MDL Docket No. 1014

Fanning, et al. v. AcroMed Corp., et al.


AcroMed seeks an order to show cause why Melissa L. Lloyd and her attorneys should not be held in contempt for purportedly violating the release provisions of the AcroMed class action settlement. Their alleged infraction is Ms. Lloyd's April 19, 1999 suit filed in West Virginia state court against AcroMed and a local hospital for injuries that arose after AcroMed's bone screws were surgically implanted in her spine. AcroMed seeks to bar prosecution of the West Virginia action, even though Ms. Lloyd lacked notice of the class action settlement and her injuries occurred after notice of that settlement had taken place. As we now show, because this Court lacks personal jurisdiction over Ms. Lloyd, the order to show cause should not be issued.


Melissa Lloyd, an AcroMed bone screw recipient, is the plaintiff in Lloyd v. Cabell Huntington Hospital, Inc., No. 99C0289 (Cir. Ct. Cabell Cty., W. Va.), in which Ms. Lloyd sued both AcroMed and Cabell Huntington Hospital, the hospital at which AcroMed's bone screws were implanted. See Complaint, attached as Exhibit 1.

AcroMed removed the case to the United States District Court for the District of West Virginia. Recognizing that the hospital, like Ms. Lloyd, was a West Virginia citizen, and that complete diversity was lacking, AcroMed argued that the case was removable on federal question grounds because its principal defense was this Court's October 1997 approval of the AcroMed class action settlement. The West Virginia district court did not reach that issue, however. Rather, it remanded the case to state court because the hospital had not sought removal, nor had AcroMed sought and obtained the hospital's consent to removal, as required by 28 U.S.C. 1446(b). See Opinion Remanding Action, attached as Exhibit 2.

Unable to derail Ms. Lloyd's state court action through removal, AcroMed then moved this Court for an order to show cause why Ms. Lloyd, and her attorneys, Marvin M. Masters and Anthony J. Majestro, should not be held in contempt on the ground that the prosecution of the West Virginia action violates the AcroMed class action settlement. AcroMed claims that Ms. Lloyd is a class member bound by that judgment's provision purporting to enjoin all present and future personal-injury suits relating to AcroMed bone screws and, as a result, that her West Virginia case may not proceed.

On November 22, 1999, counsel for Mess'rs Masters and Majestro made a special appearance before this Court at a status conference in MDL 1014. Counsel maintained that the Court did not acquire personal jurisdiction over Ms. Lloyd in the AcroMed class action or otherwise and that, therefore, her West Virginia action could go forward. The Court granted counsel the opportunity to brief the personal jurisdiction issue.(1)


A. The Settlement Agreement, Notice, and Settlement Approval.

Since 1994, the Court has presided over this multidistrict litigation involving personal-injury suits against various pedicle screws manufacturers, including AcroMed. In late 1996, AcroMed and the Plaintiffs' Legal Committee ("PLC") agreed to a classwide settlement. A class action, Fanning v. AcroMed Corporation, No. 97-381, was filed within MDL 1014, to provide a procedural mechanism for accomplishing that settlement. The class included all people who had been implanted with AcroMed bone screws through December 31, 1996, but not those implanted afterwards. See In re Orthopedic Bone Screw Prod. Liab. Litig. ("Bone Screw"), 176 F.R.D. 158, 170-71 (E.D. Pa. 1997). The class "specifically includ[es]" people with "claims for alleged injuries and damages not yet known or manifest." Id. at 170 (quoting Pretrial Order No. 724).

The settlement set aside $100 million, plus an undetermined amount in disputed AcroMed insurance proceeds, id. at 166 & n.8, to pay for class members' personal-injury claims under a program to be run by a claims administrator. Id. at 176. Class members wanting to share in the settlement proceeds were required to register with the claims administrator by May 1, 1997, see Pretrial Order No. 724, ¶ 12, a deadline that we understand was extended to May 15, 1997. Under the settlement, class members were not permitted to opt out, on the theory that AcroMed's assets constituted a "limited fund." Id. at 180-81. Although AcroMed did not have the full $100 million in cash or other assets, it promised to fund most of the settlement by unsecured borrowing based on "cash flow," i.e., based on its future business prospects once the litigation had been put behind it. Id. at 168-70.

