Full opinion text
MEMORANDUM OPINION AND ORDER SIDNEY A. FITZWATER, Chief Judge. The court must decide whether the proposed $110 million settlement of this class action alleging personal injury and death claims arising from the manufacture, marketing, and distribution of E-Ferol Aqueous Solution (“E-Ferol”) is fair, reasonable, and adequate, as Fed.R.Civ.P. 23(e)(2) requires, and not the product of collusion between the parties. Following a two-day fairness hearing and consideration of the parties’ extensive submissions, and for the reasons that follow, the court approves the settlement and the request of the class plaintiffs’ attorneys for a fee award of 30% of the settlement amount, reimbursement of reasonable and necessary expenses associated with the litigation, $300,000 from the settlement amount to pay for costs of administration and distribution of the settlement proceeds, and $75,000 each as compensation for the two class representatives. I A This mass tort class action arises from defendants’ manufacture, marketing, and distribution in 1983 and 1984 of E-Ferol, a vitamin E supplement administered primarily to premature infants to aid in preventing a vision impairment known as retrolental fibroplasia, believed to be caused by a vitamin E deficiency. Defendants marketed E-Ferol as a vitamin supplement rather than as a drug. The class plaintiffs allege that defendants made this marketing decision so that they could bypass testing requirements mandated by the U.S. Food and Drug Administration (“FDA”) for the sale of a “drug”; there were no similar requirements for new “supplements.” The class plaintiffs also assert that defendants specifically marketed E-Ferol as a means of reducing or preventing retrolental fibroplasia, and that physicians and hospitals began using EFerol under the mistaken impression that it had FDA approval. E-Ferol’s appeal was its suitability for intravenous administration, a delivery method that was considered superior to the previously available oral or intramuscular applications of vitamin E for premature infants. To allow for intravenous use, E-Ferol contained an emulsifying agent known as Polysorbate 80, which made the vitamin E water soluble. Several months after the initial release of E-Ferol, medical providers, the FDA, and the Centers for Disease Control and Prevention (“CDC”) became aware of a pattern of harmful symptoms in premature infants to whom the drug had been given. These symptoms — which generally involved failure of the kidneys and liver — in many cases led to brain injury, blindness, and/or death, and came to be known as “E-Ferol syndrome.” The FDA and. CDC ordered defendants to conduct a full recall of the product and began investigating possible causes of the symptoms that neonatologists were reporting. Research determined that the ingredient Polysorbate 80 in E-Ferol caused the symptoms associated with E-Ferol syndrome. The investigation into E-Ferol eventually led to criminal convictions for the defendant corporations as well as some of their individual officers. See United States v. Hiland, 909 F.2d 1114 (8th Cir.1990). B This lawsuit was filed as a putative class action on behalf of all persons who were administered E-Ferol during the months that it was in use, the representatives or heirs of persons whose deaths were caused by E-Ferol, and family members, guardians, and legal representatives of persons who died from or were injured by EFerol. Plaintiffs alleged claims for negligence, strict liability, and negligent misrepresentation, and they sought actual and punitive damages for the deaths and injuries that E-Ferol allegedly caused. Judge Buchmeyer, to whom the case was initially assigned, certified the following plaintiffs class under Rule 23(b)(3): All persons in the United States, including any estate representatives or heirs of deceased persons, who, during the period from November 1, 1983, until April 30, 1984, were administered EFerol. Included in the class are parents, spouses, children, guardians, and legal representatives of such persons with direct or derivative claims. Klein v. O’Neal, Inc., 222 F.R.D. 564, 566 (N.D.Tex.) (Buchmeyer, J.) (‘Klein I”), pet. for leave to appeal denied, No. 04-00028 (5th Cir. June 21, 2004) (per curiam) (order). Counsel for the class undertook a lengthy process of identifying and contacting potential class members. They began by obtaining a list from the FDA of all hospitals nationwide that had administered E-Ferol, and then contacting these hospitals to request the names of the individual recipients. Eventually, 89 locations nationwide were identified as having administered E-Ferol. Some hospitals were willing to share information with class counsel. Others did not produce information until they were subpoenaed and/or were unsuccessful in moving to quash efforts to obtain patient names. Once potential class members were identified, class counsel contacted them and requested that they complete a medical questionnaire and an authorization to release hospital records. Notification to the class was given in July 2006 by direct mail (for those whose names and addresses were known) and through simultaneous publication in numerous daily newspapers throughout the United States, including USA Today, in an attempt to notify unidentified class members whose hospital records were still unknown. Class counsel also created a website at “www.eferol.com.” The website contained information about E-Ferol’s distribution and effects, an explanation of this lawsuit, links to the parties’ filings and the court’s opinions, a list of relevant deadlines, and contact information for any person who believed he should be included in the class. The court set September 11, 2006 as the opt out date for class members. Class counsel eventually identified 328 recipients of E-Ferol. The class is currently comprised of 369 members, including the families and representatives of deceased recipients. Of the 328 identified cases of E-Ferol administration, 34 are infants who allegedly died from the effects of E-Ferol, 22 are infants who allegedly suffered brain or neurological injuries (i.e., cerebral palsy) from E-Ferol exposure, and 239 are class members who either received E-Ferol without apparent injury, but require ongoing medical monitoring, or are the parents of children who died after being administered E-Ferol but whose deaths are not believed to have been caused by E-Ferol. Also included are 33 claims that the court previously dismissed due to defenses based on statutes of limitations or of repose. See Klein v. O’Neal, Inc., 2008 WL 2152030, at *10 (N.D.Tex. May 22, 2008) (Fitzwater, C.J.) (“Klein II”). In 2008 defendants moved for partial summary judgment, contending that (1) all wrongful death and survival act claims based on deaths that occurred more than two years prior to the lawsuit were time-barred, and (2) claims by class members in Tennessee and Iowa were barred by those states’ statutes of repose. The court denied summary judgment as to most of the death and survivor act claims on the basis that the statute of limitations may have been tolled under the doctrine of fraudulent concealment. See id. at *7. But the court granted summary judgment as to eight death claims, concluding that a reasonable jury could only find that the class members knew that E-Ferol might have caused their child’s death. Id. at *6. The court