The Final Ruling?
September 4, 2013: The email from Mark continued:
“Unfortunately, he ruled in favor of the defendants, upholding Judge Noel’s recommendation from July. Pretty much just restated everything Noel stated. The ruling is attached.
Mark has, as always got it pretty much right.There is a higher court that we could appeal this ruling to, but Thompson has already told us that he is not a member of that court and as such could not bring an appeal.We would only have weeks to find a new lawyer to take our appeal forward.This chance is no chance.Some lawyer might undertake this if we could pay him.But, since all our finances have been gutted by Mirapex that route is over.
I know some people offer the consolation that even if “doors” seem to be closed or closing everywhere, there will be a “door” that will open for you.Right now and the way I feel I’m afraid that the only door that will open will have nothing but a void behind it.An endless void of nothing and I’ll just fall forever.But I can’t let myself go that direction and have self-pity get in the way of clear thinking.I have to find some good side to present to Mary before she sees the email.Thankfully Mary is too tired and stressed to always read her email.This gives me some time.I don’t believe that both Federal Judges, Davis and Noel, are actually being paid by the pharmaceuticals, but it really seems like it from their rulings.Both judges bought into the totally crazy and unsupportable argument that Mary and Joe gave Thompson carte blanche authority (for all time and for ever and ever) to put forward and accept offers in their behalf without consulting them by simply having him, at one time, transmit an offer to the defendants.I’m so furious I can’t even speak.Mary and Joe would have had to contact the defendants themselves and tell them directly that Thompson no longer had authority, authority that they were never told he had---but----contacting the defendants directly was forbidden (as also argued by the two faced defendants).
It is very clear that there is no possible justice for Mary in the Minnesota Federal Court from judges that argue from both sides of their mouths and any appeal, even if we could mount one, would be futile.Right now the only satisfaction I get is picturing them all burning in Hell.!!!
Enough of that!The ruling from Judge Davis concludes, after much legal doubletalk and spurious self-serving arguments:
1. The Court ADOPTS the Report and Recommendation of United States
Magistrate Judge Franklin L. Noel dated July 11, 2013 [Docket No. 96].
2. Defendants’ Motion to Enforce Settlement Agreements [Docket No. 47]
I don’t have much time to find some golden lining in this ruling before Mary reads Mark’s email, but I might find it in the “Report and Recommendation” [Docket No.96] from Judge Noel.The key provisions are where he clearly states the terms of the settlement offer that Mary and Joe are now forced to accept.These provisions are summarized below.
“1) Each plaintiff will release Defendants from any obligation arising out of the claims that gave rise to this lawsuit in exchange for the sums listed in Thompson’s March 2 demand.
2.) The settlement amounts are confidential.
3.) The parties must comply with the Medicare Secondary Payer Act.”
Neither and Joe or Mary are old enough to be concerned with the Medicare complications.I cannot find anything in the ruling that would keep Mary from telling the story of what happened to her, or from me publishing this book.It is clear that the pharmaceuticals will, in no possible way, even come close to cleaning up the mess they made in our lives, but now there is a slim possibility we can perhaps recover something from this book.We also want to help other people from the heartbreaks we suffered.
September 5, 2013:We are at the flower shop. Mary knows about the ruling and she is taking it better than I thought she would.I suppose part of it is the realization that the legal heartbreak, frustrations, and legal con game of the lawyers and court with a predetermined outcome will be over sooner than later.We have a plan worked out that we all agree on.We will be in no hurry to contact either Thompson or sign any settlement agreement sent to Mary and Joe from the defendants.First, we will see what the terms of the agreement are, then go from there.In the meantime we will work to keep the flower shop open.This is proving difficult as in August we had our worst month going over $2500 in the red.One way or another we will be also free of the pharmaceuticals.We will also try to find some “free” legal advice as to how to handle the final signing of the settlement release forms.We all need time to settle down and get a break from the relentless pressure.
