Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-18-2004
In Re: Diet Drugs
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4613
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"In Re: Diet Drugs " (2004). 2004 Decisions. Paper 1002.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-4613, 02-4616 and 03-1006
IN RE: DIET DRUGS (PHENTERMINE/
FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION
Class Members, each of whom is
a member of the Plaintiff Class,
Appellant (02-4613)
IN RE: DIET DRUGS (PHENTERMINE/
FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION
Williams Bailey Law Firm, LLP;
Blizzard, McCarthy & Nabers, L.L.P.
and Curran & Byrne, P.C., on behalf
of their clients who are Objectors
to and class members affected by
Pretrial Order No. 2663,
Appellants (02-4616)
IN RE: DIET DRUGS (PHENTERMINE/
FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION
Fleming & Associates, L.L.P.,
on behalf of its clients subject
to the suspension of Fund A and/or
Fund B processing deadlines,
Appellant (03-1006)
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(MDL No. 1203)
District Judge: Honorable Harvey Bartle, III
Argued December 10, 2003
Before: AMBRO, FUENTES and CHERTOFF, Circuit Judges
(Filed February 18, 2004)
Thomas E. Mellon, Jr., Esq.
Stephen A. Corr, Esq.
Mellon, Webster & Mellon
87 North Broad Street
Doylestown, PA 18901
Attorneys for Appellant
Class Members, Plaintiff Class
Robert E. J. Curran, Esq.
Curran & Byrne
606 East Baltimore Pike
P.O. Box 30
Media, PA 19063
Attorney for Appellants
William Bailey Law Firm, LLP
Blizzard, McCarthy & Nabers, LLP
Curran & Bryne PC
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Sylvia Davidow, Esq.
George M. Fleming, Esq.
Rand P. Nolen, Esq.
Fleming & Associates
1330 Post Oak Boulevard
Suite 3030
Houston, TX 77056
Michael L. O’Brien, Esq.
1330 Post Oak Boulevard
Suite 2900
Houston, TX 77056
Attorneys for Appellant
Fleming & Associates
Jonathan Massey, P.C., Esq. (Argued)
3920 Northampton Street N.W.
Washington, D.C. 20015
Attorney for Appellants
Consolidated Brief
Fred S. Longer, Esq.
Arnold Levin, Esq.
Michael D. Fishbein, Esq. (Argued)
Levin, Fishbein, Sedran & Berman
510 Walnut Street
Suite 500
Philadelphia, PA 19106
Attorneys for Appellees
Plaintiff Class and Class Counsel
Robert D. Rosenbaum, Esq.
Arnold & Porter
555 12 th Street, N. W.
Washington, D.C. 20004
Peter L. Zimroth, Esq. (Argued)
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Arnold & Porter
399 Park Avenue
New York, NY 10022-4690
Attorneys for Appellee
American Home Products Corporation
Andrew A. Chirls, Esq. (Argued)
Abbe F. Fletman, Esq.
Deena B. Beard, Esq.
Wolf, Block, Schoor & Solis-Cohen
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103
Attorneys for Appellee
AHP Settlement Trust
OPINION
AM BRO, Circuit Judge
Class members who had previously settled their mass tort class actions appeal the
District Court’s Pretrial Order No. 2663 (PTO 2663) suspending claim processing
deadlines contained in a court-approved settlement agreement. Because we conclude that
the District Court acted within its discretion, we affirm.
I. Factual Background
The original class action involved two diet drugs of American Home Products
Corporation (“AHP”), 1 Pondimin and Redux (fenfluramine and dexfenfluramine,
1
AHP changed its name to Wyeth in March 2002.
