In Re Orthopedic ( 2003 )


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  •                                                                                                                            Opinions of the United
    2003 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    11-24-2003
    In Re Orthopedic
    Precedential or Non-Precedential: Precedential
    Docket No. 02-3978
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    Recommended Citation
    "In Re Orthopedic " (2003). 2003 Decisions. Paper 74.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2003/74
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    PRECEDENTIAL
    Filed November 24, 2003
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 02-3978
    IN RE: ORTHOPEDIC BONE SCREW PRODUCTS
    LIABILITY LITIGATION
    (MDL No. 1014)
    *DANIEL FANNING, on behalf of himself and all others
    similarly situated; *MARGARET SCHMERLING, on behalf
    of herself and all others similarly situated
    v.
    *ACROMED CORPORATION;
    *GIBRALTER NATIONAL INSURANCE
    (Intervenor in District Court)
    *(D.C. Civil No. 97-cv-00381)
    Joyce Custer, Robert Deniken,
    Rebecca Hill, Marie Wells Iacono,
    Katherine D. Morris and Brenda Willette,
    Appellants
    *(Amended in accordance with Clerk’s Order
    dated 01/03/03)
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    MDL No. 1014 and D.C. Civil Action No. 97-cv-00381
    (Honorable Ronald L. Buckwalter)
    Argued: July 29, 2003
    Before: SCIRICA, Chief Judge, RENDELL and AMBRO,
    Circuit Judges
    2
    (Filed November 24, 2003)
    BRIAN S. WOLFMAN, ESQUIRE
    (ARGUED)
    Public Citizen Litigation Group
    1600 20th Street, N.W.
    Washington, D.C. 20009
    Attorney for Appellants
    ARNOLD LEVIN, ESQUIRE
    FRED S. LONGER, ESQUIRE
    Levin, Fishbein, Sedran & Berman
    510 Walnut Street, Suite 500
    Philadelphia, Pennsylvania 19106
    JOHN J. CUMMINGS, III, ESQUIRE
    Cummings, Cummings &
    Dudenhefer
    416 Gravier Street
    New Orleans, Louisiana 70130
    Attorneys for Appellees,
    Plaintiffs’ Class and Plaintiffs’
    Legal Committee
    RICHARD I. WERDER, JR.,
    ESQUIRE (ARGUED)
    Jones Day
    North Point
    901 Lakeside Avenue
    Cleveland, Ohio 44114
    Attorney for Appellee,
    AcroMed Corporation
    OPINION OF THE COURT
    SCIRICA, Chief Judge.
    At issue is application of an indemnification clause in a
    $100 million Fed. R. Civ. P. 23(b)(1)(B) class action
    settlement involving class members implanted with
    orthopedic bone screws. This is an appeal of a District
    Court order permitting defendant AcroMed Corporation to
    3
    be indemnified, with money from a fixed settlement fund,
    for costs associated with related individual cases. We will
    affirm.
    I.
    A.
    This appeal is brought by six class members—termed
    “Custer Objectors” after the first-listed appellant, Joyce
    Custer—who have valid claims for compensation from the
    settlement fund. The objectors challenge the application of
    an indemnity provision that was included in the class
    action settlement.
    Appellee, AcroMed, is one of several bone screw
    manufacturers that were defendants in Multidistrict
    Litigation 1014. In 1996, AcroMed reached agreement with
    the Plaintiffs’ Legal Committee. A class action complaint
    was filed together with the proposed settlement. In 1997,
    the District Court certified the class for settlement purposes
    and approved the settlement. In re Orthopedic Bone Screw
    Prod. Liab. Litig. (Fanning), 
    176 F.R.D. 158
     (E.D. Pa. 1997).
    An appeal of the settlement was voluntarily dismissed,
    rendering the District Court’s order final and unappealable.
    The certified class included all persons having a claim
    against AcroMed relating to bone screws that were
    implanted anywhere in the United States before December
    31, 1996. Finding that AcroMed’s potential resources to
    settle claims were sufficiently restricted that they amounted
    to a “limited fund,” the District Court certified the class
    under Fed. R. Civ. P. 23(b)(1)(B), as a non-opt-out class.
    The settlement provided the only avenue for recovery for
    class members subject to the settlement, who were enjoined
    from bringing individual actions.
