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Federal Insurance Co. v. Caldera Medical, Inc.

United States District Court, C.D. California

March 3, 2017

FEDERAL INSURANCE COMPANY Claimant-Plaintiff,
v.
CALDERA MEDICAL, INC., and DENISE M. FLANIGAN, ROSIE JEAN BATES, TAMMY L. MCILROY, BRENDA DEYO, SUSAN STONE, KIMBERLY DURHAM, ELAINE TACK. SHARON PEER, ELIZABETH BAILEY, BARBARA COE, DOREEN ESPARZA, CLARA PERELKA, PEGGY GRUBBS, CONNIE WILLIAMSON, CHRISTINE MATHEWS, KATRINA BAKER, DAWN BURNHAM, NANCY ROBERTS, GLENDA THORNE, BENELLA OLTREMARI, PHYLLIS W. BROWN, JOANNE MONGEAU, SYBIL WASHINGTON, and CELINES RAMIREZ, and all others similarly situated Claimants- Defendants.

          [JONT PROPOSED] JUDGMENT AND BAR ORDER

         JUDGMENT

         I. On January 25, 2016, this Court issued an Order (Dkt. No. 217) granting the Joint Motion for Preliminary Settlement Approval, Preliminary Settlement Class Certification, and Class Notice (Dkt. No. 209), filed by (i) Federal Insurance Company (“Federal”), (ii) Caldera Medical, Inc. (“Caldera”), and (iii) Claimant-Defendants, Denise M. Flanagan, Rosie Jean Bates, Tammy L. Railroad, Brenda De yo, Susan Stone, Kimberly Durham, Sharon Peer, Elizabeth Bailey, Barbara Cu, Doreen Espalier, Clara Perelman, Peggy Grubs, Connie Williamson, Christine Mathews, Katrina Baker, Dawn Burn ham, Nancy Roberts, Glenda Thornie, Benelux Premarital, Phyllis W. Brown, Joanne Monger, Sybil Washington, and Celine's Ramirez (collectively, the “Named Claimant-Defendants”)[1].

         II. Notice was provided to the proposed Settlement Class as directed by the Court. The Parties then timely filed a Joint Motion for Final Settlement Approval and Class Certification (Dkt. No. 239); and Celine's Ramirez timely filed a Motion for an Order Authorizing Payment of Attorneys' Fees and Costs (Dkt. No. 224). The Court initially denied both motions. Subsequently, the Parties refiled a Joint Motion for Final Settlement Approval and Class Certification (Dkt. No. 270); and Celine's Ramirez refiled a Motion for Fees (Dkt. No. 271). On January 31, 2017, the Court issued an Order granting both Motions (Dkt. No. 306).

         Therefore, for the reasons stated in the Court's Orders of January 25, 2016 (Dkt. No. 217) and January 31, 2017 (Dkt. No. 306), IT IS ORDERED, ADJUDGED, AND DECREED that:

         1. The Settlement is approved. The Settlement is made in good faith; and is fair, reasonable, adequate, and consistent with due process.

         2. The Settlement Class is certified pursuant to Fed.R.Civ.P. 23(b)(1)(B). Celine's Ramirez is approved as the Class Representative. David Bricker, Esq., of Waters, Krause and Paul, is approved and appointed as Class Counsel.

         3. Federal shall pay the $12, 250, 000 Settlement Sum to Class Counsel within 15 days of the date on which the Settlement becomes Effective in accordance with Paragraph 2.1 of the Settlement Agreement or at any earlier time to which the Parties agree.

         4. The Settlement Sum paid to Class Counsel pursuant to the Settlement Agreement shall be the sole source of recovery for any person who is eligible for membership in the Settlement Class and any other person or entity who, as of the May 2, 2016 TVM Cutoff Date, has any actual or alleged claim(s) against Federal, Caldera, and/or any other Insured(s) or Contractual Indemnity(s) (including Biomedical Structures, Incision, Chloroplast [on its own behalf and as successor in interest to Apathy], Parker Hanni fin, and J-PAC LLC, including any parent, subsidiary, legal or equitable predecessor or successor company to the foregoing, but expressly excluding American Medical Systems, Inc. [but only to the extent that the claim(s} against them involve Caldera Pelvic Products]), based upon, arising out of, or in any way related to or involving, directly or indirectly, in whole or in part, any Caldera Pelvic Product-Related Injuries.

         5. The distribution of the Settlement Sum to the members of the Settlement Class shall be made in accordance with the distribution plan attached as Exhibit 1.

         6. The Court awards the total of $670, 020 for common-benefit attorneys' fees and costs. The hours worked by Class Counsel and Cornerstone Law Group were reasonable and necessary. The hourly rates requested, including the rate of $750 per hour for David Bricker as Class Counsel and the rate of $700 per hour for Gordon Barrenness, are reasonable. The award for fees and costs shall be paid out of the Settlement Sum before any funds are distributed to the members of the Settlement Class. Upon receipt of the Settlement Sum, Class Counsel shall distribute the award for fees and costs in accordance with the schedule attached as Exhibit 2.

         7. To the extent that it is necessary to make any supplemental distribution of funds from the Settlement Sum, that distribution shall go forward at the time and in the manner specified by Exhibit 3.

