johnson, Mae Willie
MS
LA
67
Johnson, Noreen
LA
559
Johnson, Terry
CA
766
Jones, Barbara
FL
231
Jones, Linda
MS
C04-896
262
Jones, Mollie
VA
982
Jones, Yolanda
CA
C03-3874
431
Joseph, Brendra
AR
915
Kelly, Antoinette
IL
767
Kelly, Georgia
IL
963
Kelly, Larry
IL
736
Kelly, Teresa
OH
452
Kirby, Donald
OH
786
Knox, Curtis
CA
637
Lance, Paul
OH
622
Lanford, Hugh
SC
C03-1128
153
Lankford, Tonni Yolinda
TX
920
Lano, Mike
CA
628
Larson, Stephen
OR
C03-1439
123
Lea, Angela
TX
931
Leaks, Jeffery
CA
475
Leany, Sharon
AZ
TX
115
Lemon, Sharon
TX
408
Lewis, Bryant
MD
900
Lewis, Elmer
CA
946
Lewis, Patrice
GA
C04-1357
293
Lewis, Sally
FL
1038
Ley, Diane
MO
698
Little, John
MO
863
Long, Pamela
CA
890
Love, Angela
IL
TX
5
Lowry, Delbert
TX
733
Luttnell, Nancy
TN
783
Lyons, Cameron
CA
842
Machado, Antoinio
CA
C03-3056
434
Mack, Wille Mae
MS
790
Mansour, Laurie
OK
PA
47
Mapp-Grier, Theresa Bernice (Anne Maxwell)
PA
391
Marquez, Laura Jane
CA
908
Marshall, Douglas
NY
820
Martin, Anne
MA
655
Martinez, Judy
MN
PA
93
Mattison, Michael
NE
1034
Mayberry, Linda
LA
794
Mayweather, Bobby
LA
758
McCall, Hermine
LA
C03-3455
99
McCook, Edith
AL
980
McCormick, Dieshawn
CA
C02-352
385
McCray, Justine
LA
947
McCrea, Phyllis
CA
687
McCuller, Janice
TX
957
McGriff, Andre
FL
C03-215
133
McKinley, Tanya
CO
714
McKinney, Steve
LA
C04-546
455
McLemore (Weaver), Eva
MO
941
Menard, Mauro
NY
825
Milea, Earnest
TX
C03-3480
423
Miller, Daffney
AL
C02-342
25
Miller, James Brandon
CA
394
Miller, Ora
TX
C02-917
69
Miller, Veronica
TX
399
Mills, Richard
MI
974
Mitchell, Dorothy
MS
846
Molina, Mary
CA
631
Monroe, Tonsa
LA
C03-2506
430
Moody, Carol
TX
C03-2857
211
Moore, Tanya
NE
728
Morton, George
PA
691
Muldrow, Sharon
CA
C02-2589
89
Nall, Richard
AL
717
Namanny, Ronald
TN
842
Nelson, Kenneth
IL
1000
Netterville, Melanie
MS
814
Nettles, Garyon
CA
565
Neville, Edmond
NY
623
Neyer, Claudia
IL
945
Nolah, Christopher
IL
650
Norris, Avis
NY
755
O'Quinn, Barbara
IL
C03-3553
159
Owens, Lisa
MS
C03-3027
435
Owens, Wiletta
CA
C03-2846
194
Pagel, Mary
FL
1039
Paluch, Dale
MO
C02-755
55
Park, Jon
CA
PA
492
Parker, Stacy
NV
956
Parrish, Amiesha
CA
PA
77
Pastella, Judith
PA
1005
Patin, Augusta
LA
983
Patterson, Joseph
MI
716
Peer, Galvester
WI
720
Pindle, Davont
PA
753
Polk, Bertha
MO
682
Prescott, Clifford
VA
1008
Price, Maurice
CA
NY
95
Privitera, Kathleen
NY
1001
Przystup, Christopher
MI
707
Pyclor, Mary
IL
771
Quiroga, Ponclan
IN
C03-3056
182
Rainey, Betty
MS
726
Reed, Christopher
CA
893
Reichbart, Marc
FL
617
Randa, Evon
PA
898
Reynolds, Terry
WA
908
Richardson, Donald
TX
410
Richmond, Cecelia
IL
FL
283
Ricketts, Florence
FL
331
Rider, Dale
IL
731
Roberson, Larry
TX
897
Robertson, John
CA
CA
493
Rodriguez, Manuel
CA
1017
Rogers, Maggie
SD
C04-1363
296
Rominger, Barbara
MS
C02-500
369
Romo, Cheryl
CA
792
Rone, Timothy
NC
C03-2317
119
Rosebud, Delores
AL
C03-587
135
Rouse, Lori
AR
944
Rouse, Ronald
DR
964
Rudnick, Neal
IA
393
Salaml, J.L.