The settlement also purported to release, on a non-opt-out basis, a wide range of claims against all doctors nationwide who had implanted the class members' AcroMed bone screws and all health care facilities where the surgeries had taken place. Id. at 166. These health care providers were not defendants in the class action, did not contribute financially to the settlement, and did not claim to be "limited funds."

This Court preliminarily approved the settlement and adopted a notice plan that was carried out in January 1997. The notice was directed principally at people who had already claimed injury and had filed suit against AcroMed. Thus, a full notice package was sent to all settlement class members known to the PLC and all counsel of record for plaintiffs in MDL 1014.

The only other notices were short-form advertisements appearing twice in the national edition of USA Today, once in TV Guide, once in Parade Magazine (an insert in some Sunday newspapers), and once in a Spanish-language newspaper in Puerto Rico. Id. There were no TV or radio ads, no public service announcements, no notice via the internet (for instance, through AOL, Netscape, or some other major service provider), and no notices in local or regional newspapers in West Virginia or otherwise. No effort was made to notify hospitals in West Virginia at which pedicle bone screw surgeries had taken place. Id. at 178.

Notice was important for at least two reasons. First, it gave affected people an opportunity to obtain materials relating to the settlement and to file objections if they thought the settlement was unfair or unlawful. Second, even if a class member did not want to object, because registration with the settlement master was a prerequisite to obtaining cash settlement benefits, it was critical that class members receive complete notice of the settlement and its procedures well prior to the registration deadline.

The Court held a hearing over four days in April, June, and July 1997. Id. at 167. It listened to evidence concerning the allegedly limited nature of AcroMed's assets and the terms of the settlement, and it heard legal argument in favor of and in opposition to the settlement.

On October 17, 1997, the Court approved the settlement as proposed by the parties. As part of its approval, the Court certified the class on a non-opt-out basis under Federal Rule of Civil Procedure 23(b)(1)(B), on the ground that AcroMed was a "limited fund" unable to satisfy personal-injury claims asserted against it. Id. at 180.

In assessing the fairness of the $100 million settlement, the Court specifically found, based on the testimony of the PLC's expert Harvey Rosen, that AcroMed's value was $104 million, absent the litigation (i.e., assuming the settlement were approved). Id. at 168. Thus, to settle the class action, AcroMed was paying what the Court believed was virtually AcroMed's entire value. Id. at 170.

The Court issued a judgment accompanying its opinion approving the settlement. Id. at 186-90. That judgment set forth the basic terms of the settlement and contained an anti-suit injunction barring bone-screw related litigation against AcroMed and other "Released Parties," including health care providers, such as Cabell Huntington Hospital. Id. at 188.

B. The Facts Concerning Ms. Lloyd.

Melissa Lloyd resides in Apple Grove, West Virginia, Declaration of Melissa L. Lloyd, ¶ 1, copy attached as Exhibit 3.(2) Apple Grove has a population of less than 100. Id. On December 14, 1996, Ms. Lloyd was implanted with AcroMed pedicle screws at Cabell Huntington Hospital in Huntington, West Virginia. Id. ¶ 2; Complaint, Exhibit 1, ¶ 9. Ms. Lloyd is a class member as defined in the AcroMed settlement agreement because her surgery took place on or before December 31, 1996.

Ms. Lloyd did not receive notice of the AcroMed class action settlement. Id. ¶ 5. She received nothing about the settlement in the mail, nor did her doctors or hospital inform her of the settlement. She did not read about the settlement in any of the national publications that contained a notice about the settlement. Id. Indeed, she did not hear of the class action settlement at any time prior to the filing of her West Virginia state court suit in April 1999. Id. She therefore was never informed of the May 15, 1997 registration deadline imposed by the settlement. Id. ¶¶ 2, 5-6. She did not appear before this Court in Fanning v. AcroMed or in any other proceeding in MDL 1014.

Subsequent to the notice period, Ms. Lloyd began experiencing significant back pain. In early May 1997, she underwent surgery, at which time one of the AcroMed bone screws was explanted. Lloyd Declaration, ¶ 3. On May 26, 1998, she had additional surgery to remove the remaining bone screws and related hardware. Id.