also dismissed 25 claims as barred by the Tennessee statute of repose. It denied summary judgment dismissing the single claim from Iowa, however, concluding that there was evidence that the claimant had no knowledge about receiving E-Ferol until after the lawsuit was filed. Id. at *10. After the court decided Klein II, it stayed the case so that the parties could pursue settlement. The parties participated in mediation, including a two-day meeting, in 2009. A retired United States District Judge, John S. Martin, Jr. (“Judge Martin”), served as mediator. Although the parties were initially unsuccessful, subsequent negotiations over several months led to the Settlement Agreement and Release (“Settlement Agreement”). As discussed more fully below, in exchange for the release of all claims brought by the class plaintiffs, the Settlement Agreement provides a lump sum payment to the class for distribution among its members. The allocation to each member varies according to the category to which the member’s claim is assigned. Medical experts retained by class counsel determined each class member’s initial category, with stronger claims resulting in higher-paying categorization. The parties presented the Settlement Agreement to the court for a preliminary fairness review in October 2009. Following initial approval, the class plaintiffs sent notices to each class member informing the member of the details of the Settlement Agreement, the member’s category assignment, and the scheduled fairness hearing on February 16 and 17, 2010. The notices also included instructions for how class members could object to court approval of the Settlement Agreement, make requests for a change in category, and/or submit documents supporting such requests. The notices were sent in October 2009, and the deadline for filing objections and making requests for category changes was December 30, 2009. Class counsel also published a new notice in USA Today containing information about the proposed settlement. C The Settlement Agreement comprehensively resolves all claims between the class plaintiffs and defendants. The negotiations between the parties and the drafting of the Settlement Agreement included the input and eventual consent of various insurers of defendants, who bear all responsibility for paying the settlement proceeds. The Settlement Agreement calls for a maximum payment of $110 million to the entire class. Two insurers of defendant Retrae, Inc. (“Retrae”) — Federal Insurance Company (“Federal”) and Westchester Fire Insurance Company (“Westchester”) — whose coverages together represent approximately $17.5 million of the proceeds of the proposed settlement, have not agreed to the Settlement Agreement. They also dispute that they have a duty to indemnify Retrae for the class plaintiffs’ claims. Resolution of these coverage questions remains outstanding. The court dismissed an attempt by the class plaintiffs to sue Federal and Westchester directly for the purpose of establishing that they have a duty to indemnify Retrae for claims brought by the class. See Klein v. O’Neal, Inc., 2009 WL 3573849, at *9 (N.D.Tex. Oct. 30, 2009) (Fitzwater, C.J.) (holding that Texas law does not permit tort victim to file indemnity suit directly against alleged tortfeasor’s insurer until after victim first obtains judgment against tortfeasor). A third Retrae insurance carrier, Mission Insurance Company (“Mission”), would be responsible for $2.5 million in coverage, but Mission is insolvent and class counsel are currently pursuing recovery from Mission’s receiver. A substantial majority of defendants’ relevant insurers, representing $90 million of the proposed settlement, have agreed to the Settlement Agreement. The unresolved nature of Federal’s and Westchester’s liabilities, along with Mission’s insolvency, mean that the total settlement amount is not certain, although it would in any case be between $90 million and $110 million. If the Settlement Agreement is approved, defendants will assign to the class their respective rights of indemnification against Federal, Westchester, and Mission. Under the terms of the Settlement Agreement, each class member is assigned to one of five categories. Category 1 consists of death claims in which E-Ferol was a substantial cause of the death. Category 2 represents death claims for which EFerol was only a contributing cause of death. Category 3 is composed of claims where E-Ferol was a substantial contributing cause of cerebral palsy or another neuroglial impairment, with subcategories defined for impairments that are (a) severe, (b) moderate, or (c) mild. Category 4 contains claims alleging injury that do not qualify for Categories 1 through 3, including claims for ongoing medical monitoring costs due to the potential effects of E-Ferol. Category 5 consists of class members whose claims the court has previously dismissed on various grounds, and it is divided into subcategories based on the primary category under which the dismissed claim otherwise would fall. The initial assignment of a class member into a category and subcategory was made by medical experts, and the assignment was based on the strength of the medical records and other evidence relevant to each class member’s claim. The total settlement proceeds are allocated by percentages among the five categories. Class members each take an equal per capita share of the payout amount allocated to their particular category or subcategory. The allocations are: (1) 40% for Category 1 (approximately $2, 001, 594.20 per claim); (2) 17.78% for Category 2 (approximately $1,000,797.14 per claim); (3) 31.11% for Category 3 (approximately $1,501,195.62, $1,250,996.34, or $1,000,789.68 per claim, based on subcategory); (4) 9.29% for Category 4 (approximately $35,027.19 per claim); and (5) 1.82% for Category 5 (approximately $236,647.45, $118,323.27, or $4,141.50 per claim, based on subcategory). The attorney’s fees and expenses that the court awards class plaintiffs’ counsel, and the awards to the class representatives, are to be deducted from each class member’s recovery on a pro rata basis. The Settlement Agreement establishes a procedure whereby a class member can request a category change. The class member must first present the request to class counsel, supported by documents and other evidence that demonstrate why the category change is merited. If the class member is dissatisfied with class counsels’ decision, the member may request a review by an independent medical examiner (“IME”), appointed by the court, to determine the appropriate category. The decision of the IME is binding. If the IME concludes that the class member should be re-categorized, the costs of the review process must be borne out of the overall settlement. If the request is unsuccessful, the costs must be paid from the individual class member’s personal share of the settlement. Class counsel included notice of each member’s initial category assignment when the Settlement Agreement announcements were mailed in October 2009. The court set a deadline of December 30, 2009 for class members to object to their category and submit medical records or other evidence in support of a request for re-categorization. As stated above, see supra note 10, only two class members have sought review through this process. There is no provision in the Settlement Agreement that allows a class member to opt