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In re Diet Drugs Products Liability Litigation

November 30, 2005

IN RE: DIET DRUGS (PHENTERMINE/ FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION
CLARA CLARK, LINDA SMART AND ALL OTHER CLASS MEMBERS REPRESENTED BY FLEMING & ASSOCIATES, L.L.P., APPELLANTS IN NO. 03-3401
HARITON & D'ANGELO, LLP AND NAPOLI, KAISER, BERN & ASSOCIATES, LLP, ON BEHALF OF THEMSELVES, CLAIMANT JAMES AXFORD AND SIMILARLY SITUATED CLASS MEMBERS REPRESENTED BY THE HARITON AND NAPOLI FIRMS WHOSE CLAIMS ARE AFFECTED BY PRETRIAL ORDER NO. 2929, APPELLANTS IN NO. 03-3402
SHANNE WEBB-COCHRAN, RENAI KUYKENDALL, WILLA SARTIN, DAWN STEWART AND JOANNE VALENTI, ON BEHALF OF THEMSELVES AND ALL OTHER CLASS MEMBERS WHO HAVE INGESTED FEN-PHEN AND WHO SUFFER, OR WILL SUFFER, FROM ELEVATED PULMONARY HYPERTENSION NOT SECONDARY TO VALVULAR HEART DISEASE, APPELLANTS IN NO. 03-4465
DORIS WELLER AND ELLEN CAREY, WHOSE CLAIMS ARE AFFECTED BY PRETRIAL ORDER NO. 3849, APPELLANTS IN NO. 04-3661



Appeals from the United States District Court for the Eastern District of Pennsylvania. (MDL No. 1203) District Judge: Honorable Harvey Bartle, III.

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued on April 22, 2005

Before: ROTH, FUENTES and STAPLETON, Circuit Judges.

OPINION

These appeals arise from the District Court's efforts to oversee the Nationwide Class Action Settlement Agreement in the multi-district (MDL) 1203 litigation between Wyeth*fn1 and a class comprising former users of Wyeth's diet medications, fenfluramine and dexfenfluramine. This appeal is the consolidation of challenges by three different groups of Appellants, all claiming that they should not be bound by the Settlement Agreement. For the reasons discussed, we find that all three groups of Appellants are bound by the Settlement Agreement and we will affirm the District Court's decision.

I. The Settlement Agreement

The history of this case is detailed in In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220, 225-29 (3d Cir. 2002) and will only be briefly summarized here. In 1999, Wyeth reached a settlement that provided a variety of remedies for users and former users of its diet medications. The District Court approved the plan in Pretrial Order 1415 and the accompanying memorandum. The remedies provided depended on whether the class members were ultimately diagnosed with one of several heart conditions.

Each class member was placed into one of five groups. Class 1 consisted of class members who did not know whether they had a condition termed FDA positive ventricular heart disease (VHD)*fn2 , and was further subdivided into class members who had used the diet drugs for more than 60 days and class members who had used the drugs for less than 60 days. Class 2 consisted of class members who knew they had FDA positive VHD and was also subdivided based on diet drug usage of more or less than 60 days. Class 3 was comprised of class members who did not know whether they had FDA positive VHD at the time of settlement, but were diagnosed with a less serious condition called mild mitral regurgitation by the end of the settlement screening period.

The settlement provided funding for screening tests to determine whether class members had qualifying heart disease and for compensation for the cost of the drugs and medical treatment, depending on the ultimate diagnosis. The Settlement Agreement expressly barred participating class members from pursuing any settled claims against Wyeth.

The settlement provided the option for class members to opt out at the time of settlement ("initial opt outs") or to be bound by the Settlement Agreement. Those class members diagnosed as having FDA positive VHD by a specified date could either register for further benefits or exercise an "intermediate opt out" and sue Wyeth in the state tort system. In addition, those class members diagnosed as having a lesser condition, mild mitral regurgitation, could either claim compensation under the settlement or exercise a "back end opt out" and sue Wyeth in the tort system. The class members who exercised intermediate or back end opt outs are collectively referred to as "downstream opt outs." In exchange for Wyeth's waiver of a statute of limitations defense, class members exercising downstream opt out rights cannot sue for punitive damages.

The Settlement Agreement explicitly excluded those individuals with a more serious condition, primary pulmonary hypertension ("PPH"), allowing them to sue Wyeth in the state tort system. The settlement did not include any recovery for plaintiffs alleging a variety of conditions, including neurotoxicity and elevated pulmonary hypertension ("PH"), because the District Court found that the evidence did not support a connection between the use of diet drugs and these conditions.

II. Jurisdiction and Standard of Review

We have jurisdiction over Pretrial Orders 2929, 3849 and 3085 because they are all final orders of the District Court within the ...


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