Filed: Jun. 30, 2015
Latest Update: Jun. 30, 2015
Summary: MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9424 HARVEY BARTLE, III , District Judge . The Estate of Charles S. Foster (the "estate" or "claimant") seeks benefits from the ABC Settlement Trust (the "Trust") under the Diet Drug Nationwide Class Action Settlement Agreement ("Settlement Agreement") with Wyeth, Inc. 1 Before the court is the appeal of the estate from a February 25, 2015 determination by an arbitrator that it was not entitled to Matrix Compensation Benefits ("Matrix B
Summary: MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9424 HARVEY BARTLE, III , District Judge . The Estate of Charles S. Foster (the "estate" or "claimant") seeks benefits from the ABC Settlement Trust (the "Trust") under the Diet Drug Nationwide Class Action Settlement Agreement ("Settlement Agreement") with Wyeth, Inc. 1 Before the court is the appeal of the estate from a February 25, 2015 determination by an arbitrator that it was not entitled to Matrix Compensation Benefits ("Matrix Be..
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MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9424
HARVEY BARTLE, III, District Judge.
The Estate of Charles S. Foster (the "estate" or "claimant") seeks benefits from the ABC Settlement Trust (the "Trust") under the Diet Drug Nationwide Class Action Settlement Agreement ("Settlement Agreement") with Wyeth, Inc.1 Before the court is the appeal of the estate from a February 25, 2015 determination by an arbitrator that it was not entitled to Matrix Compensation Benefits ("Matrix Benefits") because Charles S. Foster (the "decedent") had not been diagnosed by a Qualified Physician as FDA Positive or as having mild mitral regurgitation by an echocardiogram performed on or before January 3, 2003.
Under the Settlement Agreement, Matrix Benefits are awarded to compensate claimants for medical conditions caused by Pondimin® or Redux™ ("Diet Drugs")2 A claimant, such as the Estate, who seeks Matrix Benefits may demonstrate his eligibility for those Benefits in one of two ways. He may be eligible if he was diagnosed by a Qualified Physician as FDA Positive or as having mild mitral regurgitation by an echocardiogram performed on or before January 3, 2003, provided that he registered for Settlement Benefits by May 3, 2003. Alternatively, he may be eligible if he was diagnosed by a Qualified Physician on or before September 30, 2005 with Endocardial Fibrosis, provided that he registered for benefits by January 1, 2006.
In or around early March 2003, decedent began to experience problems with his heart. He underwent an echocardiogram on March 10, 2003. That echocardiogram showed that decedent suffered from mitral regurgitation of the type which would have rendered him eligible for Matrix Benefits had the echocardiogram been performed on or before January 3, 2003. Decedent also submitted documentation that he had ingested Diet Drugs. Because his echocardiogram was not performed until after the screening period concluded on January 3, 2003, the Trust denied his claim for Matrix Benefits. On April 27, 2007, his appeal from that decision was referred to Arbitration pursuant to§§ VI.C.4(h) and (i) of the Settlement Agreement, but decedent died before the Arbitration Hearing took place.
On February 25, 2015 an Arbitrator concluded that decedent's estate was not entitled to Matrix Benefits because his echocardiogram had not been performed on or before January 3, 2003. The Arbitrator noted that she was bound by the terms of the Settlement Agreement.
The estate now appears to argue that decedent's delay in obtaining an echocardiogram was due to "excusable neglect." Indeed, the Settlement Agreement's deadlines may be extended if a movant is able to show that his or her failure timely to obtain an echocardiogram was the result of "excusable neglect." In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prods. Liab. Litig., No. 99-20593, 2007 WL 4616903 (Nov. 20, 2007) ("Clark"); In re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 323 (3d Cir. 2001). Having carefully reviewed the materials submitted by the parties, we conclude that the estate has failed to satisfy the four elements necessary for a finding of excusable neglect. See Clark, 2007 WL 4616903, at *2-*5. Accordingly, we must deny her appeal and affirm the Report and Award of the Arbitrator.