Ms. Lloyd retained attorneys Masters and Majestro on June 28, 1998. Id. ¶ 4. They filed suit on her behalf on April 19, 1999. Ms. Lloyd's complaint alleges that her injuries are attributable to AcroMed's product, which the complaint alleges, among other things, was defectively designed and manufactured, was not accompanied by appropriate warnings, and was improperly sold for unapproved off-label uses. The complaint seeks compensatory and punitive damages under West Virginia common law and the West Virginia Consumer Credit and Protection Act. Exhibit 1, ¶¶ 9-40.


AcroMed's motion to show cause should be denied because this Court did not acquire personal jurisdiction over Ms. Lloyd in the AcroMed class action settlement or otherwise, and therefore does not have the power to enjoin or otherwise impede her West Virginia suit. Rather, any arguments that AcroMed may wish to advance concerning the res judicata effect of the AcroMed settlement must be made in the West Virginia action. Part A below explains in more detail why this Court does not have personal jurisdiction over Ms. Lloyd. Part B briefly outlines the due process and other concerns that Ms. Lloyd intends to raise in the West Virginia action to assure the Court that her arguments are substantial.

A. This Court Lacks Personal Jurisdiction Over Ms. Lloyd And, Therefore, Any Assertion Concerning The Purported Res Judicata Effect Of The AcroMed Class Action Judgment May Only Be Asserted In Ms. Lloyd's West Virginia Action.

There is no question that if AcroMed sued Ms. Lloyd individually in federal court in Philadelphia over conduct occurring in West Virginia, this Court would not have personal jurisdiction over her. Nor is there any question that Ms. Lloyd never voluntarily submitted herself to the jurisdiction of this Court during the AcroMed class action proceeding or otherwise during the course of MDL 1014. The only question is whether this Court's certification of a non-out-opt class somehow altered the ordinary rules and provided the Court jurisdiction over Ms. Lloyd. It did not.

The issue here is governed principally by the Third Circuit's decision in In re Real Estate Title & Settlement Services Antitrust Litig., 869 F.2d 760 (3d Cir.), cert. denied, 493 U.S. 821 (1989), which involved a collateral attack on a prior class action settlement. In that class action, the plaintiffs alleged that certain title companies had engaged in price fixing in violation of the federal antitrust laws and sought injunctive relief and money damages. See id. at 763. As here, various cases were consolidated in a multi-district litigation--MDL 633--in district court in Philadelphia. The MDL 633 court thereafter certified the class on a non-opt-out basis under Federal Rule of Civil Procedure 23(b)(1) and (2) and approved a settlement in which the defendants agreed to alter their future conduct in certain respects. The Third Circuit affirmed the settlement in an unpublished order. See In re Real Estate, 869 F.2d at 764 (describing underlying class action settlement).

Thereafter, while a petition for a writ of certiorari in MDL 633 was pending in the Supreme Court, two Arizona school districts brought suit in Arizona state court seeking money damages under Arizona state law based on the same wrongful conduct that was the subject of MDL 633. See id. at 764. The defendant title companies, like AcroMed here, then returned to the district court in Philadelphia asking it to enjoin the Arizona action on res judicata grounds, i.e., that the judgment in the MDL 633 settlement barred the Arizona action from going forward. See id.

The district court granted the injunction. Id. The Third Circuit reversed, holding that the district court never obtained personal jurisdiction over the non-resident school districts even though it had certified a nationwide non-opt-out class and approved a nationwide settlement involving that class and the defendant title companies. Id. at 765. The court of appeals noted that a mandatory certification might have been sufficient to provide personal jurisdiction over non-residents in a settlement in which purely injunctive claims were released. Id. at 768. However, where substantial monetary claims were purportedly foreclosed by the settlement, a non-opt-out class certification did not provide personal jurisdiction over the non-resident school districts. Id. at 766-68. The court of appeals indicated that it was not finally deciding the question whether the Philadelphia settlement could properly bind the non-resident school districts, and that defendants could raise their res judicata defense in the proper forum, i.e., the Arizona state court. See id. at 767.(3)

In so holding, the Third Circuit relied on the Supreme Court's decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). See In re Real Estate, 869 F.2d at 766-67. In Shutts, a Kansas state court had certified a nationwide class of plaintiffs who sought unpaid interest on gas royalties that were payable to them by defendant Phillips Petroleum. The Supreme Court concluded that certain minimal due process protections were required before absent class members could be bound where the claims were wholly or predominately for money damages. Shutts, 472 U.S. at 810-13 & n.3. Those minimal protections include, Shutts held, adequate representation by the class representatives, adequate notice, and an opportunity to opt out. Id. at 812.

