Garcia-Phinn v. Organon USA Inc et al

Filing 57

ORDER APPROVING SETTLEMENT. Signed by Honorable J Michelle Childs on 8/28/2014. (asni, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
THE ESTATE OF PAULETTE GARCIAPHINN, CHARLENE PHINN AS
PERSONAL REPRESENTATIVE,

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Civil Action No. 1:13-01357-JMC
)
)
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Plaintiff,
)
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v.
) ORDER APPROVING SETTLEMENT
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ORGANON, USA, INC., ORGANON
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PHARMACEUTICALS USA, INC.,
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ORGANON INTERNATIONAL, INC.,
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SCHERING PLOUGH CORPORATION
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and MERCK & CO., INC.,
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Defendants.
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_________________________________________)
This matter is before the court on a Petition for Approval of Wrongful Death Settlement
(the “Petition”) pursuant to S.C. Code Ann. §§ 15-51-41 to -42 (2013) filed by
Plaintiff/Petitioner Charlene Phinn (“Plaintiff”), as Personal Representative of the Estate of
Paulette Garcia-Phinn. (ECF No. 51.) Upon review and consideration of the Petition and
supporting documents, the Settlement Agreement and Release executed by the Petitioner, the
Certificate of Plaintiff’s Counsel and the facts and circumstances surrounding this action, the
court finds that the settlement is fair and reasonable and in the best interests of the statutory
beneficiaries and the Estate of Paulette Garcia-Phinn.
RELEVANT BACKGROUND TO THE PETITION
In the subject action, Plaintiff asserted twelve (12) causes of action including claims for
wrongful death, negligence, strict liability, unfair trade practices, and fraud related to Ms.
Garcia-Phinn’s use of Cyclessa®. (ECF No. 1.) Following the expiration of the discovery
deadline, Defendants filed a Motion for Summary Judgment on March 31, 2014, along with
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supporting affidavits, other exhibits and a memorandum of law. (ECF No. 31.) On April 17,
2014, Plaintiff filed a Memorandum in Opposition to Defendants’ Motion for Summary
Judgment and a Motion for Extension of Time to Supplement Rule 26(a)(2)(B) Disclosures to
Provide Expert’s Conclusions. (ECF Nos. 34, 35.) Defendants filed their Reply to Plaintiff’s
Opposition to Motion for Summary Judgment and their Opposition to Plaintiff’s Motion for
Extension on April 29, 2014. (ECF Nos. 37, 38.)
In their Motion for Summary Judgment, Defendants noted that the risk of VTE has long
been associated with all combined hormonal birth control pills such as Cyclessa® since the
introduction of the first birth control pills in the 1960s. (ECF No. 31-1 at 9.) Defendants argued,
inter alia, that summary judgment was warranted because: (1) the warnings of the risk of venous
thromboembolism (“VTE”) in the FDA-approved Cyclessa® label were adequate, (2) Ms.
Garcia-Phinn’s healthcare provider – the learned intermediary to whom the legal duty to warn is
owed – was clearly warned about the risk of VTE associated with Cyclessa®, (3) there is no
evidence that a different warning would have changed the healthcare provider’s decision to
provide Cyclessa® to Ms. Garcia-Phinn, and (4) there is no evidence that Ms. Garcia-Phinn’s
injury would have been avoided had she used a different combined oral contraceptive.
Accordingly, Defendants argued that Plaintiff could not sustain her claim of failure to warn or
any of the causes of action asserted. (ECF No. 31 at 1–2.)
In support of the Motion for Summary Judgment, Defendants submitted an affidavit from
Ms. Garcia-Phinn’s healthcare provider and affidavits and accompanying reports from
Defendants’ medical and regulatory experts. (ECF Nos. 31-3, 31-4, 31-5, 31-6.) In support of
her Motion for Extension of Time to designate an expert, Plaintiff filed a belated expert
“affidavit/report,” which Defendants opposed on the grounds that the purported designation was

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untimely and unduly prejudicial to Defendants and that no good cause existed to modify the
court’s scheduling order. (ECF No. 35-1.) A hearing on the parties’ respective motions was set
for July 2, 2014. On or about June 19, 2014, the parties notified the court that an agreement had
been reached to resolve the case.

The subject Petition for Approval of Wrongful Death

Settlement followed.
FINDINGS AND CONCLUSION
The court finds that the parties arrived at this settlement in good faith and after extensive
negotiations and with the advice of counsel. As required by S.C Code Ann. §15-51-41 (2013),
the court reviewed the Petition and received into evidence those facts necessary and proper to
evaluate the settlement proposal, pursuant to S.C. Ann. §15-51-42 (2013). The court finds that
the Petition meets the requirements of S.C. Code Ann. §§ 15-51-41 to -42 (2013). The court
further finds that the settlement is fair and reasonable and in the best interests of the statutory
beneficiaries and the Estate of Paulette Garcia-Phinn. Accordingly, it is hereby ORDERED that
the Petition for Approval of Settlement Agreement be, and the same is hereby GRANTED; and
it is further
ORDERED that the Settlement Agreement and Release executed by the Personal
Representative in this matter is hereby APPROVED; and it is further
ORDERED that Plaintiff Charlene Phinn, as Personal Representative of the Estate of
Paulette Garcia-Phinn, is hereby authorized to conclude the settlement; and it is further
ORDERED that Defendants Organon USA, Inc., Organon Pharmaceuticals USA, Inc.,
Organon International, Inc. and Merck & Co., Inc. (f/k/a Schering-Plough Corporation) and all
those on whose behalf payment is made and any other persons who could be responsible because
of the actions on whose behalf the settlement proceeds are being paid as resulting from claims in

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this action, are relieved and discharged from further liability and shall have no obligation or legal
duty to see to the appropriate or proper distribution of the settlement proceeds among either the
wrongful-death beneficiaries or any persons entitled to proceeds of the settlement; and it is
further
ORDERED that once payment has been made to Plaintiff Charlene Phinn, as Personal
Representative of the Estate of Paulette Garcia-Phinn, the obligations of Defendants as resulting
from claims in this action and those on whose behalf payment is made, and all those who could
be responsible for the actions of these persons, are fully and completely released and finally and
forever discharged from any further responsibility in connection with this action.
IT IS SO ORDERED.

United States District Judge
August 28, 2014
Columbia, South Carolina

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