In Re: Diet Drugs

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

8-11-2005

In Re: Diet Drugs
Precedential or Non-Precedential: Precedential

Docket No. 04-2413

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 04-2413, 04-2463, 04-2464, 04-2575, 04-2886,
04-2887, 04-2888, 04-2889, 04-2891, 04-2897, 04-2898,
04-2982, 04-3845, 04-3846, 04-4392, 05-2216, 05-2217,
05-2218, 05-2219, 05-2220, 05-2221, 05-2222, 05- 2223,
05-2224, 05-2225, 05-2226, 05-2227 & 05-2488

IN RE: DIET DRUGS (PHENTERMINE/
FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION

Mike Cockrell, et al., Appellants in No. 04-2413
Sandra S. Sorrell, et al., Appellants in No. 04-2463
Robert Shoemaker, et al., Appellants in No. 04-2464
Lisa Phelps-Dorris, et al., Appellants in No. 04-2575
Claudia Edwards, et al., Appellants in No. 04-2886
Jennifer Legg, et al., Appellants in No. 04-2887
Angela Martin, et al., Appellants in No. 04-2888
Mary Killebrew, et al., Appellants in No. 04-2889
Teresa Russum, et al., Appellants in No. 04-2891
Eileen Turner, et al., Appellants in No. 04-2897
Janice McCrory, et al., Appellants in No. 04-2898
Mitzi M. Wilson, et al., Appellants in No. 04-2982
Barbara A. Geisert, et al., Appellants at No. 04-3845
Pamela G. Ellison, et al., Appellants at No. 04-3846
Ashley Irwin, et al., Appellants at No. 04-4392
 Elvia Aguirre, et al., Appellants at No. 05-2216
Carmela Araujo, et al., Appellants at No. 04-2217
Delores Baker, et al., Appellants at No. 05-2218
Lydia N. Bell, et al., Appellants at No. 05-2219
Maria L. Alexander, et al., Appellants at No. 05-2220
Holly J. Anderson, et al., Appellants at No. 05-2221
Ilene R. Allen, et al., Appellants at No. 05-2222
Jerry Chavez, et al., Appellants at No. 05-2223
Carolyn A. Hunter, et al., Appellants at No. 05-2224
Leslie Bales, et al., Appellants at No. 05-2225
Ursula Asher, et al., Appellants at No. 05-2226
Larry M. Russell, et al., Appellants at No. 05-2227
Alysmay Antonucci, et al., Appellants at No. 05-2488

Appeals from the United States District Court
for the Eastern District of Pennsylvania
(MDL No. 1203 and D.C. Nos. 03-cv-20626, 04-cv-20086,
04-cv-20094, 04-cv-20096, 03-cv-20326, 03-cv-20316,
03-cv-20329, 03-cv-20229, 03-cv-20360, 04-cv-20097,
03-cv-20625, 03-cv-20280, 04-cv-20098,
04-cv-20099, 03-cv-20428, 04-cv-27317, 04-cv-21387,
04-cv-26961, 04-cv-26581, 04-cv-26750, 04-cv-23759,
04-cv-22924, 04-cv-22900, 04-cv-21668, 04-cv-20899,
04-cv-20100, 04-cv-20095 & 04-cv-22922)
District Judge: Honorable Harvey Bartle, III

Argued June 7, 2005

2
 Before: AMBRO, STAPLETON and
ALARCÓN*, Circuit Judges

(Filed August 11, 2005)

George M. Fleming, Esquire
Sylvia Davidow, Esquire
Anita Kawaja, Esquire
Fleming & Associates, L.L.P.
1330 Post Oak Blvd., Suite 3030
Houston, TX 77056

Jonathan Massey, Esquire (Argued)
7504 Oldchester Road
Bethesda, MD 20817

Mario D’Angelo, Esquire
Hariton & D’Angelo
3500 Sunrise Highway, Suite T-207
Great River, NY 11739

Paul J. Napoli, Esquire
Denise A. Rubin, Esquire
Napoli, Kaiser, Bern & Associates
3500 Sunrise Highway, Suite T-207
Great River, NY 11739
Counsel for Appellants

* Honorable Arthur L. Alarcón, United States Circuit
Judge for the Ninth Circuit Court of Appeals, sitting by
designation.

