In Re: Diet Drugs, et al

Filing

NOT PRECEDENTIAL OPINION Coram: RENDELL, CHAGARES and JORDAN, Circuit Judges. Total Pages: 3. Judge: JORDAN Authoring.

Case: 13-4731

Document: 003111677714

Page: 1

Date Filed: 07/14/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4731
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IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION
Tonya R. Marler,
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
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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.
Tonya Marler 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

Case: 13-4731

Document: 003111677714

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Date Filed: 07/14/2014

Nationwide Class Action Settlement Agreement (“Settlement Agreement”).1 We will
affirm.
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”).2 Marler’s claim for benefits based on moderate mitral regurgitation
was first approved by an auditing cardiologist, then was rejected by the Settlement Trust
based on evidence of intentional misrepresentation of her echocardiogram test, and,
finally, was denied by the District Court for failure to demonstrate a reasonable medical
basis for her condition. She appeals,3 arguing that the evidence in the record met that

1

Marler is one of three claimants who have appealed simultaneously through the
same counsel, the others being Ruth Sanders (Case No. 13-4548) and Elizabeth Lassetter
(Case No. 13-4730). 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 incorporate the background portion of that opinion herein.
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.,
282 F.3d 220, 225-29 (3d Cir. 2002). We will therefore limit our discussion to the
essential facts of the instant appeal.
3

The District Court had original 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. As discussed in In re Diet
Drugs Products Liability Litigation (Sanders), we review for an abuse of discretion the
District Court’s exercise of its authority to administer and implement a class action
settlement. No. 13-4548, at 6 n.5.
2

Case: 13-4731

Document: 003111677714

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Date Filed: 07/14/2014

burden of proof and that the Court erred by deputizing the Technical Advisor with
judicial power.4
Regarding both of Marler’s arguments, we find that she has failed to show any
abuse of discretion in the District Court’s interpretation or factual findings. The Court
undertook a thorough review of the record, including both parties’ statements and the
opinions of both auditing cardiologists, the Technical Advisor, and Marler’s own
attesting physician. The District Court’s reliance on the Technical Advisor was also
within the limitations set by the Settlement Agreement.
III.

Conclusion
For the foregoing reasons, we will affirm.

4

Marler also brings other meritless arguments that we briefly address and reject in
Sanders, No. 13-4548, at *6 n.6.
3