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In re New England Compounding Pharmacy, Inc. Products Liability Litigation

United States District Court, D. Massachusetts

December 15, 2017

IN RE NEW ENGLAND COMPOUNDING PHARMACY, INC., PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: 1:14-cv-13509-RWZ

          ORDER FOR DISTRIBUTION OF WRONGFUL DEATH SETTLEMENT PROCEEDS RECEIVED BY THE ESTATE OF SARA P. CULP

          RYA W. ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE

         Tosha Andrews (hereafter "Tosha"), as the personal representative and duly qualified Administrator of the Estate of Sara D. Culp (hereafter "Sara"), also known as Sara D. Andrews, requests an order allocating for final distribution the proceeds of a settlement which this court had previously approved. After payment of liens of Medicare and Virginia Medicaid, approval of the attorneys' fees and expenses, approximately $512, 520.00 remain in the estate for distribution to statutory beneficiaries. Under Virginia law, the statutory beneficiaries include all living children of the deceased and the children of any deceased child. Attached, as Exhibit A, is a chart that depicts all statutory beneficiaries in this case. It includes one son, William Dale Andrews, Jr., who, despite counsel's extensive search, was not found. Thus, the claimants are three living children of Sara and nine of her grandchildren.

         In accordance with Va. Code § 8.01-55, the court held hearings simultaneously in Boston and, by video, in Roanoke, Virginia. Everyone in both courtrooms who wished to speak was heard. Two of Sara's children, Roger and Joseph, came to Boston. Roger also provided a written statement, as did Charles, who was not able to be present at either venue. Two groups of grandchildren presented claims, the children of Debbie Denise Andrews and those of James Kevin Andrews. From the first group, only Tosha Andrews appeared in Boston with counsel in her capacities as administratrix of Sara's estate and as beneficiary. She testified and also provided a written statement. Brandon and Rodney Andrews were represented by their respective Guardians ad litem, Timothy Dooley and John D. Eure, in Roanoke and both made written submissions. Nina Andrews appeared in Roanoke and testified. Four children of James, namely Alexis Andrews, as well as Laura, Cassandra and Corey Jennings, participated from Roanoke. All, individually or jointly with others, also submitted written statements. Michael Gilmer only recently recorded his interest.

         Based on the evidence presented, the court must determine the amount to be distributed to each of these statutory beneficiaries and it must do so in accordance with the criteria set forth in the statute, Va. Code § 8.01-52. Thus, the amount to be awarded to any beneficiary shall be based on that person's "sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of decedent." It may also include "compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent." The statute does not provide for compensation to any beneficiary for wrongs allegedly committed by, or at the instance of, other members of the family.

         Sara's family was large, complicated, and often contentious. I address first the claims of the three surviving and known children.

         CHILDREN OF SARA

         Roger Eugene Culp is the eldest son of Sara. He writes that his only parental connection was with his mother, Sara; he does not know the identity of his father. The death of his mother was therefore "devastating." At the hearing he was noticeably emotional when testifying about his loss. He also testified that he visited Sara in the hospital when she was sick but that, as a result of a disagreement with Tosha about Sara's medication, he left and never returned because he could not deal with the constant family strife. His written submission says that he offered to handle Sara's wrongful death suit but that Tosha "insisted on acting as administrator in lieu of myself...." Since he "was working full time, raising a family and lived 5 hours away [he] agreed." However, in his statement he writes at some length about his disagreements with the manner in which Tosha managed the estate and the process of distributing it to the statutory beneficiaries. Finally, he hopes and requests that the "monetary awards be equally distributed among the first lineal statutory beneficiaries, " that is, "among myself and my siblings...." Joseph Andrews. Joey, was, by all accounts, very close to his mother. He was the baby of the family and, as a result, knew Sara best. He greatly feels her loss. She took care of him when he was homeless and needed a place to stay; indeed, she would do anything for him. He also testified that when Sara became ill, he and Tosha took care of her. When she died, he helped Tosha with the arrangements and even contributed $200 for the costs of the funeral.

         Charles E. Andrews, the third living son of Sara, was unable to attend but wrote that he wanted the courts to understand that he loves and misses his mother. He asks not to be counted out and the letter concludes: "I did love my mother and it hurts my (sic) greatly every day knowing she suffered greatly when she passed away."

         GRANDCHILDREN OF SARA

         All but one of the children of Sara's deceased children (Michael Gilmer) submitted claims as noted above. Debbie Andrews' Children All of the children of Debbie had some connection and shared some relationship with their grandmother, Sara. All, in varying degrees, describe their love for her and the loss they feel from her death.

         Brandon Andrews talks about the time he spent with his grandmother when he was little. He also describes his very difficult times in foster homes and his feeling that "the family just threw him away as a child." He states that he is mentally disabled and presently incarcerated.

         Nina Andrews testified that she was not close to Sara, but that she did see her from time to time. When Sara died, she felt empty because she never had any mother or grandmother and she never got to know Sara, and now she is sad because she will never have the chance to experience either.

         Rodney Andrews grew up around Sara until he was about 12 years old. Thereafter he was raised by his father's parents but would still talk with and see Sara from time to time. He loves and misses his grandmother dearly. He remembers how she would cook for him and his brother and sisters and "make sure we ate everything on our plates. Grandma did not 'play.' She would tell you like it was, but she had a kind and sweet side. She will be missed." Rodney was incarcerated at the time of Sara's illness and death and gives fulsome credit to Tosha for her care of Sara at that time.

         Tosha Andrews. Because her daughter, Debbie, was incapacitated by addiction Sara raised Debbie's daughter Tosha "as her own daughter from her birth through adulthood...." That is, this relationship continued after Debbie's death when Tosha was 17 years old. Sara provided her the "support of a natural mother, " and Tosha always referred to Sara as "Mom." When Sara became ill, Tosha became her grandmother's primary caretaker. She helped Sara get out of bed, get dressed and bathed. She ensured that Sara took her medications and got to her medical appointments. When Sara came to need more clinical care, Tosha arranged for skilled home health care and eventually nursing home and ultimately hospital care. Tosha and Sara remained close until Sara died in ...


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