3
Peter L. Zimroth, Esquire
Arnold & Porter LLP
399 Park Avenue
New York, NY 10022

Michael T. Scott, Esquire
Paul B. Kerrigan, Esquire
Reed Smith LLP
2500 One Liberty Place
Philadelphia, PA 19103

Robert D. Rosenbaum, Esquire (Argued)
Sarah M. Brackney
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004
Counsel for Appellee, Wyeth Corporation

Fred S. Longer, Esquire
Arnold Levin, Esquire
Michael D. Fishbein, Esquire
Levin Fishbein Sedran & Berman
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Counsel for Appellees, Plaintiffs’ Management
Committee and Plaintiffs’ Class

William G. Frey, Esquire
Wolf, Block, Schorr & Solis-Cohen
1650 Arch Street, 22 nd Floor
Philadelphia, PA 19103

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Barry M. Klayman, Esquire
Wolf, Block, Schorr & Solis-Cohen
1100 North Market, Suite 1001
Wilmington, DE 19801
Counsel for Appellee, AHP Settlement Trust

Peter D. Keisler
Assistant Attorney General
Patrick L. Meehan
United States Attorney
Scott R. McIntosh, Esquire
Christine N. Kohl, Esquire (Argued)
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Counsel for Amicus-Appellee, Clerk of the U.S.
District Court for the Eastern District of Pennsylvania

OPINION OF THE COURT

AMBRO, Circuit Judge

Twenty-eight consolidated appeals have been filed by
various plaintiffs in the diet drugs product liability multidistrict
litigation challenging the District Court’s interpretation of the

5
filing fee statute, 28 U.S.C. § 1914, and seeking in the
alternative a writ of mandamus. We dismiss the appeals for lack
of appellate jurisdiction. We also deny relief by way of
mandamus.

I. Factual Background and Procedural History

Various facets of the diet drugs multidistrict litigation
have been summarized elsewhere. See, e.g., In re Diet Drugs,
385 F.3d 386, 389-93 (3d Cir. 2004); In re Diet Drugs, 282 F.3d
220, 225-29 (3d Cir. 2002). The nationwide settlement
agreement reached allows plaintiffs to opt out of the class at
“various places along the continuum of the settlement period.”
In re Diet Drugs, 369 F.3d 293, 299 (3d Cir. 2004). Here, Mike
Cockrell, et al., whose ranks swell into the thousands, are
plaintiff class members who exercised their intermediate opt-out
rights under that agreement. Under its terms, intermediate opt-
outs are entitled to pursue tort claims subject to limitations on
the damages that may be sought (including, inter alia, a bar
against seeking punitive damages).

Plaintiffs filed complaints in Georgia and Mississippi
state courts, naming dozens (some even hundreds) of individuals
as co-plaintiffs. Notwithstanding the number of plaintiffs
named in the pleadings, a single filing fee was paid for each
complaint. The actions were removed to federal district courts
in Georgia and Mississippi, with a single fee paid for each
complaint removed, and the Judicial Panel on Multidistrict

6
Litigation transferred the cases pending in both the Georgia and
Mississippi federal courts to the United States District Court for
the Eastern District of Pennsylvania. In March 2004, the
District Court issued Pretrial Order No. 3370 (“PTO 3370”) to
establish procedures to address the joinder (or misjoinder) of
parties. Specifically, the District Court directed the severance
of the multi-plaintiff actions, pursuant to Federal Rule of Civil
Procedure 21, in order to “facilitate the efficient administration
of actions docketed” in the diet drugs multidistrict litigation.
Under PTO 3370, plaintiffs subject to severance then had sixty
days to file a “severed and amended” complaint or suffer
dismissal with prejudice.

Many plaintiffs moved for reconsideration of the
severance order insofar as it required payment of multiple filing
fees. The Court considered the language of the filing fee statute,
which provides that the “clerk of each district court shall require
the parties instituting any civil action, suit or proceeding in such
court, whether by original process, removal or otherwise, to pay
a filing fee of $150 . . . .” 28 U.S.C. § 1914(a).1 Concluding
that the “payment of a $150 filing fee for every severed and
amended complaint [was] not only just but . . . mandated by

1
Congress subsequently amended 28 U.S.C. § 1914 to increase
the filing fee in civil actions to $250.

7
§ 1914(a),” the District Court denied the motions for
reconsideration. Plaintiffs timely appealed.2

