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In re Diet Drugs (Phentermine/ Fenfluramine/Dexfenfluramine) Products Liability Litigation

United States District Court, E.D. Pennsylvania

April 18, 2017



          BARTLE, J.

         Before the court is the motion of Daniel and Louisa D'Antonio to deem Mr. D'Antonio's privately obtained echocardiogram as timely under the Diet Drug Nationwide Class Action Settlement Agreement ("Settlement Agreement") with Wyeth.[1]Mr. D'Antonio failed to obtain an echocardiogram before January 3, 2003, the deadline to submit a privately obtained echocardiogram.[2] However, he maintains that his delay was due to "excusable neglect."


         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. That echocardiogram demonstrated severe mitral regurgitation. 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 Form[4] in October 2003. By 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 Period deadline. More than 14 months after he received the first notice from Class Counsel's Claims Office that his claim was untimely, Mr. D'Antonio filed the present motion. Mr. D'Antonio 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 Compensation Benefits"):
a. 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] ....

         Settlement Agreement § IV.B.1.a. (emphasis added).

         This Settlement Agreement provision imposes two deadlines on Class Members. First, Class Members who did not 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. Second, Class 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). Four factors should be evaluated when deciding whether excusable neglect exists: (1) the danger of prejudice to the non-movant; (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. 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 Agreement. 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 timely manner. 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 Agreement . . . will surely encourage others to seek the same relief." 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. Mr. D'Antonio argues that the delay in obtaining his echocardiogram-eighteen days after the deadline-is 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 ...

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