In re: SULZER ORTHOPEDICS v. Certified Class

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0083p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
In re: SULZER ORTHOPEDICS AND KNEE PROSTHESIS
PRODUCTS LIABILITY LITIGATION .
_____________________________________
SHIRLEY C. BUTLER ,
Plaintiff-Appellant,
v.
CERTIFIED CLASS ,
Plaintiff-Appellee.
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No. 03-4070
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-09000—Kathleen McDonald O’Malley, District Judge.
Argued: September 23, 2004
Decided and Filed: February 22, 2005
Before: MARTIN, COLE, and GIBBONS, Circuit Judges.
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COUNSEL
ARGUED: Charles G. Middleton III, MIDDLETON & REUTLINGER, Louisville, Kentucky, for
Appellant. R. Eric Kennedy, WEISMAN, KENNEDY & BERRIS CO., Cleveland, Ohio, for
Appellee. ON BRIEF: Charles G. Middleton III, MIDDLETON & REUTLINGER, Louisville,
Kentucky, N. Albert Bacharach, Jr., Gainesville, Florida, for Appellant. R. Eric Kennedy,
WEISMAN, KENNEDY & BERRIS CO., Cleveland, Ohio, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. In December of 2000, Sulzer Orthopedics, Inc.,
issued a recall of certain of its hip implants, which were determined to be defective. Shortly
thereafter, more than thirteen hundred civil actions were filed across the United States. Thirty of
those actions were consolidated and transferred as a class action to the United States District Court
for the Northern District of Ohio. Sulzer settled with the Certified Class and the Settlement
Agreement was approved by the district court. The Settlement Agreement, which was authorized
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No. 03-4070 In re Sulzer Orthopedics and Knee Prosthesis Prod. Page 2
and ordered by the district court on June 4, 2002, provided for individual claimants’ attorney fees
to be paid out of the settlement fund, which was approximately $1 billion. In addition, the parties
and the district court reserved a maximum of $50 million out of the $1 billion settlement for the
payment of Common Benefit Attorney Fee Awards. Payments from the Common Benefit Fund were
awarded to attorneys who had “contributed to the creation of the Settlement Trust through work
devoted to th[e] ‘common benefit’ of Class Members, including any attorney who reasonably
believe[d] that he or she actually conferred benefits upon the Class Members as a whole through
state court litigation, subject to determination by the Court.” Attorneys were ordered to submit
applications for reimbursement for “Common Benefit Fees” and/or “Common Benefit Expenses.”
The district court received fifty-seven applications for reimbursement of fees and expenses.
The court’s order of June 12, 2003, awarded $30,232,300 in fees and authorized an additional
$12,650,000 in potential fee awards. The remainder of the $50 million was to be held by the Claims
Administrator for expenses of administration. Shirley Butler, a member of the class, now appeals
the award of fees and expenses from the Common Benefit Fund, arguing that any and all awards
should come from the funds already awarded in the Settlement Agreement.
The June 4, 2002, judgment of the district court was “entered pursuant to [Federal Rule of
Civil Procedure] 58 and [was] a final appealable Order.” As a final appealable order, Butler had
thirty days from its issuance to make this challenge. She failed to make a timely challenge, and we
have no choice but to deny her appeal at this time. See Browder v. Dep’t of Corr. of Illinois, 434
U.S. 257, 264 (1978) (holding that the thirty day limit in which to file an appeal is “mandatory and
jurisdictional”). Therefore, we grant the Certified Class’s motion to dismiss Butler’s appeal.

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