    The settlement specified $100 million, plus certain
    insurance proceeds, for payment of settled claims. The
    District Court approved this figure largely because of its
    finding that AcroMed was worth $104 million, based on
    what a willing buyer would pay for the company
    independent of the financial constraints and uncertainty
    4
    associated with the bone screw litigation. The District Court
    found the $100 million fund amount to represent the upper
    limit of what AcroMed could afford.1
    The agreement included an indemnification provision,
    permitting AcroMed to request money from the settlement
    fund for defending certain related lawsuits. It provides:
    AcroMed . . . will be indemnified by the AcroMed
    Settlement Fund, by appropriate petition to the Court,
    for all reasonable costs and services incurred in
    defending, settling, or satisfying judgments entered in
    any claims or proceedings involving Settled Claims of
    Settlement Class Members . . . that are not terminated
    as a result of this Agreement or that are filed in the
    future despite this Agreement.
    The agreement also provided for a “Settlement Contingency
    Fund” to ensure that, as the settlement fund was depleted,
    sufficient funds would be set aside to protect AcroMed’s
    indemnification rights for costs associated with related
    lawsuits.
    In approving the settlement, the District Court stressed
    limiting indemnification under these provisions, noting that
    the purpose of the agreement was to maximize recovery for
    the class members. Under the indemnification provision,
    AcroMed is only granted the right to request payment, while
    the District Court retains ultimate discretion to determine
    whether indemnification is appropriate. The District Court
    further stated that the provision’s indemnification of
    “reasonable costs” would be “given a strict and narrow
    construction upon any requests made for indemnification
    or payment from the settlement fund.” Orthopedic Bone
    Screw, 176 F.R.D. at 167. At issue is application of the
    indemnification provision.
    B.
    Melissa Lloyd is a West Virginia resident who had surgery
    involving bone screw implantation on December 14, 1996.
    1. Appellants contest this finding, claiming that    AcroMed   was
    subsequently sold for a considerably higher price.
    5
    In 1999, she sued AcroMed in West Virginia state court,
    alleging she had not received notice of the national class
    action settlement. AcroMed removed the case to federal
    court, seeking to have it joined with MDL 1014. The
    attempt to keep it in federal court failed. See Lloyd v. Cabell
    Huntington Hosp., Inc., 
    58 F. Supp. 2d 694
     (S.D. W. Va.
    1999). Following remand, AcroMed filed a motion to show
    cause why Lloyd and her counsel should not be held in
    contempt for prosecuting the state court action. AcroMed
    contended that Lloyd was a class member and, as such,
    was subject to the District Court’s injunction against class
    members filing actions separate from the class action.
    The District Court agreed, concluding that Lloyd was a
    class member, and holding her in contempt. The only
    sanction the District Court imposed was an injunction
    against further prosecution of the West Virginia case. Lloyd
    appealed that ruling. Before the appeal was decided,
    however, Lloyd and AcroMed reached a settlement, under
    which AcroMed paid Lloyd $200,000—several times more
    than class members received under the class settlement.
    AcroMed then sought indemnification from the settlement
    fund for the costs of the Lloyd settlement. It also requested
    that $1 million be set aside in the settlement contingency
    fund for future indemnification of similar collateral actions.
    The Plaintiffs’ Legal Committee did not oppose these
    requests, both of which the District Court granted.2
    Appellants are six class members who object to the
    indemnification of the Lloyd settlement, as well as the $1
    million set-aside. After the District Court had granted the
    indemnification, the Custer Objectors moved to alter or
    amend the District Court’s order under Fed. R. Civ. P.
    59(e). The objectors contended that indemnification was not
    “reasonable” under Judge Bechtle’s prior interpretation;
    that Lloyd was not a settlement class member with settled
    claims, so not within the indemnification provisions; and
    that any interpretation of the provision that would cover
    2. MDL 1014 was presided over by Judge Louis Bechtle from its
    inception. By the time of the indemnification motion, however, Judge
    Bechtle had retired. The case was reassigned to Judge Ronald L.
    Buckwalter.
    6
    Lloyd was at odds with general class action principles. The
    District Court denied their motion.
    II.
