Sulzer Implant Settlement

Class Action Settlement Agreement

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Article 4. CLAIMS ADMINISTRATION

Section 4.1 UNREVISED AFFECTED PRODUCT RECIPIENT FUND

(a) Each Class Member claiming benefits under Section 3.3(a) must submit a claim form for payment of benefits out of the Unrevised Affected Product Recipient Fund (a “Unrevised Affected Product Recipient Fund Benefits Claim Form” or “Blue Form”), attached hereto as Exhibit B, on or before the date that is one hundred twenty (120) days after Trial Court Approval.

(b) In addition to the Blue Form, the Class Member must provide documentation evidencing the implantation of an Affected Product. A list of such acceptable documentation is included on the Blue Form.

(c) If the Class Member also qualifies for compensation under the Matrices provided for in Annex IV hereto, the Class Member may also submit a claim for benefits payable out of the Extraordinary Injury Fund in accordance with Section 4.3.

(d) If the Class Member subsequently undergoes an Affected Product Revision Surgery, qualifying the Class Member for benefits under Section 3.4(a), the Class Member may submit an Affected Product Revision Surgery Fund Benefits Claim Form in accordance with Section 4.2 and may also qualify for additional benefits under the Extraordinary Injury Fund.

(e) Class Members claiming benefits payable out of the Unrevised Affected Product Recipient Fund pursuant to Section 3.5(a) as Derivative Claimants must comply with Section 4.4 of this Settlement Agreement.

Section 4.2 AFFECTED PRODUCT REVISION SURGERY FUND

(a) Each Class Member claiming benefits under Section 3.4(a) must submit a claim form for payment of benefits out of the Affected Product Revision Surgery Fund (an “Affected Product Revision Surgery Fund Benefits Claim Form” or “Orange Form”), attached hereto as Exhibit C, on or before the date that is the later of (i) one hundred eighty (180) days after Trial Court Approval and (ii) one hundred eighty (180) days after the applicable Affected Product Revision Surgery. If a Class Member elects the GPO in accordance with Article 8, the Class Member must complete the designated portion of the Orange Form and submit it to the Claims Administrator in accordance with Section 8.2.

(b) In addition to the Orange Form, the Class Member must provide the following documentation: (i) documentation evidencing the implantation of an Affected Product (a list of documentation is included on the Orange Form); (ii) documentation evidencing the removal of an Affected Product (a list of documentation is included on the Orange Form); and (iii) a completed “Physician Declaration,” attached hereto as Exhibit D, wherein the physician verifies that the Class Member has undergone an APRS for reasons other than trauma or medical records evidencing the same.

(c) If the Class Member develops a condition(s) or sustains a complication(s) compensable in accordance with the Matrices provided for on Annex IV hereto, the Class Member may also submit a Green Form (as defined below).

(d) Class Members claiming benefits payable out of the Affected Product Revision Surgery Fund pursuant to Section 3.5(b) as Derivative Claimants must comply with Section 4.4 of this Settlement Agreement.

(e) In connection with claims submitted pursuant to this Section 4.2 for benefits paid in respect of an Affected Product Revision Surgery out of the Affected Product Revision Surgery Fund, the Claims Administrator shall identify whether the Affected Product of the Class Member submitting the applicable Orange Form is a Reprocessed Inter-Op Product. If the Class Member’s Affected Product is a Reprocessed Inter-Op Product and such Class Member qualifies for benefits pursuant to Section 3.4(a), Section 3.5(b), Section 3.7 and/or Section 3.9(a), the Claims Administration shall submit an invoice to Sulzer for any such amounts in the event that Sulzer is obligated to fund such amounts in accordance with Section 2.5(e).

Section 4.3 EXTRAORDINARY INJURY FUND

(a) Each Class Member claiming benefits under Section 3.7 must submit a claim form for payment of benefits out of the Extraordinary Injury Fund (an “EIF Benefits Claim Form” or “Green Form”), attached hereto as Exhibit E, on or before the date that is the later of (i) five hundred and forty-five (545) days from the date of the applicable Covered Revision Surgery, (ii) one hundred eighty (180) days of his/her treating physician’s recommendation that he/she undergo an APRS but for a medical condition(s), (iii) one hundred and eighty (180) days after Trial Court Approval, and (iv) one hundred eighty (180) days after a Non-Removal Surgery.

(b) The Class Member must submit a Green Form with, or after he/she has already submitted, a completed Blue Form or Orange Form, as applicable.

(c) The Class Member must complete the portions of the Green Form relating to the Matrix Level(s) that the Class Member believes entitle him/her to EIF Benefits.

