Cummings v. Board of Regents of the University of New Mexico

Case No. D-202-CV-2001-00579

Second Judicial District Court State of New Mexico

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Frequently Asked Questions

  1. BASIC INFORMATION

  2. What is the Notice about?

    A Court authorized the Notice because you may have rights pursuant to a proposed Settlement of a class action lawsuit and to inform you of your options and associated deadlines before the Court decides whether to give final approval to the Settlement. The name of the lawsuit is Cummings v. Board of Regents of the University of New Mexico, et al., Cause No. CV-2001-00579 (as consolidated with Cause No. CV-2001-01409).

    The Plaintiffs are:

    • Maria Cummings, individually and as a personal representative of the estate of Shaun Michael Chavez
    • Jana Vallejos, individually and as a personal representative of the estate of Donovan Vallejos
    The Defendants (also referred to as “UNM Defendants”) are:
    • Board of Regents of the University of New Mexico
    • University of New Mexico Health Sciences Center
    • University of New Mexico Hospital
    • University of New Mexico School of Medicine

    The Notice explains the lawsuit, the Settlement and your legal rights. You are NOT being sued. The Court still has to decide whether to finally approve the Settlement. Payments and other benefits will be distributed only if the Court finally approves the Settlement and after any appeals are resolved in favor of the Settlement. Please be patient and check back to this Settlement Website regularly.

  3. What is the lawsuit about?

    This lawsuit is principally about whether pediatric cancer patients who were treated for Acute Lymphoblastic Leukemia at the University of New Mexico Health Science Center between January 1, 1977 and March 31, 1997 were given proper care.

    You can read the Complaint by clicking HERE. Defendants deny that they have violated any law and deny any wrongdoing. The parties agreed to resolve these matters before these issues were decided by the Court.

  4. Who is included in the Settlement?

    The Court has certified a class of Decedent Class Members that includes:

    Statutory beneficiaries, as defined in the New Mexico Wrongful Death Statute, NMSA 1978 §41-2-3, for all pediatric cancer patients with a diagnosis of Acute Lymphoblastic Leukemia who presented for treatment at the University of New Mexico Health Sciences Center from January 1, 1977 through March 31, 1997, and who, by December 1, 2019, were deceased, excluding individuals with whom UNM previously reached settlements, except that also excluded from the Decedent Class are those individuals who received only temporary treatment at UNM Health Sciences Center and whose treatment protocols were principally administered or designed elsewhere and who did not receive initial or relapse induction treatment in New Mexico.

  5. Why is this a class action?

    The Court has not decided which side was right or wrong or if any laws were violated. Instead, both sides agreed to settle the case and avoid the costs and risks of trial and potential appeals following trial.

    In this case, the Settlement is the product of extensive negotiations, including mediation before an experienced mediator who was familiar with the facts of the case, chosen by the parties. Settling this case allows class members, or their statutory beneficiaries, to receive payments.

    The Decedent Class Plaintiffs and their lawyers believe the Settlement is best for all Class Members.

    The parties agreed to settle the case after nineteen years of litigation. During discovery, Class Counsel reviewed and analyzed thousands of pages of documents and medical records, and participated in more than 40 depositions, including fact and expert depositions. Also, earlier in the litigation, motions to dismiss, motions for summary judgment and the motion for class certification had been fully briefed and argued, but not all were decided by the Court.

  6. Why is there a Settlement?

    Both sides in the Lawsuit agreed to a Settlement to avoid the cost and risk of further litigation, including a potential trial, and so that the Class Members can receive benefits in exchange for releasing Defendants from liability. The Settlement does not mean that Defendants broke any laws and/or did anything wrong, and the Court did not decide which side was right. The Settlement here has been preliminarily approved by the Court, which authorized the issuance of the Notice. Plaintiffs and the lawyers representing them (called “Designated Decedent Class Counsel”) believe that the Settlement is in the best interests of the Class.

    The essential terms of the Settlement are summarized in the Notice. The Settlement Agreement, along with all exhibits and addenda, sets forth in greater detail the rights and obligations of the parties. If there is any conflict between the Notice and the Settlement Agreement, the Settlement Agreement governs.

  7. WHO IS IN THE SETTLEMENT?

    To see if you are affected or if you can get money or benefits, you first have to determine whether you are a member of the Class.

