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DOCKET NO.: (X10) UWY-CV15-6029965-S : COMPLEX LITIGATION
:
ANTHONY DIAZ, ET AL. : J.D. OF WATERBURY
:
V. : AT WATERBURY
:
GRIFFIN HEALTH SERVICES :
CORPORATION, ET AL. : FEBRUARY 13, 2024
MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Pursuant to Connecticut Practice Book § 9-9(c), the Plaintiffs, through counsel, seek final
approval of the proposed Class Action Settlement that they have reached, on behalf of the Class
Members, with defendants Griffin Health Services Corporation and Griffin Hospital (hereinafter,
“Griffin”). Griffin does not object to the relief sought herein and joins the Plaintiffs in their
request that the proposed Settlement be accepted by the Court to bring full and final resolution to
the present dispute.
On August 9, 2023, the Plaintiffs filed their Motion for Preliminary Approval of
Settlement [Entry No. 278.00], which was granted by this Court (Bellis, J.) on September 19,
2023 {Entry Nos. 283.00 & 283.10]. Following this Court’s preliminary approval of the
Proposed Settlement, the Parties worked together through a third-party settlement administrator,
RG/2 Claims Administration LLC (hereinafter “RG/2” and/or the “Settlement Administrator”) to
effectuate proper and reasonable notice to the Settlement Class consistent with this Court’s
Orders regarding notice to Class Members. See Affidavit of Settlement Administrator, filed
February 5, 2024 [Entry No. 288.00]. As evidenced by the Settlement Administrator’s Affidavit,
notice of the Proposed Settlement to the Settlement Class has been completed, consistent with
this Court’s Orders. See id. There have been no objections filed by any member of the
Settlement Class, nor have there been any opt-out requests made. See id. In addition to the
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1,067 individuals who are automatically members of the Settlement Class, there were three (3)
Claims Forms submitted by Class Members who were required to submit a Claim Form because
they obtained the relevant blood tests at a location other than Griffin (which the parties
anticipated would be a rare occurrence). As such, the total Settlement Class has 1,070 members
who will receive payments under the terms of the Settlement Agreement if the Court grants final
approval.
“The court may approve a settlement, withdrawal, or compromise that would bind class
members only after a hearing and on finding that the settlement, withdrawal, or compromise is
fair, reasonable, and adequate.” Practice Book § 9-9(c)(1)(C); see also Charron v. Wiener, 731
F.3d 241, 247 (2d Cir. 2013) (citations omitted). In the present matter, there is no question that
the Proposed Settlement – pursuant to which Class Members will receive guaranteed monetary
relief for highly contested factual and legal claims – is fair, reasonable, and adequate.
The parties reached their proposed settlement after over seven years of hard-fought
litigation, including significant motion practice in this Court (necessitating several hearings),
document discovery, fourteen depositions, and the filing of an attempted interlocutory appeal
pursuant to General Statutes § 52-265a with the Connecticut Supreme Court. The proposed
settlement was the product of extended arm’s length negotiations between experienced counsel
and was the subject of extensive mediation between the parties which first began in September
2021, followed by several months of intense negotiations between July 2022 and April 2023. If
approved, the Settlement will provide monetary compensation to individuals who were affected
by the conduct alleged in this matter who may not have otherwise received redress. The
Settlement represents a favorable outcome for the Class as a whole. Counsel for both sides
believe and represent that the proposed settlement is fair, reasonable and appropriate.
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As such, and for the reasons more fully articulated below, the Plaintiffs now request that
this Court enter an order of final approval of the Settlement.
I. PROCEDURAL HISTORY
This action was commenced in December 2015 by plaintiff Anthony Diaz on behalf of
himself and persons similarly situated, pursuant to Connecticut General Statutes §§ 52-104 and
52-105 as well as Connecticut Practice Book §§ 9-7 and 9-8, against defendants Griffin Health
Services Corporation and The Griffin Hospital (collectively, “Griffin”), for alleged conduct that
occurred at Griffin Hospital between September 1, 2008 and May 7, 2014. Generally, the
Plaintiff alleged that during this time period, medical staff at Griffin Hospital misused multi-dose
insulin pens in a manner that potentially exposed him and other patients to blood borne
pathogens. There is no allegation that any Griffin Hospital employee reused an insulin pen
needle and the Plaintiffs do not dispute that at all times Griffin Hospital used safety needles on
its insulin pens that prevented the needle itself from being used for more than a single injection.
The allegations contained the Complaint stem from the potential that the pen’s insulin cartridge
could have been contaminated through the backflow of blood or skin cells from one patient to
another, thus, there was a remote possibility to transmit an infection if is the pen was used on
multiple patients. As such, the Plaintiff initiated this matter seeking monetary relief for both
himself and other similarly situated individuals.
The parties agree that the lengthy procedural history of this matter – with regard to all
aspects and stages of this matter, including the pleadings, discovery, motion practice and class
certification – spanned several years, requiring both parties to expend substantial resources, legal
fees, costs and effort, as well as necessitating numerous Court hearings, conferences and judicial
decisions. The Plaintiffs respectfully refer this Court to the judicial docket and rely on the
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arguments briefed throughout the pendency of this matter for each party’s respective position.
That being noted, to the extent relevant to this Court’s final approval of the proposed Settlement,
the Plaintiffs briefly set forth the predominant procedural history herein.
The Plaintiffs sought leave to amend the original Complaint on May 11, 2016 (Entry No.
120.00), which was deemed granted by operation of law absent objection from Griffin. The
Plaintiff alleged, inter alia, that between September 1, 2008 and May 7, 2014, some health care
providers at Griffin Hospital misused multi-dose insulin pens in several manners, potentially
exposing patients receiving insulin from multi-dose insulin pens to various blood borne diseases,
including the hepatitis B virus (HBV), hepatitis C virus (HCV) and the human
immunodeficiency virus (HIV). As a result, the Plaintiffs claimed that the then putative Class
Members had to undergo blood testing to determine whether they potentially contracted any
diseases, suffered emotional distress as a result of the alleged conduct and may have also
required ongoing medical monitoring.1 The Plaintiffs did not claim that any Class Member
contracted any of the aforementioned blood borne pathogens as a result of the alleged misuse of
multi-dose insulin pens at Griffin Hospital.
On June 7, 2016, Griffin filed a Motion to Strike and accompanying Memorandum of
Law (Entry Nos. 124.00 and 125.00). In addition to seeking to have each of the Plaintiffs’ causes
of action stricken, Griffin also sought to have any allegations regarding the putative class
stricken arguing that the Plaintiffs could never demonstrate commonality, typicality and
predominance. Id. The Plaintiffs filed their Memorandum of Law in Opposition to Motion to
Strike on July 15, 2016 (Entry No. 129.00). Griffin filed a Reply Memorandum of Law on
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The Plaintiff’s three count Amended Complaint included causes of action sounding in medical negligence,
recklessness and negligent infliction of emotional distress. The Plaintiff included a Certificate of Good Faith as well
as a written and signed opinion letter of a similar healthcare provider pursuant to General Statutes § 52-190a in
support of his medical negligence claims.
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August 8, 2016 (Entry No. 131.00) and the Court heard oral argument regarding Griffin’s
Motion to Strike on November 9, 2016. The Court (Lager, J.), issued its Memorandum of
Decision regarding Griffin’s Motion to Strike on January 31, 2017 (Entry No. 137.00), both
granting, in part, and denying, in part, Griffin’s Motion to Strike. The Court refused to strike the
Plaintiffs’ medical negligence and recklessness claims and similarly refused to strike the
Plaintiffs’ allegations regarding the then putative class. The Court did strike the Plaintiffs’
negligent infliction of emotional distress claims.
Griffin filed its Answer and Special Defenses on March 20, 2017 (Entry No. 138.00),
wherein Griffin denied that any of its staff misused multi-dose insulin pens and further denied
any alleged negligent or reckless conduct. In addition, Griffin asserted eight special defenses.
The Plaintiff then sought to cite in additional named-plaintiffs Bruce Sypniewski and Daisy
Gmitter. See Motion to Cite In Additional Plaintiffs and Memorandum of Law, August 2, 2017
(Entry Nos. 145.00 and 146.00). Griffin subsequently filed a substantively similar Answer and
Special Defense to the Plaintiffs’ Second Amended Complaint, again denying the Plaintiffs’
allegations and asserting several special defenses. See Answer and Special Defenses, October
11, 2017 (Entry No. 150.00).
The Plaintiffs filed a Request to Revise the Defendants’ Special Defenses on December
15, 2017 (Entry No. 153.00) and Griffin filed its Revised Answer and Special Defenses in
response on February 15, 2018 (Entry No. 158.00). The Plaintiffs then filed a Motion to Strike
and accompanying Memorandum of Law directed towards several of Griffin’s Special Defenses.
See Motion to Strike and Memorandum of Law, April 25, 2018 (Entry Nos. 170.00 and 171.00).
Griffin filed its Memorandum of Law in Opposition to Motion to Strike on June 12, 2018 (Entry
No. 178.00) and the Plaintiffs filed a Reply on July 6, 2018 (Entry No. 182.00). The parties
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consented to the Court’s adjudication of the Plaintiffs’ Motion to Strike on the papers and the
Court (Lager, J.) issued its decision on July 26, 2018 (Entry No. 170.10) striking Griffin’s First
and Fourth Special Defenses (Griffin agreed to delete its Fifth and Eighth Special Defenses).
On July 17, 2019, the Plaintiffs filed their Motion for Class Certification and
accompanying Memorandum of Law (Entry Nos. 207.00 and 208.00). Griffin filed its
Memorandum in Opposition on November 1, 2019 (Entry No. 215.00), and the Plaintiffs filed
their Reply on January 6, 2020 (Entry No. 217.00). The Court heard oral argument regarding
Class Certification on January 22, 2020, and issued its written Memorandum of Decision on
November 23, 2020 (Entry No. 219.00).
