                                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 09-2424


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


                                DENISE SWANIGAN,
                                         Appellant




                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                 (D.C. Civil No. 99-20593)
                District Judge: Honorable Harvey Bartle, III, Chief Judge




                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 13, 2010

          Before: SLOVITER, NYGAARD, Circuit Judges, and RESTANI,* Judge

                                 (Filed: April 14, 2010)




                                       OPINION

RESTANI, Judge.




      *
         Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
       Denise Swanigan appeals the order of the United States District Court for the

Eastern District of Pennsylvania affirming an arbitrator’s denial of additional benefits

under the Diet Drug Nationwide Class Action Settlement Agreement (“Settlement

Agreement”) with Wyeth Corporation (“Wyeth”).1 We will affirm.

                                             I.

       Swanigan, a class member under the Settlement Agreement, seeks benefits from

the AHP Settlement Trust (“Trust”), which was established to resolve claims against AHP

arising from the sale, distribution, and use of certain diet drugs.2 Swanigan submitted a

Pink Form in August 2000 to register with the Trust and attached a supporting declaration

by Dr. Albert Brown (“Brown Declaration”) to prove diet drug ingestion. The Trust

determined that she was eligible to receive a screening echocardiogram and a partial

refund for the diet drugs. After her screening, Swanigan received a $6,000 “FDA

Positive” cash benefit, which signified that she exhibited some non-trivial level of heart

valve leakage, and a $500 Prescription Reimbursement benefit. In January 2003,

Swanigan submitted a Green Form to the Trust stating that her medical condition entitled

her to additional benefits.

       In September 2003, the Trust issued a deficiency notice to Swanigan because her



       1
        Prior to March 2002, Wyeth Corporation was known as American Home
Products Corporation (“AHP”).
       2
         The settlement class includes “[a]ll persons . . . who ingested [diet drugs]” even
after the action began. (App. 110.)

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proof of ingestion documents did not meet the requirements of the Settlement Agreement.

In November 2003, Swanigan wrote to the Trust indicating that she was unable to locate

Dr. Brown, and she submitted affidavits from her mother, co-worker, family doctor, and

herself. Between November 2003 and September 2006, Class Counsel and the Trust

contacted Swanigan several times by letter and telephone to inquire about her diet drug

prescription. Swanigan provided no further proof of diet drug ingestion. In September

2006, the Trust denied Swanigan’s Green Form claim for additional benefits. Swanigan

appealed the Trust’s denial, and the matter was referred to arbitration pursuant to the

Settlement Agreement.

       The arbitrator issued a report and award affirming the Trust’s determination, which

Swanigan appealed to the District Court. In April 2008, the District Court affirmed the

arbitrator’s report and award, Brown v. Am. Home Prods. Corp. (In re Diet Drugs), No.

99-20593, 2008 WL 1776443 (E.D. Pa. 2008), and denied Swanigan’s subsequent motion

for reconsideration and petition to submit new evidence. Swanigan now appeals those

decisions.

                                             II.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing a

district court’s order confirming an arbitration award, we review the district court’s

findings of fact for clear error and exercise plenary review over the district court’s

determination of questions of law. China Minmetals Materials Imp. & Exp. Co., v. Chi



                                              3
Mei Corp., 334 F.3d 274, 278 (3d Cir. 2003) (citing First Options of Chicago, Inc. v.

Kaplan, 514 U.S. 938, 947–48 (1995)).

                                             III.

        Swanigan appeals, contending that she provided sufficient proof of diet drug

ingestion. In the event that this Court does not agree, Swanigan argues that the Trust

should be equitably estopped from denying her claim. Alternatively, Swanigan claims

that this Court should bar the Trust from requiring Swanigan to substantiate her diet drug

ingestion under the doctrine of laches. Swanigan also argues that the Pink Form

constituted a contract which required Wyeth to consider her proof of diet drug ingestion

sufficient for additional benefits. Finally, Swanigan seeks to admit two documents

regarding Dr. Brown as further proof of her diet drug ingestion. We will address each in

turn.

        The Settlement Agreement requires “documentary proof” of diet drug ingestion to

complete the submission of a claim. (App. 185.) If pharmacy or medical records are

unobtainable,3 the “proof must include . . . an affidavit . . . from the prescribing physician

or dispensing pharmacy identifying the Diet Drug Recipient, the drug(s) prescribed or

dispensed, the date(s), quantity, frequency, dosage and number of prescriptions or refills

of the Diet Drug(s).” (App. 186.) The Brown Declaration was Swanigan’s attempt to




        3
      It is undisputed that Swanigan did not submit any pharmacy or medical records
documenting diet drug use.

                                              4
fulfill this requirement.