(d) In addition to the applicable Green Form, the Class Member must provide the following documentation: (i) medical records evidencing the condition(s) and/or complication(s) that form the basis of the Class Member’s claim for EIF Benefits; and (ii) a completed “Physician Declaration,” attached hereto as Exhibit D, wherein the physician verifies that the Class Member has sustained the condition(s) and/or complication(s) for which the Class Member is claiming EIF Benefits.

(e) A Class Member who has previously submitted a Claim Form in accordance with this Article 4 is entitled to file a Green Form for additional compensation if the Class Member subsequently develops a medical condition(s) and/or complication(s) within the time period set forth in Section 4.3(a) that qualifies the Class Member for EIF Benefits at a higher Matrix Level than the Class Member had previously been compensated. If the Class Member has previously submitted a Green Form, in order to make a claim for subsequent EIF Benefits, the Class Member must submit a new Green Form, indicating therein that it is a supplemental submission. The supplemental Green Form need not be completed in full; rather, the Class Member need only submit changes to information previously provided. Likewise, a physician responsible for completing the “Physician Declaration” should complete only those portions of the Physician Declaration that reflect a change in condition from the condition described in a previously filed Green Form and should sign each such supplemental Physician Declaration. Each such supplemental Green Form and/or Physician Declaration shall be considered a new Claim Form for purposes of Section 4.6. If a supplemental Green Form is submitted while a prior submission is pending but not yet paid, the Claims Administrator shall complete all processing and payment in relation to the Green Form previously submitted before processing any payment of any supplemental Green Form.

(f) Class Members claiming benefits payable out of the Extraordinary Injury Fund as Derivative Claimants must comply with Section 4.4 of this Settlement Agreement.

Section 4.4 DERIVATIVE CLAIMANTS

(a) Each Class Member claiming benefits as a Derivative Claimant must submit a claim form for payment of benefits out of the Unrevised Affected Product Recipient Fund, the Affected Product Revision Surgery Fund and/or the Extraordinary Injury Fund (the “Derivative Benefits Claim Form” or “Yellow Form”), attached hereto as Exhibit F.

(b) A completed Yellow Form must be submitted within the time periods prescribed for the Affected Product Recipient’s claim for benefits (For example, a Class Member who is an Affected Product Recipient submitting a Blue Form must do so on or before the date that is one hundred twenty (120) days after Trial Court Approval. Such Class Member’s Derivative Claimant must submit a Yellow Form within the identical time period.) A Derivative Claimant is only entitled to Settlement benefits if the Affected Product Recipient timely submits (and is ultimately entitled to benefits pursuant to a Blue Form, Orange Form or Green Form.

Section 4.5 UNINSURED AFFECTED PRODUCT RECIPIENTS

(a) Each Class Member claiming benefits as an Uninsured Affected Product Recipient must submit a claim form for payment of benefits out of the Subrogation and Uninsured Expenses Fund (the "Uninsured Medical Expenses Claim Form" or "Red Form"), attached hereto as Exhibit G, on or before the date that is one hundred eighty (180) days after the date such Class Member receives the medical care for which he or she seeks medical expense reimbursement. Each Class Member claiming benefits as an Uninsured Affected Product Recipient must submit a claim form for payment of benefits out of the Subrogation and Uninsured Expenses Fund (the “Uninsured Medical Expenses Claim Form” or “Red Form”), attached hereto as Exhibit G, on or before the date that is the later of (i) one hundred eighty (180) days after the date such Class Member receives the medical care for which he or she seeks medical expense reimbursement and (ii) one hundred eighty (180) days after Trial Court Approval.

(b) In addition to the Red Form, the Class Member must provide documentation evidencing the payment of unreimbursed medical expenses made in connection with the Affected Product Revision Surgery. A list of such acceptable documentation is included on the Red Form.

Section 4.6 GENERAL CLAIMS ADMINISTRATION

(a) The Claims Administrator shall make benefit determinations based upon the information and documentation provided with a “completed" Claim Form. Claim Forms that fail to provide required information and/or documentation shall not be considered “completed". The Claims Administrator shall have the discretion to set and notify Class Members of deadlines in addition to those deadlines set forth in this Article 4 and shall have the discretion to disallow any claims received after such applicable deadline. If the Class Member submits a Claim Form within the time periods set forth in this Article 4, such submission will be considered timely notwithstanding deficiencies that may exist in the Claim Form. Failure on the part of the Claims Administrator to meet any of the deadlines set forth herein or subsequently established shall not be deemed to render a claim completed or otherwise entitle a Class Member to benefits hereunder, unless otherwise so ordered by the Court after notice and hearing.