4
respectively). Approximately four million people took Pondimin and two million took
Redux before AHP removed the diet drugs from the market in 1997 after they were found
to be associated with valvular heart disease (“VHD”). In November 1999, plaintiffs and
AHP executed the Nationwide Class Action Settlement Agreement (the “Settlement
Agreement”). 2
The Settlement Agreement created two separate funds. A smaller fund (Fund A)
was to pay for echocardiogram screening costs, additional medical services to monitor
VHD, and reimbursement of diet drug prescriptions. A larger one (Fund B) was created
to compensate class members for their injuries. In September 2000, the AHP Settlement
Trust (the “Trust”) was created to administer the claims and payments of benefits to class
members.
The Settlement Agreement prescribes certain time periods within which the Trust’s
various claims processing functions must be completed. For example, the Trust has 30
days from the receipt of a claim for assigning a claim number and notifying the claimant
of that number, determining whether the claimant needs to submit additional information
and informing the claimant of it, and confirming the qualifications of any attesting
physician. Furthermore, the Trust must, within 45 days from receiving a completed
claim, determine whether the claimant is eligible for various benefits under the Settlement
2
Final judicial approval of the Settlement Agreement was granted on January 3, 2003.
5
Agreement. The Trust was unable to meet these deadlines.
The Settlement Agreement also provides that “[a]t any time, the Court may extend
any [relevant] time period for good cause shown upon application by the Parties,
Trustees, Claims Administrators(s), . . . , after notice to AHP and Class Counsel.” Based
on this provision, the Trust moved the District Court for suspension of processing
deadlines. The Trust claimed that it could not meet the deadlines because it experienced
an unexpectedly high volume of claims. It also argued that it was overwhelmed with
claims that lacked essential information such as claimants’ names, signatures, or
allegations of diet drug use.3 On December 3, 2002, upon finding that the Trust showed
good cause for the delay, the District Court, in PTO 2663, suspended deadlines for five
months. 4 The District Court noted that the deadlines would be automatically reinstated on
May 1, 2003. Class members appeal the District Court’s order.
II. Jurisdiction
The Trust challenges our jurisdiction, arguing that the District Court’s order is not
final under 28 U.S.C. § 1291. We disagree. While hardly every pretrial order in the Diet
Drug cases is final, this one is.
The only issue before the District Court was whether the Trust was allowed to
extend deadlines for processing claims. Contrary to the Trust’s suggestion, claims for
3
For example, the Trust asserts it received approximately 27,000 deficient claims for a
short time period in the late summer of 2002.
4
The deadlines have twice been extended further.
6
settlement benefits are not in dispute and no other order merges with PTO 2663. As there
are no other issues left to be disposed, appeal of the District Court’s order would not
result in delay. See Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976) (“The hostility
towards piecemeal appeals expressed by the final judgment rule has a strong basis in logic
and practicality. Forbidding appeals from all interlocutory judgments of the district
courts achieves significant savings in time and resources on the part of litigants and
courts. This is so since if litigation proceeds, the intermediate ruling may lose its
significance . . . .”) (citing Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 123-24
(1945); 15 C. Wright, A. M iller & E. Cooper, Federal Practice and Procedure § 3907
(1976)). In sum, the order in question was as final as it gets; it was the determination of
the only issue that was before the District Court and, therefore, is appealable under
§1291.5
III. Standard of Review
When the “[s]tipulation [of the parties] places into the District Court’s jurisdiction
ongoing authority over the Settlement, . . . with that comes the discretion necessary to
exercise jurisdiction.” In re Cendant Corp. Prides Litigation, 233 F.3d 188, 194 (3d Cir.
5
Although the District Court’s order expired on May 1, 2003, this case falls under an
exception to the mootness doctrine, which is applicable to “cases challenging ‘short term
orders, capable of repetition, yet evading review.’” Finberg v. Sullivan, 634 F.2d 50, 55
(3d Cir. 1980) (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)).
Indeed the further extension of deadlines makes the case for this exception. On
December 19, 2003, the District Court ordered the suspension of deadlines for the third
time – until February 29, 2004.
