Bowling, et al, v. Pfizer Inc, et al

Filing 3191

AGREED ORDER. Signed by Judge Timothy S. Black on 6/20/2023. (rrs)

Case: 1:91-cv-00256-TSB-SM Doc #: 3191 Filed: 06/20/23 Page: 1 of 6 PAGEID #: 12574

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ARTHUR RAY BOWLING, et al.,
Plaintiffs,
vs.
PFIZER, INC., et al.,
Defendants.

:
:
:
:
:
:
:
:
:

Case No. 1:91-cv-256
Judge Timothy S. Black

AGREED ORDER

The Settlement in this case was reached in 1992 and approved by the Honorable S.
Arthur Spiegel. (Doc. 250). Since then, the Settlement has been administered by a
succession of special master/trustees and others and overseen by the Honorable Herman
Weber and by the undersigned. Nancy Lawson, Esq. now serves as Special
Master/Trustee of the Bowling Settlement Fund. CAC Services Group, LLC (CAC)
serves as the Settlement Administrator, carrying out the Special Master/Trustee’s courtapproved instructions and maintaining an open line of communication for any class
members who would like to obtain information about the Settlement or avail themselves
of its benefits.
Paul De Marco, Esq. and Terence Coates, Esq. of Markovits, Stock & DeMarco,
LLC serve pro bono as Class Counsel, and Brian Wolfman, Esq. serves pro bono as
Special Counsel to Class Counsel. Jack Harrison, Esq. serves as counsel for Pfizer.
On October 29, 2015, the Court entered an agreed order approving an amendment
of the Settlement and a second distribution totaling almost $17 million to all then-living
1

Case: 1:91-cv-00256-TSB-SM Doc #: 3191 Filed: 06/20/23 Page: 2 of 6 PAGEID #: 12575

implantee class members and their then-living spouses. (Doc. 3138). That agreed order
approving the second distribution required a holdback in the agreed amount of
$1,619,835.00. (Id. at 33). In that agreed order, the Court found that this holdback
amount:
would be more than sufficient to cover the reasonable and
foreseeable (a) costs of reimbursing qualified class members’
uninsured expenses related to explant surgeries under
subsection 5.2.3, including those who qualify under the
Supervisory Panel’s guidelines and those later diagnosed with
single-leg fractures; (b) fees and expenses of the Settlement
Administrator; (c) fees and expenses of the Special
Master/Trustee; (d) fees for any necessary tax return
preparation and accounting and for a biennial review of the
remaining funds by a qualified outside accounting firm; (e)
costs associated with administering, implementing, and/or
enforcing the terms of the Settlement, including any additional
expenses of the Supervisory Panel or its members and any
further work that the Court might ask of the Panel or any of its
members; and (f) fees and expenses related to the distribution.
This hold-back will cover the foregoing expenses and any other
costs associated with carrying out the purposes of the
Settlement Agreement in future years.
(Id. at 32-33).
In 2020, by another Agreed Order, the Court ordered a third distribution in light of
the advancing age of implantee class members and the availability of relatively up-to-date
contact information for them as a result of the second distribution. (Doc. 3187 at 4-7, 9).
The approximate amount of $1,300,000.00 was thus made available for the third
distribution, divisible in equal shares among all living implantee class members who
cashed checks as part of the second distribution. (Id. at 9). In the same Agreed Order,
the Court ordered that, once the third distribution was completed, the remainder of the
2

Case: 1:91-cv-00256-TSB-SM Doc #: 3191 Filed: 06/20/23 Page: 3 of 6 PAGEID #: 12576

funds in the Settlement Fund would be entrusted to the care and custody of The
HealthPath Foundation of Ohio (“HealthPath”), a non-profit foundation in Ohio, by
means of the “Custodial Agreement Between HealthPath Foundation of Ohio and the
Special Master/Trustee of the Bowling/Pfizer Heart Valve Settlement Fund.” (Id.) This
Custodial Agreement was signed in 2022 (Doc. 3188) at which point the remaining
settlement funds were transferred to HealthPath. In addition, that Agreed Order stated as
follows:
HealthPath is an affiliate of the Greater Cincinnati Foundation
and has resources for and expertise in managing funds and in
making grants, particularly in the health care arena. Under the
Custodial Agreement, HealthPath would be obligated to
manage and, where necessary, pay out funds according to
instructions issued by the Court, all within a ten-year
timeframe. Within that ten-year window, HealthPath would
make use of its internal resources to perform administrative
responsibilities previously covered by outside vendors such as
tax preparers and accountants; and to the extent given
responsibilities cannot be brought in-house at HealthPath, the
foundation would use the funds entrusted to it to cover them.
At all times within that ten-year window, for example,
HealthPath would ensure that CAC is paid for continuing to act
as Settlement Administrator. At the end of this ten-year period,
HealthPath will distribute the then-remaining funds in the form
of grants in support of public health projects and/or research
for improving cardiovascular health.
The Custodial
Agreement provides for such final distributions on “the earlier
of (1) the date on which the Court determines and advises
HealthPath that sufficient funds exist within the Fund that
making such grants from the income thereon will not
jeopardize any amount reasonably anticipated to pay claims
under sub-paragraph 2(a)(1) above or (2) ten years from [the
effective date of the Custodial Agreement].” Exhibit B, p. 2,
Sec. 2(b). If the Custodial Agreement is approved, the
expectation is that HealthPath, utilizing its expertise in grant
making within the health care arena, in the near term would
work in collaboration with the Special Master/ Trustee, Class
3

