                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                           Nos. 13-2340/13-2341/13-2584
                                   ____________

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

                                            Jeanette Pearson,
                                                          Appellant No. 13-2340
                                              Christeen Rightnar,
                                                          Appellant No. 13-2341
                                             Janice Phillips,
                                                          Appellant No. 13-2584
                                    ____________

                       On Appeal from United States District Court
                         for the Eastern District of Pennsylvania
          (D.C. Civil Nos. 2-99-cv-20593, 2-16-md-01203 and 2-11-md-01203)

                           District Judge: Harvey Bartle, III
                                     ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 9, 2014

              Before: FISHER, COWEN and TASHIMA,* Circuit Judges.

                                (Filed: July 15, 2014)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      *
       The Honorable A. Wallace Tashima, Senior Circuit Judge for the Ninth Circuit
Court of Appeals, sitting by designation.
       Jeanette Pearson (“Pearson”), Christeen Rightnar (“Rightnar”), and Janice Phillips

(“Phillips”) (collectively, “Appellants”) appeal an Order1 of the United States District

Court for the Eastern District of Pennsylvania denying their recovery under the terms of

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

Agreement”). We will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       This case is part of an ongoing multi-district litigation concerning a diet drug,

called "Pondimin," which was previously sold by Wyeth.2 Pursuant to the Settlement

Agreement, Wyeth was required to contribute funds for the payment of claims brought by

individuals negatively affected by their diet drugs. The AHP Settlement Trust (the

"Trust") was responsible for administering and reviewing a claimant's submissions to

determine eligibility for benefits under the Settlement Agreement.

       In order to qualify for compensation under the Settlement Agreement, a claimant

must submit a completed Green Form to the Trust, which requires: (1) information from

       1
         The District Court denied Pearson's claims on March 26, 2013, Rightnar's claims
on April 4, 2013, and Phillips' claims on May 10, 2013. Their claims on appeal were
briefed together and will be resolved together, but will be referred to individually as
necessary.
       2
         Prior to March 11, 2002, Wyeth was known as American Home Products
Corporation.

                                              2
the claimant's representative; (2) information regarding the claimant's medical condition,

to be completed by the claimant's attesting physician; and (3) information from the

claimant's attorney where applicable. Appellants, who were each prescribed the diet drug

and ingested it over the course of several months, individually sought compensation

benefits under the Settlement Agreement.

       In their Green Form submissions, Appellants' physicians confirmed that each

Appellant underwent an echocardiogram. Pearson's physician noted that her

echocardiogram showed moderate mitral regurgitation and an abnormal left atrial

dimension. Both Rightnar's and Phillips's physicians noted that their echocardiograms

demonstrated moderate mitral regurgitation and an ejection fraction of 50-60%.

       The Trust referred Pearson's Green Form submission to its auditing cardiologist,

who concluded that there was no reasonable medical basis for her attesting physician's

conclusions. Pearson sent additional information (i.e., affidavits from two other

cardiologists) in hopes of a different response, but she received the same response. The

auditing cardiologist who reviewed Rightnar's Green Form submission at first concluded

that her attesting physician's conclusions had a reasonable medical basis. However, her

claim fell into a category that required re-auditing3 of claims and was later denied due to


       3
         The District Court noted that Pretrial Order ("PTO") No. 5632 (Aug. 26, 2005)
authorized the Trust to re-audit the claims of certain Diet Drug Recipients, including
Rightnar, who opted out of the Seventh Amendment to the Settlement Agreement but did
not elect to submit the initial audit of their claims to the Claims Integrity Process, based
upon the Trust's allegations that the initial audits were not reliable.

                                             3
lack of a reasonable medical basis for her attesting physician's notations. Rightnar's

attempts to submit additional affidavits from three other cardiologists likewise failed.

Phillips' auditing cardiologist also concluded that there was no reasonable medical basis

for her attesting physician's conclusions regarding her ejection fraction, but he did find a

reasonable medical basis for his answer of moderate mitral regurgitation. Her claim was

denied based upon the auditing cardiologist's finding regarding her ejection fraction and

her additional attempts to submit affidavits were rejected.

       Following their respective denials, Appellants filed notices of dispute regarding

the Trust's audit determinations. The Trust then applied for an Order from the District

Court requiring Appellants to Show Cause as to why their claims should be eligible under

the Settlement Agreement. The District Court issued that Order and referred each claim

to the Special Master for further proceedings.

       The Special Master assigned a Technical Advisor4 to review all documents

submitted by the Trust and the claimants and to prepare a report for the District Court. In

those reports, the Technical Advisor concluded that there was no reasonable medical

basis for Pearson's attesting physician's representation that she had moderate mitral

regurgitation, and that there was no reasonable medical basis for both Rightnar's and

Phillips' attesting physicians' representations that they had a reduced ejection fraction.

       4
         Under the Audit Policies and Procedures set forth in PTO 2457, see App. at
A1772, "the Special Master may assign a Technical Advisor to review the Special Master
Record and prepare a report to the Court setting forth his/her opinions regarding the
issue(s) in dispute in the audit," see App. at A1787.

