                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"In Re: Diet Drugs " (2004). 2004 Decisions. Paper 1002.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1002


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                                       NOT PRECEDENTIAL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




                            2
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)

  3
                                           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.

                                              7
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


                                               9
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.


                                               10
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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