United States District Court, S.D. New York
April 20, 2005.
PFIZER INC. and MTG DIVESTITURES INC., Plaintiffs,
STRYKER CORPORATION, Defendant. STRYKER CORPORATION, HOWMEDICA OSTEONICS CORP., Counterclaimants, v. PFIZER INC., and MTG DIVESTITURES INC, f/k/a HOWMEDICA INC., Counterclaim Defendants.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
ORDER AND INTERLOCUTORY JUDGMENT
Plaintiffs Pfizer Inc. and MTG Divestitures Inc. (collectively
"Pfizer") filed this action against Stryker Corp. and Howmedica
Osteonics Corp. (collectively "Stryker"). In an opinion and order
dated November 30, 2004, (the "November 30 Order") the Court
determined certain issues of liability as part of the Court's Findings of Fact and Conclusions of Law, incorporated herein by
reference, and decreed, inter alia, that:
1. It is hereby declared that Stryker shall
indemnify, defend and hold Pfizer harmless for all
Losses, as defined in the Purchase Agreement, other
than punitive damages from third party claims
relating to DUKs sold after December 4, 1998, and
reimburse Pfizer for its reasonable attorney's fees
in connection with the instant declaratory judgment
2. Stryker is liable to Pfizer on count two of
Pfizer's Amended Complaint [DI 44], breach of
contract, for an amount to be ascertained at trial.
Pfizer moved to try its damages separately from certain issues
raised by Stryker's counterclaims that remained unresolved by the
November 30 Order. That motion was granted in an Opinion and
Order dated January 28, 2005.
A trial was conducted on March 22, 23, and 24, 2005 before the Court and a
jury. During trial, Stryker stipulated to liability to Pfizer in respect of
settlement payments by Pfizer in other actions in the amount of
$6,565,110.96 as to which Stryker had no defense and for which Pfizer sought
indemnification and the dates upon which Pfizer paid the settlements in
question. The stipulations left only one claim for indemnification in
respect of a settlement payment at issue the settlement payment in the
Orrik litigation which was put to the jury. The jury found that Pfizer
paid $6,275,000 in settlement of the Orrik litigation and that no part of
that amount was paid in respect of claims for punitive damages.
The other question put to the jury related to the amount of
recoverable legal expenses incurred by Pfizer in the general
billing files on three cases. The jury found that $1,153,034.97
of the legal expenses billed in the general files was
attributable to post-closing cases, and therefore was recoverable
by Pfizer. During trial, Pfizer offered evidence of invoices and payment
for legal expenses on individual post-closing billing files in
total amount of $1,105,545.06 which was admitted. Because Stryker
offered no evidence as to these claims, there was no need to put
a question to the jury as to these payments. Pfizer moved for and
is entitled to judgment as a matter of law pursuant to Rule 50 of
the Federal Rules of Civil Procedure as to this amount.
The dates of payment of each settlement and each invoice for
legal fees was either the subject of a stipulation or was proved
by uncontroverted evidence. Plaintiffs are entitled to statutory
pre-judgment interest at 9 percent per annum from the respective
dates of such payments. Exhibit A annexed hereto is a schedule
setting forth each of the payments described above and
calculating the interest thereon through April 18, 2005.
In accordance with the foregoing findings and conclusions, it
is ORDERED AND ADJUDGED that defendants Stryker Corp and
Howmedica Osteonics Corp. are jointly and severally liable to
plaintiffs Pfizer Inc. and MTG Divestitures Inc. in the total
amount of $17,710,428.34. As defendants counterclaim remains
pending, this interlocutory judgment does not close this case.
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