  8. How do I know if I am part of the Settlement?

    If a Notice was mailed to you, the records show that your family member was treated for Acute Lymphoblastic Leukemia by the UNM Defendants during the class period and is now deceased. You, and possibly other beneficiaries, may be entitled to compensation from the Settlement. The Decedent Class specifically consists of:

    Statutory beneficiaries, as defined in the New Mexico Wrongful Death Statute, NMSA 1978 §41-2-3, for all pediatric cancer patients with a diagnosis of Acute Lymphoblastic Leukemia who presented for treatment at the University of New Mexico Health Sciences Center from January 1, 1977 through March 31, 1997, and who, by December 1, 2019, were deceased, excluding individuals with whom UNM previously reached settlements, except that also excluded from the Decedent Class are those individuals who received only temporary treatment at UNM Health Sciences Center and whose treatment protocols were principally administered or designed elsewhere and who did not receive initial or relapse induction treatment in New Mexico.

  9. I’m still not sure if I’m included in the Settlement.

    If you are not sure whether you are part of this Settlement, contact the Class Administrator at: Info@UNMChildCancerSettlement.com or call (855) 543-5953. Please do not contact the Parties, the Court, or Court staff. If the Class Administrator requires additional guidance from the parties, they will contact them directly.

  10. THE SETTLEMENT BENEFITS—WHAT YOU GET AND HOW TO GET IT

  11. What does the Settlement provide?

    At this point it is unknown how much each eligible Decedent Class member will receive. Your compensation, if any, depends on several factors, including:

    • The number of valid claims that are submitted;
    • The total amount of administration expenses, taxes, service awards to Decedent Class Plaintiffs, and attorneys’ fees and expenses, all of which will be determined by the Court; and
    • Whether a deceased pediatric cancer patient has more than one statutory beneficiary entitled to compensation.

    The money in this settlement fund will only be distributed if the Court finally approves the Settlement.

  12. How do I ask for money from the Settlement?

    You must submit a Claim Form if you believe you are entitled to compensation under the Settlement.

    The Claim filing process in this matter has not yet commenced. You may register to receive updates about the Settlement by clicking HERE. Once the Claim filing process begins, you will be notified and provided a Claim Form either via email or by mail if you received the notice in the mail or registered online to receive updates about the Settlement.

    If you are unable to register online, you may write to the Class Administrator at the address below.

    UNM Child Cancer Settlement
    1650 Arch Street, Suite 2210
    Philadelphia, PA 19103

    or you can email info@UNMChildCancerSettlement.com or call (855) 534-5953.

  13. Who decides the value of my claim?

    The Class Administrator will calculate the payment to each eligible Decedent Class Member under the procedures approved by the Court.

  14. How will the Class Administrator determine the value of my claim?

    The Class Administrator will follow the process outlined in the Plan of Allocation and Distribution (“Allocation Plan”) approved by the Court. The Allocation Plan is attached to the Settlement Agreement as Exhibit 4 and is available for review by clicking HERE.

    The Allocation Plan requires the Class Administrator to evaluate Claim Forms filed on behalf of Decedent Class Members to determine whether the claimant is: (1) a statutory beneficiary of (2) a pediatric cancer patient diagnosed with Acute Lymphoblastic Leukemia who presented for treatment at the University of New Mexico Health Sciences Center or Hospital from January 1, 1977 through March 31, 1997, (3) whose claim was not previously settled with the UNM Defendants, (4) whose treatment protocols were not principally administered or designed elsewhere and who did not receive initial or relapse induction treatment in New Mexico, and (5) who by December 1, 2019, was deceased. Claimants who satisfy all five conditions are Eligible Decedent Class Members.

    The Net Settlement Fund will be determined by subtracting from the settlement amount ($ 38 Million) the total amount of payments associated with the costs of notice and claims administration, taxes, service awards to Decedent Class Plaintiffs, and attorneys’ fees and expenses, all of which will be determined by the Court.

    The Class Administrator will then preliminarily calculate the pro rata share of the Net Settlement Fund that will be allocated to the estate of each deceased pediatric cancer patient who is identified during the claims process.

    After the preliminary pro rata shares are determined, a second Notice will be provided as directed by the Court to any known or reasonably ascertainable statutory beneficiaries, allowing persons to make Claims as statutory beneficiaries.

