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IN RE DRUGS

United States District Court, E.D. Pennsylvania


May 25, 2004.

In Re: DIET DRUGS (PHENTERMINE, FENFLURAMINE, DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION; SHEILA BROWN, et al.
v.
AMERICAN HOME PRODUCTS CORPORATION, et al

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM AND PRETRIAL ORDER NO.

Before the court is the second motion of the AHP Settlement Trust (the "Trust") addressing claimants' requests for extensions of time to receive Echocardiogram Screening Program benefits under the Nationwide Class Action Settlement Agreement ("Settlement Agreement") involving Wyeth's diet drugs, Pondimin and Redux.

Claimants who were unable to have Screening Program echocardiograms before the July 3, 2003 deadline were required to send a letter to the Trust or the court requesting an extension of time and explaining why a timely echocardiogram was not possible. The Trust has reviewed the claimants' letters, claim files, and telephone records and has made decisions as to whether each claimant at issue has demonstrated the good cause and due diligence necessary to receive a further extension of time to obtain a Screening Program echocardiogram. We now review those decisions as required under § 1.49 of the Settlement Agreement, which provides:

all such Echocardiograms must be conducted no later than July 3, 2003, unless the court, upon a showing of good cause and due diligence by or on behalf of a Class Member or group of Class Members, allows the Class Member or group of Class Members to receive an Echocardiogram and associated interpretive physician visit after such date.
  Settlement Agreement § 1.49 (emphasis added). The Settlement Agreement does not define "good cause" or "due diligence."

  For reasons set forth and discussed more fully in Memorandum and Pretrial Order ("PTO") No. 3382, good cause and due diligence is equivalent to excusable neglect as articulated by the Supreme Court in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership ("Pioneer"), 507 U.S. 380, 395 (1993). Under Pioneer, we must consider four factors in deciding whether excusable neglect exists: (1) the danger of prejudice to the nonmovant; (2) the length of the delay and its potential effect on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. Id. See also In re Orthopedic Bone Screw Prods. Liab. Litig. ("Bone Screw"), 246 F.3d 315, 322-23 (3d Cir. 2001).

  I.

  We first address claimants for whom the Trust supports extensions of time to receive an echocardiogram under the Screening Program. The Trust has determined that neither the Trust nor other claimants will be prejudiced if the court grants extensions in these cases. The number of claimants is limited, they will receive a benefit to which they were entitled, and there will be no additional cost to the Trust. The length of delay as to these claimants is not great — the Trust anticipates completing their echocardiograms within ninety days. Finally, these claimants made diligent efforts to obtain their echocardiograms before the deadline. The delays in these claimants' submissions were the result of factors outside of their control.

  In one case, there was an equipment malfunction during the claimant's echocardiogram and no tape or report issued.*fn1 Other claimants did not receive their echocardiogram eligibility notification until after June 1, 2003 and did not have adequate time to schedule an echocardiogram before the deadline.*fn2 In still other cases, the untimeliness was due to processing delays or errors on the part of the Trust.*fn3 One claimant was incarcerated and despite persistent efforts was not able to make arrangements to obtain an echocardiogram within the deadline.*fn4 In addition, there were claimants who were obviously diligent in pursuing their echocardiograms but for valid reasons were unable to have them completed before the deadline.*fn5 All of the claimants identified in footnotes one (1) through five (5) have established good cause and due diligence, and they are entitled to extensions.

  II.

  We now examine requests for extensions which the Trust opposes. We note that the claimant has the burden of demonstrating good cause and due diligence. See Pioneer, 507 U.S. at 395; Bone Screw, 246 F.3d at 321; Settlement Agreement § 1.49.

  There is a small number of claimants for whom a second echocardiogram is no longer necessary because the outstanding echocardiogram information has since been completed or the claimant has already received a Screening Program echocardiogram. Because there is now no need for these claimants to receive a Screening Program echocardiogram, the requests of these claimants will be denied.*fn6 See Mem. and PTO No. 3382.