out. Under Rule 23(e)(4), however, the court “may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.” The Settlement Agreement provides that, if the court does allow class members to opt out, each defendant or insurer can withdraw from the settlement. Alternatively, defendants can choose to ratify the Agreement notwithstanding an allowance for opt outs. In the latter case, any class member who opted out would still be counted for purposes of assigning category awards under the settlement payout, but the funds that would otherwise be paid to the excluded class member would be retained by defendants and not included in the overall payment to the class. As a condition of obtaining an individual award under the Settlement Agreement, a class member is required to execute a release of all liability for defendants and their insurers. Furthermore, the liability release covers “all Persons who provided medical or health care services to any individual who allegedly received E-Ferol, including but not limited to hospitals, doctors, [and] nurses.” Settlement Agreement Ex. 9 at 2. The release grants an unconditional release and discharge of all claims and causes of action “connected in any manner or fashion with E-Ferol.” Id. at 3. D Following notice of the proposed settlement, 97.3% of the class members — 359 of 369 — responded to class counsel with affirmative requests that the court approve the proposed settlement. The 97.3% who approve include all but one class member in Category 1, and all members in Categories 2 and 3. Only three members of the class — Lawrence V. Long, Jr. (“Long”), Sharon Jenkins (“Jenkins”), and Arthur Freeman Luckey (“Luckey”) — objected to the Settlement Agreement by the December 30, 2009 deadline. Luckey withdrew his objection, with court approval, before the fairness hearing began. Jenkins withdrew her objection, with court approval, during the fairness hearing. Jenkins and another class member, Cynthia Pinnock, have requested changes in their category assignment. Now that the settlement has been approved, these requests will be resolved according to the IME review procedure established by the Settlement Agreement. The parties agreed to an extended deadline for Jenkins to file medical records in support of her request for category change, which the court approved. The court also agreed that Jenkins can submit nominees for the court’s consideration when selecting an IME to review her category change request. Following the withdrawal by Luckey and Jenkins of their objections to the Settlement Agreement, Long remains as the lone objecting class member. Long is a member of the class by reason of the death of his daughter, CL. CL died in 1984 after receiving E-Ferol while in the care of the neonatal intensive care unit at Miami Valley Hospital (“Miami Valley”) in Dayton, Ohio. Because the E-Ferol recipient list from Miami Valley was still unknown when notice was mailed to class members in 2006, class counsel published notices of this class action in two local newspapers: the Dayton Daily News (Dayton, Ohio) and The Blade (Toledo, Ohio). In October 2007 class counsel obtained the recipient list from Miami Valley, and they mailed notice of the class action to Long. It was at this point, according to Long, that he and his late wife first became aware of the possibility that E-Ferol played a part in CL’s death. Long then obtained independent legal representation (i.e., apart from class counsel) and filed a motion seeking leave to opt out of the class. He filed the motion on January 9, 2009, although the deadline for doing so had expired on September 11, 2006. The court denied Long’s motion. Klein v. O’Neal, Inc., 2009 WL 1174638, at *5 (N.D.Tex. Apr. 29, 2009) (Fitzwater, C.J.) (“Klein III ”) (holding, inter• alia, that due process was satisfied because it was undisputed that Long received constructive notice of the suit through publication in July 2006, and failed to request opt out by the court-ordered September 2006 deadline). Long has renewed the request to opt out in a motion filed on September 23, 2009. Essentially, Long seeks to opt out so that he can pursue an independent lawsuit against the defendants and against Miami Valley and the physicians who treated CL (the “Miami Valley Providers”). Long maintains that he can obtain a larger award through an independent lawsuit than he will receive under the proposed settlement. He also objects to the provision of the Settlement Agreement requiring that he release third-party medical providers, such as the Miami Valley Providers, as a condition of receiving his share of the settlement proceeds. In addition to objecting on various grounds to the Settlement Agreement, Long also moves for decertification of the class, for leave to intervene, and to opt out of the class. E The court conducted a two-day fairness hearing on February 16 and 17, 2010. On the second day of the hearing, Jenkins, with court approval, withdrew her objection, leaving Long as the lone remaining objector. During the hearing, the parties, Long, and Jenkins (until she withdrew her objection) presented evidence and arguments regarding whether the Settlement Agreement is fair, reasonable, and adequate, as Rule 23(e)(2) requires, and not the product of collusion between the parties. They also presented evidence through witnesses and exhibits. Counsel also cross-examined witnesses and presented argument. The class plaintiffs called several medical experts to testify about the causes and effects of E-Ferol syndrome. The witnesses each have experience researching E-Ferol, and several were among the first and most prominent experts on the drug and its effects during the initial response to E-Ferol syndrome in the 1980s. For various reasons, including the fact that EFerol was only used for a short period more than two decades ago, the available pool of- medical experts with knowledge about the drug is notably small. In many cases, the experts retained by the class plaintiffs and defendants are the same individuals who performed the foundational research and analysis of E-Ferol syndrome. The authors of virtually all the significant studies and published articles on E-Ferol were involved in this litigation at some point, and several testified at the fairness hearing. The class plaintiffs first presented Carl J. Bodenstein, M.D. (“Dr. Bodenstein”), a neonatologist, who testified about the initial process of discovering and diagnosing cases of E-Ferol syndrome. Dr. Bodenstein coauthored the first published academic article identifying E-Ferol syndrome and participated in the CDC’s investigation during the period that immediately followed the recall of E-Ferol. In relation to this class action, Dr. Bodenstein reviewed the records of each class member to verify that E-Ferol was administered and how much of the drug was used in each case, and he determined the relationship between E-Ferol and the claimed injuries or death. The class plaintiffs next offered the testimony of Kevin Bove, M.D. (“Dr. Bove”). Dr. Bove is a pediatric pathologist at Cincinnati Children’s Hospital (a hospital that administered E-Ferol) and a professor at the University of Cincinnati College of Medicine. He testified about his involvement with Dr. Bodenstein in the early efforts to research the causes of E-Ferol syndrome. Dr. Bove stated that the pathological markers associated with EFerol syndrome were