III. Appellate Jurisdiction

This case falls within the District Court’s subject matter
jurisdiction under 28 U.S.C. § 1332(a), as there is complete
diversity of citizenship among the parties and the amount in
controversy exceeds $75,000. Whether we have appellate
jurisdiction—an issue that has been raised in Wyeth’s motion to
dismiss and which we would otherwise raise sua
sponte—requires a more detailed examination.3

2
Though Plaintiffs are challenging multiple (but substantively
similar) orders, we refer to the consolidated appeals as being
from a single order (the “Order”) for the sake of simplicity.
3
As Plaintiffs have all paid the filing fees, Wyeth argues that the
appeals are not ripe for review, contending that an order
threatening dismissal if the filing fee remains unpaid will
become ripe for appeal only when the case has been dismissed
with prejudice for failure to pay the fee. In effect, Wyeth
suggests that a party must wager the ability to obtain any relief
whatsoever against $150 (now $250)—a suggestion that would
nearly guarantee that a filing fee order would go unchallenged.
In any event, this line of argument essentially restates Wyeth’s
argument under the third prong of the collateral order test—as
we discuss below—that a filing fee Order will be reviewable on
appeal from the final judgment. Moreover, because counsel for

8
 We may acquire jurisdiction over appeals through final
judgments under 28 U.S.C. § 1291 4 and collateral orders under
the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541, 546 (1949). In re Diet Drugs Prods. Liab. Litig., 401
F.3d 143, 154 (3d Cir. 2005).5 Generally, a decision of the
district court is “final” under § 1291 if it “ends the litigation on
the merits and leaves nothing for the court to do but execute the
judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945);
see also Aluminum Co. of Am. v. Beazer East, Inc., 124 F.3d

Wyeth represented at oral argument that it forgoes contending
that the Order will be unreviewable following final judgment, its
position is not that the Order never will be “ripe,” but merely
that it is not “ripe” until final judgment. Thus, it is presenting
its argument under the third prong of the collateral order test in
a different guise.
4
“[C]ourts of appeals . . . shall have jurisdiction of appeals from
all final decisions of the district courts of the United States . . . .”
28 U.S.C. § 1291.
5
Though the Courts also have appellate jurisdiction over
interlocutory orders concerning injunctions under 28 U.S.C. §
1292(a), questions certified for appeal by the district court and
then accepted by the appellate court under 28 U.S.C. § 1292(b),
and certifications by the district court pursuant to Federal Rule
Civil Procedure 54(b) of “final” judgments when the court has
disposed of less than all parties or issues in a given case, see
Diet Drugs, 401 F.3d at 154, no one of these grounds applies
here.

9
551, 557 (3d Cir. 1997) (explaining that “there is no final order
if claims remain unresolved and their resolution is to occur in
the district court”). Here, the litigation arising from the various
“severed and amended” complaints is ongoing. Thus the orders
are far from being “final decisions” that are ordinarily the
subject of appeal under § 1291.

However, as the Supreme Court has interpreted the
phrase “final decision” in § 1291, there exists “a narrow class
of collateral orders which do not meet [the] definition of
finality, but which are nevertheless immediately appealable
under § 1291.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
712 (1996). Recognizing this, our Court has explained that the
collateral order doctrine

provides a narrow exception to the
general rule permitting appellate
review only of final orders. An
appeal of a nonfinal order will lie if
(1) the order from which the
appellant appeals conclusively
determines the disputed question;
(2) the order resolves an important
issue that is completely separate
from the merits of the dispute; and
(3) the order is effectively
unreviewable on appeal from a
final judgment.

10
In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997)
(citations omitted).

Because we conclude that the filing fee Order fails to
satisfy the third prong, we confine our analysis to it. Powers v.
Southland Corp., 4 F.3d 223, 231 (3d Cir. 1993). Under this
prong, an order must be effectively unreviewable, meaning that
“review postponed will, in effect, be review denied.” Zosky v.
Boyer, 856 F.2d 554, 561 (3d Cir. 1988). From another angle,
“review after final judgment is ineffective if the right sought to
be protected would be, for all practical and legal purposes,
destroyed if it were not vindicated prior to final judgment.” In
re Ford Motor Co., 110 F.3d at 962.