September 12, 2013:So much for any substantial break from the pressure.Mary has just received a copy of the 19 page settlement release forms from the defendants by email from Thompson.She will be getting paper copies by registered mail also.They are as bad as we feared.They contain clauses we feel are additional to those required by Judge Noel in his ruling (big fat surprise).The defendants also want Mary to sign away her rights (basically all our rights) to tell the circumstances that led up to the lawsuit, and to under any circumstances “disparage” the two pharmaceuticals Boehringer Ingelheim and Pfizer; in other words, a total, legally unnecessary gag order.I could not even show my granddaughter Julia this book I wrote for her, nor could any of us ever tell this story to anyone.Furthermore the Pharmaceuticals would retain the right to sue Mary if they “feel” she breached the release---and---Mary would have to pay their legal fees.
Our plan is now to sign the release forms, but “redact” those parts that are not specifically ordered by the judge.
September 19, 2013:After more careful thought it is apparent that the release form sent by the pharmaceuticals is “overly broad”.In other words it contains the two unnecessary and not ordered clauses insisted upon by the defendants.The “non-disparagement clause” is a definite nonstarter.“Disparagement” is a word that, by its very nature, could cover almost anything Mary (or Joe) would say about the Pharmaceuticals. It would open them up to the very real threat of complete financial ruin---again. The defendants are badgering Mary’s lawyer about why Mary has not sent them the signed release forms.We see no hurry to sign, though we do not want Mary or Joe to be held in contempt of court by Judge Davis or Noel.Let them stew for once.
October 1, 2013: More bad news for our family.We were hoping that we could increase the sales of our flower shop to the point where Mary could take it over with someone else, perhaps one of our other daughters/in-law.It’s been five long years of struggle and the economy is still bad in Enumclaw.We bought the shop to help Mary in 2008.This was just when the banking system collapsed and the economy took a big hit.The sales in Enumclaw dropped about 50% for shops like ours and it hasn’t yet recovered.Mary now feels she can get out and find a better paying job on her own and it’s time.Helen and I are wearing out from the six day a week grind, the stress over paying bills, and the rigors of delivering flowers in all kinds of terrible weather.
Today Helen told our landlord we would have to close by January 1, 2013.We have talked to a business broker and the flower shop will be advertised nationally.If we can’t sell it we will dismantle it and sell off what parts we can.Helen and I might be forced to continue the business in some form in our basement, even if it is only selling leftover product on line.We had thought that with the ladies running the antique store in the front of the shop and sharing the rent, we could hang on.But, they are not doing very well either and they are no able to tend the front of the shop as much as they wanted to.Consequently we have to watch and sell their antiques most of the time which places an extra stress on us.Big changes are coming our way and what that means for all of us I don’t know.I just don’t know.
October 12, 2013:Mary just mailed off the signed, but redacted release forms to Thompson.Thompson has to sign them and send them to the defendants.We don’t know how or if the defendants will react.The defendants, it seems, will spend any amount of money to squash our family, but not anything to redress their products harm to us. Now we just simply have wait to see what happens.
Here is the letter Mary and Joe sent along with the altered release forms.
“Dear Mr. H. Lee Thompson
We have carefully read the terms of the agreement, as set forth by Magistrate Judge Noel in Document 65 Case 0:11-cv-01210-MJD-FLN, page 3, bottom of first paragraph and we fully intend to comply with the order from Magistrate Judge Noel as clearly written.
The terms of the agreement are written as follows:“Each plaintiff will release Defendants from any obligation arising out of the claims that gave rise to this lawsuit in exchange for the sums listed in Thompson’s March 2 demand.The settlement amounts are confidential, and the parties must comply with the Medicare Secondary Payer Act.”
We have also carefully read the “Confidential Settlement Agreement and Release” documents (one for each defendant) emailed to us for our signing consideration.
Judge Noel does not specifically refer in his ruling to the “Confidential Settlement Agreement and Release” referenced above. The “Confidential Settlement Agreement and Release”, as sent is overly-broad and we will not sign nor are compelled to sign that release as written.
We are crossing out and initialing the following full sentences or parts of sentences from section “V. Confidentiality”, page 11.We are also initialing each page and keeping a copy of the altered release forms that we signed.