distinct from typical liver problems among premature infants. He also participated in the instant case by reviewing the definition of the plaintiffs class as well as the categorization of individual class members, and he concluded that both were consistent with the medical data regarding E-Ferol syndrome. While the most well-developed evidence involving E-Ferol syndrome involves the death cases, Dr. Bove also testified about the medical evidence in the Category 3 brain injury cases, and he admitted that the causation links were weaker in these cases (although, in his view, still probable). Dr. Bove’s testimony regarding the evidence of E-Ferol-related brain injury was supported by William J. Martone, M.D. (“Dr. Martone”), the final medical expert whom the class plaintiffs called. Dr. Mar-tone supervised the CDC investigation into E-Ferol syndrome in 1984 and recommended to the FDA that E-Ferol be recalled. He confirmed that there is a scarcity of research on brain injuries caused by E-Ferol syndrome, although he testified that he is confident such a connection exists. After the two class representatives testified, lead class counsel, Art Brender, Esquire (“Brender”), testified in support of the settlement and the motion for attorney’s fees, costs, and expenses. Brender was cross-examined by lawyers for Long and Jenkins, who challenged his assertions about the fairness of the settlement and class counsels’ request for attorney’s fees. Plaintiffs then called Professor Jim Underwood (“Prof. Underwood”), an Associate Professor of Law at Baylor Law School, who testified that the settlement is fair, reasonable, and adequate and that the requested award of attorney’s fees, costs, and expenses is not only reasonable, but is less than expected in a case of this scale. Drawing on his experience as a class-action litigator and professor of torts and complex litigation (the thrust of which is federal class action law), Prof. Underwood opined that class counsel had provided exceptional representation to the class by identifying and contacting as many potential members as could be found. He testified that the motion practice in the case indicated hard-fought litigation that placed an unusually high burden on the attorneys and resulted in a favorable settlement for the class. Prof. Underwood praised the arrangement of the settlement categories and the process by which class members could appeal their category placement. He concluded that “[t]his [settlement] would be a poster child for a class action that works for the benefit of the class.” Tr. 1:245. The class plaintiffs concluded by making a video presentation consisting of several class members who could not attend the hearing and of the decedents of some members. Several class members attended some or all of the hearing and were introduced after the parties’ opening statements. All of these class members support the proposed settlement. Defendants first presented Barry Chasnoff, Esquire (“Chasnoff’), their lead counsel, who testified, among other things, about the defenses to liability that his clients intended to raise if the case were to proceed to trial. He stated that defendants intended to challenge the class plaintiffs’ overall expert evidence, especially the causation evidence related to the Category 3 neurological injury claims. Defendants then called a legal expert, Professor Charles Silver (“Prof. Silver”), a professor at The University of Texas School of Law, who specializes in class action research and has served as class counsel in numerous cases. Prof. Silver, like Prof. Underwood, opined that the settlement is fair and reasonable overall. He especially noted the lengths to which class counsel had gone to identify and contact as many individual members of the class as possible. He found it significant that 97.3% of class members had affirmatively approved the Settlement Agreement, and, of those who had not, only one had raised formal objections. Prof. Silver stated that such overwhelming affirmative support for a class action settlement, as opposed to mere acquiescence by class members, was extremely rare, and this reinforced his conclusion that the proposed settlement is fair and should be approved. Finally, defendants presented the testimony of Michael O’Shea, M.D. (“Dr. O’Shea”), an expert on brain injuries in premature infants. Dr. O’Shea testified regarding the asserted weaknesses in the class plaintiffs’ claims, suggesting that evidence of E-Ferol’s causation of the injuries — particularly for the brain injury and cerebral palsy claims — was vulnerable to attack. He pointed to a lack of peer-reviewed published materials supporting a connection between E-Ferol and brain injuries. Moreover, Dr. O’Shea opined that generating such evidence for trial would be difficult or impossible, because little research had been done on links to brain injury when E-Ferol was recalled, and the passage of time prevents such studies from being feasible today. Dr. O’Shea explained that, because virtually all of the EFerol recipients were premature infants with significant health challenges already, it would be hard for researchers to definitively link a particular injury (such as cerebral palsy) with E-Ferol. He also suggested that rates of brain injury allegedly caused by E-Ferol are consistent with the occurrence of brain injury among premature infants overall — i.e., E-Ferol may not have increased recipients’ chances of developing brain injury. Dr. O’Shea concluded that it would be necessary for the class plaintiffs’ claims to overcome these significant hurdles if the settlement were not approved and the claims were tried. After the class plaintiffs and defendants completed their presentations, Long testified in support of his objections to the Settlement Agreement. He primarily testified about CL’s medical treatment, and he stated that no physician had informed him or his wife of the possibility that EFerol could have caused CL’s death. Long averred that he first became aware of the possibility that E-Ferol may have caused CL’s death when class plaintiffs’ counsel mailed him notice after obtaining his identity from Miami Valley. Long testified that he should be excluded from the settlement, on two principal grounds: (1) the settlement amount was too low and undervalued his claim, and (2) the release of third-party medical providers infringed on his right to sue the Miami Valley Providers. Long stressed that his right to his day in court would be improperly extinguished if the proposed settlement is approved. In addition to their hearing testimony, the parties submitted other evidence before and during the hearing, such as written declarations and exhibits. They have also made post-hearing submissions. II The court determines first whether the Settlement Agreement is fair, reasonable, and adequate to the class plaintiffs as a whole and not the product of collusion between the parties. A proposed settlement in a class action must undergo rigorous testing by the court to ensure that the interests of absent class members are represented. “The gravamen of an approvable proposed settlement is that it be fair, adequate, and reasonable and is not the product of collusion between the parties.” Newby v. Enron Corp., 394 F.3d 296, 301 (5th Cir.2004) (internal quotation marks omitted); see also Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). In exercising its discretion to approve a settlement, the court must “ensure that the settlement is in the interests of the class, does not unfairly impinge on the rights and interests of dissenters, and does not merely mantle oppression.” Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir.1978); see also Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir.1983). Although the court must weigh the facts and law of the case to determine the fairness of the settlement, this does not mean that the court should reach conclusions as to the ultimate merits of the claims or defenses. See Pettway, 576 F.2d at 1214 n. 69; Cotton, 559 F.2d at 1330. “The court ... must not try the case in the settlement hearings because the very purpose of the compromise is to avoid the delay and expense of such a trial.” Reed, 703 F.2d at 172 (internal quotation marks omitted). In evaluating a proposed settlement, “a trial judge is dependent upon a match of adversary talent because he cannot obtain the ultimate answers without trying the case. Indeed, that uncertainty is a catalyst of settlement.” Id. at 175. Courts assess the efficacy of representation in large part by the barometer of the relief that counsel have obtained for the class. The adequacy of the representation is linked to the question whether the settlement is fair and reasonable. See Reed, 703 F.2d at 175; Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir. Unit A 1982). Where the court finds that counsel have adequately represented the interests of the class, “the trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.” Cotton, 559 F.2d at 1330. The Fifth Circuit has repeatedly stated that the opinion of class counsel should be accorded great weight. Recognizing that various class members may have different priorities in a class action, the Fifth Circuit has concluded: Where there is disagreement among the class members concerning an appropriate course of action, it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole. If the attorney’s decision in the face of such disagreement affects each class member more or less equally, and no allegation is made that the rights of a definable minority group within the class were sacrificed for the benefit of the majority, the attorney’s views must be accorded great weight, and the trial judge’s decision to ratify the attorney’s action will seldom be overturned. Pettway, 576 F.2d at 1216. A proposed settlement need not obtain the largest conceivable recovery for the class to be worthy of approval; it must simply be fair and adequate considering all the relevant circumstances. “If the terms themselves are fair, reasonable and adequate, the district court may fairly assume that they were negotiated by competent and adequate counsel; in such cases, whether another team of negotiators might have accomplished a better settlement is a matter equally comprised of conjecture and irrelevance.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 212 (5th Cir. Apr.1981). In the context of a class action settlement, “compromise is the essence of a settlement, and the settlement need not accord the plaintiff class every benefit that might have been gained after full trial.” Pettway, 576 F.2d at 1214 n. 69. Accordingly, “[t]he trial court should not make a proponent of a proposed settlement justify each term of settlement against a hypothetical or speculative measure of what concessions might have been gained; inherent in compromise is a yielding of absolutes and an abandoning of highest hopes.” Cotton, 559 F.2d at 1330 (internal quotation marks omitted). The court must apply a six-part test to determine whether the proposed settlement is fair, reasonable, and adequate under Rule 23(e). See Newby, 394 F.3d at 301; Reed, 703 F.2d at 172. The six Reed factors are: (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of plaintiffs’ success on the merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class representatives, and absent class members. Reed, 703 F.2d at 172 (citing Parker, 667 F.2d at 1209). In balancing the six factors, “absent fraud or collusion, the most important factor is the probability of the plaintiffs’ success on the merits.” Parker, 667 F.2d at 1209. “When considering [the Reed ] factors, the court should keep in mind the strong presumption in favor of finding a settlement fair.” Purdie v. Ace Cash Express, Inc., 2003 WL 22976611, at *4 (N.D.Tex. Dec. 11, 2003) (Lindsay, J.). “Particularly in class action suits, there is an overriding public interest in favor of settlement.” Cotton, 559 F.2d at 1331. Moreover, the public interest in settlement is best served when a settlement binds all parties without allowing for individual opt outs. Class litigation when not abused can aid the courts by its coagulation of numerous claims. It follows that it is relevant to ask whether a settlement results in a decision binding on the class or whether it acts as a dispersing agent. For example, the ability of the Pettway class members to opt out of the settlement and pursue individual claims counseled against approval of a disputed settlement. In contrast, class members here who did not earlier opt out of the class are bound by the settlement. In this sense the settlement reduces the burdens placed on the judicial system. Admittedly too broad to provide analytical heat, these heuristic expressions nonetheless shape judicial attitude and are properly the backdrop to the [Reed] inquiries. Reed, 703 F.2d at 175 (emphasis added). Thus courts are to adhere to a strong presumption that an arms-length class action settlement is fair — especially when doing so will result in significant economies of judicial resources — absent evidence weighing against approval. See Turner v. Murphy Oil USA, Inc., 472 F.Supp.2d 830, 843 (E.D.La.2007) (“The public interest favoring settlement is especially apparent in the class action context where claims are complex and may involve a large number of parties, which otherwise could lead to years of protracted litigation and sky-rocketing expenses.”). That one class member of 369 has objected to the proposed settlement does not preclude the court from approving it. “[A] settlement can be approved despite opposition from class members, including named plaintiffs.” Ayers v. Thompson, 358 F.3d 356, 373 (5th Cir.2004) (citing Reed, Parker, and Cotton). “[I]n assessing the fairness of a proposed compromise, the number of objectors is a factor to be considered, but a settlement can be fair notwithstanding a large number of class members who oppose it.” Pettway, 576 F.2d at 1215 (citing Cotton, 559 F.2d at 1331); see also Reed, 703 F.2d at 174 (holding that while total number of objectors is not dispositive, it is one factor that courts should consider in conducting a fairness evaluation). Once a court is aware that there are objectors to a proposed settlement, it must allow an opportunity for their objections to be heard. Pettway, 576 F.2d at 1219. “However, this is not to say that the trial judge is required to open to question and debate every provision of the proposed compromise.” Cotton, 559 F.2d at 1331. When weighing the views of objecting class members, “the trial court may limit its proceeding to whatever is necessary to aid it in reaching an informed, just and reasoned decision.” Id. After allowing objectors to be heard, “[t]he trial court must then examine the settlement in light of objections raised