In its Decision, the Court certified the claims sounding in medical negligence but
declined to certify those claims sounding in recklessness. Pursuant to Connecticut Practice Book
§ 9-9(a)(1)(B), the Court defined the Class as follows:
All patients of Griffin Hospital, located in Derby, Connecticut, for whom a multi-
dose insulin pen was prescribed during their hospitalization between September 1,
2008 and May 7, 2014, and to whom insulin was administered from a multi-dose
insulin pen, who received a notification letter from Griffin Hospital dated May 16,
2014 and who subsequently underwent testing for hepatitis B virus (HBV), hepatitis
C virus (HCV), and human immunodeficiency virus (HIV).
The Court also certified the following questions to be decided at one trial for the entire class
(unless they are resolved prior to trail):
1. Whether, at the relevant time, there was a prevailing professional standard
of care applicable to Griffin Hospital to ensure that multi-dose insulin pens were
not improperly used on multiple patients, which Griffin breached because Griffin
did not have appropriate policies, procedures, rules and/or guidelines, failed to
properly train, educate, supervise and monitor its employees, agents and/or
servants, failed to have an effective system for the distribution of pertinent
information related to the use of the pens and failed to warn or notify its employees,
agents and/or servants of the risks of using the pens.
2. Whether having to undergo blood testing for HBV, HCV and HIV is an
actual harm or injury proximately caused by Griffin’s proven professional
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negligence and, if so, whether undergoing blood testing alone is compensable and
the monetary value of the compensation.
The Court subsequently further clarified the scope of the Class and the issues that were
subject to class-wide resolution, noting that there was a “single class” and clarifying that “[i]f the
plaintiffs prevail on the certified questions, issues regarding the adjudication of any
individualized claim of damagers can be resolved at that time.” See Order (Entry No. 222.10).
Following the Court’s certification of the Class, as noted above, on December 7, 2020,
Griffin filed an Application for Certification to Appeal Issue of Substantial Public Interest,
pursuant to General Statutes § 52-265a and Practice Book § 83-1, with the Connecticut Supreme
Court. The Plaintiff filed its Opposition on December 11, 2020. Chief Justice Richard A.
Robinson denied Griffin’s Application on December 14, 2020.
Plaintiffs’ Counsel filed a Motion for Appointment of Silver Golub & Teitell, LLP, as
Class Counsel, which was granted on April 27, 2021. See Motion for Appointment of Attorney,
March 31, 2021 (Entry No. 230.00); Order, April 27, 2021 (Entry No. 230.10) (Lager, J.).
Thereafter, at the suggestion of Judge Lager in August 2021, the parties engaged in good
faith settlement discussions. A settlement conference was facilitated by Judge Lager on
September 22, 2021. While productive, that initial settlement conference did not result in a
resolution of this matter. On May 16, 2022, Griffin filed a Motion for Partial Summary
Judgment, directed towards the second certified class question. Thereafter, the parties agreed to
forego additional briefing on that issue while settlement negotiations were ongoing through a
private mediator jointly engaged by the parties. These efforts proved successful and on May 3,
2023, the parties filed a Joint Notice of Settlement (Entry No. 271.00), formally apprising the
Court that the parties have reached a settlement pending Court approval pursuant to Practice
Book §§ 9-9 et seq.
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On August 9, 2023, the Plaintiffs filed their Motion for Preliminary Approval of
Settlement and accompanying Memorandum of Law [Entry No. 278.00]. Attached to the
Plaintiffs’ Motion for Preliminary Approval of Settlement was (1) a Proposed Order Granting
Motion for Preliminary Approval of Class Action Settlement; (2) Class Action Settlement
Agreement and Release; (3) Claim Form; (4) Opt-Out Election Form; (5) Short Form Notice of
Class Action and Settlement; (6) Long Form Notice of Class Action and Settlement. This Court
preliminarily approved the proposed Settlement and Notice procedure on September 19, 2023
[Entry Nos. 283.00 & 283.10].
The parties subsequently retained RG/2 to serve as a third-party administrator of the
proposed Settlement and Notice. On September 28, 2023, RG/2 received Microsoft Excel files
from Griffin’s Counsel, containing lists of 2,728 individuals who were considered Class
Members. Entry No. 288 ¶ 4. RG/2 de-duplicated the list, resulting in 2,720 respective Class
Members. Id. Prior to mailing notice to Class Members, RG/2 obtained most recent mailing
addresses for Class Members by cross-checking addresses through the United States Postal
Service’s National Change of Address database. Id. at ¶ 5. On October 23, 2023, RG/2
completed Publication Notice by publishing notice in the Connecticut Post, Hartford Courant,
New Haven Register and Republican American. Id. at ¶ 6.
That same day, RG/2 served by First Class U.S. Mail the Notice & Claim Form to Class
Members. Id. at ¶ 7. After initial mailing went out to Class Members, 995 Notice Packets were
returned as undeliverable. Id. at ¶ 8. RG/2 then performed a standard skip-trace procedure and
was able to re-mail an additional 486 Notice Packets for whom an updated address was located.
Id. In total, only 509 Notices remained undeliverable, of which, only 130 were returned for
Class Members for whom no Claim Form was required. Id.
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In addition to Publication Notice and Mail Notice, the Settlement website,
www.griffinvdiazclassaction.com, went live on October 23, 2023. The Settlement website
contained information about the lawsuit and proposed Settlement, including court documents and
Notice documents. Id. at ¶ 12.
The Notice, which was previously approved by this Court, informed Settlement Class
Members of their right to object or request exclusion from the Settlement Class by December 22,
2023. The Notice also informed Class Members who were required to submit a Claim Form of
their right to submit a Claim Form, provided it was received or postmarked on or before January
22, 2024. To date, RG/2 has not received any opt-out requests or any objections. Id. at ¶¶ 9–10.
No class member has filed an objection on the Court’s docket. To date, RG/2 has received three
(3) Claim Forms. Id. at ¶ 11.
As such, the Settlement Class who will be entitled to receive payment consists of 1,070
individuals (1,067 individuals who did not require a Claim Form and 3 who submitted a Claim
Form).
II. THE PROPOSED SETTLEMENT2
The proposed Settlement Agreement was attached as Exhibit B to the Plaintiff’s Motion
for Preliminary Approval [Entry No. 278.00] as well as Exhibit A to the Proposed Order, dated
September 18, 2023 [Entry No. 283.00]. The proposed Settlement provides for a $1,000,000.00
2
The Proposed Settlement was set forth in the Plaintiffs’ Motion for Preliminary Approval, dated August 9, 2023
[Entry No. 278.00] and the Proposed Order, dated September 18, 2023 [Entry No. 283.00]. The Plaintiffs set forth
the parameters of the Proposed Settlement again herein as it is directly relevant to this Court’s final approval of the
Proposed Settlement. The Plaintiffs incorporate their Motion for Preliminary Approval into this Motion, and further
incorporate into this Motion the other following filings: (1) Application for Award of Attorneys’ Fees and
Reimbursement of Litigation Expenses, dated November 13, 2023 [Entry No. 284.00]; (2) Memorandum in Support
of Application for Award of Attorneys’ Fees and Reimbursement of Litigation Expenses, dated November 13, 2023
[Entry No. 285.00]; (3) Application for Award of Class Representative Incentive Award, dated November 13, 2023
[Entry No. 286.00]; and, (4) Memorandum in Support of Application of Class Representative Incentive Award,
dated November 13, 2023 [Entry No. 287.00]. All these filings, combined, are relevant to this Court’s final
approval of the Proposed Settlement.
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(One Million Dollar) total settlement by Griffin for the benefit of the proposed Settlement Class.
This monetary relief is for the benefit of each member of the Proposed Settlement Class as well
as complete and final resolution of the potential claims in this matter, including resolution of
potential individual claims, without necessitating individual hearings or proceedings, as
contemplated by the Court’s Orders certifying the Class and clarifying the process for handling
potential individualized claims. See Entry Nos. 219.00 and 222.10.
Pursuant to the proposed Settlement, Griffin will pay a Total Settlement Amount of
$1,000,000.00 (One Million Dollars), would be divided evenly amongst the 1,070 Settlement
Class Members who qualify for payment after certain deductions. Specifically, the Settlement
Agreement provides that attorney’s fees and costs associated with pursuing this matter be
deducted from the Total Settlement Amount. Similarly, the parties have agreed that any Class
Representative Services Awards will be paid from the Total Settlement Amount.3 The parties
have also agreed that the administration of the settlement will be done by an already agreed upon
third-part administrator: RG/2. As noted above, RG/2 has effectuated proper Notice to Class
Members of the Proposed Settlement and will continue to administer the Settlement through the
completion of this matter, including sending payment to the 1,070 members of the Settlement
Class who qualify for payment. As part of the Proposed Settlement, any fees or costs associated
with administering the settlement, including costs associated with locating and issuing notice to
3
On November 13, 2023, Class Counsel filed its Application for Award of Attorneys’ Fees and Reimbursement of
Litigation Expenses as well as an Application for Award of Class Representative Incentive Awards, along with
supporting Memorandum [Entry Nos. 284.00, 285.00, 286.00 and 287.00]. As noted in those filings, Class Counsel
requests that this Court award Class Counsel attorneys’ fees in the amount of $333,333.33, reimbursement of
litigation expenses in the amount of $55,602.30, and an incentive award for each of the three named Class
Representatives in the amount of $25,000.00 ($75,000.00 in total). If this Court authorizes attorneys’ fees, litigation
expenses and incentive awards consistent with the above-referenced applications, there would be $536,064.37 to be
split evenly among the 1,070 Settlement Class Members who qualify for payment.
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Class Members, will be paid directly by Griffin and will not be deducted from the Total
Settlement Amount. Additional details regarding the proposed Settlement are set forth below.
Pursuant to the proposed Settlement, Griffin agrees to pay a single, uniform payment (the
“Uniform Payment”) to be paid to each of the 1,070 Settlement Class Members that did not opt-
out of participating in the Class Settlement and have qualified for payment. The Uniform
Payment will be determined by taking the net proceeds remaining from the Total Settlement
Amount less Court-approved attorney’s fees and costs, as well as any Class Representative
Service Awards, divided evenly amongst the 1,070 Settlement Class Members who qualified for
payment after the appropriate notice and opt-out period.