1.Paragraph A. : The last of the first sentence starting with “the facts and circumstances giving rise-----“
2.Paragraph A. : The whole last sentence “If inquiry is made by any third person concerning the status------“
3.Paragraph B: All of this paragraph [the disparagement clause]
Mary D. Magalhaes
Joseph R. Magalhaes“
The paragraphs and sentences crossed out only refer to the non-disparagement clause and the not telling of the circumstances that led up to the lawsuit; portions that were not ordered by either Judge to be part of the release form of the forced settlement agreement. Still included are the sentences that give the pharmaceuticals the right to sue if they think the release form was breached.In other words to bring harassing and nuisance lawsuits that Mary and Joe would not have the financial means to counter.
October 22, 2013:We still have not heard from either Thompson or the defendants about the changes Mary made in the release forms.I think that we are on the higher legal ground in redacting the non-required clauses, but the whole system appears rigged in favor of the pharmaceuticals and against the true victims.From our experience so far my son-in-law Mark is pretty sure that the pharmaceuticals will get whatever they want from the court.
The stress of waiting is really wearing me down.So much is now at stake.Maybe the pharmaceuticals will accept Mary’s changes and not insist on completely crushing our family.I wake up in the morning and the first thing that I think of is what will be the response of Thompson, the defendants and the court.I’m trying to not have this ruin my life, but it’s coming close.In the meantime we are trying to keep the flower shop going so we can pay the mounting bills there and have some value to show a buyer.
October 29, 2013: My wait is over and it is not good news.Lee signed the releases as Mary sent them, but the defendants’ lawyers are being arrogant ass---- who obviously think that they own the two judges; Noel and Davis and the Federal Court in Minneapolis.They had the nerve to write out a complete court order that would supersede the original one from Judge Noel; one that is all ready for Judge Davis’ signature.All he has to do is sign it.Does the phrase “he’s a rubber stamp” come to mind here?I don’t normally reproduce any of the court orders in their entirety as the exact legal language is not as important as what it means in “English”.However, I need to exactly reproduce it so you can see the extreme arrogance displayed by such a document.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re: MIRAPEX PRODUCTS LIABILITY LITIGATION
This document relates to:
Mary Magalhaes and Joseph Magalhaes,
Boehringer Ingelheim Pharmaceuticals, Inc., Pfizer, Inc., et al.,
Case No. 07-md-1836 (MJD/FLN)
Case No. 11-cv-412 (MJD/FLN)
[PROPOSED] ORDER ENFORCING
AND DISMISSING ACTION WITH PREJUDICE
In its Memorandum of Law and Order dated August 26, 2013 (Docket No. 112), the Court granted Defendants’ Motion to Enforce Settlement Agreements (Docket No. 47).Based upon that ruling, the Magistrate Judge’s earlier Report and Recommendation of August 2, 2012 (Docket No. 64) and this Court’s adoption of Sections I and II(A) thereof on January 11, 2013 (Docket No. 69), and in order to enforce and implement the material terms of the parties’ settlement agreement and cause this action to be dismissed with prejudice, the Court hereby ORDERS, ADJUDGES AND DECREES as follows:
1.Plaintiffs Mary Magalhaes and Joseph Magalhaes, and each of them, have fully, finally and forever released and discharged Boehringer Ingelheim Pharmaceuticals, Inc, Boehringer Ingelheim International GmbH, Boehringer Ingelheim GmbH, Pfizer, Inc., Pharmacia Corporation, the Upjohn Company, Pharmacia & Upjohn LLC and Pharmacia & Upjohn Company LLC, and their respective predecessors and successors in interest, former, present and future subsidiaries, divisions, parents, predecessors, successors and affiliated companies, and each of their respective present and former officers, directors, employees, shareholders, successors, partners, agents, representatives, suppliers, distributors, customers, insurers, assigns, servants, attorneys, assignees, heirs, and executors, and each of them, from any and all claims, actions, causes of action, demands, damages or liabilities of any nature whatsoever (whether contingent, accrued, mature, direct, derivative, subrogated, personal, assigned, discovered, undiscovered, inchoate, or otherwise) which Plaintiffs ever had, now have or hereafter can, shall or may have in the future arising out of, relating to, resulting from, or in any way connected with Mirapex and/or the allegations contained in Plaintiffs’ complaint, regardless of whether such claims, actions, causes of action, demands or liabilities are currently known or unknown to Plaintiffs.