Because the class members in Shutts had all been provided notice by first-class mail and an exclusion form allowing them to opt out of the class, the Court concluded that the Kansas court had personal jurisdiction over the absentees. Id. at 813. In the Court's view, because notice and an opportunity to opt out allowed class members to exclude themselves and to litigate the matter in the forum of their choice, those class members who did not opt out had, in effect, consented to the court's jurisdiction. See id. Reasoning from the Shutts analysis, In re Real Estate concluded that, where opt-out rights are not provided, a district court does not have personal jurisdiction over non-consenting non-resident class members in cases involving claims for money damages. See 869 F.2d at 767.

Ms. Lloyd's situation is nearly indistinguishable from the situation presented in In re Real Estate. Here, as in In re Real Estate, a nationwide non-opt-out settlement purporting to resolve the class members' claims for money damages was approved by a federal district court. Thereafter, Ms. Lloyd, a non-resident class member, filed suit in her home state seeking money damages based on claims that were the subject of the nationwide class action, just as the school districts in In re Real Estate filed suit for antitrust damages claimed to have been extinguished in the nationwide settlement. Thus, personal jurisdiction is lacking here over Ms. Lloyd, just as it was lacking over the non-resident school districts in In re Real Estate.

We acknowledge that In re Real Estate declined to address whether its holding applied to class actions in which certification was based on a limited fund rationale, 769 F.2d at 768 n.8, the asserted basis for the Rule 23(b)(1)(B) certification in the AcroMed settlement. Nonetheless, In re Real Estate applies with full force in the limited fund context for two reasons. First, the minimal due process protections set forth in Shutts apply to all attempts to bind absent plaintiffs where the claims are "wholly or predominately for money judgments." 472 U.S. at 812 n.3. It is undisputed that the in personam personal-injury claims of the class members released in the AcroMed settlement are claims "wholly ... for money judgments."

Second, if there were any doubt on this score, the Supreme Court's recent decision in Ortiz v. Fibreboard, 119 S. Ct. 2295 (1999), eliminates it. In Ortiz, the Court struck down a limited-fund non-opt-out asbestos personal-injury class action settlement on the ground that the class should not have been certified under Rule 23(b)(1)(B). In concluding that Rule 23(b)(1)(B) could rarely, if ever, be properly applied to aggregate individual tort claims, the Court "sound[ed] a warning of the serious constitutional concerns that come with any attempt to aggregate tort claims on a limited fund rationale." 119 S. Ct. at 2314.

Among the constitutional concerns discussed in Ortiz was the mandatory class action's inherent conflict with the traditional Anglo-American principle that individuals are entitled to their own day in court before they can be bound to a judgment or their rights are extinguished. Id. at 2315 (citing Richards v. Jefferson County, 517 U.S. 793, 798-99 (1996); Martin v. Wilks, 490 U.S. 755, 762 (1989); Hansberry v. Lee, 311 U.S. 32, 40 (1940)). In articulating that principle, Ortiz turned to a lengthy explanation of Shutts, which, Ortiz reiterated, demands notice and the opportunity to opt out, as well as adequate representation, before absent class members can be bound to a class action judgment. Ortiz, 119 S. Ct. at 2315. Ortiz's forceful reaffirmation of Shutts demonstrates that Ms. Lloyd's rights to due process would be violated if the AcroMed class action settlement were held to bar her West Virginia action for money damages. But for present purposes, the only question is whether this Court can bar the West Virginia court from entertaining that question. In light of Ortiz, it is now beyond debate that the principles enunciated in Shutts, and which thereafter formed the basis for the Third Circuit's decision in In re Real Estate, apply with full force to limited fund certifications under Rule 23(b)(1)(B).

