In Re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Product Liability Litigation

412 F. App'x 527
Procedural entryThis page is a short order in In Re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Product Liability Litigation. Read the opinion of the Court — 706 F.3d 217
Court of Appeals for the Third Circuit·Decided January 21, 2011·No. 09-3979·Unpublished

Opinion

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Rose Sellers appeals the District Court’s affirmance of an arbitrator’s denial of additional benefits under the Diet Drug Nationwide Class Settlement Agreement relating to ingestion of the diet drugs fen-fluramine (Pondimin) and dexfenfluramine (Redux). We will affirm.

I.

Sellers, a class member, sought matrix compensation benefits from the American Home Products Settlement Trust, created to resolve legal claims relating to the sale, distribution, and use of the diet drugs. 1 To be eligible to receive matrix benefits, the settlement agreement requires a class member to demonstrate he or she suffers from certain medical conditions, and that he or she used the diet drugs. Moreover, the agreement sets forth how these two conditions must be proven.

Sellers initially registered for benefits on February 17, 2000, under the “Accelerated Implementation Option” set forth in *529 the settlement agreement, and administered through a form referred to as the pink form. The pink form provides several ways for claimants to provide information about their receipt of diet drugs. A claimant could provide, the “pharmacy name, address and telephone number” and the dispensing records, including “the medicine’s name, quantity, frequency, dosage, and number of refills prescribed, prescribing physicians [sic] name, assigned prescription number, original fill date and each subsequent refill date.” If the drugs were “dispensed directly by a physician or weight loss clinic, or the pharmacy record(s) is unobtainable,” a claimant could “state the name of each physician who prescribed the diet drug, and the address and telephone number of that physician,” along with medical records “reflecting the prescription and/or dispensing of the diet drugs.” Under this option, a claimant could authorize the claims administrator to obtain copies of the records in the event the claimant did not have or did not wish to obtain them. Finally, “[i]f and only if the pharmacy record(s) or medical record(s) are unobtainable,” a claimant could provide a “Declaration of Prescribing Physician or Dispensing Pharmacy.”

On her pink form, Sellers provided incomplete answers regarding the source from which she obtained diet drugs and the physician who prescribed or dispensed the drugs. Moreover, she failed to provide adequate medical records, to complete the authorization for the trust to obtain her medical records, or to provide a declaration from her prescribing physician or the dispensing pharmacy as required by the form.

The trust issued a deficiency letter on November 17, 2000, advising Sellers it required copies of her medical and prescription records. In response to the November 2000 deficiency letter, Sellers returned a medical records authorization, but failed to provide specific information regarding her prescriber or the dispensing entity. The trust once again sent letters in December of 2000 and January of 2001 notifying Sellers of this deficiency. Sellers returned the letter and another medical records authorization without providing specific information regarding her prescriber or the dispensing entity. Despite these deficiencies, the trust notified Sellers in August of 2001 she was eligible to receive certain benefits under the settlement agreement — a transthora-cic echocardiogram and accompanying physician visit, and a refund for a portion of the cost of the diet drugs.

Subsequently, in November of 2001, Sellers provided an additional statement concerning her receipt and ingestion of the drugs, which stated “[t]he drugs were sent to me in the mail after I went to a Fen Phen diet clinic in the Speedway Shopping Center in Indianapolis, Indiana,” as the source of the drugs. She did not provide information about her prescriber. In response, the trust again requested the names and addresses of physicians or clinics who dispensed the drugs. Sellers mailed a response stating “I went to a clinic (I think Physician Weight Loss Center) at Speedway Shopping Center at 5620 Crawfordsville Road, Indianapolis, IN. They sent me the prescription through the mail.” The trust issued a deficiency notice on April 5, 2004, explaining that information and records demonstrating duration of her use of the drugs, and required for processing of the pink form, were incomplete. In April 2004, Sellers responded, providing vague information and prompting the trust to issue a final deficiency notice on June 17, 2004. Sellers responded to the final deficiency notice with incomplete information about the dispenser, but added she “took Phen-Fen for three to four months.”

*530 Notwithstanding her failure to provide adequate information for the receipt of benefits under the accelerated implementation option, Sellers submitted a claim for matrix compensation benefits in November 2004 based on the results of her physician examination showing she had moderate mi-tral regurgitation and an ejection fraction of 50-60%. To apply for matrix benefits, she submitted the trust’s green form.

The settlement agreement requires, among other things, proof of diet drug prescription and dispensing as a prerequisite for claimants to establish eligibility for matrix compensation benefits:

[E]ach Class Member must submit documentary proof ... of the period of time for which the Diet Drugs ... were prescribed and dispensed to the Diet Drug Recipient who is the subject of the Claim. This proof must include one of the following:
(1) If the diet drug was dispensed by a pharmacy, the identity of each pharmacy that dispensed the Diet Drugs to the Diet Drug Recipient, including its name, address, and telephone number, and a copy of the prescription dispensing ree-ord(s) from each pharmacy, which should include the medication name, quantity, frequency, dosage and number of refills prescribed, prescribing physician’s name, assigned prescription number, original fill date and each subsequent refill date; or,
(2) If the diet drug was dispensed directly by a physician or weight loss clinic, or the pharmacy record(s) is unobtainable, the identity of each prescribing physician, including the prescribing physician’s name, address, and telephone number and a copy of the medial ree-ord(s) prescribing or dispensing the diet drug(s), the medical record(s) must include records which identify the Diet Drug Recipient, the Diet Drug name, the date(s) prescribed, the dosage, and duration the drug was prescribed or dispensed;
(3)If the pharmacy records and medical records are unobtainable, an affidavit under penalty of perjury from the prescribing physician or dispensing pharmacy identifying the Diet Drug Recipient, the drug(s) prescribed or dispensed, the date(s), quantity, frequency, dosage and number of prescriptions or refills of the Diet Drug(s).

But Sellers substantiated her claim on January 12, 2006, using only two affidavits concerning her use of the diet drugs — one from her husband, and one from her sister-in-law. The affidavits failed to specify the medications ingested, the dates, quantity, frequency, and number of refills. Moreover, she submitted no records of prescription, dispensing, or payment.

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In Re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Product Liability Litigation, 412 F. App'x 527 (3d Cir. 2011).

412 F. App'x 527 (In Re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Product Liability Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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