NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 19-2195 _____________
IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION
NORMA SCHLAGER, Appellant _______________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2-99-cv-20593; 2-11-md-01203; 2-15-md-01203) District Judge: Honorable Harvey Bartle, III _______________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 16, 2020
Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.
(Opinion filed: January 21, 2020)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
This appeal addresses the timeliness of a claim for benefits under a nationwide
class action settlement related to the ingestion of diet drugs and the onset of valvular
heart disease. The terms of the settlement agreement provided for two damage matrices:
a low-level matrix and a high-level matrix. Norma Schlager is a class member who
initially sought low-level matrix benefits. She now seeks high-level matrix benefits due
to valvular heart surgery she underwent on September 2, 2010, and a stroke she had on
June 29, 2014.
Due to the terms of the settlement agreement and her lack of an opt-out,
Schlager’s ability to recover high-level matrix benefits is governed by the Seventh
Amendment to the settlement agreement. Under that provision, to seek high-level matrix
benefits after initially requesting low-level matrix benefits, a class member must meet
certain requirements. For Schlager, who last ingested diet drugs in 1995, she needed to
experience a qualifying event triggering a claim for benefits (a) no later than
December 31, 2011, and (b) while she was 79 years old or under. And to request high-
level matrix benefits, she needed to submit a document, referred to as the Green Form, to
the administrator of the settlement trust. The Green Form had to be completed either by
her or her representative, and a physician.
Originally, the Seventh Amendment did not include a time period for submitting a
Green Form. But an order entered by the District Court, referred to as ‘Court Approved
Procedure 16,’ imposed deadlines for the Green Form. That order dictated that a
completed Green Form must have been received within four years after the later of (i) the
2 date of the order, which was entered on November 8, 2010, or (ii) the first diagnosis of
“the last occurring condition or event upon which the claim for [high-level matrix
benefits] is based.” Court Approved Procedure No. 16 at 2, In re Diet Drugs
(Phentermine/Fenfluramine/Dexfenfluramine) Products Liab. Litig., 2:11-md-01203
(E.D. Pa. Nov. 5, 2001).
Here, Schlager seeks Level IV high-level matrix benefits based on her 2010
surgery and her 2014 stroke. To obtain those benefits, Schlager completed and submitted
a Green Form, which was received on February 6, 2017. The settlement trust
administrator denied Schlager benefits, and Schlager contested that outcome.
Consistent with the terms of the class action settlement agreement, the District
Court then referred the dispute to arbitration. The arbitrator upheld the denial of benefits
related to Schlager’s 2010 surgery because the Green Form was submitted too late. Her
2017 Green Form was received over four years past both the entry of Court Approved
Procedure 16 and her 2010 surgery. The arbitrator also upheld the denial of benefits
related to Schlager’s 2014 stroke for two reasons: her stroke occurred after December 31,
2011, and she was 81 years old at the time.
Schlager then appealed the arbitrator’s decision to the District Court, which, in
exercising jurisdiction, see 28 U.S.C. § 1332, affirmed the arbitrator’s award.
Schlager appealed again to this Court. With jurisdiction over a final order
affirming an arbitration award, see 28 U.S.C. § 1291, we review factual findings for clear
error and legal conclusions de novo. See Sutter v. Oxford Health Plans LLC, 675 F.3d
215, 219 (3d Cir. 2012).
3 I
This appeal is not the first time that this Court has addressed an untimely claim by
Schlager to recover for her 2010 surgery. In 2015, she submitted two Green Forms
requesting Level III high-level matrix benefits based on that surgery. See generally In re
Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liab. Litig.,
763 F. App’x 237 (3d Cir. 2019). This Court determined that those Green Forms were
late and that their untimeliness could not be excused based on due process, lack of notice,
equitable tolling, or other reasons. Id. at 241-43, 243 n.25.
This time, Schlager seeks to recover based on a more untimely Green Form, which
sought greater benefits – those under Level IV, up from Level III. Schlager argues that
the 2017 Green Form should be deemed timely due to the discovery rule, the relation-
back doctrine, equitable tolling, class action protocols, and guidance from the Federal
Judicial Center. To put it mildly, none of those arguments have any merit.
Schlager first attempts to invoke discovery rule, by asserting that the deadlines
imposed by Court Approved Procedure 16 “worked a fraud on [her].” That argument
misapprehends the discovery rule at a fundamental level. The discovery rule tolls a
statute of limitations in certain instances based on the new discovery of an injury and its
cause – not for the discovery of a court-approved procedure for submitting claims. See
Schmidt v. Skolas, 770 F.3d 241, 251 (3d Cir. 2014); Crouse v. Cyclops Indus., 745 A.2d
606, 611 (Pa. 2000); see also Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019).
