In re Briscoe, 04-4086.

Citation448 F.3d 201
Decision Date15 May 2006
Docket NumberNo. 04-4086.,04-4086.
PartiesIn re: Karen A. BRISCOE, et al.; Alfred Lara, et al.; Wanda T. Kizer, et al.;<SMALL><SUP>*</SUP></SMALL> Debra Alexander, et al.; Rhonda Allen, et al.; Mary Green, et al.; Glenda D. Abbott, et al.; and Leslie Bales, et al., Petitioners.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Sylvia Davidow, Fleming & Associates, Houston, TX, Thomas C. Goldstein (Argued), Goldstein & Howe, Washington, DC, Jonathan S. Massey (Argued), Bethesda, MD, for Petitioners Karen Briscoe, et al., Alfred Lara, et al., Debra Alexander, et al., Rhonda Allen, et al., Mary Green, et al., Glenda D. Abbott, et al. and Leslie Bales, et al.

Fred S. Longer, Arnold Levin, Michael D. Fishbein, Levin, Fishbein, Sedran & Berman, Philadelphia, PA, for Respondents Plaintiffs' Management Committee and Plaintiffs' Class.

Mary H. Smith, Smith & Smith, Houston, TX, for Respondents George O. Crisp, M.D., Jacqueline C. Hubbard, M.D., Frank Morehead, M.D., James Vosberg, M.D. and Brent Wallace, M.D.

Russell G. Thornton, Stinnett Thiebaud & Remington, Dallas, TX, for Respondent Stinnett Thiebaud & Remington Physicians.

Nancy N. Morrison, Naman, Howell, Smith & Lee, Waco, TX, for Respondents J.E. Madsen, M.D., James Weinblatt, M.D. and Morey Price, M.D.

Jay H. Henderson, Cruse, Scott, Henderson & Allen, Houston, TX, for Respondent Cruse, Scott, Henderson & Allen Physicians.

Nik A. Mimari, Patterson & Wagner, San Antonio, TX, for Respondents Michael Hesitand, M.D. and Carmen Llauger-Meir, M.D.

Joseph M. Dunn, Evans & Rowe, San Antonio, TX, for Respondents Beau Meyer, M.D. and Sylvia Adams, M.D.

Ann P. Watson, Lara M. Price, Sheehy, Serpe & Ware, Houston, TX, for Respondent Sheehy, Serpe & Ware Physicians.

Douglas E. Markham, Callaway & Brenning, Houston, TX, for Respondent Esther G. Cruz, D.O.

John R. Robinson, Johnson & Sylvan, Dallas, TX, for Respondent Johnson & Sylvan Physicians.

C. Timothy Reynolds, Steed Flagg, Rockwall, TX, for Respondent Tyson H. Barnes, Jr., M.D.

Robert D. Rosenbaum (Argued), Arnold & Porter, Washington, D.C., Michael T. Scott, Paul B. Kerrigan, Milind M. Shah, Reed Smith, Philadelphia, PA, Peter L. Zimroth, Arnold & Porter, New York, NY, for Respondent Wyeth Corp. f/k/a American Home Products Corporation.

Mark A. Keene (Argued), Davis & Davis, Austin, TX, for Respondent Stella Kwong, M.D.

Philip A. Sellers, Karotkin, Chase & Erwin, Houston, TX, for Respondents James Saxton, M.D., Raymond Neuman, M.D., Cornelia L. Agent, M.D. and Robert Carroll, M.D.

Matthew W. Bobo, Broome, Bobo & Greene, Irving, TX, for Nancy Scheinost.

Michael L. O'Brien, Houston, TX, for Amicus-Petitioner Opt-Out Plaintiffs' Counsel (O'Brien Group).

Bryan F. Aylstock, Aylstock, Witkin & Sasser, Pensacola, FL, for Amicus-Petitioner Opt-Out Plaintiffs' Counsel (Aylstock Group).

John E. Williams, Jr., Williams Bailey Law Firm, Houston, TX, for Amicus-Petitioner Williams Bailey Law Firm, LLP.

Whitman B. Johnson, III, Currie, Johnson, Griffin, Gaines & Myers, Jackson, MS, for Amici-Respondents Alphonse M. Reed, M.D., et al.

Honorable Harvey Bartle, III, Nominal Respondent.

Before SLOVITER, SMITH and STAPLETON, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

At issue in this case is the disposition of more than 14,000 actions filed by some 30,000 to 35,000 plaintiffs pending before the United States District Court for the Eastern District of Pennsylvania as part of the Multidistrict Diet Drug Product Liability Litigation, MDL-1203. Petitioners are 450 plaintiffs who originally filed their suits in Texas state courts. Defendant Wyeth removed the suits to the Texas federal district courts on the basis of diversity jurisdiction, even though petitioners had also named non-diverse parties as defendants. According to Wyeth, removal was proper because the additional defendants were named solely as a means to defeat federal jurisdiction. After the actions were transferred to the docket of MDL-1203, petitioners moved for a remand to state court. The District Court held that the non-diverse defendants were "fraudulently joined" because it determined that the claims against them are clearly time-barred under the governing Texas statute of limitations. It therefore dismissed all defendants except Wyeth, held that it has diversity jurisdiction, and denied the motions to remand. Claiming that the District Court committed a clear error of law, petitioners seek a writ of mandamus and ask that we direct the District Court to remand their cases to state court.1

I.