    As noted, the District Court’s order approving the
    AcroMed Fed. R. Civ. P. 23(b)(1)(B) class action settlement
    is final and unappealable. Any challenges to the legality of
    the     settlement    agreement     itself,  including    the
    indemnification provision, are no longer timely. The
    indemnification provision is valid and binding on the
    parties. To the extent the objectors challenge not the
    provision itself, but the interpretation and application of it
    to the Lloyd case, however, the finality of the agreement
    does not prevent review.3
    3. AcroMed contends the challenge to the Lloyd indemnification is moot,
    because the payment has already been made. But that payment did not
    resolve the dispute; it is the subject-matter of the dispute itself. The
    objectors claim that the payment made to Lloyd cost them money to
    which they are entitled. AcroMed’s citation to a case in which an
    insurance company resolved the underlying dispute by paying a claim is
    inapposite. See Phillips v. Cheltenham Township, 
    575 F.2d 72
    , 73-74 (3d
    Cir. 1978). In Phillips, the defendant lacked specific injury, 
    id. at 73
    ,
    while objectors here claim they will receive less money due to the
    application of the indemnification provision. AcroMed further claims the
    challenge to the set-aside is not yet ripe, as that money has not been
    paid out to anyone, and the money may be used for cases of a kind not
    challenged here. As noted, the challenge to the reserves depends on the
    objectors’ challenge to the Lloyd case. If the Lloyd indemnification is
    acceptable, then the objectors lack a basis for challenging the $1 million
    reserve. Because we conclude the Lloyd indemnification was reasonable,
    we need not resolve this question.
    We have some doubt whether objectors have standing to represent the
    interests of the settlement class in challenging the application of
    settlement terms previously agreed to by the Plaintiffs’ Legal Committee.
    This issue was not fully briefed by the parties. However, because
    objectors likely have standing to challenge the application of the
    indemnification provision on their own behalf, we will reach the merits
    of their argument. The Supreme Court recently held that a nonnamed
    member of a class who objected at the fairness hearing could appeal the
    approval of the settlement without moving to intervene in the case.
    Devlin v. Scardelletti, 
    536 U.S. 1
    , 14 (2002). Objectors here neither
    7
    We review the District Court’s construction of the
    provision de novo. Pennwalt Corp. v. Plough, Inc., 
    676 F.2d 77
    , 79 (3d Cir. 1982). But as noted, the provision itself
    grants a measure of discretion to the District Court in
    determining when indemnification is appropriate. To the
    extent we review such a determination, we review for abuse
    of discretion.
    III.
    After the settlement was approved and final, the Supreme
    Court enunciated a narrow view of acceptable limited-fund
    class settlements, see Ortiz v. Fibreboard Corp., 
    527 U.S. 815
     (1999), raising the question whether this settlement
    would have been approved under current class action
    doctrine. See In re Orthopedic Bone Screw Prods. Liab. Litig.
    (Sambolin), 
    246 F.3d 315
    , 317 n.3 (3d Cir. 2001) (“Since
    [the settlement approval], the ‘limited fund’ of a defendant
    to meet claims has been substantially circumscribed by the
    Supreme Court as a basis for the maintenance of a class
    action.”). Nevertheless, the AcroMed Settlement is an
    agreement approved by a final, and now unappealable,
    order that binds all of the parties to the present dispute. To
    the extent the objectors wish to challenge the
    indemnification provision itself, their opportunity to do so
    was at the approval stage and on appeal from that order,
    and has now long passed. See Hodge v. Hodge, 
    621 F.2d 590
    , 591-93 (3d Cir. 1980) (finding res judicata barred
    challenges to order enforcing terms of settlement).
    The only question before us, then, is whether the
    indemnification provision was properly applied in this case.
    The Lloyd matter appears to fall within the language of the
    indemnification provision. The provision permits requests
    for reasonable costs associated with “defending, settling, or
    objected at the fairness hearing nor appealed the settlement, which is
    now final. In Scardelletti, however, the Court declined to frame the issue
    as one of standing, but rather as “whether petitioner should be
    considered a ‘party’ for the purposes of appealing the approval of the
    settlement.” Id. at 7. Objectors here do not qualify as a party for
    purposes of appealing the original settlement.
