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

609 F. App'x 78
Procedural entryThis page is a short order in In Re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation. Read the opinion of the Court — 573 F. App'x 182
Court of Appeals for the Third Circuit·Decided April 21, 2015·No. 14-3484·Unpublished

Opinion

*80 OPINION *

AMBRO, Circuit Judge.

Robert and Joan Staggs appeal the District Court’s order denying their challenge to the decision of the AHP Settlement Trust not to compensate Robert Staggs for the alleged injury due to his use of the diet drugs Pondimin and Redux. We affirm.

I. Background

Pondimin and Redux caused widespread injuries to tens of thousands of people. Their claims are subject' to a settlement agreement pursuant to which AHP Settlement Trust pays money to those plaintiffs deemed to have suffered compensable injuries.

Staggs used Pondimin and Redux and submitted to AHP Settlement Trust a claim for what are known as “Matrix Benefits” after he was diagnosed with mild aortic regurgitation, a heart condition in which blood flows backward through the aorta and into the left ventricle rather than out of the left ventricle. His claim included a diagnosis by Dr. Robert Rosen-thal based on a reading of Staggs’s echo-cardiogram (“EKG”). AHP Settlement Trust referred the claim to Dr. Bryan Lucenta, who agreed that there was “mild aortic insufficiency.” J.A. 3338.

According to the Settlement Agreement, a claimant suffered a compensable injury if an EKG demonstrates mild or greater aortic regurgitation. To measure this, a person must view an EKG and record the regurgitant jet height. If this value is 10% or more of the left ventricular outflow tract height, the subject of the EKG has at least mild aortic regurgitation. Crucially here, according to the Settlement Agreement, the person examining the EKG must use the “parasternal long-axis view” to measure regurgitant jet height unless that view is unavailable or inadequate, in which case one may use the “apical long-axis view.” Settlement Agreement § 1.22. This is so because the parasternal long-axis view is less likely to over-represent regur-gitant jet height.

Following Dr. Lucenta’s review, Staggs’s claim was audited. The purpose was to determine whether Staggs’s claim had a “reasonable medical basis.” Settlement Agreement § VI.E.6. Dr. Robert Gillespie, the auditing, cardiologist, reviewed Staggs’s claim and determined that his EKG showed' only trace aortic regurgitation. He further concluded that there was no reasonable medical basis for Dr. Rosen-thal’s diagnosis. AHP Settlement Trust thus denied Staggs’s claim via a “post-audit determination letter.” As the Audit Rules allow, Staggs contested the denial and submitted declarations by Dr. Leon Franzin and Dr. Gerald Koppes.

They opined that the parasternal long-axis view was unavailable, and thus they relied on the apical long-axis view to determine that Staggs indeed suffered from mild aortic regurgitation. In response, Dr. Gillespie submitted a declaration explaining that the parasternal long-axis view was in fact available and that the EKG showed only trace aortic regurgitation. Thus, the Trust issued a final post-audit determination letter again denying Staggs’s claim. Staggs objected, and the claim went through the settlement’s “Show Cause” process, pursuant to which the parties could dispute the claim before the District Court.

It referred the Show Cause proceedings to a Special Master, who appointed the *81 Technical Advisor, Dr. Sandra Abramson, to review the record of Staggs’s claim, which included his EKG and the opinions of Drs. Rosenthal, Lucenta, Gillespie, Franzin and Koppes. The Technical Ad-visor agreed with Dr. Gillespie that there was no reasonable medical .basis for Staggs’s claim and issued a report to that effect.

Staggs disagreed with the Technical Ad-visor and submitted a response to her report. He also tried to submit supplemental reports by Drs. Franzin and Kop-pes. However, the Special Master concluded that, pursuant to Audit Rule 34, these “rebuttals” could not be considered as part of the Show Cause record. J.A. 14-15 n. 12. The District Court agreed, considered the whole Show Cause record (without the rebuttal reports of Drs. Fran-zin and Koppes), and ultimately concluded that the Technical Advisor and Dr. Gillespie were correct that there was no reasonable medical basis for Staggs’s claim.

II. Discussion

Staggs raises three issues on appeal. He contends that the District Court (1) wrongly applied the “reasonable medical basis” standard by failing to defer to his physician’s diagnosis; (2) erred in deciding that there was no reasonable medical basis for his claim; and (8) violated the Audit Rules and deprived him of due process of law by excluding the rebuttal reports of Drs. Franzin and Koppes.

A. Reasonable Medical Basis

Staggs argues that the auditing cardiologist’s review of whether a diagnosis has a “reasonable medical basis” must defer to the claimant’s attesting physician. From this premise, he concludes that the attesting physician’s conclusion must be accepted if it is “not absurd, not ridiculous, not extreme, and not excessive.” Appellant Br. at 23.

It is true that reasonable medical basis review commands a degree of deference: if an attesting physician declares a claimant qualifies for matrix benefits and an auditing cardiologist or the District Court disagrees but nonetheless perceives a reasonable medical basis for the claim, the claim must be approved. But, even though those reviewing the diagnosis may only examine whether it has a reasonable medical basis and not impose their independent judgment of a claimant’s medical condition without regard to the attesting physician’s decision, it does not follow that the review is so deferential as to require approval of any claim unless it is patently absurd.

Rather than the standard Staggs urges, we adhere to the definition in our precedent and the Audit Training Module: a “reasonable medical basis” is a foundation for a diagnosis by an unbiased physician using “normal clinical judgment and accepted medical standards.” J.A. 1489-90. A reasonable medical basis also exists when a diagnosis results from faithful application of the District Coúrt’s orders on “the requirements for reading an echocar-diogram, see PTO 2640” and “the Auditing Cardiologist Training Course, see PTO 2825.” In re Diet Drugs (Phentermine/ Fenfluramine/Dexfenfluramine) Prods. Liab. Litig., 543 F.3d 179, 189 n. 16 (3d Cir.2008).

B. There Was No Reasonable Medical Basis

As stated above, Dr. Rosenthal attested that Staggs suffered from mild aortic regurgitation; Dr. Gillespie disagreed. This is a purely factual dispute, and we review the District Court’s findings for clear error. The Court referred the parties’ disagreement to a Special Master, *82 who in turn appointed a Technical Advisor “to educate [the Special Master] in the jargon and theory disclosed by the [evidence] and to think through the critical technical problems.” Reilly v. United States, 863 F.2d 149, 158 (1st Cir.1988).

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In Re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, 609 F. App'x 78 (3d Cir. 2015).

609 F. App'x 78 (In Re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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