The Settlement Agreement provides that in order for an individual to qualify to receive a
Uniform Payment, no claim or claim form was required for the 1,067 individuals who received
the May 16, 2014, notice letter from Griffin Hospital and who subsequently returned to Griffin
Hospital for blood testing (the “Griffin Blood Test Class Members”).4 However, the parties
agreed that a “Claim Form” was required for those individuals who received the May 16, 2014
notice letter from Griffin Hospital, but who then obtained a blood test from a facility other than
Griffin Hospital (known as the “Additional Class Members”). This was expected to be a small
number because Griffin offered free testing to all Settlement Class Members who requested it.
The Additional Class Members are entitled to the same Uniform Payment as the Griffin Blood
Test Class Members.
In order for Additional Class Members to qualify for receipt of the Uniform Payment,
they were required to return the Claim Form previously approved by this Court. The deadline
4
It is undisputed that 2,730 individuals were sent the May 16, 2014, notice letter from Griffin Hospital. Similarly,
based on records kept by Griffin, it is known at 1,067 of those recipients returned to Griffin Hospital to undergo
free-blood testing offered by Griffin. As such, there is no dispute that these individuals, who have been identified
by Griffin’s records, are members of the Class and Settlement Class.
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for Additional Class Members to submit their Claim Form was January 22, 2024. As noted
previously, to date, three (3) Claim Forms have been submitted to RG/2. This brings the total
number of Settlement Class Members who qualify for payment to 1,070 (the 1,067 Griffin Blood
Test Class Members and the 3 Additional Class Members).
The proposed Settlement establishes that all Settlement Class Members (both Griffin
Blood Test Class Members and Additional Class Members) shall be entitled to the Uniform
Payment unless an individual chooses to opt-out of the Settlement pursuant to Practice Book §§
9-9 et. seq. and/or if the individual has already released their claims relating to this matter
pursuant to a separate agreement and/or if the settlement administrator cannot locate such Class
Member and/or if the Settlement Class Member was required to but did not submit a Claim
Form. The opt-out date for participation in the Settlement Class was December 22, 2023. To
date, there have been no opt-out forms submitted to RG/2. In addition, any Class Member had a
right to object to the Proposed Settlement by December 22, 2023. To date, there have been no
objections submitted to RG/2.
After the Court issues an order of Final Approval, the Defendants shall be required to pay
the Total Settlement Amount specified above within thirty (30) days from the date of Final
Approval if there is no timely appeal noticed by an objector from the order of Final Approval (or
within 30 days of final resolution of any appeal from the order of Final Approval if an appeal is
taken and the order of Final Approval is affirmed on appeal).
The parties have agreed that the Uniform Payment payable to each Class Member shall
be determined by the settlement administrator by dividing equally among all Settlement Class
Members eligible for payment the amount remaining from the Total Settlement Amount after
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payment of Attorney’s Fees and Costs, and Class Representative Service Awards, as ordered by
the Court.
As part of the proposed Settlement, upon Final Approval of the Settlement by this Court,
under the terms of the Settlement Agreement and the Court’s Orders, all Releasors will release
all claims relating to the alleged underlying conduct. In particular, the Releasors along with their
Counsel (including counsel affiliated with their law firms) agree, on behalf of themselves and the
Settlement Class, to release and forever discharge the Releasees from any and all Claims arising
out of or relating in any way to the use or alleged misuse of multidose insulin pens by
Defendants between September 1, 2008 and May 7, 2014, including but not limited to any claims
that were or could have been alleged in the Action, as more specifically provided for in
Paragraphs 18–20 and 42 of the Settlement Agreement (the “Release”).
The Parties have also agreed that they are each prohibited from making, and will refrain
from making or engaging in, any public statements or comments concerning the settlement of
this Action, and the Parties further agree that they will remain silent and not provide any
response to any inquiries or requests for comment from anyone. At no time are either party or
their counsel permitted to speak publicly about the settlement. This ensured that the information
relied upon by the Class Members was the Court-approved notice and the documents publicly
filed with this Court. The Parties further agree that they are not permitted to directly, or
indirectly, promote, advertise, disclose or otherwise facilitate distribution of the underlying
Settlement Agreement and/or the Moton for Preliminary Approval, except as required by law, to
effectuate proper notice to Class Members or as otherwise agreed to by the Parties. The Parties
have explicitly agreed, however, that these terms are not applicable to the Parties’ need to
effectively communicate with their clients (including class counsel communicating with
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individual class members), or to enforce the Settlement Agreement or the Court’s orders in
connection therewith. Finally, the terms articulated herein do not preclude Class Counsel from
publicly disclosing that they represented the Plaintiffs/Class Members in this action or that this
matter was resolved via settlement, nor does it prohibit Class Counsel from disclosing public
information about this matter to any state or federal court of competent jurisdiction in
furtherance of any motion or application to be appointed class counsel or lead class counsel in
other matters or as otherwise required by law.
As was referenced above, the Parties have engaged in extensive arms-length negotiations
intended to represent and further their respective interests and positions. This proposed
Settlement was reached after extensive assistance of two mediators – the Honorable Linda Lager
(Ret.) and Attorney Patrick Noonan – after many months of negotiations. This Proposed
Settlement is a fair, reasonable and adequate result for the members of the Settlement Class.
Each Settlement Class Member who qualifies will receive monetary relief without the need to
disclose personal medical records, sit for a deposition, appear at any hearing or otherwise offer
proof through highly sensitive information as to the nature of their injury. Moreover, the
proposed Settlement ensures that each Settlement Class Member who qualifies will receive
monetary relief for claimed injuries that are highly contested by Griffin and which may
otherwise be subject to judicial review but for this resolution.
If this Court approves Class Counsel’s Application for Attorneys’ Fees and Litigation
Reimbursement as well as the Application for Incentive Awards for the Class Representatives,
each Settlement Class Member who has qualified for payment will receive a check in the amount
of $500.99. The proposed Settlement puts real money in the pockets of these Settlement Class
Members without the need for them to engage in extensive litigation or waiving their personal
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privacy. As further explained below, given the risk, uncertainty and expense of continued
litigation, the proposed Settlement is a fair, reasonable and adequate result and justifies notice to
the Settlement Class.
III. CERTIFICATION OF THE SETTLEMENT CLASS
Pursuant to the Proposed Settlement, and in accordance with this Court’s prior Order
certifying the Class, the proposed Settlement Class is defined as follows:
All patients of Griffin Hospital, located in Derby, Connecticut, for whom a multi-
dose insulin pen was prescribed during their hospitalization between September 1,
2008 and May 7, 2014, and to whom insulin was administered from a multi-dose
insulin pen, who received a notification letter from Griffin Hospital dated on or
about May 16, 2014 and who subsequently underwent testing for hepatitis B virus
(HBV), hepatitis C virus (HCV), and human immunodeficiency virus (HIV).
As noted above, there are two cohorts of individuals who fall within the above defined
Settlement Class: (1) those individuals who were subsequently tested at Griffin Hospital as part of
its free-testing program in response to the alleged misuse of multi-dose insulin pens; and, (2) those
individuals who were subsequently tested at outside facilities. As discussed above, the known
1,067 individuals tested at Griffin Hospital constitute the Griffin Blood Test Class Members, who
are automatically part of the Settlement Class. None of these individuals opt-out of the Proposed
Settlement nor filed any objection. In addition, any Settlement Class Members who were not
tested at Griffin Hospital but at a different location constitute the Additional Class Members who
were required to submit Claims Forms. To date, RG/2 received three (3) Claim Forms. As such,
the total number of Settlement Class Members who have qualified for payment is 1,070.
IV. STANDARD FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Practice Book § 9-9(c) requires court approval of class action settlements. See Practice
Book § 9-9(c)(1)(A) (“The court must approve any settlement, withdrawal, or compromise of the
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claims, issues, or defense of a certified class.”). “Before the settlement of a class action may be
approved, the trial court must determine that the settlement is fair, adequate, and reasonable, and
not a product of collusion.” Gray v. Foundation Health Systems, Inc., Docket No. (X06) CV99-
0158549-S, 2004 WL 945137, at *1 (Conn. Super. Ct., Apr. 21, 2004) (Alander, J.) (citing Joel
A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000); Williams v. Vukovich, 720 F.2d 909, 921 (6th
Cir. 1983)).
It is well-settled that “[b]ecause our class certification requirements are similar to those
embodied in Rule 23 of the Federal Rules of Civil Procedure, and our jurisprudence governing
class action is relatively undeveloped, we look to federal case law for guidance in construing the
provisions of Practice Book §§ 9-7 and 9-8.” Rodriguez v. Kaiaffa, 337 Conn. 248, 263 n.15
(2020) (quoting Collings v. Anthem Health Plans, Inc., 275 Conn. 309, 322–23 (2005). Federal
case law is also instructive as to the approval of class action settlements. See Gray, 2004 WL
945137, at *1 (“Reference to federal court decisions regarding approval of class action
settlements is especially appropriate in light of the dearth of Connecticut appellate authority on
the issue.”).
As the Second Circuit noted in Wal-Mart Stores, Inc.:
A court may approve a class action settlement if it is “fair, adequate, and reasonable,
and not a production of collusion.” Joel A., 218 F.3d at 138. A court determines a
settlement’s fairness by looking at both the settlement’s terms and the negotiating
process leading to settlement. D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.
2001). A “presumption of fairness, adequacy, and reasonableness may attach to a
class settlement reached in arm’s-length negotiations between experienced, capable
counsel after meaningful discovery.” Manual for Complex Litigation, Third §
30.42 (1995). We are mindful of the “strong judicial policy in favor of settlements,
particularly in the class action context.” In re PaineWebber Ltd. P’ships Litig., 147
F.3d 132, 138 (2d Cir. 1998). “The compromise of complex litigation is
encouraged by the courts and favored by public policy.” 4 Newberg § 11:41, at 87.
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116–17 (2d Cir. 2005).
