UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: A. H. ROBINS COMPANY,
INCORPORATED,
Debtor.

WILLIAM C. HOFSTETTER,                                              No. 96-2441
Appellant,

v.

DALKON SHIELD CLAIMANTS TRUST,
Trust-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-85-1307-R)

Submitted: December 30, 1997

Decided: January 27, 1998

Before RUSSELL, WIDENER, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William C. Hofstetter, Appellant Pro Se. Orran Lee Brown, Sr.,
DALKON SHIELD CLAIMANTS TRUST, Richmond, Virginia, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Dalkon Shield Claimants who received compensatory damage
awards from the Dalkon Shield Claimants Trust (Trust) are to be paid,
in lieu of punitive damages, a pro rata share of funds remaining in the
Trust once all claims are paid in full. These pro rata payments will
be made without further effort by the claimant or the claimant's attor-
ney. See In re A.H. Robins Co. (Bergstrom v. Dalkon Shield Claim-
ants Trust), 86 F.3d 364, 370 (4th Cir. 1996), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3364 (U.S. Nov. 18, 1996) (No. 96-440).

We upheld the district court's March 1, 1995, order that counsel for
Dalkon Shield Claimants may not recover fees exceeding ten percent
of the pro rata distribution. See id. at 367. That order provided a
mechanism for seeking reinstatement of larger contingent fees and set
a hearing for April 27, 1995, on any motions for reinstatement of fees
in excess of ten percent. See id. at 371.

Appellant William Hofstetter filed a motion for reinstatement of
full contingent fees out of pro rata payments. Hofstetter advised the
district court that he would not appear at the April 27 hearing on the
motions for reinstatement and that he would not hire anyone to appear
on his behalf at the hearing. In its March 1 order, the district court had
directed attorneys who intended to file motions to advise the court
whether they would appear at the hearing or, if not, to identify the
person who would appear on behalf of the movant. The district court
also instructed that movants file exhibits to be offered in support of
their motions and to file a list of persons who might testify at the
hearing. Not only did Hofstetter or anyone acting on his behalf fail
to appear at the hearing, but he took no steps to have his pleadings
or two affidavits admitted, by deposition or otherwise, into evidence
at the hearing.

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Following our decision in Bergstrom, the district court denied Hof-
stetter's motions for reinstatement as lacking evidentiary support. The
court observed that Hofstetter did not appear at the hearing and that
the documents offered in support of the motions constituted unauthen-
ticated hearsay. Hofstetter appeals.

His primary claim is that the documents were admissible under
Fed. R. Evid. 404(b). We note that Hofstetter did not raise this claim
before the district court and has waived its consideration on appeal.
Even if not waived, however, the claim lacks merit. The documents
supporting his motion were photocopies of: his fee agreements with
his clients; the complaints he filed in federal district court; and item-
ized statements of services rendered for his clients. Additionally, Hof-
stetter submitted an affidavit stating that the photocopies were true
and correct.

Under the residual hearsay exception, a statement is admissible if:
(1) it has "circumstantial guarantees of trustworthiness," (2) it is "of-
fered as evidence of a material fact," (3) it"is more probative on the
point for which it is offered than any other evidence which the propo-
nent can procure through reasonable efforts," (4) admitting the state-
ment will serve the purposes of the Rules of Evidence and the
interests of justice; and (5) the opposing party was given adequate
notice of the proponent's intention to invoke the exception. Fed. R.
Evid. 803(24). Because Hofstetter reasonably could have provided
evidence about the content of the documents--for example, through
deposition or live testimony--he cannot satisfy the third element. The
district court therefore did not abuse its discretion in determining that
the material was inadmissible hearsay and that Hofstetter had pre-
sented no evidence in support of his motion for reinstatement of fees.

Hofstetter's other arguments on appeal warrant little discussion. He
observes that over half of the attorneys who moved for reinstatement
of fees failed to appear at the hearing, apparently intending to stand
on their motions and supporting documentation alone. This, Hofstetter
argues, demonstrates that the court's March 1 order was misleading.
Their failure to appear does not necessarily establish that those attor-
neys who did not attend the hearing were misled. Even if they were
acting under the assumption that the Rules of Evidence would not
apply, they, as attorneys, should have known that the Rules would be

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applied, as they typically are in court proceedings. The district court
was under no obligation to inform the attorneys that evidence would
be taken in accordance with the Rules.

Finally, Hofstetter argues that the district court's order limiting the
amount of fees he may recover from the pro rata distribution deprives
him of property (his contractual right with his clients to recover forty
percent of any damages awarded) without due process of law. Hof-
stetter had notice of the hearing and an opportunity to be heard on his
motion. This argument is plainly without merit.

The district court did not abuse its discretion in denying the motion
for reinstatement of fees. We accordingly affirm. We dispense with
oral argument because the facts and legal contentions are fully pre-
sented in the materials before us and argument would not aid the deci-
sional process.

AFFIRMED

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