United States District Court, E.D. Pennsylvania
IN RE DIET DRUGS PHENTERMINE/ FENFLURAMINE/DEXFENFLURAMINE PRODUCTS LIABILITY LITIGATION
AMERICAN HOME PRODUCTS CORPORATION THIS DOCUMENT RELATES TO SHEILA BROWN, et al. THIS DOCUMENT RELATES TO Claimant: Norma M. Schlager Claim No. 183/00 1947282 No. 99-20593
MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO.
M. Schlager ("Ms. Schlager or "claimant"), a
Class Member under the Diet Drug Nationwide Class Action
Settlement Agreement ("Settlement Agreement") with
Wyeth, Inc., seeks benefits from the AHP Settlement
Trust ("Trust"). Before the court is her appeal
from a September 19, 2016 determination by an arbitrator that
she did not establish the required conditions necessary for
recovery of Matrix Level III Benefits because she did not
file a timely claim.
the Settlement Agreement, Matrix Compensation Benefits
("Matrix Benefits") are awarded to compensate
claimants for medical conditions caused by Pondimin® or
Redux™ ("Diet Drugs"). A claimant who
seeks Matrix Benefits may demonstrate her eligibility for
those Benefits in one of two ways. She may be eligible if she
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 she
registered for Settlement Benefits by May 3, 2003.
Alternatively, she may be eligible if she was diagnosed by a
Qualified Physician on or before September 30, 2005 with
Endocardial Fibrosis, provided that she registered for
benefits by January 1, 2006.
Seventh Amendment to the Settlement Agreement provides that a
Category One or Category Two Class Member can qualify to
receive Seventh Amendment Matrix Level III, IV, or V Benefits
from the Trust. See Seventh Amendment §
IX.A.1. In order to qualify for these "High-Level
Benefits, " the Class Member must satisfy the deadlines
set forth in § IX.A.l.a of the Seventh Amendment, which
states in relevant part:
The Diet Drug Recipient whose condition forms the basis for
the claim has or had High Matrix Level Qualifying Factors
that were diagnosed and occurred by the earlier of: (i)
December 31, 2011; or (ii) 15 years after the date of the
Amendment § IX.A.1. The Class Member is also required to
submit a properly completed Green Form and accompanying
documentation. Seventh Amendment §§ I.B.64, IX.A.1.
In addition, she must:
(ii) qualif[y] for the payment of the benefits on Matrix
Levels III, IV or V under the terms of the Settlement
Agreement as it existed before the Execution Date; and (iii)
qualif[y] as having the High Matrix Level Qualifying Factors
on the same Matrix Level for which the Class Member qualifies
for benefits under the Settlement Agreement as it existed
before the Execution Date.
Amendment §§ IX.A.1.b(ii)-(iii). If a Class Member
who was previously entitled only to Level I or Level II
benefits "progress[es] to more serious levels of
valvular heart disease, " she has "the right to
'step up' to higher amounts of compensation" -
that is Levels III, IV, or V - "as those levels occur
pursuant to the settlement matrices." Pretrial Order
("PTO") No. 1415 (Aug. 28, 2000) .
April 2003, Ms. Schlager submitted to the Trust a Green Form
seeking Level II Matrix Benefits. She did not opt out of the
Seventh Amendment, and in March 2005 she was informed that
she qualified as a Category One Class Member. In 2008, the
Seventh Amendment Fund Administrator finished processing Ms.
Schlager's claim and concluded that she had not
established the necessary medical conditions to qualify for
Category One benefits and that she was entitled to a Minimum
Payment Amount of $2, 000. In a letter to Ms. Schlager dated
March 5, 2008, the Fund Administrator summarized its
conclusions as to her claim.
letter stated, among other things:
You will be entitled to claim Matrix Compensation Benefits at
Levels III, IV or V as modified by the 7th Amendment, if your
condition worsens so as to qualify at those levels before
December 31, 2011 or fifteen years after the last use of the
diet drugs, whichever date is earlier.
letter stated that "[t]he rights and obligations of
Category One Class Members, including restrictions regarding
the distribution of benefits, are set forth in the 7th
Amendment, which governs." According to Ms. Schlager,
her heart condition worsened following the Fund
Administrator's determination. Ms. Schlager's son,
Ron Schlager, an attorney who is handling her present appeal,
wrote two letters to class counsel in April 2009 advising
counsel that Ms. Schlager would likely require heart surgery
for "covered complications" and wrote to
"affirm . . . that the medical costs of this type would
be covered." Ms. Schlager underwent surgery to replace
her aortic valve on September 2, 2010.
months later, on November 8, 2010, this court approved Court
Approved Procedure No. 16 ("CAP 16") in PTO 8559.
pertinent part, CAP 16 modified the deadlines applicable to
Class Members seeking Matrix Benefits. It stated, in relevant
5. Green Form Filing Deadline. Any Class Member who wishes to
seek Matrix Compensation Benefits must submit a completed and
executed Green Form Part I and Green Form Part II postmarked
or delivered to the Trust no later than four years from the
later of (1) the entry of an Order approving this Procedure
or (b) the date on which the Diet Drug Recipient was first
diagnosed as having the last ...