Bowling v. Pfizer, Inc.

• Decision Date: 01 March 1996
• Docket Number: No. C-1-91-256.,C-1-91-256.
• Citation: 922 F. Supp. 1261
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Arthur Ray BOWLING, et al., Plaintiffs, v. PFIZER, INC., et al., Defendants.

922 F. Supp. 1261

Arthur Ray BOWLING, et al., Plaintiffs, v. PFIZER, INC., et al., Defendants.

No. C-1-91-256.

United States District Court, S.D. Ohio, Western Division.

March 1, 1996.

Stanley Morris Chesley, Waite, Schneider, Bayless & Chesley Co. — 1, Cincinnati, OH, for Arthur Ray Bowling, Julie Whyle, Janet Boggess, Barbara Finley, Jeffrey Laton Taylor, Emma Carolyn Wright, Archie Calvert, James Pauley, Sonja Lee Bowling, Jeffrey James Whyle, Lawrence Boggess, Jackie Wright, Wanda Calvert.

Harry Bernard Plotnick, Cincinnati, OH, Bruce A. Finzen, Minneapolis, MN, for 183 Individuals, Listed at 38-1, who fall within the Definition of the Purported Class.

Elaine Pauley, On Behalf of Themselves and All Others.

Janet Gilligan Abaray, Sherrill Patricia Hondorf, Waite, Schneider, Bayless & Chesley Co. — 1, Cincinnati, OH, Terrence Lee Goodman, Waite, Schneider, Bayless & Chesley Co. — 1, Cincinnati, OH, Fay Elizabeth Stilz, Stanley Morris Chesley, Waite, Schneider, Bayless & Chesley — 1, Cincinnati, OH, for Elaine Pauley.

Marc David Mezibov, Sirkin, Pinales, Mezibov & Schwartz — 1, Cincinnati, OH, for Adrienne Fedak, Ronald Dempster, Freda Dempster, Amicus Curiae Ministry of Health, Providence of Alberta, Canada, Ministry of Health Providence of Manitoba, Canada.

James Ralph Adams, Frost & Jacobs — 1, Cincinnati, OH, for Pfizer Inc., Shiley Inc.

Larry M. Keller, Gary Green, Sidkoff, Pincus & Green P.C., Philadelphia, PA, Morton B. Wapner, Philadelphia, PA, for Putative Class in Pennsylvania.

Gates Thornton Richards, Gates T. Richards Company — 1, Cincinnati, OH, John T. Johnson, Johnson & Dylewski P.C., Houston, TX, for Nellie Melling.

Elliot Polanieki, Cincinnati, OH, for Objectors Pennsylvania Class.

Thomas Collins Rink, Strauss & Troy — 1, Cincinnati, OH, John Weld Peck, Peck, Shaffer & Williams — 1, Cincinnati, OH, David B. Malone, Peck, Shaffer & Williams, Cincinnati, OH, for Robert L. Black, Jr.

Robert L. Black, Jr., Cincinnati, OH, Pro Se.

Brian Wolfman, Washington, DC, for amicus curiae Public Citizen.

Vance C. Simonds, Jr., Kasdan, Simonds, Peterson, McIntyre, Epstein & Martin, Irvine, CA, for amicus curiae Dutch Consumentenbond.

Thomas Collins Rink, Strauss & Troy — 1, Cincinnati, OH, John Weld Peck, Peck, Shaffer & Williams — 1, Cincinnati, OH, David B. Malone, Peck, Shaffer & Williams, Cincinnati, OH, for Peter J. Strauss.

Peter J. Strauss, Cincinnati, OH, Pro Se.

MEMORANDUM AND ORDER ON APPLICATIONS FOR ATTORNEYS' FEES AND EXPENSES

NANGLE, District Judge.

Individuals implanted with the Björk-Shiley convexo/concave heart valve brought this product liability action against the valve's manufacturer, Shiley, Inc., and its parent company, Pfizer, Inc., alleging that the valve has design and manufacture defects which renders it hazardous to individuals in whom it has been implanted. On August 19, 1992, the Honorable S. Arthur Spiegel, Senior United States District Judge for the Southern District of Ohio, approved a settlement of the action on a worldwide class basis. Class and Special Counsel, as well as counsel for certain class members, are now before the Court seeking an award of attorneys' fees and expenses from the funds created by the settlement.