Case: 1:91-cv-00256-TSB-SM Doc #: 3191 Filed: 06/20/23 Page: 4 of 6 PAGEID #: 12577

Counsel, and Special Counsel to formulate a plan for
automatically making the grants described above and in the
Custodial Agreement at the end of the ten-year period.
(Doc. 3187 at 7-8).

On May 11, 2023, the Court conducted a telephone status conference in this case.
Participating were Trustee/Special Master Nancy Lawson, Class Counsel Paul De Marco,
Special Counsel Brian Wolfman, Pfizer’s counsel Jack Harrison, and Eric DeWald of
HealthPath. Prior to and at the status conference, Mr. DeWald reported his progress in
collaborating with the Trustee/Special Master, Class Counsel, and Special Counsel in the
development of the contemplated plan for making grants at the end of the ten-year period.
In accordance with the discussion during the status conference, there was
concurrence on the following points, and thus the Court orders as follows:
1.

At her request, Trustee/Special Master Nancy Lawson shall be relieved of

her duties immediately upon the filing of the 2022 tax return for the Settlement Fund.
The Court and the parties express their gratitude to Ms. Lawson for her many years of
faithful and outstanding service in this case, first as counsel for predecessor
Trustee/Special Master James Higgins and then as his successor.
2.

In relevant part, Paragraph 5.2.4.1 of the Supplemented Agreement of

Compromise and Settlement requires that there be a “Master” designated by the Court to
administer class members’ claims for expenses related to explant surgery. Because there
have been no such claims since 2010, it is unnecessary at this time for the Court to
appoint a replacement for Ms. Lawson.

4

Case: 1:91-cv-00256-TSB-SM Doc #: 3191 Filed: 06/20/23 Page: 5 of 6 PAGEID #: 12578

3.

CAC will continue to serve, and HealthPath will continue to pay it to serve,

as Settlement Administrator for the purpose of responding to communications from class
members, processing any explant claim submitted by any qualified class member, and
providing other services relevant to the class or class members. Prior to the end of the
10-year period referred to above, the parties will agree on how future communications
with class members or claims by class members, if any, will be handled, and determine
proper methods for disposition of the information in CAC’s possession.
4.

Should any such claim be submitted hereafter by a qualified class member,

CAC will process the claim, and HealthPath, which remains subject to the Court’s
oversight and instructions, will pay it, if the claim is validated by CAC.
5.

Should it become necessary to appoint a Special Master in the event such a

claim is submitted by a qualified class member, the parties concur that HealthPath, which
has possession of the remaining settlement funds, and is and will continue to be subject to
the Court’s oversight and instructions, could ably fulfill the role of Special Master.
6.

The Custodial Agreement executed in 2022 by Ms. Lawson as Trustee/

Special Master and by Mr. DeWald on behalf of HealthPath contemplates that HealthPath
will manage the funds until 2032. At that time, HealthPath will use all of the remaining
funds in accordance with directions it receives from the Court to make grants that support
public health projects and/or research for improving cardiovascular health. In the
intervening time, HealthPath is directed to continue to manage the funds in the reasonable
manner described by Mr. DeWald, which is calculated to grow them over the ensuing
nine years, and to continue to develop the grant-making plan to be executed in 2032. As
5

Case: 1:91-cv-00256-TSB-SM Doc #: 3191 Filed: 06/20/23 Page: 6 of 6 PAGEID #: 12579

discussed during the status conference, in developing and proposing this grant-making
plan, HealthPath is to be guided, whenever possible, by the objective to promptly benefit
remaining class members, and thus by the need to spend down the remaining funds in
2032, or as soon thereafter as is practicable.
IT IS SO ORDERED.
Date:

6/20/2023

Timothy S. Black
United States District Judge

7.
8.

Agreed:
/s/ Nancy Lawson_____________
Special Master/Trustee
/s/ Paul De Marco_____________
Class Counsel
/s/ Brian Wolfman_____________
Special Counsel to Class Counsel
/s/ Jack Harrison_______________
Counsel for Pfizer and Shiley

6