BROWN, et al v. AMERICAN HOME PROD, et al

Filing 4773

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PRETRIAL ORDER NO. 9061 RE: CLAIMANT GRACE ERDMAN'S MOTION TO COMPEL. SIGNED BY HONORABLE HARVEY BARTLE, III ON 5/14/2013; 5/15/2013 ENTERED AND COPIES MAILED AND E-MAILED TO LIAISON COUNSEL. (SEE PAPER # 109984 IN 11-MD-1203). (tjd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: DIET DRUGS (PHENTERMINE/
FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION

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MDL NO. 1203

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THIS DOCUMENT RELATES TO:
SHEILA BROWN, et al.

v.
AMERICAN HOME PRODUCTS
CORPORATION

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CIVIL ACTION NO. 99-20593

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CLAIMANT: GRACE ERDMAN
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SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PRETRIAL ORDER NO. 9061
Bartle, J.

May

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2013

This supplemental memorandum is being filed in further
support of our Pretrial Order No. 9061 dated May 9, 2013.
In her motion to compel the AHP Settlement Trust to
process her claim, Grace Erdman asserts that her 1999 New Jersey
state court lawsuit "had to be dismissed under the terms of the
Settlement Agreement.

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Section VIII.C(S) of the Class Action

Settlement Agreement ( 11 Settlement Agreement 11 ) provides:
Upon Final Judicial Approval, the Class
Counsel and all Class Members shall cooperate
with AHP and any other Released Party to
cause the dismissal, with prejudice and
without costs, of any action against AHP or
any Released Party asserting a Settled Claim
brought by or on behalf of any Class Member
who has not timely and properly exercised an
Initial Opt-Out right, including but not
limited to class actions, whether or not
certified as such, which are pending in any

state, federal, or territorial court. Upon
Trial Court Approval, the Class Counsel and
all such Class Members shall cooperate with
AHP and any other Released Party to cause
further proceedings in all such settled
actions in which the Class Members did not
timely and properly opt out to be stayed
pending Final Judicial Approval [emphasis
added] .
Section VIII.C(S) thus requires class members to dismiss any
pending lawsuit with prejudice once Final Judicial Approval of
the Settlement Agreement has taken place.

Final Judicial

Approval did not occur until January 3, 2002.

Ms. Erdman,

however, dismissed her state court action with prejudice on
January 19, 2001, nearly a year before Final Judicial Approval.
While dismissal occurred subsequent to the August 28, 2000 Trial
Court approval date, there was no requirement that the case be
dismissed at the time she did so.
During the time period after Trial Court approval but
before any Final Judicial Approval, class members were simply to
cooperate with AHP to stay but not dismiss any pending lawsuit.
If the Settlement Agreement had directed claimants to dismiss
their state court claims with prejudice before Final Judicial
Approval, claimants would have been without recourse if Final
Judicial Approval failed to take place or the terms of the
Settlement Agreement were significantly modified.

Staying a

claimant's state court claim pending Final Judicial Approval
avoided this problem.

Under the Settlement Agreement, only

claimants who dismissed their lawsuits after Final Judicial
Approval remained part of the Class.
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As such, we disagree with

Ms. Erdman's contention that she simply acted in conformity with
the requirements of the Settlement Agreement when she dismissed
her claim prior to Final Judicial Approval.
The Stipulation of Dismissal of Ms. Erdman's New Jersey
lawsuit, signed by plaintiff's prior counsel and counsel for AHP,
states that the matter was "amicably adjusted" and that all
claims are dismissed with prejudice.

The dismissal, with

prejudice, of a New Jersey state court action amounts to a
judgment on the merits.
(N.J. 1991).

Velasquez v. Franz, 589 A.2d 143, 148

Section II.B. of the Settlement Agreement excludes

from the Class those individuals whose claims have been resolved
by "judgment on the merits."

Only upon Final Judicial Approval

may a class member proceed to obtain benefits under the
Settlement Agreement provided the class member then dismissed his
or her lawsuit with prejudice.

See Section VIII.A. (1), C, and D.

Ms. Erdman, however, relinquished her status as a class member
when she dismissed her lawsuit with prejudice before Final
Judicial Approval when the Settlement Agreement became effective.
Consequently Ms. Erdman is barred, pursuant to

§

II.B of the

Settlement Agreement, from obtaining benefits under that
Agreement.
BY THE COURT:

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