Pursuant to Orders entered August 3, 1995, and September 1, 1995, this case was transferred from the docket of Judge Spiegel to the docket of the undersigned,¹ for the purpose of determining the amount and source of attorneys' fees and expenses to be awarded in this case. The Order of September 1, 1995, also contained a number of findings with respect to the financial benefit of certain attorneys' activities. Specifically, Judge Spiegel concluded that Class Counsel, Stanley M Chesley, Esq., and Special Counsel, John T. Johnson, Esq., Brian Magaña, Esq., Louis Saul, Esq., Charles Wolfson, Esq., and James T. Capretz, Esq., had rendered valuable services to the plaintiff class and that their joint application should, therefore, be considered. Judge Spiegel also concluded that the applications of Brian Wolfman, Esq., on behalf of Public Citizen, Inc., and Thomas Herren, Esq., should be considered because they, too, had rendered valuable services to the plaintiff class. Judge Spiegel further concluded that the application of Sidkoff, Pincus & Green, P.C., and Wapner, Newman & Wigrizer, counsel for certain Pennsylvania class objectors, should be denied because their activities in this case had not conferred any financial benefit upon the Class. Finally, Judge Spiegel reserved for the undersigned the question of whether the activities of The Consumentenbond, and possibly others, benefited the plaintiff class.

Accordingly, a hearing was held in this district to consider the fee applications of those attorneys whose services had benefited the Class, as well as the applications of those for which a finding of benefit had been reserved for the undersigned. Upon order of the Court, all attorneys participating in the hearing prepared and submitted a comprehensive stipulation covering all issues relating to the fee applications before the Court. Additionally, the Court received evidence and heard argument at the hearing on the applications. Based upon the evidence and arguments presented at the hearing, as well as the parties' stipulations and other submissions, the Court issues the following Memorandum and Order.

I. BACKGROUND

Between 1979 and 1986, Shiley, Inc., a wholly-owned subsidiary of Pfizer, Inc., manufactured a human-implant heart valve known as the Björk-Shiley convexo/concave heart valve ("c/c heart valve" or "valve"). Somewhere between 50,000 and 100,000 of the valves were implanted in patients worldwide. By 1992, approximately 450 of these valves had fractured resulting in approximately 300 deaths. The valves continue to fracture today and it is anticipated that they will continue to do so in the future.

As early as 1984, consumer groups such as the Washington, D.C.-based Public Citizen, Inc., claimed that the c/c heart valve posed a serious public health threat because it had design and manufacture defects which caused it to have an abnormally high risk of fracture. Defendants have steadfastly denied that the c/c heart valve is any more likely to fracture than any other valve available on the market at that time; however, when Public Citizen petitioned the Food and Drug Administration in 1990 to require defendants to notify implantees of the risks associated with the valves, defendants voluntarily agreed to undertake to find and notify implant patients and their physicians of the alleged risks posed by the valves.

The c/c heart valve has engendered a substantial amount of litigation. Individuals implanted with valves that have fractured, as well as individuals with properly functioning valves, have brought suit against defendants in jurisdictions across the United States. In every suit involving a valve that had actually fractured, defendants were able to settle the case with a confidential agreement. In cases where there had been no fracture, however, defendants were able to get at least 27 courts to dismiss the suits on the ground that there is no right of recovery for emotional distress arising from a valve implantee's fear that a properly functioning valve might fracture in the future.

Although defendants had generally been successful at settling all fracture cases and getting non-fracture cases dismissed, the litigation and attendant poor publicity was nevertheless taking its toll. Defendants were having to devote substantial resources to defending the nation-wide litigation, and a California court denied their motion for summary judgment in a case where a plaintiff had a properly functioning c/c heart valve. Furthermore, criticism of the valve and of the defendants in newspaper articles, television programs and even congressional hearings began to mount. See Bowling v. Pfizer, Inc., 143 F.R.D. 141, 147-48 (S.D.Ohio 1992). Thus, as Judge Spiegel observed in his Order finding the proposed settlement to be fair, defendants had ample reason to settle all claims involving their c/c heart valves. Id.

II. PROCEDURAL HISTORY

All of the named plaintiffs in this action had properly functioning c/c heart valves when their complaint was filed on April 19, 1991. The causes of action asserted in their complaint included negligence, strict liability, negligent misrepresentation, fraudulent misrepresentation, intentional infliction of emotional distress and negligent infliction of emotional distress; and the relief sought included compensatory damages, medical monitoring and punitive damages. The complaint also proposed a class action under Rule 23 of the Federal Rules of Civil Procedure.

In response to these allegations, defendants filed a motion to dismiss for lack of jurisdiction and a motion for summary judgment contending, among other things, that there was no right of recovery for the emotional distress arising from plaintiffs' fear that their properly working heart valves might fracture in the future. Defendants also filed a motion requesting that their motions to dismiss and for summary judgment be heard with plaintiffs' request for class certification.

Before the Court ruled on defendants' motions, however, Class Counsel and counsel for defendants informed the Court that the parties had initiated settlement negotiations. The Court subsequently denied defendants' request for a consolidated hearing on their motions and class certification and, at a November 19, 1991, status conference, the parties indicated to the Court that they were in the final stages of negotiating a settlement that would apply to all individuals implanted with the c/c heart valve. Approximately two months later, the parties informed the Court that they had agreed upon a proposed settlement. The Court thereafter granted the parties' Joint Motion for Conditional Class Certification for Settlement Purposes (Doc. 43) and set a fairness hearing to consider...