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In City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), the United States
Court of Appeals for the Second Circuit identified nine relevant factors for a trial court to
consider when determine the fairness of a class action settlement:
(1) the complexity, expense and likely duration of the litigation, . . .; (2) the reaction
of the class to the settlement . . .; (3) the stage of the proceedings and the amount
of discovery completed . . .; (4) the risks of establishing liability . . . ; (5) the risks
of establishing damages . . .; (6) the risks of maintaining the class action through
the trial . . .; (7) the ability of the defendants to withstand a greater judgment . . .;
(8) the range of reasonableness of the settlement fund in light of the best possible
recovery . . .; (9) the range of reasonableness of the settlement fund to a possible
recovery in light of all the attendant risks of litigation . . . .
Id.; see also Charron v. Wiener, 731 F.3d 241, 247 (2d Cir. 2013) (citations omitted)
(noting same factors); Wal-Mart Stores, Inc., 396 F.3d at 117 (same); see also Gray, 2004
WL 945137, at *1–2 (applying same factors to approve class action pending in Connecticut
Superior Court).5
V. THE PROPOSED SETTLEMENT WARRANTS FINAL APPROVAL
a. The Settlement Is Presumed to be Fair Because It Was the Result of Lengthy,
Hard-Fought Litigation and Arms-Length Negotiations
The Parties have diligently pursued their respective positions throughout the pendency of
this matter both in public filings with the Court as well as during extensive settlement
discussions which first began in September 2021 and continued vigorously between July 2022
and April 2023. Where “the integrity of the arm’s length negotiation process is preserved . . . a
strong initial presumption of fairness attaches to the proposed settlement” and “great weight is
accorded to the recommendations of counsel, who are most closely acquainted with the facts of
5
The factors relevant to determine whether final approval of a proposed class action settlement is appropriate are
substantively similar to those relevant for preliminary approval. As noted above, this Court granted preliminary
approval of the Proposed Settlement on September 19, 2023. Since preliminary approval, Notice has been sent to
Class Members, thus the second factor, the reaction of the class to the settlement, can now be fully assessed by this
Court.
17
the underlying litigation.” NASDAQ III, 187 F.R.D. at 474 (citations and quotations omitted);
see also Wal-Mar Stores, Inc. v. VISA USA Inc., 3967 F.3d 96, 116 (2d Cir. 2005) (“A
presumption of fairness, adequacy and reasonableness may attach to a class settlement reached in
arm’s length negotiations between experienced, capable counsel after meaningful discovery.”).
The process leading to the settlement “must be examined ‘in light of the experience of counsel,
the vigor with which the case was prosecuted, and the coercion or collusion that may have
marred the negotiations themselves.’” Id. at 473–74 (quoting Malchman v. Davis, 706 F.2d 426,
433 (2d Cir. 1983)).
The Plaintiffs set forth the lengthy negotiation process in this matter in their Motion for
Preliminary Approval [Entry No. 278.00] and incorporate that section explicitly herein. In
addition, Class Counsel further articulated the negotiation process in their Application for Award
of Attorneys’ Fees and Reimbursement of Litigation Expenses [Entry No. 284.00]. Since this
matter resolved only after dogged arm’s length negotiations devoid of any collusion, there should
be a strong initial presumption that the Proposed Settlement is fair.
b. The Proposed Settlement Is Fair, Reasonable, And Adequate
This Court should approve final settlement of this matter because the Proposed
Settlement is clearly fair, reasonable and adequate, pursuant to Practice Book § 9-9(c)(1)(C).
While our Practice Book does not specifically set forth criteria for determining whether a
proposed settlement is fair, Connecticut courts have utilized the nine factors adopted by the
Second Circuit Court of Appeals in Grinnell. See, e.g., Gray, 2004 WL 9456137, at *1–2.
Those factors include:
(1) the complexity, expense and likely duration of the litigation, . . .; (2) the reaction
of the class to the settlement . . .; (3) the stage of the proceedings and the amount
of discovery completed . . .; (4) the risks of establishing liability . . . ; (5) the risks
of establishing damages . . .; (6) the risks of maintaining the class action through
18
the trial . . .; (7) the ability of the defendants to withstand a greater judgment . . .;
(8) the range of reasonableness of the settlement fund in light of the best possible
recovery . . .; (9) the range of reasonableness of the settlement fund to a possible
recovery in light of all the attendant risks of litigation . . . .
Id. (citations omitted). Applying each of these factors to the current Proposed Settlement weighs
in favor of final approval of the Proposed Settlement.
The Proposed Settlement and recovery is, at the very least, “well within the range of
reasonableness.” See In re Michael Milken and Assoc. Secs. Litig., 150 F.R.D. 57, 67 (S.D.N.Y.
1993) (noting that in the Grinnell case, the proposed settlement represented 3.2% to 3.7% of the
potential recovery). At the time of the Settlement, the Plaintiffs’ claims were subject to a
potential summary judgment pursuant to the Defendants’ Motion for Summary Judgment, dated
May 16, 2022 (Entry No. 257.00), which, if granted, would have completely eviscerated the
Plaintiffs’ claims. Moreover, the Defendants have raised several legal defenses which could
have resulted in dismissal of this matter prior to trial, potential de-certification of the class or a
verdict in favor of the Defendants after a full trial on the merits. Also, even if the Plaintiffs
successfully proceeded to trial and ascertained a verdict in their favor, given the Court’s rulings
as to the damages to be awarded to the Class Members during trial, there is a possibility of a
verdict less than the proposed Settlement. Finally, the Defendants have raised several legal
issues which may have subjected this matter to an appeal and potential reversal even in the event
that the Plaintiffs were successful at trial.
Absent this Settlement, Class Members also faced the likelihood of significant further
delay – in the litigation of potential available relief in this Court, in any subsequent appeal(s) to
our Appellate Court and in any subsequent petition for certiorari in the Connecticut Supreme
Court and potentially United States Supreme Court. And – even assuming a favorable finding on
liability – in a litigation posture, Class Members faced substantial risks attendant on the
19
determination of each Class Members’ individualized damages, as previously articulated by this
Court (Lager, J.). These risks also include the burden of substantiating damages and responding
to defenses directed to the validity of such claims, adequacy of mitigation efforts and
necessitating the disclosure of each individual Class Members’ medical records, including
psychiatric and therapeutic records. See, e.g., In re Michael Milken & Assocs. Sec. Litig., 150
F.R.D. 57, 65 (S.D.N.Y. 1993) (noting that “[i]t must also be recognized that victory even at the
trial stage is not a guarantee of ultimate success” and citing a case where a “multimillion dollar
judgment was reversed.”); Maley v. Del Global Techs. Corp., 186 F.Supp.2d 358, 363 (S.D.N.Y.
2002) (approval granted where “[d]elay, not just at the trial stage but through post-trial motions
and the appellate process, would cause Class Members to wait for years for any recovery, further
reducing its value”); In re Visa Check/Matermoney Antitrust Litigation, 297 F.Supp.2d 503, 510
(E.D.N.Y. 2003) (fact that the class faced a long trial and the additional time it would take to
exhaust all appeals “weigh[ed] heavily in favor of approving Settlements.”).
In light of these significant litigation and appeal risks, the proposed Settlement is fair,
reasonable and adequate. In these circumstances, it is clearly preferable “to take the bird in the
hand instead of the prospective flock in the bush.” See In re Prudential Sec., 163 F.R.D. at 210.
i. The complexity, expense and likely duration of the litigation
As this Court is well aware, this matter is a highly complex medical malpractice-class
action matter that presents novel issues of law and fact in its present posture. The Plaintiffs’
underlying claims sound in medical malpractice relating to the alleged practices of the
Defendants over a span of several years. Given the typical nature of medical malpractice claims,
this matter presents unique issues of law in terms of establishing liability, maintaining this action
as a Class Action and establishing liability and damages. The nature of the Plaintiffs’ claims
20
were the subject of several potentially dispositive motions including motions to strike, opposition
to Class Certification, an attempted interlocutory appeal upon Class Certification pursuant to
General Statutes § 52-265a, a motion to reargue Class Certification and a presently pending
Motion for Summary Judgment.
Moreover, since this matter sounds in medical malpractice allegedly occurring over the
course of several years, there have been fourteen (14) fact depositions completed to date. If the
Proposed Settlement is not approved, it is anticipated that additional fact discovery will be
necessary as well as substantial expert discovery regarding the medical issues in dispute in this
matter. Indeed, Class Counsel consulted and retained several expert witnesses in furtherance of
establishing the Plaintiffs’ claims in this matter.
The expenses associated with continuing litigation will also increase dramatically if the
Settlement is not approved. While substantial discovery has been completed to date, should this
matter not resolve, in addition to further fact discovery, expert discovery will be significant and
costly to all parties. Moreover, preparation for trial will result in significantly more expenditures
for both parties.
Finally, the duration of litigation should this matter not resolve, will likely extend the
resolution of the claims at issue by several years. It is anticipated that if the Proposed Settlement
is not approved, substantial time will be necessary to adjudicate the Defendants’ pending Motion
for Summary Judgment. Moreover, assuming that Motion for Summary Judgment is denied,
considerable resources and time will be necessary to complete fact and expert discovery as well
as prepare this matter for trial. Moreover, if the Defendants were to be successful in their
Motion for Summary Judgment, Class Counsel anticipates that an appeal will likely follow.
Similarly, if this matter were to proceed to trial and result in a verdict in favor of the Plaintiffs, it
21
is expected that the Defendants will also appeal several issues, including Class Certification, as
evidenced by their petition for an immediate appeal pursuant to General Statutes § 52-265a.
As such, given the complexity of this matter, anticipated additional expenses resulting
from ongoing litigation and the likely extended duration of the proceedings, these factors weigh
heavily towards approving the Proposed Settlement.
ii. The reaction of the class to the Proposed Settlement
The reaction of the Class Members in this matter militates strongly in favor of approving
the Proposed Settlement. “It is well settled that the reaction of the class to the settlement is
perhaps the most significant factor to be weighed in considering its adequacy.” Esposito v.
Nations Recovery Center, Inc., No. 3:18-CV-02089 (VLB), 2021 WL 2109077, at *4 (D. Conn.
2021) (Bryant, J.) (citation omitted). “The absence of objectants may itself be taken as
evidencing the fairness of a settlement.” Id. (citation omitted).