  The Trust argues that certain claimants for whom it opposes extensions have not demonstrated good cause for their requests or due diligence in pursuing their echocardiograms. The Trust maintains that these claimants cannot survive the Pioneer test. See Pioneer, 507 U.S. at 395. A number of claimants were notified of their eligibility and matched with a physician at some time in 2001 or 2002, but never had their echocardiograms performed.*fn7 Other claimants were notified of their echocardiogram eligibility in March or April, 2003, but did not act to secure the benefit before the deadline.*fn8 It is the third prong of Pioneer, the reason for the delay, including whether it was within the reasonable control of the movant, that is determinative for these claimants. See id. While the prejudice to the Trust and the effect on judicial proceedings would not be great if we granted extensions for this limited number of claimants, and although the claimants may have acted in good faith, we find that they have not met the excusable neglect standard meriting extensions. See id. Therefore, we will deny these claimants' requests.

  The Trust opposes extensions in some instances because the claimants are not eligible for Screening Program echocardiograms. One claimant was diagnosed as FDA Positive prior to September 1, 1999.*fn9 Two claimants alleged they took diet drugs for sixty days or less, and they are therefore not entitled to an echocardiogram.*fn10 Several are ineligible because they were late in filing their Green, Pink, or Blue Forms, or they did not file one of these forms at all, or they never provided certain requisite information.*fn11 Claimants who are ineligible for the Screening Program echocardiogram will not become eligible by way of an extension. We will deny these requests.

  We disagree with the Trust's determination as to W.E. (DDR #8012933). The Trust claims W.E. is not eligible for the benefit because she did not sign her April 22, 2002 Blue form. W.E. claims she sent her Blue form in May, 2000 and called to confirm receipt about three months later. Upon calling the Trust, she was told to call again in six months. In August, 2002, she received a deficiency notice, which she completed and mailed to the Trust. Upon receiving another deficiency notice and calling the Trust, she was told to ignore the second notice. In the spring of 2003, she called again and was told her claim was "with the Board" for a decision about her free echocardiogram. In August, 2003, she received a final deficiency notice requesting the echocardiogram tape. That month she obtained and mailed in a copy of her echocardiogram tape, which was rejected by the Trust because it was not an original tape. We find that W.E. has been duly diligent in pursuing her claim, and we will grant her an extension. If it turns out that the Trust still does not have a signed Blue form for W.E., she will also be afforded an opportunity to submit one, which must be postmarked within thirty days of this Order. Thereafter, W.E. will receive a ninety-day extension to obtain a Screening Program echocardiogram.

  We disagree also as to the Trust's determination for J.P. (DDR #1634229). The Trust maintains that J.P.'s Blue form was not signed by the August 1, 2002 deadline for completed Blue forms. The Trust sent J.P. a follow-up deficiency notice on April 22, 2003 requesting her to answer certain questions, sign an Execution, Acknowledgment, and Authorization, provide copies of certain documents, and return the requested information within twenty days. J.P. maintains she complied. If J.P. was already precluded from receiving benefits as of April 22, 2003, then the Trust should not have requested that she return additional documentation. We think that J.P. has been duly diligent in pursuing her benefits under the Screening Program, and she should receive an extension. If it turns out that the Trust still does not have a signed Blue form for J.P., she also will be afforded an opportunity to submit one, which must be postmarked within thirty days of this Order. Thereafter, J.P. will receive a ninety-day extension to obtain a Screening Program echocardiogram.

  We reach a similar conclusion as to B.G. (DDR #2425437). Although E.G. never signed her Blue form, which she submitted on January 18, 2001, the Trust continued to send her echocardiogram eligibility letters. She was diligent but unsuccessful in trying to get an appointment with a physician provided by the Trust. The Trust does not argue that B.G. received any notice of deficiency and failed to remedy it, although deficiency notices were sent to other claimants who failed to sign their Blue forms. A letter sent on August 11, 2003 by B.G. shows that she was under the mistaken impression that she had provided all necessary information. Under the circumstances, E.G. will be allowed to provide a signed Blue form, which must be postmarked within thirty days of this Order, and thereafter will be granted a ninety-day extension to receive her echocardiogram.