    8
    satisfying judgments entered in any claim or proceedings
    involving Settled Claims of Settlement Class Members . . .
    that are not terminated as a result of this Agreement or
    that are filed in the future despite this Agreement.” At issue
    is whether Lloyd was a “settlement class member,” and
    whether her claims were “settled claims” within the
    meaning of the agreement.
    These are both defined terms in the agreement. Lloyd
    falls squarely within the definition of a settlement class
    member, as one who has a claim relating to bone screws
    implanted in the United States before December 31, 1996.
    And “any and all Orthopedic Bone Screw Related claims” by
    settlement class members are “settled claims” under the
    agreement. Consequently, Lloyd is a settlement class
    member, whose claim in West Virginia is one of the “settled
    claims.” AcroMed is entitled to seek compensation for the
    costs of defending and settling such claims “that are not
    terminated as a result of this Agreement or that are filed in
    the future despite this Agreement.”
    Objectors maintain that Lloyd was not a settlement class
    member for purposes of the indemnification provision.
    Contending she never received adequate notice of the class
    certification and settlement, objectors argue that Lloyd was
    not subject to the jurisdiction of the District Court and was
    never a proper party to the action. The objectors’ argument,
    in other words, is that even though Lloyd appears to fall
    under the agreement’s definition of a settlement class
    member, she is not within this group, all things considered,
    because of the operation of due process and jurisdictional
    constraints. And because her claims were not, in fact,
    settled by the agreement, her claims allegedly were not
    “settled claims,” despite the definition in the agreement.
    We disagree. The objectors’ interpretation cannot be
    squared with the entire indemnification provision. The
    provision expressly recognizes “Settled Claims . . . that are
    not terminated as a result of this Agreement.” It must,
    therefore, be possible for a claim to be a “Settled Claim”
    without, in fact, being settled by the agreement.4 And the
    4. We note that in referring to settlement class members and settled
    claims, the indemnification provision places both in capital letters,
    clearly indicating that they are meant to refer to the agreement’s
    definition of those terms.
    9
    reason such claims might not be terminated would
    presumably be the kinds of reasons Lloyd claimed
    exempted her from the settlement. Lloyd’s action is
    precisely the kind of action the agreement appears to
    contemplate as at least a candidate for indemnification.
    As noted, however, the provision is limited to
    “reasonable” costs associated with such cases. Objectors
    contend that, giving “reasonable” the “strict and narrow”
    interpretation the District Court insisted upon in approving
    the settlement, the indemnification of the Lloyd settlement,
    and cases like it, is not reasonable.5 At the same time,
    however, objectors do not press the argument that the
    amount of money paid for Lloyd’s suit was unreasonable.
    The amount Lloyd received was substantially higher than
    she would have received as a class member, and was fully
    indemnified from the settlement fund. Nevertheless,
    $200,000 is not unreasonable on its face, and there is
    nothing in the record on which to challenge its
    reasonableness. In any event, the objectors’ primary
    argument is that it was unreasonable to view Lloyd’s case
    as an appropriate candidate for indemnification at all.
    Fundamental to this argument is objectors’ contention
    that in approving the AcroMed Settlement under Rule
    23(b)(1)(B), the District Court’s finding of a limited fund was
    erroneous. This argument rests on a challenge to the
    propriety of the settlement agreement and its terms,
    including the indemnification provision. As such, it can no
    longer be raised. As noted, the settlement agreement has
    been approved in a final, unappealable order. For the same
    reason, judicial decisions circumscribing mass-tort limited-
    fund class action settlements decided after the agreement
    5. We note that when the District Court approved the indemnity
    provision, it emphasized that the “overriding” purpose of the agreement
    was to maximize the recovery for the class members. Of course, any
    money drawn from the fund to satisfy the indemnification provision
    would reduce class members’ recovery. But an indemnity provision in a
    limited-fund case makes sense. Where the fund is truly limited, the
    defendant may not have additional money to defend collateral suits, and
    those suits may threaten the entirety of the fund. In this sense,
    indemnification provisions appear reasonable in limited-fund cases.
    10
    was reached cannot alter what is “reasonable” under the
    agreement.
    The Lloyd case falls squarely within the definition of
    cases eligible for indemnification under the agreement.
    Therefore, we see no basis for overturning the District
    Court’s judgment that this was a reasonable request.
    For the foregoing reasons, we will affirm the orders of the
    District Court.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit