Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2008

In Re: Diet Drugs
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2943




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Recommended Citation
"In Re: Diet Drugs " (2008). 2008 Decisions. Paper 318.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/318


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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No: 07-2943


             IN RE DIET DRUGS (PHENTERMINE/FENFLURAMINE/
                           DEXFENFLURAMINE)
                      PRODUCT LIABILITY LITIGATION

                                 Mary Schrodi and/or
                                Estate of Mary Schrodi,

                                                     Appellant


                On Appeal from the United States District Court for the
                           Eastern District of Pennsylvania
                   (D.C. Civil No. 99-CV-20593, MDL No. 1203)
                       District Judge: Hon. Harvey Bartle III
                                    __________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 October 21, 2008

      Before: SMITH, COWEN, Circuit Judges and THOMPSON, District Judge *

                               (Filed: October 28, 2008)




      *
         The Honorable Anne E. Thompson, Senior United States District Judge for the
District Court of New Jersey, sitting by designation.
                                          OPINION


Thompson, District Judge.

I.     Background

       Appellant Mary Schrodi filed this appeal from the District Court’s May 25, 2007

Pretrial Order, No. 7222, denying Appellant’s claims for benefits under the terms of the

Diet Drug Nationwide Class Action Settlement Agreement (“Settlement Agreement”).1

       In July 2000, Appellant filed a claim with the AHP Settlement Trust (“Trust”),

pursuant to the procedures set forth in the Settlement Agreement, for so called Matrix A-

1, Level II and Level III benefits. Her claim included the statement of an attesting

physician diagnosing Appellant with moderate mitral regurgitation based on her

echocardiogram, as required for Level II benefits. The attesting physician also reported

that Appellant had surgery to repair or replace her aortic valve after having used one of

the drugs at issue in this case, serving as the basis of her claim for Level III benefits.

Upon review, the Trust’s auditing cardiologist concluded that there was no reasonable

medical basis (the standard set out in the Settlement Agreement) for the attesting


       1
        The Court will neither repeat the history of the Settlement Agreement in this
MDL, as it has been outlined in prior opinions of this Court, see, e.g., In re Diet Drugs
Prods. Liab. Litig., 

(3d Cir. 2005); In re Diet Drugs Prods. Liab. Litig., 

(3d Cir. 2002), nor summarize the relevant provisions of that agreement, which
have been summarized aptly in the District Court’s Pretrial Order that is the subject of
this appeal.

                                               2
physician’s finding that Appellant suffered from a moderate mitral regurgitation, finding

instead that she only had a mild mitral regurgitation, which is insufficient for Level II

benefits. On that basis, the Trust denied Appellant’s claims. Appellant disputed the

audit’s adverse finding, and the Trust applied to the District Court for an Order to Show

Cause why Appellant’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 auditing cardiologist,

the technical advisor concluded that there was no reasonable medical basis for finding

that Appellant had moderate mitral regurgitation. Both the parties’ statements and

supporting 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 both the Level II and

Level III claims, affirming the finding of the Trust with respect to the Level II claim and

noting that Appellant’s own attesting physician reported that Appellant did not have even

mild aortic regurgitation, an additional element required for Level III benefits.

       On appeal, Appellant asserts that (1) the method of interpretation of Appellant’s

echocardiogram used by the District Court is medically unsound and (2) the District

Court’s use of that method was based on an incorrect interpretation of the Settlement

Agreement.



                                              3
       This Court has jurisdiction under 28 U.S.C. § 1291. Because Appellant’s grounds

for appeal are based alternatively on issues of fact and interpretation of the Settlement

Agreement, our review is under the clearly erroneous standard. See In re Cendant Prides

Litig., 

, 193 (3d Cir. 2000) (both issues of fact and interpretation of

settlement agreements are reviewed under the clearly erroneous standard).

II.    Analysis

       With respect to both of Appellant’s arguments, this Court finds that Appellant has

failed to show clear error in the District Court’s interpretation or factual findings. The

District Court performed a careful and thorough review of the robust record before it,

including both parties’ statements and the opinions of the auditing cardiologist, the

technical advisor and Appellant’s own attesting physician. This Court thus adopts the

District Court’s findings as its own.2

III.   Conclusion

       For the reasons stated above, Appellant’s appeal is denied.




       2
        In further support of the District Court’s findings, see this Court’s recent
decision in a related proceeding, In re Diet Drugs Prods. Liab. Litig., — F.3d ----, No.
07-1957, 

, at *6 (3d Cir. Sept. 11, 2008) (agreeing with the District
Court that measurement of regurgitant jet in only a single frame of an echocardiogram
did not provide a reasonable medical basis for recovering Matrix benefits under the
Settlement Agreement).

                                              4