(b) No later than the date that is sixty (60) days after the Claims Administrator receives a Claim Form pursuant to this Article 4, the Claims Administrator shall (i) assign a unique identifying number to the claim (“Sulzer Settlement Claim Number”) where one has not already been assigned; and (ii) if necessary, notify the Class Member and/or the applicable Plaintiffs’ Counsel regarding the nature of any claim form deficiency. The Class Member and/or the applicable Plaintiffs’ Counsel will have seventy-five (75) days from the date of any such notice in which to correct any and all deficiencies with supplemental information and/or documentation. Supplemental materials shall be submitted along with a cover letter specifying the Sulzer Settlement Claim Number. None of Sulzer, the Sulzer Settlement Trust or the Claims Administrator shall be responsible for or in any way accept any liability with respect to deficient Claim Forms.

(c) No later than ninety (90) days after the Claims Administrator receives an acceptable Claim Form, the Claims Administrator shall make a preliminary determination as to whether the Class Member is entitled to any benefits, and if so, the amount to which the Class Member is entitled (the “Preliminary Determination”) provided, however, that with respect to a claim for EIF Benefits that the Claims Administrator deems to be complete on or before April 1, 2003, the Claims Administrator shall issue such a preliminary determination no later than July 1, 2003.

1. When issuing a Preliminary Determination for EIF Benefits the Claims Administrator shall, until such time as he can make a reasonable estimate of the total number of valid EIF Claims to be submitted, state only that a Class Member is "Eligible" or "Ineligible: for an EIF benefit at the Matrix Level for which the Class Member has sought compensation. Provided, however, that with respect to Matrix Level I Claims, the Claims Administrator shall specify that an eligible APR or Representative Claimant is entitled to $60,000 in compensation for each eligible Matrix Level I Claim. This amount represents 50% of the amount that the Claims Administrator expects, at the time of the adoption of the Eighth Amendment to the Settlement Agreement, to be able to ultimately pay Class Members with valid Matrix Levels I Claims (subject to the provisions of Section 3.7 (c)).
2. A Class Member who receives an "Ineligible" Preliminary Determination pursuant to Section 4.6(c)(1), may contest that Preliminary Determination in the manner provided in Sections 4.6(d-g).
3. If a Class Member contests, pursuant to Section 4.6(d), a Preliminary Determination issued pursuant to Section 4.6(c)(1), and the Claims Administrator determines that the Class Member is eligible for EIF benefits, the Claims Administrator shall issue a second Preliminary Determination with respect to the EIF Claim in question which Preliminary Determination shall be in the form prescribed in Section 4.6(c)(1). If a Class Member contest pursuant to Section 4.6(d), a Preliminary Determination issued pursuant to Section 4.6(c)(1), and the Claims Administrator determines the Class Member is not eligible for EIF benefits, the Claims Administrator shall issue a Final Determination in the manner prescribed in Section 4.6(e)
4. When the Claims Administrator can make a reasonable estimate of the total number of valid EIF Claims to be submitted, he shall thereafter issue an EIF Award Determination to each Class Member who received a Preliminary Determination of "Eligible" pursuant to Section 4.6(c)(1). The EIF Award Determination shall specify the dollar amount of the Class Member's EIF award for each Matrix Level Claim made by the Class Member. If a Class Member chooses to contest the EIF Award Determination, the Class Member may do so in the manner prescribed in Section 4.6(d). If a Class Member does not contest the Award Determination, it shall be deemed Final and may not be further appealed or contested, as prescribed in Section 4.6(d).
5. When the Claims Administrator is able to make a reasonable estimate of the total number of valid EIF Claims to be submitted, the Claims Administrator shall thereafter issue Preliminary Determinations in the manner provided in Section 4.6 without regard to sub-paragraphs (1), (2), (3), and (4), of this Section 4.6(c).

(d) Immediately upon making the determination required by Section 4.6(c), the Claims Administrator shall notify the Class Member and the Plaintiffs’ Counsel for the Class Member, if any, of such determination. Such Class Member and/or the Plaintiffs’ Counsel shall have forty-five (45) days from the date of the Preliminary Determination by the Claims Administrator and to provide any additional information documentation supporting his/her position. Any supplemental information and/or documentation shall be submitted along with a cover letter, specifying the Class Member’s Sulzer Settlement Claim Number. If the Class Member and/or Plaintiffs’ Counsel does not contest the Preliminary Determination in accordance with this Section 4.6(d), such Preliminary Determination shall be deemed to be a Final Determination in accordance with Section 4.6(e) and such Class Member and/or Plaintiffs’ Counsel shall have no further right to contest such Final Determination.

(e) No later than ninety (90) days after the receipt of any explanatory or supporting information pursuant to Section 4.6(d), the Claims Administrator shall make a final determination as to whether the Class Member is entitled to benefits, and if so, the amount to which the Class Member is entitled (the “Final Determination”).