TX
C02-1012
51
Salazar, Louis
CA
323
Saller, Caroline
MD
NJ
131
Sanders, Erika
LA
C03-3551
161
Sangster, Carolyn
MS
913
Sapp, Shamont
PA
C04-092
201
Saxon, Annie
SC
845
Scales, Billy
AR
C03-589
137
Schaal, Marilyn
AR
791
Sell, Lydia
TX
679
Senty-Haugen, Arthur
MN
586
Serrell, Rene
CA
789
Sexton, Carole
AR
C03-860
165
Shandy, Bo Drax
TX
C03-3879
192
Sierner, Timi
MO
956
Singleton, Marnette
AR
619
Siravo, Nicholas
PA
585
Sloan, Tyrone
CA
C01-1882
11
Smith, Almer
TX
975
Smith, Carl
CA
960
Smith, Gregory
CA
756
Smith, Jennifer
IL
729
Smith, Phillip
AZ
642
Smith, Richard
NY
678
Sorina, Barbara
LA
734
Sorth, Christopher
MO
923
Sosa, Rosemarie
FL
FL
471
Sosebee, Charlotte
GA
C02-910
45
Sparks, Jessie
LA
C03-1121
163
Sparks, Sue
AL
Spaulbing, Kristal
1007
Stallworth, Alma
MI
986
Stallworth, Jerome
MI
938
Stallworth, Wayne
CA
CA
49
Stanton, Melinda
CA
FL
196
Stemen, Joan
FL
767
Stephens, Joseph
AR
NJ
151
Sterling, Vanessa
AL
822
Stevens, Wendelyn
NY
688
Stewart, Betty
MS
937
Stewart, Thomas
TX
316
Stoglin, Gloria
TX
797
Stratton, Angrea
AL
C01-2138
31
Strickley, Judith
KY
320
Stuebner, George
IL
896
Swain, Rebecca
NM
FL
269
Swistack, Edward
FL
C02-2625
107
Tanner, Alma
TX
1019
Taylor, Rudy
CA
615
Taylor-Parrish, Shirley
TN
701
Thomas, John
IL
C04-134
458
Thompson, Brenda
AL
C01-2162
23
Thompson, Karen
LA
732
Tidik, Brad
MI
C03-2505
117
Trevino, Zulema
TX
998
Tuggle, Ebony
MI
1002
Tuggle, Jessica
MI
1015
Tuggle, Marilyn
MI
961
VanHalen, Heiko
OR
321
Vascellaro, Salvatore
NY
584
Villa-Powell, Tammy
IL
C04-546
237
Walker, Benito
MO
538
Walters, John
AL
C02-2268
85
Warhul, Lillian
GA
1025
Washington, Irene
CA
874
Washington, Sharene
CA
598
Washington, Shirley
DC
C04-405
1022
Waterman-Reynolds, Joyce
AR
965
Weatherford, James
CA
723
Weatherford, Marsha
CA
628
Welch, Brenda
MI
800
Wells, Kevin
TN
1010
Wheatley, Charles
FL
C04-840
221
Whitehorn, Jonell
AL
770
Whitten, Raymond
CA
972
Wiley, Mose
AR
562
Williams, Cheryl
FL
610
Wilson, Irma
AL
910
Wilson, Roy
FL
696
Wofford, LaVerne
KS
C02-537
33
Woodward, Ethen
KY
725
Yarrell, Dennis
NC
C03-1737
167
Young, Charlotte
LA
NY
147
Zarkin, Cheryl
NY
INELGIBLE CLAIM FORMS RECEIVED (DOI prior to12/21/98)
DOI
LAST NAME
MDL Docket
#
10/10/98
BaCole, Marion Jarmaine
7/12/996
Bennett, LaVeda Michelle
4/3/97
Brodsky, Jennifer L.
8/19/94
Chapman, Oakley M.
C02-798
1990
Compton, Thomas Henry
1997
Dosunmu, Delores Jenkins
1993
Frost, Betty Ann
7/15/94
Khan, Penelope Phyllis
5/98
Lawrence, Jerry
6/12/98
Lewis, Flora Moore
7/96
Murrie, Elodia
1994
Payll, Sarah R.
1994
Rollins, Betty J.
C02-1736
1996
Salinas, Peter
1986
Schultz, Nerissa Regina
7/97
Slaughter, Michael Eugene
11/19/97
Slocum, Anthony
C02-555
1997
Smith, Linday Winningham
1/30/98
Thomas, Wanda J.
6/97
Tormey, Joyce Runge
7/98
Ulibarri, Peter Louis
Exhibit D
11/4/98
Walker, Barbara Renee
In cases where Plaintiff sued a defendant(s) in addition to the Dexatrim Defendants and claimed that the other defendant(s) is jointly responsible for Plaintiffs' injuries due to that defendant's responsibility for a product other than Dexatrim, co-ingestion of that other product(s) will be deemed to have occurred on the same day as Dexatrim if it is unclear when such FPA or other product was ingested in relation to the alleged ingestion of Dexatrim, based on a review of information in that Plaintiff's Complaints, Fact Sheets, Affirmations, deposition testimony, or medical record (and which medical record is generated in the ordinary course of medical treatment contemporaneous with the Plaintiff's injury).
OPT-OUTS
NAME
DOCKET
#
Barrientez, Rose
Bell, Glyna
C04-1137
Bryant, Rose
Geldon, Lisa
MN # 04-2647
George, Amy
C04-993
Glover, John E.
Haux, Rhonda L.
Lester, Susan
Malcolm, Donnie
Robertl, Kathleen
Sherbak, Michael
Swartz, Ellen
Vollmar, John
MN # 04-2648
Williams, Philandew
C03-2059
Young, Jacquelyn
The following people sent opt-out letters, but havedates of injury prior to December 21, 1998
DOI
NAME
DOCKET
#
12/97
Goleman, Peggy
C04-1130
9/2/95
Mitchell, Regina
C04-1116
10/98
Montgomery, Rebecca
C04-1119
1/8/91
Powers, Joy
C04-1122
4/17/95
Reeves, Carla
C04-1123
If Plaintiff has sued no other defendant, and Plaintiff's Complaints, Fact Sheets, Affirmations, deposition testimony, or medical record (and which medical record is generated in the ordinary course of medical treatment contemporaneous with the Plaintiff's injury) indicate that a product containing PPA (other than Dexatrim) was ingested by Plaintiff within 96 hours before that Plaintiff's injury, but it is unclear when such other PPA product was ingested in relation to the alleged ingestion of Dexatrim, then co-ingestion of that other product will be deemed to have occurred on the same day as Dexatrim.