BROWN, et al v. AMERICAN HOME PROD, et al
MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9487. SIGNED BY HONORABLE HARVEY BARTLE, III ON 4/17/2017. 4/18/2017 ENTERED AND COPIES MAILED AND E-MAILED TO LIAISON COUNSEL. (SEE PAPER # 110587 IN 11-MD-1203) (ems)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: DIET DRUGS (PHENTERMINE/
PRODUCTS LIABILITY LITIGATION
MDL NO. 1203
THIS DOCUMENT RELATES TO:
SHEILA BROWN, et al.
CIVIL ACTION NO.
AMERICAN HOME PRODUCTS
MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO.
f 7, 2017
Before the court is the motion of Daniel and Louisa
D'Antonio to deem Mr. D'Antonio's privately obtained
echocardiograrn as timely under the Diet Drug Nationwide Class
Action Settlement Agreement ("Settlement Agreement") with Wyeth. 1
Mr. D'Antonio failed to obtain an echocardiograrn before
January 3, 2003,
the deadline to submit a privately obtained
However, he maintains that his delay was due to
Prior to March 11, 2002, Wyeth was known as American Horne
The January 3, 2003 deadline marked the end of the original
Screening Period, which was the 12-rnonth period beginning on the
date of Final Judicial Approval (Jan. 2, 2002).
Agreement § I.49.
To receive Matrix Compensation Benefits
("Matrix Benefits"), the Settlement Agreement required Class
Members who chose not to participate in the Screening Program to
obtain an echocardiograrn between the commencement of diet drug
use and the end of the Screening Period.
See id. at § IV.B.l.a.
According to Mr. D'Antonio's motion, he was prescribed
and took "diet drugs" in 1997.
However, Mr. D'Antonio decided
not to have an echocardiogram performed prior to January 3, 2003
because of "his apparent good health" and because he "had no
intention of seeking benefits under the Settlement Agreement."
Seventeen days after the deadline to obtain a private
echocardiogram, Mr. D'Antonio developed extreme shortness of
breath, and on January 22, 2003, he had an echocardiogram
performed for the first time.
severe mitral regurgitation.
That echocardiogram demonstrated
Mr. D'Antonio subsequently
underwent "open heart surgery" on January 27, 2003.
Mr. D'Antonio submitted a timely Blue Form 3 to the
Trust, and he submitted a Green Form4 in October 2003.
letters dated October 22, 2004, January 1, 2005, February 10,
2005, and April 12, 2005, Class Counsel's Claims Office notified
Mr. D'Antonio that his claim was deficient because his
echocardiogram had not been performed prior to the Screening
More than 14 months after he received the first
3. The Blue Form is one of the forms available to Class Members
to register for Matrix Benefits Matrix Benefits with the Trust.
The deadline for submitting the form was May 3, 2003.
See Pretrial Order ("PTO") No. 3253 (Feb. 12, 2004).
4. Under the Settlement Agreement, Class Members are required to
complete the Green Form, in addition to the Blue Form, to receive
Matrix Benefits from the Trust.
notice from Class Counsel's Claims Office that his claim was
untimely, Mr. D'Antonio filed the present motion.
claims that his failure to obtain an echocardiogram prior to
January 3, 2003 constitutes excusable neglect.
The Settlement Agreement that this court approved in
PTO No. 1415 provides strict deadlines for Class Members to seek
Matrix Benefits 5 from the Trust.
The Settlement Agreement
provides, in part:
The following Class Members, and only such
Class Members, shall be entitled to the
compensation benefits from Fund B ("Matrix
Diet Drug Recipients who have been
diagnosed by a Qualified Physician as
FDA Positive or as having Mild Mitral
Regurgitation by an Echocardiogram
performed between the commencement of
Diet Drug use and the end of the
Screening Period [January 3, 2003] and
who have registered for further
settlement benefits by Date 2
[May 3, 2003]
This Settlement Agreement provision imposes two
deadlines on Class Members.
First, Class Members who did not
5. Matrix Benefits are payable from Fund B, which was created in
the Settlement Agreement to compensate Class Members who have
developed Matrix-level conditions, or will develop those
conditions in the future.
Settlement Agreement § IV.B.-C.
participate in the Screening Program 6 were required to obtain a
private echocardiogram and consequently have been diagnosed with
FDA Positive or Mild Mitral Regurgitation between the time they
began using diet drugs and January 3, 2003.
Members were required to register with the Trust by May 3, 2003.
Although Mr. D'Antonio met the second deadline by submitting a
Blue Form on or before May 3, 2003, he failed to obtain a private
echocardiogram by January 3, 2003.
Class Members must meet both
deadlines to be eligible for Matrix Benefits.
The deadlines imposed by the Settlement Agreement may
be extended if the movant can show his or her failure to meet the
deadlines was due to "excusable neglect."
In In re Orthopedic
Bone Screw Prods. Liab. Litig., 246 F.3d 315, 323 (3d Cir. 2001),
our Court of Appeals reiterated the Supreme Court's analysis of
excusable neglect as set forth in Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993).
factors should be evaluated when deciding whether excusable
(1) the danger of prejudice to the non-movant;
(2) the length of the delay and its potential effect on judicial
6. The Screening Program provided transthoracic echocardiograms
and associated interpretive physician benefits to eligible Class
Settlement Agreement § I.50.
See also id. at
§§ IV.A.1.a. & IV.A.2.b.
Diet Drug Recipients who ingested
Pondimin® or Redux™ for 61 days or more and who had not obtained
a qualifying echocardiogram prior to September 30, 1999, were
eligible for the Screening Program.
See id. at §§ II.C.1. (b)
& IV.A.1.a.; see also Official Court Notice, p. 5.
for the delay, including whether it
was within the reasonable control of the movant; and (4) whether
the movant acted in good faith.
Pioneer, 507 U.S. at 395; In re
Orthopedic Bone Screw, 246 F.3d at 322-23.
We shall discuss each
of these factors in turn.
Under the first prong of Pioneer, 507 U.S. at 392 n.10,
we must determine the danger of prejudice to the non-movants
should the requested extension be granted.
Mr. D'Antonio argues
that Wyeth and the Trust would not be prejudiced because "Wyeth
set aside several billion dollars to fund claims that would be
submitted by individuals who had ingested the diet drugs Pondimin
and Redux and who suffered from [valvular heard disease ('VHD')]
as a result."
He also contends that "Wyeth expected that
individuals would later come forward and file claims as their
conditions were diagnosed" because "[a]t the time that the fund
was established, Wyeth could not have known precisely how many
people would apply and/or qualify for benefits."
The finality provided by the Settlement Agreement to
Wyeth, the Trust, and other Class Members has been of paramount
importance throughout the administration of the Settlement
Finality is not only important to Wyeth, but also to
the Trust so that it can consider applications for Matrix
Benefits and provide those benefits to injured Class Members in a
If Mr. D'Antonio's motion was the only one of its
kind, his late registration may pose little danger of prejudice
to the non-movants.
However, Mr. D'Antonio is certainly not the
only Class Member who did not obtain an echocardiogram before
January 3, 2003.
While this may be harsh, Mr. D'Antonio's
circumstances are neither unique nor particular to him.
"Although the admission of any particular claimant may not in
itself cause a substantial drain on the Trust, allowing this
claimant to escape the firm deadlines set forth in the Settlement
. will surely encourage others to seek the same
Mem. in Support of Separate PTO No. 3923 at 3
(Sept. 10, 2004).
Second, we must consider the length of the delay and
its effect on judicial proceedings.
Pioneer, 507 U.S. at 395; In
re Orthopedic Bone Screw, 246 F.3d at 322-23.
argues that the delay in obtaining his
days after the
not significant because we previously
extended the deadline for the Screening Program to July 3, 2003.
See PTO No. 2677 (Dec. 10, 2002).
However, that extension
applied only to claimants who timely registered for the Screening
Program, and for whom the Trust, given the significant volume of
claims awaiting processing, could not ensure that they would
receive a Screening Program echocardiogram by the January 3, 2003
See Mem. in Support of Separate PTO No. 2677 at 9-10
(Dec. 10, 2002).
As Mr. D'Antonio opted to obtain a private
echocardiogram, this extension is irrelevant.
The January 3, 2003 deadline to obtain a private
echocardiogram was not an arbitrary date.
This date was
carefully chosen in light of evidence that the later the
diagnosis, the greater the likelihood that the Class Member's
valve damage was not caused by diet drugs.