As noted in the Settlement Administrator’s Affidavit [Entry No. 288.00], Notice was
effectuated to Class Members consistent with this Court’s Orders. In particular, mail notice was
sent to the 2,720 respective Class Members. After skip-tracing and additional mailings, only 509
Notices were undeliverable. Id. at ¶¶ 4–8. Of those 509 undeliverable notices, only 130 (12% of
the 1,067) were for Class Members who were not required to file a Claim Form. Given that the
claims date back to 2008 and that the Class consists of individuals who were hospitalized and
may have had comorbidities, it was anticipated that a significant (albeit small) number of
individuals would not be able to be located or would be deceased. Moreover, Notice was also
effectuated by Publication Notice in several local publications, including the Connecticut Post,
Hartford Courant, New Haven Register and Republic American. Id. at ¶ 6. Finally, a settlement
website was also established to provide notice and information to the public. Id. at ¶ 12. As
Preview
DOCKET NO.: (X10) UWY-CV15-6029965-S : COMPLEX LITIGATION : ANTHONY DIAZ, ET AL. : J.D. OF WATERBURY : V. : AT WATERBURY : GRIFFIN HEALTH SERVICES : CORPORATION, ET AL. : FEBRUARY 13, 2024 MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Pursuant to Connecticut Practice Book § 9-9(c), the Plaintiffs, through counsel, seek final approval of the proposed Class Action Settlement that they have reached, on behalf of the Class Members, with defendants Griffin Health Services Corporation and Griffin Hospital (hereinafter, “Griffin”). Griffin does not object to the relief sought herein and joins the Plaintiffs in their request that the proposed Settlement be accepted by the Court to bring full and final resolution to the present dispute. On August 9, 2023, the Plaintiffs filed their Motion for Preliminary Approval of Settlement [Entry No. 278.00], which was granted by this Court (Bellis, J.) on September 19, 2023 {Entry Nos. 283.00 & 283.10]. Following this Court’s preliminary approval of the Proposed Settlement, the Parties worked together through a third-party settlement administrator, RG/2 Claims Administration LLC (hereinafter “RG/2” and/or the “Settlement Administrator”) to effectuate proper and reasonable notice to the Settlement Class consistent with this Court’s Orders regarding notice to Class Members. See Affidavit of Settlement Administrator, filed February 5, 2024 [Entry No. 288.00]. As evidenced by the Settlement Administrator’s Affidavit, notice of the Proposed Settlement to the Settlement Class has been completed, consistent with this Court’s Orders. See id. There have been no objections filed by any member of the Settlement Class, nor have there been any opt-out requests made. See id. In addition to the 1 1,067 individuals who are automatically members of the Settlement Class, there were three (3) Claims Forms submitted by Class Members who were required to submit a Claim Form because they obtained the relevant blood tests at a location other than Griffin (which the parties anticipated would be a rare occurrence). As such, the total Settlement Class has 1,070 members who will receive payments under the terms of the Settlement Agreement if the Court grants final approval. “The court may approve a settlement, withdrawal, or compromise that would bind class members only after a hearing and on finding that the settlement, withdrawal, or compromise is fair, reasonable, and adequate.” Practice Book § 9-9(c)(1)(C); see also Charron v. Wiener, 731 F.3d 241, 247 (2d Cir. 2013) (citations omitted). In the present matter, there is no question that the Proposed Settlement – pursuant to which Class Members will receive guaranteed monetary relief for highly contested factual and legal claims – is fair, reasonable, and adequate. The parties reached their proposed settlement after over seven years of hard-fought litigation, including significant motion practice in this Court (necessitating several hearings), document discovery, fourteen depositions, and the filing of an attempted interlocutory appeal pursuant to General Statutes § 52-265a with the Connecticut Supreme Court. The proposed settlement was the product of extended arm’s length negotiations between experienced counsel and was the subject of extensive mediation between the parties which first began in September 2021, followed by several months of intense negotiations between July 2022 and April 2023. If approved, the Settlement will provide monetary compensation to individuals who were affected by the conduct alleged in this matter who may not have otherwise received redress. The Settlement represents a favorable outcome for the Class as a whole. Counsel for both sides believe and represent that the proposed settlement is fair, reasonable and appropriate. 2 As such, and for the reasons more fully articulated below, the Plaintiffs now request that this Court enter an order of final approval of the Settlement. I. PROCEDURAL HISTORY This action was commenced in December 2015 by plaintiff Anthony Diaz on behalf of himself and persons similarly situated, pursuant to Connecticut General Statutes §§ 52-104 and 52-105 as well as Connecticut Practice Book §§ 9-7 and 9-8, against defendants Griffin Health Services Corporation and The Griffin Hospital (collectively, “Griffin”), for alleged conduct that occurred at Griffin Hospital between September 1, 2008 and May 7, 2014. Generally, the Plaintiff alleged that during this time period, medical staff at Griffin Hospital misused multi-dose insulin pens in a manner that potentially exposed him and other patients to blood borne pathogens. There is no allegation that any Griffin Hospital employee reused an insulin pen needle and the Plaintiffs do not dispute that at all times Griffin Hospital used safety needles on its insulin pens that prevented the needle itself from being used for more than a single injection. The allegations contained the Complaint stem from the potential that the pen’s insulin cartridge could have been contaminated through the backflow of blood or skin cells from one patient to another, thus, there was a remote possibility to transmit an infection if is the pen was used on multiple patients. As such, the Plaintiff initiated this matter seeking monetary relief for both himself and other similarly situated individuals. The parties agree that the lengthy procedural history of this matter – with regard to all aspects and stages of this matter, including the pleadings, discovery, motion practice and class certification – spanned several years, requiring both parties to expend substantial resources, legal fees, costs and effort, as well as necessitating numerous Court hearings, conferences and judicial decisions. The Plaintiffs respectfully refer this Court to the judicial docket and rely on the 3 arguments briefed throughout the pendency of this matter for each party’s respective position. That being noted, to the extent relevant to this Court’s final approval of the proposed Settlement, the Plaintiffs briefly set forth the predominant procedural history herein. The Plaintiffs sought leave to amend the original Complaint on May 11, 2016 (Entry No. 120.00), which was deemed granted by operation of law absent objection from Griffin. The Plaintiff alleged, inter alia, that between September 1, 2008 and May 7, 2014, some health care providers at Griffin Hospital misused multi-dose insulin pens in several manners, potentially exposing patients receiving insulin from multi-dose insulin pens to various blood borne diseases, including the hepatitis B virus (HBV), hepatitis C virus (HCV) and the human immunodeficiency virus (HIV). As a result, the Plaintiffs claimed that the then putative Class Members had to undergo blood testing to determine whether they potentially contracted any diseases, suffered emotional distress as a result of the alleged conduct and may have also required ongoing medical monitoring.1 The Plaintiffs did not claim that any Class Member contracted any of the aforementioned blood borne pathogens as a result of the alleged misuse of multi-dose insulin pens at Griffin Hospital. On June 7, 2016, Griffin filed a Motion to Strike and accompanying Memorandum of Law (Entry Nos. 124.00 and 125.00). In addition to seeking to have each of the Plaintiffs’ causes of action stricken, Griffin also sought to have any allegations regarding the putative class stricken arguing that the Plaintiffs could never demonstrate commonality, typicality and predominance. Id. The Plaintiffs filed their Memorandum of Law in Opposition to Motion to Strike on July 15, 2016 (Entry No. 129.00). Griffin filed a Reply Memorandum of Law on 1 The Plaintiff’s three count Amended Complaint included causes of action sounding in medical negligence, recklessness and negligent infliction of emotional distress. The Plaintiff included a Certificate of Good Faith as well as a written and signed opinion letter of a similar healthcare provider pursuant to General Statutes § 52-190a in support of his medical negligence claims. 4 August 8, 2016 (Entry No. 131.00) and the Court heard oral argument regarding Griffin’s Motion to Strike on November 9, 2016. The Court (Lager, J.), issued its Memorandum of Decision regarding Griffin’s Motion to Strike on January 31, 2017 (Entry No. 137.00), both granting, in part, and denying, in part, Griffin’s Motion to Strike. The Court refused to strike the Plaintiffs’ medical negligence and recklessness claims and similarly refused to strike the Plaintiffs’ allegations regarding the then putative class. The Court did strike the Plaintiffs’ negligent infliction of emotional distress claims. Griffin filed its Answer and Special Defenses on March 20, 2017 (Entry No. 138.00), wherein Griffin denied that any of its staff misused multi-dose insulin pens and further denied any alleged negligent or reckless conduct. In addition, Griffin asserted eight special defenses. The Plaintiff then sought to cite in additional named-plaintiffs Bruce Sypniewski and Daisy Gmitter. See Motion to Cite In Additional Plaintiffs and Memorandum of Law, August 2, 2017 (Entry Nos. 145.00 and 146.00). Griffin subsequently filed a substantively similar Answer and Special Defense to the Plaintiffs’ Second Amended Complaint, again denying the Plaintiffs’ allegations and asserting several special defenses. See Answer and Special Defenses, October 11, 2017 (Entry No. 150.00). The Plaintiffs filed a Request to Revise the Defendants’ Special Defenses on December 15, 2017 (Entry No. 153.00) and Griffin filed its Revised Answer and Special Defenses in response on February 15, 2018 (Entry No. 158.00). The Plaintiffs then filed a Motion to Strike and accompanying Memorandum of Law directed towards several of Griffin’s Special Defenses. See Motion to Strike and Memorandum of Law, April 25, 2018 (Entry Nos. 170.00 and 171.00). Griffin filed its Memorandum of Law in Opposition to Motion to Strike on June 12, 2018 (Entry No. 178.00) and the Plaintiffs filed a Reply on July 6, 2018 (Entry No. 182.00). The parties 5 consented to the Court’s adjudication of the Plaintiffs’ Motion to Strike on the papers and the Court (Lager, J.) issued its decision on July 26, 2018 (Entry No. 170.10) striking Griffin’s First and Fourth Special Defenses (Griffin agreed to delete its Fifth and Eighth Special Defenses). On July 17, 2019, the Plaintiffs filed their Motion for Class Certification and accompanying Memorandum of Law (Entry Nos. 207.00 and 208.00). Griffin filed its Memorandum in Opposition on November 1, 2019 (Entry No. 215.00), and the Plaintiffs filed their Reply on January 6, 2020 (Entry No. 217.00). The Court heard oral argument regarding Class Certification on January 22, 2020, and issued its written Memorandum of Decision on November 23, 2020 (Entry No. 219.00). In its Decision, the Court certified the claims sounding