  There are two claimants who diligently tried to make appointments for echocardiograms. However, the physicians named on the lists provided by the Trust were extremely busy and these claimants were unable to make appointments despite their efforts. These claimants will receive ninety-day extensions for their Screening Program echocardiograms.*fn12

  There are several extensions opposed by the Trust where the claimants have asserted claims of personal hardship. In the following cases we disagree with the Trust's assessment, and we will grant ninety-day extensions to the following claimants.

  N.D. (DDR #3127982) was sent her first eligibility letter in August, 2001. N.D. requested an extension due to her own ill health, which required several surgeries, including a mastectomy, in the year leading up to the deadline. She has demonstrated good cause and due diligence.

  C.B.F. (DDR #8078286) was notified of her eligibility in January, 2003. C.B.F. requested an extension because three members of her family had recently died, she had undergone two surgeries, and her mother had been experiencing "nursing abuse." We find her delay excusable.

  K.D.L. (DDR #8094841) was notified of her eligibility in January, 2003. On January 30, 2003, K.D.L. had surgery for epilepsy. She is now seizure-free and able to drive. Under the circumstances, her delay was excusable.

  C.R.P. (DDR #35154) was notified in November, 2002 and was sent her final follow-up letter in March, 2003. She was unable to have her free echocardiogram because she broke her hip and was in a cast. She has demonstrated good cause and due diligence.

  T.S.P. (DDR #1316579) missed her first echocardiogram appointment on July 18, 2002. She missed her second appointment on June 6, 2003 because her daughter went into labor and T.S.P. had to take her to the hospital. She subsequently was unable to get another appointment before the July 3, 2003 deadline. T.S.P. has been diligent in attempting to comply with the deadline, and we find her delay excusable.

  S.W.Q. (DDR #597708) called the Trust in April, 2002 because she had lost the letter matching her with a cardiologist. However, she was unable to meet the echocardiogram deadline because of back surgery and "a train derailment with toxic chemicals." These were circumstances beyond her control.

  V.S. (DDR #877019) received her echocardiogram eligibility notice in August, 2002 and was matched with a cardiologist on September 19, 2002. V.S. was unable to have her echocardiogram performed prior to the deadline because she had surgery on May 28, 2003 and was in the hospital until June 2, 2003. She also had an echocardiogram performed before her surgery which showed that she had pulmonary hypertension, and it therefore may be that she does not need an echocardiogram through the Screening Program. We will grant V.S. an extension to receive a Screening Program echocardiogram, with the understanding that if one is no longer necessary, the Trust will not be required to provide the benefit.

  C.M.W. (DDR #8103365) was notified of her eligibility on January 22, 2003 and was matched with a cardiologist on February 14, 2003. C.M.W. requests an extension because during that period she was pregnant and confined to bed rest on the orders of her physician and because her baby was born with certain health complications preventing her from having an echocardiogram performed before the deadline. Her delay is excusable.

  We find that despite circumstances beyond their control, these claimants have been duly diligent and have demonstrated excusable neglect. We will grant their requests for extensions and allow them ninety days in which to obtain their Screening Program echocardiograms. PRETRIAL ORDER NO.