2.Plaintiffs, their agents and their counsel shall keep confidential the amount of the settlement, the facts and circumstances giving rise to the action and/or the amounts discussed during settlement negotiations.The parties and/or their counsel may, however, make disclosure of the settlement amount received by Plaintiffs to any applicable care or medical lien holder, the Internal Revenue Service or as otherwise required by law, or to Plaintiffs’ accountants, trustees and/or other retained advisors who shall, however, upon such disclosure, agree in writing to maintain and honor the confidentiality of such information; provided, that Plaintiffs and their counsel shall first provide immediate notice of such request or action to Defendants’ counsel such that Defendants may seek a protective order that will not be opposed by Plaintiffs and their counsel.If inquiry is made by any third person concerning the status of Plaintiffs’ action, the parties and/or their respective counsel shall respond only that the action has been resolved.Plaintiffs further agree not to communicate, publish or cause to be published, in any public, electronic, web-based or business forum or context, any statement, whether written or oral, that would disparage any party being released herein.
3.Within seven (7) calendar days from the date of this Order, Defendants shall deliver to the Court for deposit with the Court settlement checks payable to “Treasurer of the United States” in the aggregate amount of the settlement demand made by Plaintiffs on March 2, 2012 and accepted by Defendants thereafter, in conformity with 28 U.S.C. § 2041.Upon the Court’s receipt of written instructions signed by both Plaintiffs and by their counsel agreeing upon the distribution of the deposited settlement funds, the Court shall issue an appropriate order under 28 U.S.C. § 2042 allowing the funds to be disbursed to Plaintiffs and their counsel in accordance with their instructions.
4.Upon Defendants’ deposit of the settlement funds referred to in the preceding paragraph, this action shall be deemed to be DISMISSED WITH PREJUDICE, with all fees and costs to be borne by the parties, without the necessity of any further order from this Court.The Court shall thereafter retain jurisdiction for the limited purpose of disbursing the settlement funds.
Dated: ______________, 2013
The Honorable Michael J. Davis
Chief Judge, United States District Court
District of Minnesota
Why did we even go to the trouble to hope that Mary and Joe could receive a fair trial in the Minneapolis Federal Court?As you can see the document would totally take away the right of Mary to own her own story of what happened to her.Mary could not even tell her own daughter Julia, when she is old enough to understand, what happened to their lives.There is no legal reason for the Judge to insist on the “total gag order” placed on Mary except to be a “Toady” for the pharmaceuticals.
However I haven’t completely sunk into complete cynicism.Perhaps Judge Davis is as sick of the legal bull---- from the defendants as we are.Perhaps he is a fair and impartial judge.Perhaps he will not sign such a miscarriage of justice and not strip Mary of everything including her story.
November 4, 2013:We found out the Lee did submit his own letter to both Judge Davis and Judge Noel on behalf of Mary’s right to retain the proprietorship of her own story.He cited the First Amendment of the Constitution several times in his letter, which gives each person the right to free speech.He had to hurriedly throw together a scattershot of arguments, but he is sticking up for Mary and we thank him for that.The defendants are arguing that if Mary is not “totally” gagged somehow she will “blab” the settlement amount (which was the only “fact” actually sealed by the court).No one in their right mind and with anything above a third grade education would think that forcing Mary to not disparage the pharmaceuticals ever, would make it any more likely that she would not disclose the settlement amount.
I helped Mary compose a letter to Thompson asking if she could also send a letter to Judges, Noel and Davis as the defendants did.We wanted to ask them personally to consider the great damage they would do to her and her family’s healing from the disaster of Mirapex if she could not tell her story.After all, most of the healing from traumatic events comes from the retelling of the story of what happened until some kind of “coming to terms” is accomplished.In their cruelty the pharmaceuticals would deny this to Mary and her family.Everyone else that did sign a “total gag order” did so of their free will in exchange for a settlement they agreed to.The willingly gave up the right to tell their story.Mary and in fact all of us would be forced to do this.Unfortunately, Thompson replied that we could not correspond directly to the Judges and that as “attorney of record” only he could do so; so much for being able to personally plead our case.
Now Mary and our fates are in the hands of the Judges again.I would like to pray for them to be guided by the spirit of justice.I open my mouth but the words will not come out.Am I descended that far into bitterness that I can’t even pray for them?We are unable to pay our landlord at the flower shop the full rent again.When will the devastating effects of Mirapex ever stop?