In re: Diet Drug

Filing

NOT PRECEDENTIAL OPINION Coram: RENDELL, CHAGARES and JORDAN, Circuit Judges. Total Pages: 5. Judge: JORDAN Authoring.

Case: 13-4730

Document: 003111677952

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Date Filed: 07/14/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4730
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In re: DIET DRUGS (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability
Litigation
Elizabeth A. Lassetter,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 99-cv-20593; MDL Nos. 11-md-1203 and 16-md-1203)
District Judge: Hon. Harvey Bartle, III
_______________
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2014
Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.
(Filed: July 14, 2014)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Elizabeth Lassetter appeals an order of the United States District Court for the
Eastern District of Pennsylvania denying her recovery under the terms of the Diet Drug

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Nationwide Class Action Settlement Agreement (“Settlement Agreement”).1 We will
affirm.
I.

Background
This appeal relates to the settlement of multi-district products liability litigation

regarding the diet drugs Pondimin® and Redux®, previously sold by American Home
Products (“AHP”). See In re Diet Drugs Prods. Liab. Litig., 543 F.3d 179, 180-81 (3d
Cir. 2008). In November 1999, Wyeth, the successor-in-interest to AHP, joined
plaintiffs’ representatives in the Settlement Agreement, which the District Court
approved. See id. at 181. Under the terms of the Settlement Agreement, Wyeth was
required to contribute funds, placed in a trust, for the payment of claims. See id. at 180.
The resulting AHP Settlement Trust (the “Trust”), acting through its trustees and claims
administrator, administers and reviews claims to determine the benefits, if any, that a
class member is qualified to receive under the terms of the Settlement Agreement. See
id.2

1

Lassetter is one of three claimants who have appealed simultaneously through
the same counsel, the others being Ruth Sanders (Case No. 13-4548) and Tonya Marler
(Case No. 13-4731). All three relied on the same attesting physician in submitting their
claims; they appeal the same issue – whether there was a reasonable medical basis to
conclude they all suffered from moderate mitral regurgitation; and they raise the same
arguments. The briefs on appeal are almost identical, as are the District Court’s opinions
regarding each claimant. For efficiency’s sake, then, we designate our opinion regarding
Ruth Sanders as primary and a source of further background.
2

In several prior decisions, we have provided a detailed description of the Diet
Drugs litigation. See, e.g., In re Briscoe, 448 F.3d 201, 206-08 (3d Cir. 2006); In re Diet
Drugs Prods. Liab. Litig., 401 F.3d 143, 147-48 (3d Cir. 2005); In re Diet Drugs Prods.
Liab. Litig., 385 F.3d 386, 389-92 (3d Cir. 2004); In re Diet Drugs Prods. Liab. Litig.,
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In August 2002, Lassetter filed a claim with the Trust pursuant to the procedures
set forth in the Settlement Agreement for so-called Matrix Level II benefits. Her claim
included, as required for Level II benefits, the statement of an attesting physician
diagnosing her with moderate mitral regurgitation, based on her echocardiogram. Upon
review, the Trust’s auditing cardiologist concluded that there was a reasonable medical
basis (the applicable standard under the Settlement Agreement) for the attesting
physician’s finding that Lassetter suffered from moderate mitral regurgitation. However,
the District Court, inundated with fraudulent benefits claims, ordered a second review of
claims, including Lassetter’s, to determine whether she intentionally misrepresented
details of her echocardiogram test. Following that review, the Trust denied the claim and
affirmed its decision in a Final Post Audit Determination.
Lassetter disputed the second audit’s adverse finding, and the Trust applied to the
District Court for an Order to Show Cause why Lassetter’s claim should be paid. The
District Court issued the Order and referred the case to a Special Master for further
proceedings. The parties submitted statements of the case to the Special Master, and the
Special Master appointed a Technical Advisor to prepare a report for the District Court’s
review. Like the second auditing cardiologist, the Technical Advisor concluded that
there existed intentional misrepresentation of the echocardiogram test and further
determined that there was no reasonable medical basis for finding that Lassetter had
moderate mitral regurgitation. Both the parties’ statements and supporting
282 F.3d 220, 225-29 (3d Cir. 2002). We will therefore limit our discussion to the
essential facts of the instant appeal.
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documentation, as well as the Technical Advisor’s report, were submitted to the District
Court for review in making its decision on the Order to Show Cause. After a thorough
review of the record before it, the District Court denied Lassetter’s claim, based on the
audit conclusion that there was no reasonable medical basis for the diagnosis submitted
with the claim.
II.

Discussion3
On appeal, Lassetter argues that the evidence in the record met the burden of proof

establishing a reasonable medical basis for the attesting physician’s conclusion and that
the Court erred by deputizing the Technical Advisor with judicial power.4
With respect to both of Lassetter’s arguments, we conclude that she has failed to
show any abuse of discretion in the District Court’s interpretation or factual findings.
The Court performed a thorough review of the record before it, including both parties’
statements and the opinions of both auditing cardiologists, the Technical Advisor, and
Lassetter’s own attesting physician. The Technical Advisor also acted within the
limitations set by the Settlement Agreement; he introduced no evidence and relied only
on the submitted materials in forming his opinion. The Court did not delegate its
3

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 pursuant to 28 U.S.C. § 1291. “We review a District Court’s exercise of its
equitable authority to administer and implement a class action settlement for abuse of
discretion.” In re Diet Drugs Prods. Liab. Litig., 543 F.3d at 184 n.10. An abuse of
discretion may be found if the District Court’s decision “rest[s] on a clearly erroneous
finding of fact, an errant conclusion of law or an improper application of law to fact.” Id.
(citation omitted) (internal quotation marks omitted).
4

Lassetter also brings other meritless arguments that we address in In re Diet
Drugs Products Liability Litigation (Sanders), No. 13-4548, at *6 n.6.
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authority to the Technical Advisor in affirming the Trust’s denial of Lassetter’s claim, as
evidenced by its detailed memorandum opinion. Accordingly, the Court’s reliance on the
Technical Advisor was not an abuse of discretion.
III.

Conclusion
For the foregoing reasons, we will affirm.

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