Initially, we observe that the “right” that plaintiffs assert
involves payment of a monetary sum, which differs from the
more typical collateral order cases involving, for example, the
right to be free from trial or the right to withhold privileged
materials from disclosure. The difference between those cases
and the situation confronted here is clear: once a party has stood
for trial or the putatively privileged material is disclosed, the
very right sought to be protected has been destroyed. Id. at 963.
That is not to conclude that there may never be a situation where
the stakes are monetary and yet an order may be appealable
under Cohen. Cf., e.g., Palmer v. Chicago, 806 F.2d 1316, 1320
(7th Cir. 1986) (holding that award of fees paid into fund to be
distributed to prisoner-plaintiffs was appealable under the
collateral order doctrine in part because the defendant may not

11
have been able to recover that money in the event the order
establishing the fund was overturned). As there is no suggestion
that the sums involved will not be recoverable at the conclusion
of the litigation, the situation we confront raises different
considerations than the more typical collateral order cases.

Key to plaintiffs’ argument is the assertion that the Order
cannot be reviewed after final judgment. This argument cannot
succeed, however, as it does not square with the merger
rule—that interlocutory orders merge into the final judgment
and may be challenged on appeal from that judgment. See
OSHA Data/CIH, Inc. v. United States DOL, 220 F.3d 153, 162
n.20 (3d Cir. 2000) (“[I]t is a well-known general principle that
interlocutory orders merge in the final judgment of the District
Court.”); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252,
1253 (3d Cir. 1977) (indicating that “the appeal from a final
judgment draws in question all prior non-final orders and rulings
which produced the judgment”); see also Jay Foods, LLC v.
Chemical & Allied Prod. Workers Un., Local 20, AFL-CIO, 208
F.3d 610, 614 (3d Cir. 2000) (“A party can wait until the
litigation is over and then bring a single appeal from the
judgment and challenge all nonmoot interlocutory orders,
appealable or not, rendered along the way.”).

Further, we reject plaintiffs’ contention that the filing
fee issue will become moot by the time of final judgment.
Plaintiffs have not identified any events—nor do we perceive
any—that may occur during the course of proceedings that

12
would eliminate their stake in the outcome of the resolution of
the filing fee issue or that would prevent us from remedying the
payment of the filing fees if it is decided that they were
improperly imposed. Cf. Blanciak v. Allegheny Ludlum Corp.,
77 F.3d 690, 698-699 (3d Cir. 1996) (“If developments occur
during the course of adjudication that eliminate a plaintiff’s
personal stake in the outcome of a suit or prevent a court from
being able to grant the requested relief, the case must be
dismissed as moot.”). We find apt analogy in monetary
sanctions for discovery violations. When a district court
imposes sanctions—including, for example, monetary
sanctions—for a party’s violation of the terms of a discovery
order, review of the sanctions order is available following
disposition on the merits by the district court. See, e.g., Black
Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275,
301-305 (3d Cir. 2000) (reviewing monetary sanctions after
conclusion of district court proceedings); Charles A. Wright &
Arthur R. Miller et al., Federal Practice & Procedure § 2284
(2d ed. 1994). Although the underlying discovery dispute that
led to the sanctions order may not bear on the resolution of the
proceedings, that order, insofar as it requires a party to make
payment, remains subject to appellate review. Similarly, though
the filing fee Order will not affect the outcome of the litigation,
it, like a discovery order, has resulted in a separate obligation
that will not be mooted by future proceedings.

Plaintiffs also assert that, should they prevail on the
merits, they will not be “aggrieved” for purposes of challenging

13
the filing fees orders. We recognize that a party that is not
“aggrieved” by an order lacks standing to appeal it. See IPSCO
Steel (Ala.), Inc. v. Blaine Constr. Corp., 371 F.3d 150, 154 (3d
Cir. 2004) (“In order to have standing to appeal a party must be
aggrieved by the order of the district court from which it seeks
to appeal.” (quoting McLaughlin v. Pernsley, 876 F.2d 308, 313
(3d Cir. 1989))). When a court grants the ultimate relief a party
requested, though on grounds other than those urged by that
party, it is generally not “aggrieved” by the judgment and may
not appeal. See Spencer v. Casavilla, 44 F.3d 74, 78 (2d Cir.
1994); Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333
(1980). But a judgment for a plaintiff on the merits in no way
resolves whether filing fees for all cases are due. To the extent
plaintiffs are required to pay a fee which they contend the
District Court was not authorized to impose upon them, they
remain aggrieved for standing purposes.