Schlager next argues that the relation-back doctrine should be applied to her 2017
Green Form. Specifically, she argues that the 2017 Green Form should relate back to her
4 2015 Green Forms. The relation-back doctrine is a rule of pleading, see Krupski v. Costa
Crociere S. p. A., 560 U.S. 538, 547 (2010), and it does not apply to claim forms
submitted to a settlement trust. Nor would relation-back preserve Schlager’s claims. As
this Court previously held, even those 2015 Green Forms were untimely. See In re Diet
Drugs, 763 F. App’x at 243.
Schlager’s equitable tolling arguments also come up empty. None of the
circumstances necessary for equitable tolling are present here. See In re Cmty. Bank of N.
Va. Mortg. Lending Practices Litig., 795 F.3d 380, 400 (3d Cir. 2015) (setting forth three
circumstances in which equitable tolling has been permitted). Nothing indicates that
Schlager was actively misled, that she was prevented from filing a Green Form, or that
she filed a Green Form in the wrong forum. See id.
In next arguing that she acted with “extraordinary diligence” in pursuing a claim
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 19-2195 _____________
IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION
NORMA SCHLAGER, Appellant _______________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2-99-cv-20593; 2-11-md-01203; 2-15-md-01203) District Judge: Honorable Harvey Bartle, III _______________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 16, 2020
Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.
(Opinion filed: January 21, 2020)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
This appeal addresses the timeliness of a claim for benefits under a nationwide
class action settlement related to the ingestion of diet drugs and the onset of valvular
heart disease. The terms of the settlement agreement provided for two damage matrices:
a low-level matrix and a high-level matrix. Norma Schlager is a class member who
initially sought low-level matrix benefits. She now seeks high-level matrix benefits due
to valvular heart surgery she underwent on September 2, 2010, and a stroke she had on
June 29, 2014.
Due to the terms of the settlement agreement and her lack of an opt-out,
Schlager’s ability to recover high-level matrix benefits is governed by the Seventh
Amendment to the settlement agreement. Under that provision, to seek high-level matrix
benefits after initially requesting low-level matrix benefits, a class member must meet
certain requirements. For Schlager, who last ingested diet drugs in 1995, she needed to
experience a qualifying event triggering a claim for benefits (a) no later than
December 31, 2011, and (b) while she was 79 years old or under. And to request high-
level matrix benefits, she needed to submit a document, referred to as the Green Form, to
the administrator of the settlement trust. The Green Form had to be completed either by
her or her representative, and a physician.
Originally, the Seventh Amendment did not include a time period for submitting a
Green Form. But an order entered by the District Court, referred to as ‘Court Approved
Procedure 16,’ imposed deadlines for the Green Form. That order dictated that a
completed Green Form must have been received within four years after the later of (i) the
2 date of the order, which was entered on November 8, 2010, or (ii) the first diagnosis of
“the last occurring condition or event upon which the claim for [high-level matrix
benefits] is based.” Court Approved Procedure No. 16 at 2, In re Diet Drugs
(Phentermine/Fenfluramine/Dexfenfluramine) Products Liab. Litig., 2:11-md-01203
(E.D. Pa. Nov. 5, 2001).
Here, Schlager seeks Level IV high-level matrix benefits based on her 2010
surgery and her 2014 stroke. To obtain those benefits, Schlager completed and submitted
a Green Form, which was received on February 6, 2017. The settlement trust
administrator denied Schlager benefits, and Schlager contested that outcome.
Consistent with the terms of the class action settlement agreement, the District
Court then referred the dispute to arbitration. The arbitrator upheld the denial of benefits
related to Schlager’s 2010 surgery because the Green Form was submitted too late. Her
2017 Green Form was received over four years past both the entry of Court Approved
Procedure 16 and her 2010 surgery. The arbitrator also upheld the denial of benefits
related to Schlager’s 2014 stroke for two reasons: her stroke occurred after December 31,
2011, and she was 81 years old at the time.
Schlager then appealed the arbitrator’s decision to the District Court, which, in
exercising jurisdiction, see 28 U.S.C. § 1332, affirmed the arbitrator’s award.
Schlager appealed again to this Court. With jurisdiction over a final order
affirming an arbitration award, see 28 U.S.C. § 1291, we review factual findings for clear
error and legal conclusions de novo. See Sutter v. Oxford Health Plans LLC, 675 F.3d
215, 219 (3d Cir. 2012).