(f) Within thirty (30) days after the date of the Claims Administrator’s Final Determination, the applicable Affected Product Recipient may appeal the Final Determination by filing a notice with the Federal District Court and serving a copy on the Claims Administrator. Such notice shall be written and be no more than ten (10) pages in length. The Claims Administrator shall have thirty (30) days to reply in writing. In the event of such an appeal, Class Counsel together with the Special State Counsel Committee shall appoint a special master (subject to the approval of the Court) to make a determination with respect to such Final Determination.

(g) Any determination by the special master, if applicable, made in accordance with Section 4.6(f) above, shall constitute a final and binding determination. If there is no appeal of the Claims Administrator’s decision with respect to the Final Determination, the decision of the Claims Administrator shall be final.

(h) Any and all materials submitted by a Class Member pursuant to this Article 4 shall be deemed submitted on the date that such material is post-marked. In the absence of a post-mark or if such post-mark is illegible, the date of receipt shall be the date such material is deemed submitted.

(i) The Claims Administrator shall use all reasonable efforts to make payments to Class Members as early as possible pursuant to guidelines approved by the Court with input from Class Counsel and the State Special Counsel Committee.

Section 4.7 INDEMNIFICATION AND LIABILITY OF CLAIMS ADMINISTRATOR

(a) The provisions of this Section 4.7 shall apply to all persons or entities engaged by the Claims Administrator to render services relating to the Settlement. The Claims Administrator may provide contractual indemnity to such persons or entities equivalent to that provided to the Claims Administrator under this Settlement Agreement.

(b) The Claims Administrator shall not be liable to the Sulzer Settlement Trust or to any person holding a personal injury claim or to any other person except for said Claims Administrator’s own breach of trust committed in bad faith or for willful misconduct. The Claims Administrator shall not be liable for any act or omission of any officer, agent, employee, consultant, or other representative of the Claims Administrator unless the Claims Administrator acts with bad faith or willful misconduct in the selection or retention of such officer, agent, employee, consultant, or other representative.

(c) The Sulzer Settlement Trust shall indemnify and defend the Claims Administrator to the fullest extent that a corporation or trust organized under the laws of the state in which the Sulzer Settlement Trust is domiciled is entitled from time to time to indemnify and defend its directors, trustees, employees, agents or advisers against any and all liabilities, expenses, claims, damages, or losses incurred by them in the performance of his duties hereunder.

(d) The Claims Administrator who was or is a party, or is threatened to be made a party, to any completed, pending, or threatened action, suit or proceeding of any kind, whether civil, administrative or arbitrative, by reason of any act or omission of such other person associated with the Sulzer Settlement Trust, in any of their capacities with respect to (a) the Settlement Agreement negotiations, (b) the liquidation or resolution of any personal injury claims, or (c) the administration of the Sulzer Settlement Trust or the implementation of the procedures guiding said Sulzer Settlement Trust, shall be indemnified and defended by the Sulzer Settlement Trust against expenses, costs, and fees (including reasonable attorney’ fees), judgments, awards, costs, amounts paid in settlement, and liabilities of all kinds incurred by any other person.

(e) Reasonable expenses, costs, and fees (including reasonable attorneys fees) incurred by or on behalf of the Claims Administrator in connection with any action, suit, or proceeding, whether civil, administrative, or arbitrative, will be paid by the Sulzer Settlement Trust in advance of the final disposition thereof on receipt of an undertaking by or on behalf of the Claims Administrator to repay such amount unless it shall be determined only that such Claims Administrator is entitled to be indemnified by the Sulzer Settlement Trust.

(f) The Claims Administrator has the sole power generally or in specific instances to cause the Sulzer Settlement Trust to indemnify him to the same extent with respect to any Trustee of the Sulzer Settlement Trust.

(g) The Claims Administrator may purchase and maintain reasonable amounts and types of insurance on behalf of himself or any other officer, employee, agent, or representative of the Claims Administrator or against liability asserted against or incurred by such individual in that capacity arising from his or her status as a Claims Administrator, officer, employee, agent, or representative.

(h) The Claims Administrator may, but shall not be required to, consult with counsel, accountants, appraisers, and other parties deemed by the Claims Administrator to be qualified as an expert on the matters submitted to them (regardless of whether any such party is affiliated with the Claims Administrator in any manner except as otherwise provided in the Settlement Agreement). The opinion of any such party submitted to the Claims Administrator shall be full and complete authorization and protection in respect of any action taken or not taken by the Claims Administrator hereunder in good faith and in accordance with the opinion of such party.

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