in medical negligence but declined to certify those claims sounding in recklessness. Pursuant to Connecticut Practice Book § 9-9(a)(1)(B), the Court defined the Class as follows: All patients of Griffin Hospital, located in Derby, Connecticut, for whom a multi- dose insulin pen was prescribed during their hospitalization between September 1, 2008 and May 7, 2014, and to whom insulin was administered from a multi-dose insulin pen, who received a notification letter from Griffin Hospital dated May 16, 2014 and who subsequently underwent testing for hepatitis B virus (HBV), hepatitis C virus (HCV), and human immunodeficiency virus (HIV). The Court also certified the following questions to be decided at one trial for the entire class (unless they are resolved prior to trail): 1. Whether, at the relevant time, there was a prevailing professional standard of care applicable to Griffin Hospital to ensure that multi-dose insulin pens were not improperly used on multiple patients, which Griffin breached because Griffin did not have appropriate policies, procedures, rules and/or guidelines, failed to properly train, educate, supervise and monitor its employees, agents and/or servants, failed to have an effective system for the distribution of pertinent information related to the use of the pens and failed to warn or notify its employees, agents and/or servants of the risks of using the pens. 2. Whether having to undergo blood testing for HBV, HCV and HIV is an actual harm or injury proximately caused by Griffin’s proven professional 6 negligence and, if so, whether undergoing blood testing alone is compensable and the monetary value of the compensation. The Court subsequently further clarified the scope of the Class and the issues that were subject to class-wide resolution, noting that there was a “single class” and clarifying that “[i]f the plaintiffs prevail on the certified questions, issues regarding the adjudication of any individualized claim of damagers can be resolved at that time.” See Order (Entry No. 222.10). Following the Court’s certification of the Class, as noted above, on December 7, 2020, Griffin filed an Application for Certification to Appeal Issue of Substantial Public Interest, pursuant to General Statutes § 52-265a and Practice Book § 83-1, with the Connecticut Supreme Court. The Plaintiff filed its Opposition on December 11, 2020. Chief Justice Richard A. Robinson denied Griffin’s Application on December 14, 2020. Plaintiffs’ Counsel filed a Motion for Appointment of Silver Golub & Teitell, LLP, as Class Counsel, which was granted on April 27, 2021. See Motion for Appointment of Attorney, March 31, 2021 (Entry No. 230.00); Order, April 27, 2021 (Entry No. 230.10) (Lager, J.). Thereafter, at the suggestion of Judge Lager in August 2021, the parties engaged in good faith settlement discussions. A settlement conference was facilitated by Judge Lager on September 22, 2021. While productive, that initial settlement conference did not result in a resolution of this matter. On May 16, 2022, Griffin filed a Motion for Partial Summary Judgment, directed towards the second certified class question. Thereafter, the parties agreed to forego additional briefing on that issue while settlement negotiations were ongoing through a private mediator jointly engaged by the parties. These efforts proved successful and on May 3, 2023, the parties filed a Joint Notice of Settlement (Entry No. 271.00), formally apprising the Court that the parties have reached a settlement pending Court approval pursuant to Practice Book §§ 9-9 et seq. 7 On August 9, 2023, the Plaintiffs filed their Motion for Preliminary Approval of Settlement and accompanying Memorandum of Law [Entry No. 278.00]. Attached to the Plaintiffs’ Motion for Preliminary Approval of Settlement was (1) a Proposed Order Granting Motion for Preliminary Approval of Class Action Settlement; (2) Class Action Settlement Agreement and Release; (3) Claim Form; (4) Opt-Out Election Form; (5) Short Form Notice of Class Action and Settlement; (6) Long Form Notice of Class Action and Settlement. This Court preliminarily approved the proposed Settlement and Notice procedure on September 19, 2023 [Entry Nos. 283.00 & 283.10]. The parties subsequently retained RG/2 to serve as a third-party administrator of the proposed Settlement and Notice. On September 28, 2023, RG/2 received Microsoft Excel files from Griffin’s Counsel, containing lists of 2,728 individuals who were considered Class Members. Entry No. 288 ¶ 4. RG/2 de-duplicated the list, resulting in 2,720 respective Class Members. Id. Prior to mailing notice to Class Members, RG/2 obtained most recent mailing addresses for Class Members by cross-checking addresses through the United States Postal Service’s National Change of Address database. Id. at ¶ 5. On October 23, 2023, RG/2 completed Publication Notice by publishing notice in the Connecticut Post, Hartford Courant, New Haven Register and Republican American. Id. at ¶ 6. That same day, RG/2 served by First Class U.S. Mail the Notice & Claim Form to Class Members. Id. at ¶ 7. After initial mailing went out to Class Members, 995 Notice Packets were returned as undeliverable. Id. at ¶ 8. RG/2 then performed a standard skip-trace procedure and was able to re-mail an additional 486 Notice Packets for whom an updated address was located. Id. In total, only 509 Notices remained undeliverable, of which, only 130 were returned for Class Members for whom no Claim Form was required. Id. 8 In addition to Publication Notice and Mail Notice, the Settlement website, www.griffinvdiazclassaction.com, went live on October 23, 2023. The Settlement website contained information about the lawsuit and proposed Settlement, including court documents and Notice documents. Id. at ¶ 12. The Notice, which was previously approved by this Court, informed Settlement Class Members of their right to object or request exclusion from the Settlement Class by December 22, 2023. The Notice also informed Class Members who were required to submit a Claim Form of their right to submit a Claim Form, provided it was received or postmarked on or before January 22, 2024. To date, RG/2 has not received any opt-out requests or any objections. Id. at ¶¶ 9–10. No class member has filed an objection on the Court’s docket. To date, RG/2 has received three (3) Claim Forms. Id. at ¶ 11. As such, the Settlement Class who will be entitled to receive payment consists of 1,070 individuals (1,067 individuals who did not require a Claim Form and 3 who submitted a Claim Form). II. THE PROPOSED SETTLEMENT2 The proposed Settlement Agreement was attached as Exhibit B to the Plaintiff’s Motion for Preliminary Approval [Entry No. 278.00] as well as Exhibit A to the Proposed Order, dated September 18, 2023 [Entry No. 283.00]. The proposed Settlement provides for a $1,000,000.00 2 The Proposed Settlement was set forth in the Plaintiffs’ Motion for Preliminary Approval, dated August 9, 2023 [Entry No. 278.00] and the Proposed Order, dated September 18, 2023 [Entry No. 283.00]. The Plaintiffs set forth the parameters of the Proposed Settlement again herein as it is directly relevant to this Court’s final approval of the Proposed Settlement. The Plaintiffs incorporate their Motion for Preliminary Approval into this Motion, and further incorporate into this Motion the other following filings: (1) Application for Award of Attorneys’ Fees and Reimbursement of Litigation Expenses, dated November 13, 2023 [Entry No. 284.00]; (2) Memorandum in Support of Application for Award of Attorneys’ Fees and Reimbursement of Litigation Expenses, dated November 13, 2023 [Entry No. 285.00]; (3) Application for Award of Class Representative Incentive Award, dated November 13, 2023 [Entry No. 286.00]; and, (4) Memorandum in Support of Application of Class Representative Incentive Award, dated November 13, 2023 [Entry No. 287.00]. All these filings, combined, are relevant to this Court’s final approval of the Proposed Settlement. 9 (One Million Dollar) total settlement by Griffin for the benefit of the proposed Settlement Class. This monetary relief is for the benefit of each member of the Proposed Settlement Class as well as complete and final resolution of the potential claims in this matter, including resolution of potential individual claims, without necessitating individual hearings or proceedings, as contemplated by the Court’s Orders certifying the Class and clarifying the process for handling potential individualized claims. See Entry Nos. 219.00 and 222.10. Pursuant to the proposed Settlement, Griffin will pay a Total Settlement Amount of $1,000,000.00 (One Million Dollars), would be divided evenly amongst the 1,070 Settlement Class Members who qualify for payment after certain deductions. Specifically, the Settlement Agreement provides that attorney’s fees and costs associated with pursuing this matter be deducted from the Total Settlement Amount. Similarly, the parties have agreed that any Class Representative Services Awards will be paid from the Total Settlement Amount.3 The parties have also agreed that the administration of the settlement will be done by an already agreed upon third-part administrator: RG/2. As noted above, RG/2 has effectuated proper Notice to Class Members of the Proposed Settlement and will continue to administer the Settlement through the completion of this matter, including sending payment to the 1,070 members of the Settlement Class who qualify for payment. As part of the Proposed Settlement, any fees or costs associated with administering the settlement, including costs associated with locating and issuing notice to 3 On November 13, 2023, Class Counsel filed its Application for Award of Attorneys’ Fees and Reimbursement of Litigation Expenses as well as an Application for Award of Class Representative Incentive Awards, along with supporting Memorandum [Entry Nos. 284.00, 285.00, 286.00 and 287.00]. As noted in those filings, Class Counsel requests that this Court award Class Counsel attorneys’ fees in the amount of $333,333.33, reimbursement of litigation expenses in the amount of $55,602.30, and an incentive award for each of the three named Class Representatives in the amount of $25,000.00 ($75,000.00 in total). If this Court authorizes attorneys’ fees, litigation expenses and incentive awards consistent with the above-referenced applications, there would be $536,064.37 to be split evenly among the 1,070 Settlement Class Members who qualify for payment. 10 Class Members, will be paid directly by Griffin and will not be deducted from the Total Settlement Amount. Additional details regarding the proposed Settlement are set forth below. Pursuant to the proposed Settlement, Griffin agrees to pay a single, uniform payment (the “Uniform Payment”) to be paid to each of the 1,070 Settlement Class Members that did not opt- out of participating in the Class Settlement and have qualified for payment. The Uniform Payment will be determined by taking the net proceeds remaining from the Total Settlement Amount less Court-approved attorney’s fees and costs, as well as any Class Representative Service Awards, divided evenly amongst the 1,070 Settlement Class Members who qualified for payment after the appropriate notice and opt-out period. The Settlement Agreement provides that in order for an individual to qualify to receive a Uniform Payment, no claim or claim form was required for the 1,067 individuals who received the May 16, 2014, notice letter from Griffin Hospital and who subsequently returned to Griffin Hospital for blood testing (the “Griffin Blood Test Class Members”).4 However, the parties agreed that a “Claim Form” was required for those individuals who received the May 16, 2014 notice letter from Griffin Hospital, but who then obtained a blood test from a facility other than Griffin Hospital (known as the “Additional Class Members”). This was expected to be a small number because Griffin offered free testing to all Settlement Class Members who requested it. The Additional Class Members are entitled to the same Uniform Payment as the Griffin Blood Test Class Members. In order for Additional Class Members to qualify for receipt of the Uniform Payment, they were required to return the Claim Form previously approved by this Court. The deadline 4 It is undisputed that 2,730 individuals were sent the May 16, 2014, notice letter from Griffin Hospital. Similarly, based on records kept by Griffin, it is known at 1,067 of those recipients returned to Griffin Hospital to undergo free-blood testing offered by Griffin. As such, there is no dispute that these individuals, who have been identified by Griffin’s records, are members of the Class and Settlement Class. 