and set forth on the record a reasoned response to the objections including findings of fact and conclusions of law necessary to support the response.” Pettway, 576 F.2d at 1219 (internal quotation marks omitted) (quoting Cotton, 559 F.2d at 1331). The court must analyze the facts and law relevant to the proposed settlement and must state the reasons justifying its decision. See Cotton, 559 F.2d at 1330 (“A mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law will not suffice.” (internal quotation marks omitted)). “[I]t is essential that the trial judge support his conclusions by memorandum opinion or otherwise in the record. An appellate court, in the event of an appeal, must have a basis for judging the exercise of the trial judge’s discretion.” Id. Ill The court now turns to the Reed factors. A The court first looks for the existence of fraud or collusion behind the settlement. “The Court may presume that no fraud or collusion occurred between counsel, in the absence of any evidence to the contrary.” Liger v. New Orleans Hornets NBA Ltd. P’ship., 2009 WL 2856246, at *3 (E.D.La. Aug. 28, 2009). Here, no allegations of fraud or collusion have been raised, and none is apparent. As Long’s counsel began cross-examining Brender during the fairness hearing, he stated that he had “no reason to believe and [made] no claim on behalf of [his] client that this settlement was the product of collusion or in any other untoward conduct by yourself [Brender] or Mr. Chasnoff.” Tr. 1:173. And Judge Martin, the mediator, avers that “[t]he settlement was reached only after a period of hard fought negotiations,” Ps. Ex. 41 at 1, and “was the result of arms length bargaining among the plaintiffs’ counsel, the defendants and their insurers,” id. at 2. This opinion is confirmed by the fairness-hearing testimony of counsel for the class plaintiffs and defendants, and by the legal experts who carefully evaluated the proposed settlement. See, e.g., Tr. 1:238 (testimony of Prof. Underwood) (“This case was hard fought from the beginning.”); Ds. Ex. 2 at 7 (statement of Prof. Silver) (“[T]he relationship between Class Counsel and Defendants was genuinely adversarial.”). The court finds that the proposed settlement is not the product of fraud or collusion. The evidence points unmistakably to the conclusion that the Settlement Agreement was the culmination of several years of pretrial proceedings, motion practice, and forceful negotiations by the class plaintiffs and defendants. This factor supports a finding that the settlement is fair, reasonable, and adequate. B Under the second Reed factor, the court considers the complexity, expense, and likely duration of the litigation. When the prospect of ongoing litigation threatens to impose high costs of time and money on the parties, the reasonableness of approving a mutually-agreeable settlement is strengthened. See Ayers, 358 F.3d at 369. This factor weighs strongly in favor of approving the proposed settlement. Although much has been done since 2004 (when the class was certified), considerable work will be required before the suit can proceed to trial. The testimony of counsel for both sides supports the finding that, despite substantial efforts already invested in this case, a great deal more time and resources will be required to prosecute it to a verdict. Brender states in his pre-hearing declaration that “[this] litigation has been extremely expensive and will prove to be even more so in the event this settlement is not approved.” Ps. Ex. 29 at 14. He cites as examples of the cost entailed in continued litigation the need to rely on a select number of E-Ferol medical experts, the number and geographical diversity of class members, and the need to develop evidence on the disputed issue of causation. Id. Likewise, Chasnoff testified at the hearing that “the sheer size [and] volume of medical evidence to be considered, the number of individual witnesses who would be involved, and the complexity of plaintiffs’ claims would assure a long, complex, and expensive trial.” Tr. 1:10. The medical experts called by both sides offered evidence regarding the nature of the scientific disputes, concerning both the appropriate methodology and the substance of the claims that would be at issue. They especially noted the complex causation issues related to the Category 3 brain injury claims. Each of the class plaintiffs’ medical witnesses opined that the brain injuries could be tied to E-Ferol, but each admitted that there was no published study that conclusively proves this link. See Tr. 1:65, 1:92, 1:133. These witnesses presented evidence about their research and analysis — both at the time of the EFerol recall and in preparation for this litigation — that sought to establish the brain-injury connection. Likewise, in his pre-hearing statement, Prof. Underwood opines that “class members would face significant issues of both general and specific causation and there is every reason to believe that Defendants would mount formidable challenges on these elements of the claims.” Ps. Ex. 28 at 12-13. Defendants intend to challenge vigorously the causation evidence that the class plaintiffs offer to support their claims, particularly for the Category 3 brain injury allegations and for the claims for costs of ongoing medical monitoring for Category 4 class members who have suffered no apparent injuries. See Ds. Ex. 1 at 4-7. Dr. O’Shea testified at the hearing that the incidence of brain injury is already high in any population of premature infants. Consequently, there may be causes other than E-Ferol for the injuries sustained by those in Category 3. See Tr. 2:138. He opined that flaws existed in the class plaintiffs’ evidence, and he concluded that there were “other factors which gave the [Category 3 claimants] a high risk of that brain dysfunction, regardless of E-Ferol.” Tr. 2:139. Moreover, Dr. O’Shea asserted that the theory supporting the Category 3 claims is itself flawed, even if there were not adequate explanations, other than EFerol, for the injuries. He opined that “the other issue that causes a lot of doubt on the possibility of E-Ferol causing brain dysfunction is that no one has been able to advance an argument of why that is biologically possible.” Id. Although experts for the class asserted confidence in their conclusions, Dr. O’Shea testified that he did not believe the study proved to a medical certainty that E-Ferol caused the neurological injuries. Tr. 2:141. Additionally, defense counsel argued that, even though a significant amount of discovery had already been conducted, additional fact-finding would be required before the case could be tried. See Tr. 1:11. Finally, defendants intend to appeal the court’s decision in Klein II denying in part their motion for partial summary judgment asserting the affirmative defense of limitations. They seek leave to take an interlocutory appeal from that ruling. If the court allows such an appeal, the trial will be delayed while the appeal is prosecuted. If the court declines to grant leave to appeal, defendants will presumably take such an appeal if there is an adverse verdict, which will also delay a recovery for the class plaintiffs. And, of course, if such an appeal were successful, class members’ claims could be barred altogether. The issues recounted above make clear that prolonging the case would lead to an increase in the