    The Class Administrator will then determine who are statutory beneficiaries, determine amounts to be distributed to each such beneficiary and present those determinations to the Court for approval.

    After the preliminary pro rata shares and amounts to be distributed are determined, a second notice will be provided as directed by the Court to any known or reasonably ascertainable statutory beneficiaries, informing them of the proposed distributions.

    Finally, the Class Administrator will distribute the pro rata Settlement proceeds allocated to the estates of the deceased pediatric cancer patients to the appropriate statutory beneficiaries under the New Mexico’s wrongful death statute, NMSA 1978 § 41-2-3.

    The wrongful death statute requires that the Settlement proceeds be distributed as follows:

    • If the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest, or if either of them is dead, then to the survivor;
    • If there is a surviving spouse and no child, then to the spouse;
    • If there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation; or
    • If there is no father, mother, husband, wife, child or grandchild, then to a surviving brother or sister if there are any.
  15. Am I giving up anything by filing a claim or not filing a claim?

    Members of the Decedent Class who do not exclude themselves by the deadline will be bound by the terms of the Settlement Agreement, including the release of claims against the Defendants and other Released Parties identified in Paragraph 12 of the Settlement Agreement, whether or not the Class Members file a claim for payment.

    The Settlement will resolve and release claims by Class Members for monetary compensation against Defendants. The release bars Class Members from bringing claims based on conduct that was alleged or raised in the litigation, or that could have been alleged or raised in the litigation relating to its subject matter.

    The release does not extinguish the following claims:

    • Claims based on conduct that was not alleged or raised in the litigation.
    • Claims of pediatric cancer patients who received treatment at the University of New Mexico Health Sciences Center (or Hospital) for cancers other than Acute Lymphoblastic Leukemia.
    • Claims of pediatric cancer patients who were treated for Acute Lymphoblastic Leukemia at the University of New Mexico Health Sciences Center (or Hospital) but are still living.
    • Claims of pediatric cancer patients who were treated for Acute Lymphoblastic Leukemia at the University of New Mexico Health Sciences Center (or Hospital) outside the class period of January 1, 1977 to March 31, 1997.

    The full text of the Release can be found in paragraph 23 of the Settlement Agreement, which is available for review by clicking HERE. You should carefully read the Release and if you have any questions about the Release you may:

    • Call Class Counsel listed in FAQ 19 at no charge; or
    • Talk to a lawyer, at your own expense, about the Release and what it means to you.

    Important! If you want to keep your right to be part of any other lawsuit based on similar claims, you must opt-out (exclude yourself) from the Settlement. Instructions for excluding yourself from the Settlement are discussed in FAQ 13.

  16. EXCLUDING YOURSELF FROM THE SETTLEMENT

  17. How do I exclude myself (or opt out) from the Settlement?

    To opt-out (exclude yourself) from the Decedent Class, send a letter to:

    UNM Child Cancer Settlement
    1650 Arch Street, Suite 2210
    Philadelphia, PA 19103

    Your letter must be postmarked by JULY 6, 2020. You cannot exclude yourself by phone, fax, email, or online.

    You may send your letter by first-class mail and pay for the postage. You also may send your letter by USPS Priority Mail. Keep a copy for your records.

    Your letter must be signed by a person authorized to do so and state as follows:

    I want to exclude [name of person] from the Decedent Class in the case called Cummings v. Board of Regents of the University of New Mexico, et al.

    My personal information is:

    • Your name (first, middle, last):
    • Name of deceased pediatric patient (i.e., the name of your child, sibling, etc.):
    • Your relationship to the deceased pediatric patient:
    • Your address:
    • Your phone number:

    Warning! If your letter is sent after the deadline it will be considered invalid. If this happens, you won’t be excluded from the Decedent Class, and you will still be part of the Settlement and will be bound by all of its terms.

  18. If I exclude myself, can I get anything from this Settlement?

    No. If you exclude yourself from Decedent Class, you cannot get money from this settlement, and you cannot object to the Settlement.

    The deadline to exclude yourself is JULY 6, 2020.

    Important! If you exclude yourself, do not file a Claim Form asking for payment.

  19. If I don’t exclude myself, can I sue later?

    No. If you do not exclude yourself, you give up your right to sue any of the Released Parties described in the Settlement Agreement.