Plaintiffs strenuously respond that resolving the filing
fee issue—which affects thousands of plaintiffs—at this time
will be more efficient than resolving it later. Assuming they are
correct, efficiency is not the standard by which we assess
arguments under the third prong of the Cohen test. Without
plaintiffs establishing that the Order is effectively unreviewable
on appeal from the final judgment, we are without jurisdiction
to reach the merits of their challenge.

III. Writ of Mandamus

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 Plaintiff seek, in the alternative, a writ of mandamus.
This writ (or one of prohibition) has been used “to confine an
inferior court to a lawful exercise of its prescribed jurisdiction
or to compel it to exercise its authority when it is its duty to do
so.” In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000); see
also 28 U.S.C. § 1651(a) (codifying the common law writ of
mandamus by providing that the “Supreme Court and all courts
established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law”). Mandamus provides a
“drastic remedy that a court should grant only in extraordinary
circumstances in response to an act amounting to a judicial
usurpation of power.” Hahnemann Univ. Hosp. v. Edgar, 74
F.3d 456, 461 (3d Cir. 1996) (citations and internal quotation
marks omitted)).

Three conditions precede seeking a mandamus writ:

no other adequate means to attain
the relief . . . desire[d]—a condition
designed to ensure that the writ will
not be used as a substitute for the
regular appeals process[;] . . .
showing that . . . [the] right to
issuance of the writ is clear and
indisputable[; and] . . . the issuing
court, in the exercise of its
discretion, . . . [is] satisfied that the

15
 writ is appropriate under the
circumstances.

Cheney v. United States Dist. Court, 542 U.S. 367, ___ (2004)
(citations, internal quotations marks and brackets omitted).

The first prerequisite—that the petitioner have no other
adequate means to attain the relief sought—“emanates from the
final judgment rule: mandamus must not be used as a mere
substitute for appeal. ” Westinghouse Elec. Corp. v. Republic of
Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991); see also
Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996) (“Indeed, a
writ of mandamus may not issue if a petitioner can obtain relief
by appeal . . . .”). The Supreme Court has cautioned that “an
appellate court cannot rightly exercise its discretion to issue a
writ whose only effect would be to . . . thwart the Congressional
policy against piecemeal appeals.” Roche v. Evaporated Milk
Ass’n, 319 U.S. 21, 30 (1943); cf. In re Bankers Trust Co., 775
F.2d 545, 547 (3d Cir. 1985) (explaining that mandamus relief
is “available only when necessary to prevent grave injustice”
and is not to be used merely to obtain interlocutory relief).

Further, in the mandamus context, “adequate review”
encompasses both immediate appeals under, for example, Cohen
and appeals following final judgment. See Hahnemann Univ.
Hosp., 74 F.3d at 461 (“To be sure, appeal after final judgment
constitutes ‘other means’ of relief.”); Roche, 319 U.S. at 31
(“[Where] the inconvenience to the litigants results alone from

16
the circumstance that Congress has provided for review of the
district court’s order only on review of the final judgment, and
not from an abuse of judicial power[,] . . . [there are] no special
circumstances which would justify the issuance of the writ.”).
For the reasons discussed in connection with the collateral order
doctrine, the first requirement for a writ of mandamus is not
met—plaintiffs can wait until appealing the final judgment to
raise their objections to the imposition of the filing fee. Their
arguments raise what is in some sense the classic issue for
appeal—the disputed meaning of a statute, the consequences of
which have (relatively modest) monetary consequences for any
given plaintiff. Though the effect of such an appeal is
magnified many times given the sheer number of parties
involved, we have previously rejected the contention that the
scope (or even the complexity) of a case, without more, is
sufficient to warrant the issuance of the writ. In re Sch.
Asbestos Litig., 977 F.2d 764, 788 n.14 (3d Cir. 1992). As we
have already rejected that contention in discussing the collateral
order doctrine, the more extraordinary mandamus relief hardly
passes muster here.

IV. Conclusion

We dismiss these appeals for lack of appellate
jurisdiction, and we deny plaintiffs’ request, in the alternative,
for a writ a mandamus.

17