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2000). In this case, the Settlement Agreement provides that “the Court may extend any
[relevant] time period for good cause shown upon application by the Parties, Trustees,
Claims Administrators(s) . . . .” Thus, we review the District Court’s order
to extend the deadlines for abuse of discretion. Our review of the admissibility of
evidence is also for abuse of discretion. In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d
Cir. 1990).
VI. Discussion
A.
Class members argue that the Trust did not show good cause to extend the time
period. They contend that the District Court impermissibly rewrote the Settlement
Agreement by finding good cause for the delay and ordering suspension of deadlines. We
disagree.
The District Court concluded that good cause was shown for extension of
deadlines because it found that the delay resulted from unforeseen factors. The Court
first noted that the Trust received an unexpectedly high number of claims, far out of
proportion with the projections on which the Settlement Agreement was based. The
District Court also pointed out that tens of thousands of incomplete claim forms were
filed, which also contributed to the significant delay in processing time.
Class members do not dispute any pertinent findings by the District Court.
However, they assert that the claims processing delay was also due to the incompetence
8
of a contractor the Trust hired. Thus they contend that the District Court erred because it
did not in its order mention the fact that the Trust itself also contributed to the delay.
Because our review is for abuse of discretion, we will reverse if “the district
court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of
law, or an improper application of law to fact.” Int’l Union, United Auto., Aerospace and
Agric. Implement Workers of Am., UAW v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.
1987) (citing Int’l Olympic Comm. v. San Francisco Arts & Athletics, 781 F.2d 733, 738
(9th Cir. 1986)). “A finding of fact is clearly erroneous when, after reviewing the
evidence, the court of appeals is ‘left with a definite and firm conviction that a mistake
has been committed.’” Oberti by Oberti v. Bd. of Educ. of Borough of Clementon School
Dist., 995 F.2d 1204, 1220 (3d Cir. 1993) (quoting Anderson v. Bessemer City, 470 U.S.
564, 573 (1985)). In this case, the record indicates that incompetence of the Trust’s
contractor did contribute to the delay to some extent. However, the record also supports
the finding that the unexpected high number of claims was a major cause for the delay.
Morever, the District Court did not find that the large number of claims was the only
cause for the delay. It determined that the delay was “at least in part” the result of
unforeseen factors not specifically noted. Not listing them, while not helpful, need not
destroy our deference to discretion well exercised for the reason noted.
In In re Cendant Corp. Prides Litigation, we determined that “where the parties
affirmatively subjected themselves to the Court’s jurisdiction by seeking its assistance in
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administering the settlement and deliberately left the important dates to the Court’s
discretion,” the District Court “had the power to modify the terms of the Stipulation
originally set by the Court . . . .” 233 F.3d at 197. Likewise, class members in this case
affirmatively subjected themselves to the Court's discretion by leaving the determination
of what is good cause to the Court instead of defining it themselves. Given that we do not
find any clear error in the District Court’s expressed findings, we conclude that it acted
within its discretion when it found good cause for the suspension of the deadlines.
B.
Class members also challenge the District Court’s ruling regarding the admission
of evidence. Invoking Federal Rule of Evidence Rule 1006,6 they argue that the Trust’s
summary of data was impermissibly admitted because they were not given access to the
original database.
It is well established that “[t]he admission or exclusion of evidence is a matter
particularly suited to the broad discretion of the trial judge.” In re Merritt Logan, 901
F.2d at 359. The summary in dispute was only relevant to this case in that it contained
6
The Rule reads:
Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of a chart,
summary, or calculation. The originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at reasonable time and place. The
court may order that they be produced in court.
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information about how many claims the Trust received and thereby established that a lot
more claims were filed than the Trust had anticipated. Moreover, the record shows that
class members conceded during the hearing that they were not disputing the number of
claims the Trust received. Given the broad discretion accorded the District Court to
admit or exclude evidence, we conclude that it did not abuse its discretion in admitting
the summary evidence.
* * * * *
Accordingly, we affirm the District Court’s PTO 2663.
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