  20. OBJECTING TO THE SETTLEMENT

    You can tell the Court if you don’t agree with the Settlement or some part of it.

  21. What if I disagree with any of the Settlement terms or the requested attorneys’ fees, expenses or service awards to the Decedent Class Plaintiffs?

    If you do not exclude yourself from the Decedent Class, you may object to the settlement or the request for attorneys’ fees and expenses to Class Counsel or service awards to the Decedent Class Plaintiffs. The Court will consider your objection(s) when it evaluates whether to finally approve the settlement and whether to award attorneys’ fees and expenses and to Class Counsel or service awards to the Decedent Class Plaintiffs.

    How do I tell the Court I disagree with the settlement?

    You must file a Statement of Objections with the Court no later than JULY 6, 2020 at this address:

    Clerk of the Court
    Bernalillo County Courthouse
    400 Lomas NW
    Albuquerque, NM 87102

    You must also send a copy of your Statement of Objections to Decedent Class Counsel and Counsel for the Defendants by first class mail, postmarked no later than JULY 6, 2020, at the following addresses:

    Designated Decedent Class Counsel:

    Jacob G. Vigil
    Vigil Law Firm, P.A.
    2014 Central Avenue SW
    Suite A
    Albuquerque, NM 87104
    Joseph Goldberg
    Vincent J. Ward
    Frank T. Davis
    Freedman Boyd Hollander Goldberg Urias & Ward, P.A.
    20 First Plaza NW
    Suite 700
    Albuquerque, NM 87102
    Catherine D. Bertram
    Bertram Law Group
    700 Pennsylvania Avenue SE, Suite 450
    Washington, D.C. 20003

    Designated Defendants’ Counsel:

    R. Nelson Franse
    Leslie McCarthy Apodaca
    Andrew G. Schultz
    Rodey, Dickason, Sloan Akin & Robb, P.A.
    P.O. Box 1888
    Albuquerque, NM 87103
    Thomas Ryan
    Gregory Jones
    McDermott Will & Emery LLP
    2049 Century Park East
    Suite 3200
    Los Angeles, CA 90067

    You must mail your letter to the Clerk of Court, the attorneys for the class and defendants postmarked by JULY 6, 2020.

    What should my Statement of Objections say?

    Your Statement of Objections must contain the following information:

    I am a member of the Decedent Class in the case called Cummings v. Board of Regents of the University of New Mexico, et al.

    I am a class member because: [identify the deceased pediatric cancer patient and your relationship to that patient].

    My reasons for objection are:

    State whether you wish to speak at the hearing (see FAQ 25, below).

    My personal information is:

    • Your name (first, middle, last):
    • Name of deceased pediatric patient (i.e., the name of your child, sibling, etc.):
    • Your relationship to the deceased pediatric patient:
    • Your address:
    • Your phone number:

    The contact information for my lawyer (if any) is:

    Can I call the Court or the Judge’s office about my objections?

    No. If you have questions, you may visit this website, email the Class Administrator at info@UNMChildCancerSettlement.com or call the Class Administrator toll free at (855) 534-5953.

  22. Is objecting the same thing as being excluded?

    No. Objecting means you tell the Court which part(s) of the Settlement you disagree with (including the plan for distributing the Settlement fund, request for attorneys’ fees and expenses, or service awards for the named Decedent Class Plaintiffs).

    Being excluded (also called opting-out) means you tell the Court you do not want to be part of the Decedent Class.

  23. THE LAWYERS REPRESENTING YOU

  24. Do I have a lawyer in the case?

    The Court has appointed the lawyers listed below to represent you. These lawyers are called Class Counsel. Other lawyers have also worked with Class Counsel to represent you in this case. Because you are a Class Member, you do not have to pay any of these lawyers. They will be paid from the Settlement Fund.

    Jacob G. Vigil
    Vigil Law Firm, P.A.
    2014 Central Ave SW
    Suite A
    Albuquerque, NM 87104
    (505) 243-1706
    jake@zlaws.com
    Joseph Goldberg
    Vincent J. Ward
    Frank T. Davis
    Freedman Boyd Hollander Goldberg Urias & Ward, P.A.
    20 First Plaza NW
    Suite 700
    Albuquerque, NM 87102
    (505) 842-9960
    jg@fbdlaw.com
    vjw@fbdlaw.com
    ftd@fbdlaw.com
    Catherine D. Bertram
    Bertram Law Group
    700 Pennsylvania Avenue SE, Suite 450
    Washington, D.C. 20003
    (202) 803-5800
    katie@blg-dc.com
  25. How much will the lawyers and the Decedent Class Plaintiffs be paid?