Although this Court need go no further than the precedents discussed above to deny AcroMed's request for a show cause order, it should be noted that the facts of Ms. Lloyd's case on the issue of personal jurisdiction are far more compelling than the facts presented in In re Real Estate. First, Ms. Lloyd is an individual class member for whom it would have been very inconvenient and costly to litigate outside of her home state. By contrast, although out-of-state litigation would have been undesirable for the complaining school districts in In re Real Estate, it would have constituted a rather mundane business expense, particularly because the school districts' case was being financed by the Arizona Attorney General. 869 F.2d at 764. The Third Circuit acknowledged these facts, but nevertheless held that due process rights should not be accorded piecemeal, depending on the particular litigant's financial position. Id. at 767 n.7.

Second, and on a related note, the school districts in In re Real Estate had notice of the original class action and an opportunity to object to the settlement. Indeed, the court of appeals noted that the school districts appeared in the MDL 633 proceeding in Philadelphia to request exclusion from the class, but held that such an appearance did not constitute consent to that court's jurisdiction so as to require the school districts to litigate the res judicata issue in Philadelphia. Id. at 770-71. Here, by contrast, Ms. Lloyd had no notice of the class action, Lloyd Declaration, ¶¶ 2, 5, and she made no appearance in MDL 1014, thus underscoring this Court's lack of personal jurisdiction over her.

B. Barring Ms. Lloyd's West Virginia Lawsuit on Res Judicata Grounds Would Raise Substantial Legal Concerns.

The only action that Ms. Lloyd seeks from this Court is denial of the request for a show cause order on the ground that this Court lacks jurisdiction over her. Thus, this Court should go no further than the arguments set forth in Part A above and conclude that Ms. Lloyd's lawsuit may proceed in West Virginia state court, which is the proper forum in which AcroMed may raise its res judicata defense. Nonetheless, in this section, we outline the arguments that Ms. Lloyd would likely raise in opposition to such a res judicata defense simply to demonstrate that such arguments are substantial.

First, the non-opt-out nature of the AcroMed class action settlement may itself violate due process, at least in some circumstances, as held in Brown v. Ticor Title Ins. Co., 982 F.2d 386, 392 (9th Cir. 1992), and as suggested by the Supreme Court in Ortiz and by the Third Circuit in In re Real Estate.

In this regard, the size of the property interest that would be extinguished if Ms. Lloyd's suit were barred potentially dwarfs the property interest held by each class member in In re Real Estate, as well as in Shutts. Ms. Lloyd alleges that she suffers severe and permanent physical injuries attributable to AcroMed's conduct. Complaint, Exhibit 1, ¶ 42. She seeks the full array of compensatory and punitive damages, id. ¶¶ 41-46, which could easily amount to hundreds of thousands of dollars. By contrast, each class member's damages in In re Real Estate was the incremental price charged to that class member for title insurance because of the defendants' price fixing conduct, subject to trebling under the antitrust laws. See 869 F.2d at 760. Although not trivial, these damages are not of same magnitude as Ms. Lloyd's. Similarly, in Shutts, the damages were also of the small-claims variety, averaging only $100 per class member. Shutts, 472 U.S. at 801. In sum, because due process often balances the cost of additional process (here, the cost of providing Ms. Lloyd an opportunity to litigate her claims in her home state) against the consequences of not providing that process (the complete abrogation of Ms. Lloyd's personal-injury claims), see Connecticut v. Doehr, 501 U.S. 1, 10-11 (1991); Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the magnitude of Ms. Lloyd's property interest suggests that she has a constitutional right to proceed with her West Virginia action.

Second, the non-opt-out nature of the settlement violated Ms. Lloyd's Seventh Amendment right to a jury trial, as suggested in Ortiz, 119 S. Ct. at 2314.

Third, the notice provided in the AcroMed settlement, particularly as it relates to Ms. Lloyd, who was not injured at the time of notice, violated Ms. Lloyd's right to due process. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 628 (1997); Shutts, 472 U.S. at 812; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950).

Fourth, Ms. Lloyd was inadequately represented because, as a "future" claimant, who had not suffered injury at the time of settlement, she was not provided separate, unconflicted representation. See Ortiz, 119 S. Ct. at 2319-20; Amchem, 521 U.S. at 626-27.