already-sizeable investments of time and resources by the parties over the seven years since the case was filed. The fact that it has taken this long for the litigation to proceed to the point of a possible settlement speaks to the nature and scope of the issues in dispute. The contested issues of causation and the reliability of the class plaintiffs’ medical theories tying their injuries to EFerol indicate that any further litigation would require more time and expense for the parties to engage in a battle of medical experts. The efforts required to prove the class plaintiffs’ claims at trial would unquestionably be extremely complex and expensive, even if such efforts were guaranteed to be successful (which, of course, they are not). And approval of the proposed settlement would permit class members to recover damages much sooner than would be possible following a trial and probable appeal that might not be concluded for several years. “Ultimately, if Plaintiffs were to succeed at trial, they still could expect a vigorous appeal by Defendants and an accompanying delay in the receipt of any relief.” Schwartz v. TXU Corp., 2005 WL 3148350, at *19 (N.D.Tex. Nov. 8, 2005) (Kinkeade, J.). Approval of the Settlement Agreement provides relief while simultaneously freeing class members and defendants alike from the burdens and uncertainty inherent in additional litigation. The court finds that the complexity, expense, and likely duration of the case supports approving the proposed settlement. C Under the third Reed factor, the court considers the stage of the proceedings and the amount of discovery completed. It evaluates whether “the parties and the district court possess ample information with which to evaluate the merits of the competing positions.” Ayers, 358 F.3d at 369. A settlement can be approved under this factor even if the parties have not conducted much formal discovery. See, e.g., Cotton, 559 F.2d at 1332. Furthermore, “[t]he scope of the discovery to be conducted in each case rests with the sound discretion of the trial judge.” Id. at 1333. The testimony of lead counsel for the class plaintiffs and defendants, the legal expert witnesses, and the court’s familiarity with the discovery in this case confirm that the merits of the claims are well known to both sides. Settlement negotiations took place over a period of 14 months and did not begin until five years after suit was filed. Moreover, the parties benefited from the large number (estimated at over 130) of individual lawsuits alleging E-Ferol claims that preceded this case, as well as the prior criminal prosecution. The foundation laid by these cases aided in the development of the facts in this action and provided a means for counsel to measure the approximate value of the claims of class members. Class counsel were at some point able to identify and contact personally almost all, if not all, known recipients of E-Ferol or their representatives or survivors. This extensive contact with the class meant that each claim could be thoroughly explored, and it allowed the attorneys to evaluate the strength of their respective cases using hard facts rather than mere class-wide generalities. According to counsel, in addition to the depositions, interrogatories, and other formal discovery, the parties engaged in considerable informal discovery prior to the settlement negotiations. Class counsel collected discovery materials from the previous E-Ferol lawsuits in addition to the research generated specifically for this case. Both sides have employed the services of medical experts to evaluate the claims of class members and to understand their various strengths and weaknesses. Prof. Silver notes that the duration of the current case — which well exceeds his estimate of the typical duration of a class action suit — along with the previous EFerol litigation allowed both sides to appreciate the value of the claims. “[C]onsequently, the defendants had no reason to overpay and Class Counsel could easily recognize an inadequate offer.” Ds. Ex. 2 at 10. He opines that the previous EFerol lawsuits demonstrate that defendants are not merely trying to use settlement in this case as a means of avoiding discovery that might lead to subsequent cases. Because the facts surrounding EFerol are now so well developed, the Settlement Agreement likely represents a realistic estimate of the value of the claims, rather than a bargain struck for some ulterior purpose. Prof. Underwood confirmed during his hearing testimony that the litigation was well developed and that the motion practice evidenced by the court’s docket demonstrated that the merits of the case were well understood by all parties. Tr. 1:239-40. The court finds that the litigation is at an appropriate stage for settlement. Accordingly, this factor supports approving the proposed settlement. D The fourth Reed factor examines the probability of plaintiffs’ success on the merits of their claims. See Ayers, 358 F.3d at 370. Evaluating the likelihood of success “contains an internal tension.” Reed, 703 F.2d at 172. A district court faced with a proposed settlement must compare its terms with the likely rewards the class would have received following a successful trial of the case. The court, however, must not try the case in the settlement hearings because the very purpose of the compromise is to avoid the delay and expense of such a trial. Id. (citation and internal quotation marks omitted). Despite this tension, absent fraud or collusion, the most important Reed factor is the probability of plaintiffs’ success on the merits. Parker, 667 F.2d at 1209. Attorneys for both sides presented testimony regarding the class plaintiffs’ probability of success on the merits and the obstacles to recovery. In his pre-hearing declaration, Brender opines: The probability of success on the merits in this litigation hinges upon the strength of the medical causation evidence, the limitations defense in the death cases, the liability facts, the passage of time since the injury, the strength of the medical research by class medical experts, and the insurance structure and financial viability of the companies that insure both defendants. Ps. Ex. 29 at 16. In his pre-hearing statement, defendants’ counsel, Chasnoff, agrees with Brender’s characterization of the challenges to recovery by the class plaintiffs. Chasnoff notes that defendants contested the causation element in each case: for the death cases, he asserts that the class must prove that E-Ferol caused the deaths of the medically-challenged premature infants in Categories 1 and 2. See Ds. Ex. 1 at 4-5. As to the Category 3 brain injury cases, defendants maintain that the class cannot prove causation within a reasonable degree of medical certainty. If the settlement is not approved, defendants intend to present Daubert challenges to the class plaintiffs’ medical evidence. See id. at 5-6. Concerning the Category 3 neurological injury claims, specifically, Chasnoff opines that the medical evidence is wholly insufficient to sustain recovery. Id. at 5 (“[Defendants will argue that [plaintiffs’] theory of causation does not meet the standards of reliability required by Daubert and its progeny.”). As to the claims in Category 4, Chasnoff asserts, first, that some class members’ home states do not recognize a cause of action for medical monitoring (raising the possibility that