    For work done through final approval of the Settlement by the District Court, Class Counsel will ask the Court for an amount that is a reasonable proportion of the Settlement Fund, not to exceed 35% of the Settlement Fund to compensate all of the lawyers and their law firms that have worked on the class case.

    Class Counsel will also request an award of their reasonable litigation expenses (not including the administrative costs of settlement or notice).

    The Decedent Class Plaintiffs may receive a service award of up to $50,000 each for their representation of the members of the Decedent Class, which culminated in the Settlement Agreement.

    The amounts to be awarded as attorneys’ fees, expenses, and Decedent Class Plaintiffs’ service awards must be approved by the Court. Class Counsel must file their requests for fees, expenses, and service awards with the Court by July 16, 2020. You can object to the requests for attorneys’ fees, expenses, and service awards in compliance with the instructions in FAQ 16.

    Copies of the lawyers’ requests for fees, expenses, and service awards can be obtained from the Class Administrator or reviewed on this Settlement Website once filed.

  26. What happens if I do nothing?

    If you do not file a Claim, you cannot get money from this settlement.

    If you do not exclude yourself from the Decedent Class, you cannot be part of any other lawsuit against Defendants and other Released Parties listed in the Settlement Agreement for released conduct. You will be bound by the Release.

  27. THE COURT’S FAIRNESS HEARING

    The Court will hold a hearing to decide whether to grant final approval to the Settlement. If you have filed an objection on time and attend the hearing, you may ask to speak, but you don’t have to attend or speak.

  28. When and where will the Court decide whether to approve the Settlement?

    There will be a Fairness Hearing at 9:00 a.m. on JULY 28, 2020. The hearing will take place at:

    Second Judicial District
    Bernalillo County Courthouse
    Courtroom 502
    400 Lomas NW
    Albuquerque, NM 87102

    We do not know how long the Court will take to make its decision.

    Important! The time and date of this hearing may change without additional mailed or published notice. For updated information on the hearing. Please check this website often or contact the Class Administrator at Info@UNMChildCancerSettlement.com.

  29. Why is there a hearing?

    The hearing is about whether or not the Settlement should be finally approved as fair, adequate, and reasonable.

    The Court will consider any objections and listen to class members who have asked to speak at the hearing.

    The Court will also decide whether it should give its final approval of Class Counsel’s requests for attorneys’ fees and expenses, service awards to Decedent Class Plaintiffs, and other costs.

  30. Do I have to come to the hearing?

    No. You do not have to go to the hearing, even if you sent an objection to the Court. But you can go to the hearing or hire a lawyer to go the hearing if you want to, at your own expense.

  31. May I speak at the hearing?

    You must state in your objections that you want to speak at the hearing, or you can file a Notice of Intention to Appear with the Court at this address:

    Second Judicial District
    Bernalillo County Courthouse
    400 Lomas NW
    Albuquerque, NM 87102

    Your Notice of Intention to Appear must be filed by JULY 6, 2020. You must also mail a copy of your letter to Class Counsel and Counsel for the Defendants at the addresses listed in FAQ 16.

    What should my Notice of Intention to Appear say?

    Your Notice of Intention to Appear must be signed and contain the following information:

    “I want to speak at the Fairness Hearing for the case called Cummings v. Board of Regents of the University of New Mexico, et al.”

    My personal information is:

    • Name (first, middle, last):
    • Address:
    • Phone No.:
    • I am a class member because: [identify the deceased pediatric cancer patient and your relationship to that patient]
    • I wish to speak about: [fill in]
  32. GETTING MORE INFORMATION

  33. How do I get more information?

    There are several ways to get more information about the Settlement.

    You may contact the Class Administrator:
    Email: Info@UNMChildCancerSettlement.com
    Mail: UNM Child Cancer Settlement
    1650 Arch Street, Suite 2210
    Philadelphia, PA 19103
    Call: (855) 534-5953

Please do not attempt to contact Judge Butkus or the Clerk of Court with any questions.