March 30, 2020
A recent Law 360 story by Matthew Santoni, “Anapol Weiss Seeks Much of $3.8M Sorin MDL,” reports that Anapol Weiss is seeking nearly $2 million for helping clients reach a global settlement over allegations that the former Sorin Group USA’s heater-coolers put heart surgery patients at greater risk of contracting dangerous bacterial infections, according to a filing in Pennsylvania federal court. In its filing, the firm sought approval of a total of $3.8 million in fees and $441,000 in expenses for itself and 14 other firms that had worked toward a $225 million global settlement with Sorin, now known as Livanova PLC, which would leave about $334,000 in a common fund established for payment of fees and expenses to benefit all the cases gathered together under the multidistrict litigation.
“The size of the global settlement fund is approximately [$225 million] and a substantial number of individuals benefitted from the settlement program devised by lead counsel and members of the [plaintiffs’ executive committee], including plaintiffs with suits in the MDL and various state courts as well as others with unfiled claims,” the petition said.
As lead counsel, Anapol Weiss sought $1.7 million in fees and more than $250,000 in expenses for nearly 2,000 hours of “common benefit” work, with other firms — including Johnson/Becker PLLC, Hayes Lorenzen Lawyers PLC and Chaffin Luhana LLP — claiming the rest of the request for $3.8 million in fees and $440,000 in expenses from the fund. Anapol Weiss also asked U.S. District Judge John E. Jones III to reduce the 6 percent assessment he’d put on all monetary recoveries in the MDL that fed into the common benefit fund.
In the original lawsuit, filed in 2016, lead plaintiffs Edward Baker and Jack Miller had sought medical monitoring and a declaration from the court that the Sorin 3T heater-cooler device, used to control the temperature of a patient’s blood during open-heart surgeries, was defective. The devices allegedly made patients more susceptible to a slow-growing but potentially fatal bacterial infection from a family of bacteria known as nontuberculosis mycobacterium, or NTM.
Spearheaded and hosted by Johnson/Becker, the executive committee gathered data on potential claimants and negotiated the proposed settlement with Livanova, the petition said. Livanova and Anapol Weiss announced that they had reached a global settlement in March 2019, while the Baker case reached its own settlement in October.
The petition said the fees were reasonable given the amount of work required, the complexity of the case and the relative size of the global settlement. “The current request for a total fee award of $3,750,000 represents less than 2% of the global settlement and is well within the range deemed reasonable in similar cases,” the petition said.
An earlier case management order had set an assessment of 6% from each claimant’s monetary awards, including 2% for common-benefit fees and 4% for expenses. Though it did not set a new target, Anapol Weiss requested that the court lower the assessment based on costs so far, and streamline the allocation of money from the fund.
“The actual common benefit costs were only 0.19% of each claimant’s gross monetary award,” the petition said. “Lead counsel requests that CMO 5 be modified to reduce the cost assessment and eliminate the need for a CPA to review the time and expenses as there is an agreement for the allocation among all counsel receiving a common benefit fee award and/or common benefit expense reimbursement.” The remainder of the common benefit fund would be reserved for any future common work and the estimated $3,200-a-month cost of maintaining an online document repository, the petition said.