3 I
This appeal is not the first time that this Court has addressed an untimely claim by
Schlager to recover for her 2010 surgery. In 2015, she submitted two Green Forms
requesting Level III high-level matrix benefits based on that surgery. See generally In re
Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liab. Litig.,
763 F. App’x 237 (3d Cir. 2019). This Court determined that those Green Forms were
late and that their untimeliness could not be excused based on due process, lack of notice,
equitable tolling, or other reasons. Id. at 241-43, 243 n.25.
This time, Schlager seeks to recover based on a more untimely Green Form, which
sought greater benefits – those under Level IV, up from Level III. Schlager argues that
the 2017 Green Form should be deemed timely due to the discovery rule, the relation-
back doctrine, equitable tolling, class action protocols, and guidance from the Federal
Judicial Center. To put it mildly, none of those arguments have any merit.
Schlager first attempts to invoke discovery rule, by asserting that the deadlines
imposed by Court Approved Procedure 16 “worked a fraud on [her].” That argument
misapprehends the discovery rule at a fundamental level. The discovery rule tolls a
statute of limitations in certain instances based on the new discovery of an injury and its
cause – not for the discovery of a court-approved procedure for submitting claims. See
Schmidt v. Skolas, 770 F.3d 241, 251 (3d Cir. 2014); Crouse v. Cyclops Indus., 745 A.2d
606, 611 (Pa. 2000); see also Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019).
Schlager next argues that the relation-back doctrine should be applied to her 2017
Green Form. Specifically, she argues that the 2017 Green Form should relate back to her
4 2015 Green Forms. The relation-back doctrine is a rule of pleading, see Krupski v. Costa
Crociere S. p. A., 560 U.S. 538, 547 (2010), and it does not apply to claim forms
submitted to a settlement trust. Nor would relation-back preserve Schlager’s claims. As
this Court previously held, even those 2015 Green Forms were untimely. See In re Diet
Drugs, 763 F. App’x at 243.
Schlager’s equitable tolling arguments also come up empty. None of the
circumstances necessary for equitable tolling are present here. See In re Cmty. Bank of N.
Va. Mortg. Lending Practices Litig., 795 F.3d 380, 400 (3d Cir. 2015) (setting forth three
circumstances in which equitable tolling has been permitted). Nothing indicates that
Schlager was actively misled, that she was prevented from filing a Green Form, or that
she filed a Green Form in the wrong forum. See id.
In next arguing that she acted with “extraordinary diligence” in pursuing a claim
for her 2010 surgery, Schlager re-packages an argument previously rejected by this
Court. See In re Diet Drugs, 763 F. App’x at 242-43. Nothing she presents this time
around favors a different outcome.
In another effort to justify her untimeliness, Schlager attempts to blame the
settlement trust administrator. Specifically, she contends that rather than permitting her
to continue pro se, the trust administrator should have notified her that she was entitled to
the service of class counsel. That obligation of the trust administrator to notify a pro se
claimant of the availability of legal services by class counsel arises from a court order,
referred to as ‘Court Approved Procedure 3.’ That duty, however, is limited to instances
in which “a pro se claimant is likely to be unable to complete a claim without assistance,
5 would benefit from assistance of counsel and is likely to be prejudiced as a result of
absence of assistance of counsel.” Court Approved Procedure No. 3 at 2, In re Diet
Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liab. Litig.,
2:11-md-01203 (E.D. Pa. Nov. 15, 2001). And based on Schlager’s prior pro se
submission of a Green Form in 2003 – allowing her to obtain low-level matrix benefits –
the conditions prompting notice by the trust administrator were not present with respect
to Schlager’s subsequent Green Form submissions.
Schlager closes with the claim that the District Court erred by failing to follow
model notice procedures published by the Federal Judicial Center. Perhaps suggestive of
a lack of any potential merit, Schlager does not adequately develop that argument, which
does not provide a basis for overturning the judgment against her. See generally Sw. Pa.
Growth All. v. Browner, 121 F.3d 106, 122 (3d Cir. 1997) (“[A]ppellate courts generally
should not address legal issues that the parties have not developed through proper
briefing.”).
II
Regardless of the timeliness of her Green Form, Schlager cannot recover for her
2014 stroke under the terms of the settlement agreement. The stroke occurred on
June 29, 2014, after the December 31, 2011 deadline for a qualifying event. Also,
because Schlager was 81 years old when she suffered that stroke, she was not eligible to
recover benefits for it.
III
For the foregoing reasons, we will affirm the judgment of the District Court.