                                              4
       After reviewing the entire Show Cause record for each Appellant, which included

the Technical Advisor's reports, the District Court issued detailed Memorandum Opinions

concluding that Appellants failed to meet their burden of proving that there was a

reasonable medical basis for their attesting physicians' findings. Three separate Orders

were then entered affirming the Trust's denials of their claims for benefits under the

Settlement Agreement.

       These appeals followed.

                                             II.

       The District Court had jurisdiction over all terms of the Settlement Agreement

under 28 U.S.C. §§ 1332 and 1407. We exercise jurisdiction over a final order of the

District Court under 28 U.S.C. § 1291.

       “We review a [d]istrict [c]ourt’s exercise of its equitable authority to administer

and implement a class action settlement for abuse of discretion.” In re Diet Drugs, 543

F.3d 179, 184 n.10 (3d Cir. 2008) (citing In re Cendant Corp. Prides Litig., 233 F.3d

188, 192 (3d Cir. 2000)). “[T]o find an abuse of discretion [a] [d]istrict [c]ourt’s decision

must rest on ‘a clearly erroneous finding of fact, an errant conclusion of law or an

improper application of law to fact.’” Id. (quoting In re Nutraquest, Inc., 434 F.3d 639,

645 (3d Cir. 2006)).




                                              5
                                            III.

       Appellants set forth two arguments on appeal: (1) that the District Court abused its

discretion in concluding that there was no reasonable medical basis for their attesting

physicians' Green Form findings; and (2) that the District Court abused its discretion by

allowing the Technical Advisor to submit new evidence and resolve a disputed issue of

fact. We disagree with both of these contentions.

                                             1.

       "Once the Trust denies a claim and the claim advances to a show cause

proceeding, the claimant has the burden of proving there was a reasonable medical basis

for the attesting physician's representations." Id. at 189; see also App. at A1785. The

District Court in the instant proceedings both acknowledged and applied this standard in

each of its Orders. The record makes clear that the District Court assessed all of the

medical opinions presented before it and that its denial was based wholly on Appellants'

failure to rebut certain assessments that supported the opinions of those opposing their

claims, i.e., both the auditing cardiologists and the Technical Advisor. See, e.g., App. at

A13, A27, A41 ("Mere disagreement with the auditing cardiologist and Technical

Advisor without identifying any specific errors by them is insufficient to meet a

claimant's burden of proof."). Without such a showing by Appellants, they cannot

demonstrate that the only conclusion that may be drawn from their echocardiograms is

that of their attesting physicians. The record, therefore, leaves open the question of


                                             6
whether there is a reasonable medical basis for Appellants' attesting physicians' Green

Form responses. For that reason, we cannot conclude that the District Court abused its

discretion in concluding that Appellants failed to meet their burden of proving that there

was a reasonable medical basis for their attesting physicians' Green Form findings.

                                             2.

       We also find no merit in Appellants' contention that the District Court abused its

discretion by allowing the Technical Advisor to submit new evidence and resolve a

disputed issue of fact.

       "[T]rial judges in the federal system possess[] 'inherent power to provide

themselves with appropriate instruments required for the performance of their duties,'

including the power to 'appoint persons unconnected with the court to aid judges in the

performance of specific judicial duties, as they may arise in the progress of a cause.'"

Reilly v. United States, 863 F.2d 149, 157 (1st Cir. 1988) (quoting In re Peterson, 253

U.S. 300, 312 (1920)). These advisors are not witnesses and, therefore, may not

contribute to evidence in a given case. See id. Nor are they judges, "so they may not be

allowed to usurp the judicial function." Id. (citing Kimberly v. Arms, 129 U.S. 512, 524

(1889) (noting that a court may not "abdicate its duty to determine by its own judgment

the controversy presented" through appointment of advisors). "[T]he advisor's role is to

[merely] act as a sounding board for the judge – helping the jurist to educate himself in




                                             7
the jargon and theory disclosed by the testimony and to think through the critical

technical problems." Id. at 158.

       After reviewing the District Court's Memorandum Opinion and the Show Cause

record, we are confident that the District Court carefully considered the entire record and

reached its conclusion largely independent of the Technical Advisor. As noted above, the

District Court's decision was premised upon Appellants' failure to refute assessments of

both the auditing cardiologists and the Technical Advisor.5 We find no impropriety in

the District Court's reliance on the Technical Advisor's report.

                                             IV.

       For the reasons stated above, we will affirm the District Court’s denial of

Appellants' claims under the Settlement Agreement.




       5
         Appellants also contend that the District Court "merely rubber stamped" the
Technical Advisor's finding that there was no reasonable medical basis for their
diagnoses. They point to the fact that the District Court has previously adopted the
Technical Advisor's findings concerning claims arising under the Settlement Agreement a
total of 192 times out of a possible 193. We find this argument unavailing to their cause,
as that point does little to assist in our review of the instant appeals. In spite of that, we
find no evidence in this record which demonstrates a mere "rubber stamping" of the
Technical Advisor's opinion.

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