11 for Additional Class Members to submit their Claim Form was January 22, 2024. As noted previously, to date, three (3) Claim Forms have been submitted to RG/2. This brings the total number of Settlement Class Members who qualify for payment to 1,070 (the 1,067 Griffin Blood Test Class Members and the 3 Additional Class Members). The proposed Settlement establishes that all Settlement Class Members (both Griffin Blood Test Class Members and Additional Class Members) shall be entitled to the Uniform Payment unless an individual chooses to opt-out of the Settlement pursuant to Practice Book §§ 9-9 et. seq. and/or if the individual has already released their claims relating to this matter pursuant to a separate agreement and/or if the settlement administrator cannot locate such Class Member and/or if the Settlement Class Member was required to but did not submit a Claim Form. The opt-out date for participation in the Settlement Class was December 22, 2023. To date, there have been no opt-out forms submitted to RG/2. In addition, any Class Member had a right to object to the Proposed Settlement by December 22, 2023. To date, there have been no objections submitted to RG/2. After the Court issues an order of Final Approval, the Defendants shall be required to pay the Total Settlement Amount specified above within thirty (30) days from the date of Final Approval if there is no timely appeal noticed by an objector from the order of Final Approval (or within 30 days of final resolution of any appeal from the order of Final Approval if an appeal is taken and the order of Final Approval is affirmed on appeal). The parties have agreed that the Uniform Payment payable to each Class Member shall be determined by the settlement administrator by dividing equally among all Settlement Class Members eligible for payment the amount remaining from the Total Settlement Amount after 12 payment of Attorney’s Fees and Costs, and Class Representative Service Awards, as ordered by the Court. As part of the proposed Settlement, upon Final Approval of the Settlement by this Court, under the terms of the Settlement Agreement and the Court’s Orders, all Releasors will release all claims relating to the alleged underlying conduct. In particular, the Releasors along with their Counsel (including counsel affiliated with their law firms) agree, on behalf of themselves and the Settlement Class, to release and forever discharge the Releasees from any and all Claims arising out of or relating in any way to the use or alleged misuse of multidose insulin pens by Defendants between September 1, 2008 and May 7, 2014, including but not limited to any claims that were or could have been alleged in the Action, as more specifically provided for in Paragraphs 18–20 and 42 of the Settlement Agreement (the “Release”). The Parties have also agreed that they are each prohibited from making, and will refrain from making or engaging in, any public statements or comments concerning the settlement of this Action, and the Parties further agree that they will remain silent and not provide any response to any inquiries or requests for comment from anyone. At no time are either party or their counsel permitted to speak publicly about the settlement. This ensured that the information relied upon by the Class Members was the Court-approved notice and the documents publicly filed with this Court. The Parties further agree that they are not permitted to directly, or indirectly, promote, advertise, disclose or otherwise facilitate distribution of the underlying Settlement Agreement and/or the Moton for Preliminary Approval, except as required by law, to effectuate proper notice to Class Members or as otherwise agreed to by the Parties. The Parties have explicitly agreed, however, that these terms are not applicable to the Parties’ need to effectively communicate with their clients (including class counsel communicating with 13 individual class members), or to enforce the Settlement Agreement or the Court’s orders in connection therewith. Finally, the terms articulated herein do not preclude Class Counsel from publicly disclosing that they represented the Plaintiffs/Class Members in this action or that this matter was resolved via settlement, nor does it prohibit Class Counsel from disclosing public information about this matter to any state or federal court of competent jurisdiction in furtherance of any motion or application to be appointed class counsel or lead class counsel in other matters or as otherwise required by law. As was referenced above, the Parties have engaged in extensive arms-length negotiations intended to represent and further their respective interests and positions. This proposed Settlement was reached after extensive assistance of two mediators – the Honorable Linda Lager (Ret.) and Attorney Patrick Noonan – after many months of negotiations. This Proposed Settlement is a fair, reasonable and adequate result for the members of the Settlement Class. Each Settlement Class Member who qualifies will receive monetary relief without the need to disclose personal medical records, sit for a deposition, appear at any hearing or otherwise offer proof through highly sensitive information as to the nature of their injury. Moreover, the proposed Settlement ensures that each Settlement Class Member who qualifies will receive monetary relief for claimed injuries that are highly contested by Griffin and which may otherwise be subject to judicial review but for this resolution. If this Court approves Class Counsel’s Application for Attorneys’ Fees and Litigation Reimbursement as well as the Application for Incentive Awards for the Class Representatives, each Settlement Class Member who has qualified for payment will receive a check in the amount of $500.99. The proposed Settlement puts real money in the pockets of these Settlement Class Members without the need for them to engage in extensive litigation or waiving their personal 14 privacy. As further explained below, given the risk, uncertainty and expense of continued litigation, the proposed Settlement is a fair, reasonable and adequate result and justifies notice to the Settlement Class. III. CERTIFICATION OF THE SETTLEMENT CLASS Pursuant to the Proposed Settlement, and in accordance with this Court’s prior Order certifying the Class, the proposed Settlement Class is defined as follows: All patients of Griffin Hospital, located in Derby, Connecticut, for whom a multi- dose insulin pen was prescribed during their hospitalization between September 1, 2008 and May 7, 2014, and to whom insulin was administered from a multi-dose insulin pen, who received a notification letter from Griffin Hospital dated on or about May 16, 2014 and who subsequently underwent testing for hepatitis B virus (HBV), hepatitis C virus (HCV), and human immunodeficiency virus (HIV). As noted above, there are two cohorts of individuals who fall within the above defined Settlement Class: (1) those individuals who were subsequently tested at Griffin Hospital as part of its free-testing program in response to the alleged misuse of multi-dose insulin pens; and, (2) those individuals who were subsequently tested at outside facilities. As discussed above, the known 1,067 individuals tested at Griffin Hospital constitute the Griffin Blood Test Class Members, who are automatically part of the Settlement Class. None of these individuals opt-out of the Proposed Settlement nor filed any objection. In addition, any Settlement Class Members who were not tested at Griffin Hospital but at a different location constitute the Additional Class Members who were required to submit Claims Forms. To date, RG/2 received three (3) Claim Forms. As such, the total number of Settlement Class Members who have qualified for payment is 1,070. IV. STANDARD FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Practice Book § 9-9(c) requires court approval of class action settlements. See Practice Book § 9-9(c)(1)(A) (“The court must approve any settlement, withdrawal, or compromise of the 15 claims, issues, or defense of a certified class.”). “Before the settlement of a class action may be approved, the trial court must determine that the settlement is fair, adequate, and reasonable, and not a product of collusion.” Gray v. Foundation Health Systems, Inc., Docket No. (X06) CV99- 0158549-S, 2004 WL 945137, at *1 (Conn. Super. Ct., Apr. 21, 2004) (Alander, J.) (citing Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000); Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir. 1983)). It is well-settled that “[b]ecause our class certification requirements are similar to those embodied in Rule 23 of the Federal Rules of Civil Procedure, and our jurisprudence governing class action is relatively undeveloped, we look to federal case law for guidance in construing the provisions of Practice Book §§ 9-7 and 9-8.” Rodriguez v. Kaiaffa, 337 Conn. 248, 263 n.15 (2020) (quoting Collings v. Anthem Health Plans, Inc., 275 Conn. 309, 322–23 (2005). Federal case law is also instructive as to the approval of class action settlements. See Gray, 2004 WL 945137, at *1 (“Reference to federal court decisions regarding approval of class action settlements is especially appropriate in light of the dearth of Connecticut appellate authority on the issue.”). As the Second Circuit noted in Wal-Mart Stores, Inc.: A court may approve a class action settlement if it is “fair, adequate, and reasonable, and not a production of collusion.” Joel A., 218 F.3d at 138. A court determines a settlement’s fairness by looking at both the settlement’s terms and the negotiating process leading to settlement. D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001). A “presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Manual for Complex Litigation, Third § 30.42 (1995). We are mindful of the “strong judicial policy in favor of settlements, particularly in the class action context.” In re PaineWebber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir. 1998). “The compromise of complex litigation is encouraged by the courts and favored by public policy.” 4 Newberg § 11:41, at 87. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116–17 (2d Cir. 2005). 