This court has previously set forth various facets of the background to MDL-1203 and its class action settlement agreement. See In re Diet Drugs, 401 F.3d 143, 147-48 (3d Cir.2005) (dismissing appeals for want of jurisdiction and denying mandamus petition for review of award and allocation of interim award of attorney's fees); In re Diet Drugs, 385 F.3d 386, 389-93 (3d Cir. 2004) (affirming approval of Sixth Amendment to the settlement agreement); In re Diet Drugs, 369 F.3d 293, 299 (3d Cir. 2004) (addressing District Court's injunction limiting scope of proceedings in state court); In re Diet Drugs, 282 F.3d 220, 225-29 (3d Cir.2002) (addressing injunction against mass opt out from settlement agreement). We limit our discussion here to the facts pertinent to the present mandamus request.

On September 15, 1997, respondent Wyeth (then known as American Home Products Corporation) withdrew from sale on the United States market its widely prescribed appetite suppressants, or "diet drugs," known as fenfluramine ("Pondimin") and dexfenfluramine ("Redux"). Approximately six million people in the United States had taken one or both of the diet drugs prior to the withdrawal. Subsequent studies have linked ingestion of the diet drugs to valvular heart damage ("VHD"), including a condition known as heart-valve regurgitation (the reverse flow of blood through a closed heart valve). After the diet drugs were withdrawn, approximately 18,000 lawsuits were filed against Wyeth in state and federal courts nationwide. In December 1997, the Judicial Panel for Multidistrict Litigation ("JPML") consolidated the pending federal cases for coordinated pre-trial proceedings and transferred them as MDL-1203 to the docket of then District Judge Louis C. Bechtle in the United States District Court for the Eastern District of Pennsylvania.2

In November 1999, Wyeth and representatives of the state and federal court plaintiffs executed a Nationwide Class Action Settlement Agreement ("Settlement Agreement"). The proposed class included all persons in the United States, including their representatives and dependents, who had ingested either or both of the diet drugs. Judge Bechtle granted provisional approval to the Settlement Agreement and initiated a wide-reaching notification program to alert all potential class members. The notice program had two essential parts:

The first part of the notice program was designed to make class members aware of the potential risks posed by Pondimin and Redux, of the legal rights arising from the use of those drugs, of the proposed nationwide class action settlement which would resolve such claims and of their opportunity to opt out or object to the Settlement. In addition, the first part of the notice program was designed to inform class members of the opportunity to obtain a court authorized "notice package" describing their legal rights in relation to the settlement by registering to receive the notice package through a 1-800 number (1-800-386-2070) or through the world wide web (www.settlementdietdrugs.com). The second part of the notice program was to provide a detailed "notice package" to each person who had registered through the 1-800 number or web site and to all other class members whose names and addresses were known to the parties.

In re Diet Drugs, MDL No. 1203 & Civ. No. 99-20593, 2000 WL 1222042, at *35 (E.D.Pa. Aug. 28.2000). From November 1999 through March 2000, the notice was disseminated to potential class members through a broad spectrum of media, including: a television commercial; magazines; local and national newspapers; publications targeting healthcare providers and pharmacists; banner advertisements on the Internet directing class members to the official settlement website; and a direct mailing to all doctors and pharmacists believed to have prescribed Pondimin or Redux.

After the notice program, Judge Bechtle conducted a comprehensive evidentiary hearing on fairness of the Settlement Agreement. He then formally certified the plaintiffs' class and approved the Settlement Agreement (with four amendments) on August 28, 2000. Judge Bechtle made numerous factual determinations in connection with his approval of the Settlement Agreement, two of which are relevant here. First, he found that the dissemination of notice to class members was "highly successful," explaining that

[a] sophisticated media analysis demonstrated that 97% of women between the ages of 25 and 54 viewed one or more forms of televised or printed notice an average of 10 times. A reach and frequency analysis indicated that almost 80% of women between the ages of 25 and 54 were exposed to the message contained in the televised or printed forms of notice a minimum of five times. Women between the ages of 25 and 54 account for a vast majority of the use of diet drugs Pondimin and Redux. . . . In addition, a reach and frequency analysis indicated that the settlement message reached 97% of women 35 years and older an average of 11.4 times and that it reached 81% of women 35 years and older a minimum of five times. With respect to African-American women between the ages of 25 and 54, the reach and frequency analysis shows that the settlement message reached 97% of those women an average of 10.2 times and that 79% of African-American women between the ages of 25 and 54 viewed the message...

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