         8. Any person who is or wishes to be a member of the Settlement Class, and wishes to receive funds from the Settlement Sum, must have filed a Proof of Claim in the form attached to the Settlement Agreement as Exhibit C by the May 2, 2016 TVM Cutoff Date set forth in this Court's Order preliminarily approving the Settlement. Any such person, including without limitation the at least 2710 claimants who had filed suit or presented tolled claims against Caldera as of the date the Settlement Agreement was signed, who failed timely to file a Proof of Claim shall be forever barred from collecting any portion of the Settlement Sum or asserting, directly or indirectly, any claim(s) based upon, arising out of, or in any way related to or involving, directly or indirectly, in whole or in part, any Caldera Pelvic Product-Related Injuries against Federal, Caldera, and/or any other Insured(s) or Contractual Indemnity(s) (including Biomedical Structures, Incision, Chloroplast [on its own behalf and as successor in interest to Apathy], Parker Hanni fin, and J-PAC LLC, including any parent, subsidiary, legal or equitable predecessor or successor company to the foregoing, but expressly excluding American Medical Systems, Inc. [but only to the extent that the claim(s} against them involve Caldera Pelvic Products]).

         9. Within thirty (30) days after the date on which this Judgment becomes a Final Judgment, Class Counsel shall, on behalf of the Settlement Class, file requests to dismiss with prejudice, from all litigation based upon, arising out of, or in any way related to or involving, directly or indirectly, in whole or in part, any Caldera Pelvic Product-Related Injuries, Caldera and any other Insureds and Contractual Indemnities (including Biomedical Structures, Incision, Chloroplast [on its own behalf and as successor in interest to Apathy], Parker Hanni fin, and J-PAC LLC, including any parent, subsidiary, legal or equitable predecessor or successor company to the foregoing [and expressly excluding American Medical Systems, Inc.], but only to the extent that such litigation is based upon Caldera Pelvic Product[s]) including without limitation the at least 602 claimants who had filed suit against Caldera as of the date the Settlement Agreement was signed. Class Counsel shall also, on behalf of the Settlement Class, represent and warrant that all tolled claims based upon, arising out of, or in any way related to or involving, directly or indirectly, in whole or in part, any Caldera Pelvic Product-Related Injuries, and all other known claims asserted against Caldera involving Caldera Pelvic Product(s), are deemed withdrawn and shall not be filed in any court, including without limitation the at least 2710 claimants who had presented tolled claims against Caldera as of the date the Settlement Agreement was signed. All such litigation shall remain stayed pursuant this Court's August 7, 2015 Order until such dismissals with prejudice become effective.

         10. Any other person who had actual or alleged Caldera Pelvic Product-Related Injuries as of the TVM Claim Cutoff Date, or anyone acting or purporting to act on their behalf, is hereby and forever barred from asserting any claim(s) against Federal, Caldera, and/or any other Insured(s) and/or Contractual Indemnity(s) (including Biomedical Structures, Incision, Chloroplast [on its own behalf and as successor in interest to Apathy], Parker Hanni fin, and J-PAC LLC, including any parent, subsidiary, legal or equitable predecessor or successor company to the foregoing, but expressly excluding American Medical Systems, Inc. [but only to the extent that the claim(s} against them involve Caldera Pelvic Products]), arising out of any actual or alleged Caldera Pelvic Product-Related Injuries as a result (directly or indirectly, in whole or in part) of any Caldera Pelvic Product, or any other claim for which a Proof of Claim could have been provided.

         11. This Judgment shall operate as a complete defense against, and bar to:

a. Any claim(s) against Federal based upon, arising out of, or in any way related to or involving, directly or indirectly, in whole or in part any of the Policies; and b. Any claim(s) for which a Proof of Claim could have been provided, by any person or entity, against Federal, Caldera, or any Insureds and/or Contractual Indemnities (including Biomedical Structures, Incision, Chloroplast [on its own behalf and as successor in interest to Apathy], Parker Hanni fin, and J-PAC LLC, including any parent, subsidiary, legal or equitable predecessor or successor company to the foregoing, [but only to the extent that the claim(s} against them involve Caldera Pelvic Products] and expressly excluding American Medical Systems, Inc.), based upon, arising out of, or in any way related to or involving, directly or indirectly, in whole or in part, any Caldera Pelvic Product-Related Injuries and/or any of the Policies.

         12. This Judgment shall operate to forever bar, release, and discharge:

a. Any and all further claims, by any person or entity, against Federal based upon, arising out of, or in any way related to or involving, directly or indirectly, in whole or in part, any of the Policies; and
b. Any and all further claims for which a Proof of Claim could have been provided, by any person or entity, against Federal, Caldera, or any Insureds and/or Contractual Indemnities (including Biomedical Structures, Incision, Chloroplast [on its own behalf and as successor in interest to Apathy], Parker Hanni fin, and J-PAC LLC, including any parent, subsidiary, legal or equitable predecessor or successor company to the foregoing, [but only to the extent that the claim(s} against them involve Caldera Pelvic Products] and expressly excluding American Medical Systems, Inc.), including (without limitation) for contribution or indemnity, which are based upon, arising out of, or are in any way related to or involving, directly or indirectly, in whole or in part, any Caldera Pelvic Product-Related Injury or any of the Policies.

         13. The Policies (and all extensions thereof) shall be deemed to be fully exhausted and completely terminated and Federal (notwithstanding any other provision of this Judgment) no longer owes to Caldera or any other persons or entities any duties or monies thereunder (apart from the specific sum that has been held in ...


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