In re Diet Drugs,
2000 WL 1222042, at *46-47 (E.D. Pa. Aug. 28, 2000).
induced valve regurgitation is not latent and can be detected by
an echocardiogram after the Class Member ceases use of the drugs.
By January 3, 2003, Class Members who chose not to register
for Screening Program benefits had been afforded five years to
obtain a private echocardiogram.
See PTO No. 2677 at 13
(Dec. 10, 2003).
Moreover, Mr. D'Antonio did not seek relief to submit
his late echocardiogram until December 2005.
not provide any explanation for this delay.
Mr. D'Antonio does
Mr. D'Antonio had actual notice of the January 3, 2003 deadline
when he submitted the Blue Form on or before May 3, 2003. 7
Claimants, such as Mr. D'Antonio, who took diet drugs for 61
or more days, must complete the Blue Form to register for
Settlement Benefits. The Blue Form specifically states that, if
electing to receive $6,000 in cash or $10,000 in heart valverelated medical services, a claimant must be diagnosed as FDA
Positive by the end of the Screening Period (January 3, 2003).
See Blue Form; see also Official Court Notice, p. 5.
that point, Mr. D'Antonio should have sought relief to submit his
late echocardiogram as timely.
Mr. D'Antonio also had actual
notice of the January 3, 2003 deadline when he received four
separate letters from Class Counsel's Claims Office dated
October 22, 2004, January 1, 2005, February 10, 2005, and April
12, 2005, each of which advised Mr. D'Antonio that his claim was
deficient because he had not submitted an echocardiogram that was
performed prior to January 3, 2003.
Mr. D'Antonio likewise did
not seek relief at any of those times to submit his late
To allow Mr. D'Antonio an extension to seek
relief would undermine the finality of the Settlement Agreement
and open the floodgates to similarly situated Class Members who
are presently time-barred.
Under the third prong, we must review Mr. D'Antonio's
reason for the delay.
Pioneer, 507 U.S. at 395; In re Bone
Screw, 246 F.3d at 322-23.
Mr. D'Antonio argues that it was
reasonable for him not to obtain an echocardiogram prior to the
close of the applicable Screening Period because of "his apparent
Mr. D'Antonio does not dispute that
he was aware of the risk of VHD associated with Pondimin® and/or
Redux™ or of his rights under the Settlement Agreement.
Official Court Notice that was sent to Class Members states that:
Diet Drug Recipients who have been diagnosed
with serious heart valve disease .
eligible for Compensation Payments
[t]he Class Member is a [Diet Drug
Recipient] who has been diagnosed by a
qualified physician as (I) FDA Positive or
(ii) as having Mild Mitral Regurgitation with
an eligible echocardiogram performed between
the start of Pondimin and/or Redux use and
the end of the Screening Period [Jan. 3,
2003] [and] has registered for further
Settlement Benefits within 120 days of the
close of the Screening Period [May 3, 2003]
Official Court Notice, p. 7 (emphasis added).
Notice of the
Settlement Agreement complied with Rule 23 of the Federal Rules
of Civil Procedure, which states:
"For any class certified under
Rule 23(b) (3), the court must direct to class members the best
notice practicable under the circumstances, including individual
notice to all members who can be identified through reasonable
Fed. R. Civ. P. 23 (c) (2) (B).
The Nationwide Notice
Plan was put in place to inform all Class Members of the
1415 at 79-87.
See Mem. in Support of Separate PTO
We have stated previously that the notice
plan was the "best notice practicable under the circumstances"
and concluded that it was "highly successful."
of Separate PTO No. 997
PTO No. 1415 at 83.
on at least
Mem. in Support
15 at 8; Mem. in Support of Separate
The Nationwide Notice Plan put Mr. D'Antonio
that he should
obtain an echocardiogram even prior to discovering any symptoms,
and it put Mr. D'Antonio on notice of the January 3, 2003
Finally, we have no reason to doubt that Mr. D'Antonio
acted in good faith.
However, the danger of prejudice to non-
movants and the length of, and reasons for, the delays weigh
heavily in favor of finding that Mr. D'Antonio's actions do not
constitute excusable neglect.
Accordingly, Mr. D'Antonio is not
entitled to submit a late echocardiogram for purposes of seeking
benefits under the Settlement Agreement.
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