Opinion
02 Civ. 8613 (LAK).
April 20, 2005
Charles B. Updike (CU 1277), Beth L. Kaufman (BK 7809), Schoeman, Updike Kaufman, LLP, New York, New York, Attorneys for Plaintiffs PFIZER INC. and MTG DIVESTITURES INC.
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 action.
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.
SO ORDERED.