Fifth, the arguments advanced by the PLC in support of a non-opt-out "limited fund" settlement under the particular facts of this case were so clearly outside of the bounds of the Rules Enabling Act, the Rules of Decision Act, and Rule 23(b)(1)(B), as to constitute inadequate representation. See generally Ortiz, 119 S. Ct. at 2316-22; In re Diet Drugs Products Liability Litig., 1999 U.S. Dist. Lexis 14881 (E.D. Pa. Sept. 27, 1999).

Sixth, the PLC's submissions concerning the value of AcroMed constituted inadequate representation. This Court's decision approving the "limited fund" settlement of $100 million was based in substantial part on the testimony and report of the PLC's expert, Harvey Rosen. Dr. Rosen valued the company at $104 million, which "reflects 'what a willing buyer would pay a willing seller for this company (the cash flows generated) without the financial constraints of the litigation costs and the uncertainty of litigation outcomes.'" Bone Screw, 176 F.R.D. at 168 (relying on Rosen's testimony and quoting his expert report). However, approximately five months after this Court approved the settlement, DePuy, Inc. agreed to buy AcroMed for effectively four times the value on which this Court relied for its limited fund finding. See Exhibit 4 attached (March 20, 1998 financial report of Janney Montgomery Scott indicating that the cost was approximately $325 million, plus assumption of the settlement liability, for an aggregate cost of approximately $425 million). This fact raises concerns not only about the limited fund finding, but about the PLC's submission that $100 million was all AcroMed could afford. Cf. Ortiz, 119 S. Ct. at 2321 (limited fund settlement requires relinquishment of all or substantially all of company's value).(4)

Again, we do not ask this Court to evaluate these matters, but only to understand that Ms. Lloyd has substantial responses to AcroMed's res judicata defense if and when AcroMed raises it in an appropriate forum.


For the reasons stated above, AcroMed's request for an order to show cause should be denied.

Respectfully submitted,

Brian Wolfman
Alan B. Morrison
Allison M. Zieve
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000

Attorneys for Marvin M. Masters and Anthony J. Majestro

December 14, 1999



1. AcroMed's papers make no distinction between Ms. Lloyd and her lawyers. However, in pursuing her West Virginia suit, Ms. Lloyd is simply acting on her lawyers' advice and should not be held in contempt whatever this Court ultimately decides about her lawyers' conduct. This Opposition is filed on behalf of Mess'rs Masters and Majestro. Ms. Lloyd is separately filing a joinder in the arguments set forth in this Opposition.

2. Ms. Lloyd's original declaration is attached to her separate joinder in this Opposition. See supra note 1.

3. The Ninth Circuit later held that the same non-opt-out MDL settlement did not afford consumers in Arizona and Wisconsin due process and, therefore, did not have binding effect on their claims for money damages. Brown v. Ticor Title Ins. Co., 982 F.2d 386, 392 (9th Cir. 1992), writ dismissed as improvidently granted, 511 U.S. 117 (1994).

4. Dr. Rosen also testified at a November 19, 1998 fairness hearing in support of a purported limited fund settlement in In re Telectronics Pacing Systems, Inc., MDL 1057 (S.D. Ohio). At that hearing, when questioned about his testimony at the AcroMed fairness hearing, Dr. Rosen stated that his valuation of AcroMed was based on the company's value in the absence of the class action settlement. See Nov. 19, 1998 Transcript in Telectronics, at 109, attached as Exhibit 5. As indicated in the text, Dr. Rosen's valuation of AcroMed at $104 million, and this Court's findings thereon, assumed that the company was worth $104 million with the class action settlement, i.e. with the litigation put behind the company. See also MDL 1014 April 23, 1997 Fairness Hearing Tr. at 121, 139-41. If Dr. Rosen switched his story for the convenience of the Telectronics fairness hearing, that obviously undermines his credibility. In any event, if $104 million was the value of the company in the absence of the settlement (i.e., as reflected in Dr. Rosen's Telectronics' testimony, not his testimony before this Court), that might explain why AcroMed sold for more than four times that amount shortly after the settlement was consummated.