  AND NOW, this day of May, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:

  (1) the motion of the following claimants for an extension of ninety (90) days to obtain an echocardiogram through the Screening Program is GRANTED:

  A.C.M. (DDR #1234426) S.E. (DDR #2530293)

  L.F. (DDR #1505056) S.G. (DDR #2674356)

  S.G. (DDR #146902) M.J. (DDR #9890890)

  C.J. (DDR #8025056) E.J. (DDR #395186)

  D.M.K. (DDR #8002441) C.L. (DDR #8098667)

  N.M. (DDR #1552504) R.M. (DDR #8039951)

  B.M. (DDR #1553635) L.M. (DDR #8079620)

  M.C.M. (DDR #8005391) R.R.P. (DDR #8020511)

  O.P. (DDR #2872281) J.R. (DDR #1553379) L.K.S.B. (DDR #8110578) K.D. (DDR #8067746)

  R.S.G. (DDR #792442) A.F.H. (DDR #8013854)

  L.C.K. (DDR #1464338) R.L.L. (DDR #3683737)

  R.M.(B). (DDR #1361427) J.P. (DDR #8021208)

  A.C.S. (DDR #3378866) J.S. (DDR #8039059)

  A.C. (DDR #1287358) M.D.C. (DDR #8122700)

  M.D.C. (DDR #8115652) K.C. (DDR #8126283)

  M.L.L. (DDR #8075610) B.M. (DDR #304964)

  M.P. (DDR #8051137) D.F. (DDR #3282167)

  C.F. (DDR #8144609) N.D. (DDR #3127982)

  C.B.F. (DDR #8078286) K.D.L. (DDR #8094841)

  C.R.P. (DDR #35154) T.S.P. (DDR #1316579)

  S.W.Q. (DDR #597708) V.S. (DDR #877019)

  C.M.W. (DDR #8103365);

  (2) the motion of the following claimants for an extension of ninety (90) days to obtain an echocardiogram through the Screening Program is GRANTED. These claimants first must provide the Trust with a signed Blue form, which must be postmarked within thirty (30) days of this Order. Their ninety-day extension to obtain an echocardiogram through the Screening Program will begin on the day on which the signed Blue Form is mailed.

  W.E. (DDR #8012933) J.P. (DDR #1634299)

  B.G. (DDR #2425437);

  and (3) the motion of the following claimants for an extension of time to obtain an echocardiogram through the Screening Program is DENIED:

K.B.S. (DDR #215707) C.H. (DDR #2070746)
S.A.S. (DDR #1790369) K.S. (DDR #8088969)
B.S. (DDR #3308343) J.W. (DDR #3537339)
S.A. (DDR #3567591) R.A. (DDR #8083470)
D.B. (DDR #2863983) S.J.B. (DDR #853481)
S.L.B. (DDR #8122766) A.C.C. (DDR #614743)
J.D.C. (DDR #1831106) B.J.G. (DDR #9889774)
S.H. (DDR #8104175) R.H. (DDR #8155128)
F.J. (DDR #8105838) R.E.J. (DDR #8047608)
S.L. (DDR #8076804) G.E.L. (DDR #8164822)
H.M. (DDR #2192110) W.D.M. (DDR #3059813)
D.M. (DDR #3602075) F.M.T. (DDR #141812)
B.M. (DDR #937631) C.R.N. (DDR #8128051)
J.N. (DDR #8062802) D.A.O. (DDR #1671023)
J.R. (DDR #8081847) A.L.R. (DDR #2872109)
C.S. (DDR #8010918) M.S. (DDR #214544)
T.S. (DDR #1702000) C.S. (DDR #8159104)
J.S. (DDR #1467109) G.S. (DDR #968347)
P.T. (DDR #1424514) L.L.T. (DDR #1562461)
D.L.W. (DDR #1657691) L.A.A. (DDR #8058167)
A.J.E. (DDR #8065582) W.E.M. (DDR #3137460)
L.O. (DDR #2183697) T.E.T. (DDR #8115449)
P.W. (DDR #8120889) E.B. (DDR #1718709) C.G. (DDK #2831121) W.S. (DDR #8011857)
H.O.B. (DDR #8265495) C.A.B. (DDR #8265503)
L.B.B. (DDR #8090653) V.C. (DDR #8138286)
F.L.E. (DDR #8252796) K.M.E. (DDR #8251930)
C.L.G. (DDR #8181015) M.M. (DDR #8261086)
J.M. (DDR #743781) R.A.M. (DDR #8275004)


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