these members’ claims would be dismissed), and, second, that all Category 4 claims will face causation obstacles (i.e., demonstrating that E-Ferol exposure either increased the risk of developing a serious latent disease or caused the deaths of the class members’ decedents). See id. at 6-7. Dr. O’Shea’s report purports to undermine much of the evidence on which the class relies, and he opines that there is too little medical support for the conclusion that the administration of E-Ferol led to brain injuries such as cerebral palsy. He testified that the main medical study supporting the Category 3 claims did not involve a control group of premature infants to compare with those receiving E-Ferol, and it did not account for variables that could have caused the claimed injuries. See Tr. 2:136-37. These challenges are especially potent because, due to the time that has elapsed since the events in question, conducting additional studies or research on E-Ferol’s neurological impacts would be difficult, if not impossible. If the available evidence were shown to be unreliable, this could preclude any recovery for class members in Category 3. Additionally, brain injuries such as those included in the Category 3 claims are not uncommon among premature infants, even without the influence of E-Ferol, and virtually all of the infants in question had significant health risks before they received the drug. See id. at 139. The class plaintiffs, of course, dispute the inadequacy of their evidence, but even class counsel admits that if the case were to proceed to trial, “[some] brain damage cases [would be lost] due to the complexity of medical causation.” Ps. Ex. 29 at 18. Defendants also intend to appeal (with leave before final judgment, or as of right afterward) the court’s partial denial of their motion for partial summary judgment on limitations grounds. Although the court rejected at the summary judgment stage defendants’ limitations arguments (other than concerning the Category 5 claims, which were dismissed), there are admittedly complex questions of limitations and notice for a class action that is based on events that occurred 26 or more years ago. A successful outcome for defendants’ appeal would result in no right of recovery for class members whose claims are time-barred. Moreover, refusing to approve the settlement will preclude any recovery for class members in Category 5 unless they prosecute and prevail on appeal. The proposed settlement is notable in that it provides reduced, although not insubstantial, recoveries for these claims, even though defendants would essentially be immune to any such liability if the case were tried on the merits and these plaintiffs were unsuccessful on appeal. The court finds that the evidence regarding the class plaintiffs’ probability of success on the merits favors approving the proposed settlement. On the one hand, the class plaintiffs have asserted strong claims that are similar to others that have obtained favorable settlements in prior EFerol lawsuits. There is little dispute about the underlying liability of defendants for manufacturing a defective product; the inherent dangers of E-Ferol are not contested; and the conduct at issue resulted in criminal convictions. The claims of the class plaintiffs are compelling, and jurors could be persuaded of their merit. On the other hand, the possibility of defendants’ successfully appealing the court’s summary judgment decision presents a risk of no recovery for many class members. Likewise, the difficulty of proving causation, especially for the Category 3 claims, is real. The medical evidence overall is based on a limited pool of available information and would be subject to challenges both in its inherent reliability and in its application to each claim. Moreover, a jury might be reluctant to award damages for acts that took place far in the past, particularly when considering claims for emotional injury and the like. Finally, the Settlement Agreement provides for sizeable awards to claims in Category 5 that, apart from the settlement, would have no chance of recovery absent the prosecution of a successful appeal, necessitating additional expense and perhaps substantial delay. Accordingly, the fourth Reed factor favors approval of the settlement. E 1 The fifth Reed factor requires that the court consider the range of possible recovery by the class. This factor compares the recovery for the class under the proposed agreement with the likely estimated value of the claims if they went to trial. Under this factor, a court should consider the views of objecting class members when their “objections to the settlement agreement center on their view that the relief it provides is inadequate.” Ayers, 358 F.3d at 370. “Parties give and take to achieve settlements. Typically neither Plaintiffs nor Defendants end up with exactly the remedy they would have asked the Court to enter absent the settlement.” Frew v. Hawkins, 2007 WL 2667985, at *6 (E.D.Tex. Sept. 5, 2007) (internal citations omitted) (citing United States v. Armour, 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971)). The court must determine whether, “[flaking into account the risks inherent in this litigation, as well as the costs of litigation, the settlement amount is fair and reasonable.” Quintanilla v. A & R Demolition Inc., 2007 WL 5166849, at *5 (S.D.Tex. May 7, 2007). The court’s analysis of the reasonableness of the recovery provided under the Settlement Agreement can take into account the challenges to recovery at trial that could preclude the class from collecting altogether, or from only obtaining a small amount. “[A]fter determining if any legal or factual obstacles exist, a district court must make an inquiry into whether the settlement’s terms fall within a reasonable range of recovery, given the likelihood of the plaintiffs’ success on the merits.” Turner, 472 F.Supp.2d at 849-50 (emphasis added). 2 The Settlement Agreement divides the class members into five categories (and some sub-categories). Class members are classified according to the type of injury claimed and the strength of available proof. Settlement funds are allocated among these categories by prescribed percentages, and each class member is entitled to a pro rata share of the percentage allocated to the member’s category. Under the Settlement Agreement, the death claims in Category 1 (where E-Ferol can be shown to be a substantial cause of the death) are allocated approximately $2 million per claim, while the Category 2 death claims (in which E-Ferol was only a contributing factor) are allocated approximately $1 million. In Category 3, the recoveries for brain injuries range between $1 million and $1.5 million, with larger amounts awarded for more severe injuries. Category 4 claimants, who include medical monitoring cases and death cases where E-Ferol is not thought to be the cause of death, receive approximately $35,000. Finally, the Category 5 claims, which the court dismissed in Klein II on limitations grounds, are allocated sums ranging from $236,000 (for dismissed claims that would otherwise fall into Category 1) to $118,000 (for dismissed Category 2 and 3 claims) to $4,000 (for dismissed Category 4 claims). The payments to each of the classes are reduced by the court’s award of attorney’s fees and expenses to class counsel and of compensation to the class representatives.