16 In City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), the United States Court of Appeals for the Second Circuit identified nine relevant factors for a trial court to consider when determine the fairness of a class action settlement: (1) the complexity, expense and likely duration of the litigation, . . .; (2) the reaction of the class to the settlement . . .; (3) the stage of the proceedings and the amount of discovery completed . . .; (4) the risks of establishing liability . . . ; (5) the risks of establishing damages . . .; (6) the risks of maintaining the class action through the trial . . .; (7) the ability of the defendants to withstand a greater judgment . . .; (8) the range of reasonableness of the settlement fund in light of the best possible recovery . . .; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation . . . . Id.; see also Charron v. Wiener, 731 F.3d 241, 247 (2d Cir. 2013) (citations omitted) (noting same factors); Wal-Mart Stores, Inc., 396 F.3d at 117 (same); see also Gray, 2004 WL 945137, at *1–2 (applying same factors to approve class action pending in Connecticut Superior Court).5 V. THE PROPOSED SETTLEMENT WARRANTS FINAL APPROVAL a. The Settlement Is Presumed to be Fair Because It Was the Result of Lengthy, Hard-Fought Litigation and Arms-Length Negotiations The Parties have diligently pursued their respective positions throughout the pendency of this matter both in public filings with the Court as well as during extensive settlement discussions which first began in September 2021 and continued vigorously between July 2022 and April 2023. Where “the integrity of the arm’s length negotiation process is preserved . . . a strong initial presumption of fairness attaches to the proposed settlement” and “great weight is accorded to the recommendations of counsel, who are most closely acquainted with the facts of 5 The factors relevant to determine whether final approval of a proposed class action settlement is appropriate are substantively similar to those relevant for preliminary approval. As noted above, this Court granted preliminary approval of the Proposed Settlement on September 19, 2023. Since preliminary approval, Notice has been sent to Class Members, thus the second factor, the reaction of the class to the settlement, can now be fully assessed by this Court. 17 the underlying litigation.” NASDAQ III, 187 F.R.D. at 474 (citations and quotations omitted); see also Wal-Mar Stores, Inc. v. VISA USA Inc., 3967 F.3d 96, 116 (2d Cir. 2005) (“A presumption of fairness, adequacy and reasonableness may attach to a class settlement reached in arm’s length negotiations between experienced, capable counsel after meaningful discovery.”). The process leading to the settlement “must be examined ‘in light of the experience of counsel, the vigor with which the case was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.’” Id. at 473–74 (quoting Malchman v. Davis, 706 F.2d 426, 433 (2d Cir. 1983)). The Plaintiffs set forth the lengthy negotiation process in this matter in their Motion for Preliminary Approval [Entry No. 278.00] and incorporate that section explicitly herein. In addition, Class Counsel further articulated the negotiation process in their Application for Award of Attorneys’ Fees and Reimbursement of Litigation Expenses [Entry No. 284.00]. Since this matter resolved only after dogged arm’s length negotiations devoid of any collusion, there should be a strong initial presumption that the Proposed Settlement is fair. b. The Proposed Settlement Is Fair, Reasonable, And Adequate This Court should approve final settlement of this matter because the Proposed Settlement is clearly fair, reasonable and adequate, pursuant to Practice Book § 9-9(c)(1)(C). While our Practice Book does not specifically set forth criteria for determining whether a proposed settlement is fair, Connecticut courts have utilized the nine factors adopted by the Second Circuit Court of Appeals in Grinnell. See, e.g., Gray, 2004 WL 9456137, at *1–2. Those factors include: (1) the complexity, expense and likely duration of the litigation, . . .; (2) the reaction of the class to the settlement . . .; (3) the stage of the proceedings and the amount of discovery completed . . .; (4) the risks of establishing liability . . . ; (5) the risks of establishing damages . . .; (6) the risks of maintaining the class action through 18 the trial . . .; (7) the ability of the defendants to withstand a greater judgment . . .; (8) the range of reasonableness of the settlement fund in light of the best possible recovery . . .; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation . . . . Id. (citations omitted). Applying each of these factors to the current Proposed Settlement weighs in favor of final approval of the Proposed Settlement. The Proposed Settlement and recovery is, at the very least, “well within the range of reasonableness.” See In re Michael Milken and Assoc. Secs. Litig., 150 F.R.D. 57, 67 (S.D.N.Y. 1993) (noting that in the Grinnell case, the proposed settlement represented 3.2% to 3.7% of the potential recovery). At the time of the Settlement, the Plaintiffs’ claims were subject to a potential summary judgment pursuant to the Defendants’ Motion for Summary Judgment, dated May 16, 2022 (Entry No. 257.00), which, if granted, would have completely eviscerated the Plaintiffs’ claims. Moreover, the Defendants have raised several legal defenses which could have resulted in dismissal of this matter prior to trial, potential de-certification of the class or a verdict in favor of the Defendants after a full trial on the merits. Also, even if the Plaintiffs successfully proceeded to trial and ascertained a verdict in their favor, given the Court’s rulings as to the damages to be awarded to the Class Members during trial, there is a possibility of a verdict less than the proposed Settlement. Finally, the Defendants have raised several legal issues which may have subjected this matter to an appeal and potential reversal even in the event that the Plaintiffs were successful at trial. Absent this Settlement, Class Members also faced the likelihood of significant further delay – in the litigation of potential available relief in this Court, in any subsequent appeal(s) to our Appellate Court and in any subsequent petition for certiorari in the Connecticut Supreme Court and potentially United States Supreme Court. And – even assuming a favorable finding on liability – in a litigation posture, Class Members faced substantial risks attendant on the 19 determination of each Class Members’ individualized damages, as previously articulated by this Court (Lager, J.). These risks also include the burden of substantiating damages and responding to defenses directed to the validity of such claims, adequacy of mitigation efforts and necessitating the disclosure of each individual Class Members’ medical records, including psychiatric and therapeutic records. See, e.g., In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 65 (S.D.N.Y. 1993) (noting that “[i]t must also be recognized that victory even at the trial stage is not a guarantee of ultimate success” and citing a case where a “multimillion dollar judgment was reversed.”); Maley v. Del Global Techs. Corp., 186 F.Supp.2d 358, 363 (S.D.N.Y. 2002) (approval granted where “[d]elay, not just at the trial stage but through post-trial motions and the appellate process, would cause Class Members to wait for years for any recovery, further reducing its value”); In re Visa Check/Matermoney Antitrust Litigation, 297 F.Supp.2d 503, 510 (E.D.N.Y. 2003) (fact that the class faced a long trial and the additional time it would take to exhaust all appeals “weigh[ed] heavily in favor of approving Settlements.”). In light of these significant litigation and appeal risks, the proposed Settlement is fair, reasonable and adequate. In these circumstances, it is clearly preferable “to take the bird in the hand instead of the prospective flock in the bush.” See In re Prudential Sec., 163 F.R.D. at 210. i. The complexity, expense and likely duration of the litigation As this Court is well aware, this matter is a highly complex medical malpractice-class action matter that presents novel issues of law and fact in its present posture. The Plaintiffs’ underlying claims sound in medical malpractice relating to the alleged practices of the Defendants over a span of several years. Given the typical nature of medical malpractice claims, this matter presents unique issues of law in terms of establishing liability, maintaining this action as a Class Action and establishing liability and damages. The nature of the Plaintiffs’ claims 20 were the subject of several potentially dispositive motions including motions to strike, opposition to Class Certification, an attempted interlocutory appeal upon Class Certification pursuant to General Statutes § 52-265a, a motion to reargue Class Certification and a presently pending Motion for Summary Judgment. Moreover, since this matter sounds in medical malpractice allegedly occurring over the course of several years, there have been fourteen (14) fact depositions completed to date. If the Proposed Settlement is not approved, it is anticipated that additional fact discovery will be necessary as well as substantial expert discovery regarding the medical issues in dispute in this matter. Indeed, Class Counsel consulted and retained several expert witnesses in furtherance of establishing the Plaintiffs’ claims in this matter. The expenses associated with continuing litigation will also increase dramatically if the Settlement is not approved. While substantial discovery has been completed to date, should this matter not resolve, in addition to further fact discovery, expert discovery will be significant and costly to all parties. Moreover, preparation for trial will result in significantly more expenditures for both parties. Finally, the duration of litigation should this matter not resolve, will likely extend the resolution of the claims at issue by several years. It is anticipated that if the Proposed Settlement is not approved, substantial time will be necessary to adjudicate the Defendants’ pending Motion for Summary Judgment. Moreover, assuming that Motion for Summary Judgment is denied, considerable resources and time will be necessary to complete fact and expert discovery as well as prepare this matter for trial. Moreover, if the Defendants were to be successful in their Motion for Summary Judgment, Class Counsel anticipates that an appeal will likely follow. Similarly, if this matter were to proceed to trial and result in a verdict in favor of the Plaintiffs, it 21 is expected that the Defendants will also appeal several issues, including Class Certification, as evidenced by their petition for an immediate appeal pursuant to General Statutes § 52-265a. As such, given the complexity of this matter, anticipated additional expenses resulting from ongoing litigation and the likely extended duration of the proceedings, these factors weigh heavily towards approving the Proposed Settlement. ii. The reaction of the class to the Proposed Settlement The reaction of the Class Members in this matter militates strongly in favor of approving the Proposed Settlement. “It is well settled that the reaction of the class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy.” Esposito v. Nations Recovery Center, Inc., No. 3:18-CV-02089 (VLB), 2021 WL 2109077, at *4 (D. Conn. 2021) (Bryant, J.) (citation omitted). “The absence of objectants may itself be taken as evidencing the fairness of a settlement.” Id. (citation omitted). As noted in the Settlement Administrator’s Affidavit [Entry No. 288.00], Notice was effectuated to Class Members consistent with this Court’s Orders. In particular, mail notice was sent to the 2,720 respective Class Members. After skip-tracing and additional mailings, only 509 Notices were undeliverable. Id. at ¶¶ 4–8. Of those 509 undeliverable notices, only 130 (12% of the 1,067) were for Class Members who were not required to file a Claim Form. Given that the claims date back to 2008 and that the Class consists of individuals who were hospitalized and may have had comorbidities, it was anticipated that a significant (albeit small) number of individuals would not be able to be located or would be deceased. Moreover, Notice was also effectuated by Publication Notice in several local publications, including the Connecticut Post, Hartford Courant, New Haven Register and Republic American. Id. at ¶ 6. Finally, a settlement website was also established to provide notice and information to the public. Id. at ¶ 12. As