       The District Court found that the Brown Declaration was insufficient to prove diet

drug ingestion because: (1) the time period during which Dr. Brown alleged he dispensed

the drugs to Swanigan was ambiguous; (2) that time period was inconsistent with

Swanigan’s affidavit regarding her dates of usage; (3) Dr. Brown attested that he illegally

dispensed the diet drugs to Swanigan after the drugs were removed from the market; and

(4) the Brown Declaration states dosages that are inconsistent with the dosages at which

the drugs were issued. Brown, 2008 WL 1776443, at *3–4. The District Court similarly

found that Swanigan’s affidavits had no probative value because they did not comply with

the terms of the Settlement Agreement. Id. at *3 n.6. Even if the affidavits were proper

forms of proof, none supply any detail regarding Swanigan’s diet drug prescription or

ingestion as required by the Settlement Agreement. The District Court did not err when it

determined that Swanigan did not provide the proof of diet drug ingestion required to

support her claim for additional benefits.

       Swanigan’s equitable estoppel claim is similarly unavailing. Equitable estoppel

“arises when a party intentionally or through culpable negligence induces another to

believe certain facts to exist and the other party rightfully relies and acts on such belief to

its detriment.” Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 165 (3d Cir.

2009) (internal quotation marks and citation omitted). Nothing in the record suggests that

Appellees misrepresented the status of Swanigan’s claim, causing her to remain inactive



                                               5
in pursuing proper documentation of ingestion from Dr. Brown to her detriment. In fact,

Swanigan acknowledged that the check stub for the benefits she received in 2001

indicated that if she were to file a Green Form, “the Trust will determine Diet Drug use

[and] duration of use . . . without regard to any of the Trust determinations which

qualified [her] to receive this [benefit].” (App. 85.) Thus, Swanigan did not prove that

she detrimentally relied on any misrepresentation by Appellees.

       Swanigan also argues that the equitable doctrine of laches is applicable here. “[A]

party still must unequivocally put its position before the trial court at a point and in a

manner that permits the court to consider its merits.” Shell Petroleum, Inc. v. United

States, 182 F.3d 212, 218 (3d Cir. 1999). It is not clear that Swanigan’s mere mention of

the term “laches” in her briefs sufficiently put this argument before the District Court and

we will not “consider issues that are raised for the first time on appeal.” Id. at 219. Even

if we were to decide that Swanigan made a laches argument that was not considered by

the District Court, it would not change the outcome of this case. Laches is most

commonly raised as an affirmative defense to a lawsuit and requires inexcusable delay in

bringing suit and prejudice to the defendant as a result of the delay. See Univ. of

Pittsburgh v. Champion Prods., 686 F.2d 1040, 1044 (3d Cir. 1982). The facts of this

case do not fit this doctrine. In any event, the District Court did not err in determining

that the Trust placed Swanigan on notice of the insufficiency of her proof of diet drug

ingestion within nine months of submitting her Green Form claim. See Brown, 2008 WL



                                               6
1776443, at *2. It does not seem reasonable that Swanigan would have considered the

Trust’s right to ask for further substantiation of diet drug ingestion abandoned after a

mere nine months.

       Swanigan also argues that the Pink Form constituted a contract between Swanigan

and Wyeth and that Wyeth was bound to consider her proof of diet drug ingestion

sufficient for additional benefits. She grounds her claim in the instructions on the Pink

Form, which indicated that by supplying certain information the applicant has “fulfilled

th[e] requirement” of diet drug usage. (App. 32.) The District Court interpreted the Pink

Form as merely implementing the Settlement Agreement and not modifying it in any way.

Brown, 2008 WL 1776443, at *2. The plain meaning of the Pink Form’s language

supports this interpretation.4 Consequently, the District Court did not err in its

determination that the Pink Form did not create a new and independent agreement with

the Trust.

       Finally, Swanigan seeks to admit two documents regarding Dr. Brown. The first,

an Illinois Division of Professional Regulation website print-out, indicates that Dr. Brown

was arrested and, while in custody, he instructed his unlicensed employees to dispense

controlled substances in his absence. The second document is an appointment summary

allegedly showing that Dr. Brown regularly met with diet drug salesmen. Federal Rule of


       4
         The Pink Form states that “[t]he Settlement Agreement, including, without
limitation its benefits and its release provisions, is incorporated by reference into this
Individual Agreement as if fully set out at length.” (App. 29.)

                                               7
Appellate Procedure 10(e)(2) permits this Court to correct the omission of material

evidence from the district court record. See Fed. R. App. P. 10(e)(2) (emphasis added).

The evidence Swanigan seeks to admit, however, is not material because it does not

substantiate her claim of diet drug ingestion.

                                            IV.

       For the foregoing reasons, we will affirm the Orders of the District Court.




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