In re Diet Drugs Products Liability
| Decision Date | 10 March 2005 |
| Docket Number | No. 03-4830.,No. 02-4020.,No. 03-2627.,No. 03-2695.,No. 02-4021.,No. 03-2766.,No. 02-4074.,02-4020.,02-4021.,02-4074.,03-2627.,03-2695.,03-2766.,03-4830. |
| Citation | 401 F.3d 143 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | In re: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION. Lois Gooch-Kiel and Linda L. Marull, Appellants. Ronald R. Benjamin,<SMALL><SUP>*</SUP></SMALL> Appellant. Fleming & Associates, L.L.P., individually and on behalf of those clients subject to a 6% or 4% attorneys' fee assessment, Appellant. Lopez, Hodes, Restaino, Milman & Skikos, Members of the Plaintiffs' Management Committee and Robinson, Calcagnie & Robinson, Appellants. Carol Bloom, Jerrie Rawls, Norma Jean Norse, and Tammy Staten, and their counsel, The Non-PMC Refund Counsel, Appellants. Nisen & Elliott, Edward T. Joyce & Associates, P.C., Burke & Burke and The Law Offices of Patrick J. Sherlock, Appellants Randy Hague, Saundra J. Schaad, Nicholas F. Arace, Lisa Lenee Bratton, and their attorney in this matter, Brian S. Riepen, Appellants. |
Bruce A. Finzen, Gary L. Wilson, Stephanie J. Kravetz, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for Appellants Lois Gooch-Kiel and Linda L. Marull.
George M. Fleming, Sylvia Davidow, Rand P. Nolen, Fleming & Associates, LLP, Houston, TX, Mike O'Brien, Mike O'Brien, P.C., Houston, TX, for Appellant Fleming & Associates, LLP.
Ronald R. Benjamin, Law Office of Ronald R. Benjamin, Binghamton, NY, for Appellant Ronald R. Benjamin.
Jonathan Massey (argued), Bethesda, MD, for Appellants Lois Gooch-Kiel, Linda L. Marull, Fleming & Associates, LLP and Ronald Benjamin.
Janet G. Abaray (argued), Beverly H. Pace, Lopez, Hodes, Restaino, Milman & Skikos, Cincinnati, OH, for Appellants Lopez, Hodes, Restaino, Milman & Skikos, and Robinson, Calcagnie & Robinson.
Douglas G. Thompson, Jr. (argued), L. Kendall Satterfield, Tracy D. Rezvani, Finkelstein, Thompson & Loughran, Washington, D.C., for Appellants Carol Bloom, Jerrie Rawls, Norma Jean Norse, and Tammy Staten, and their counsel, the Non-PMC Refund Counsel.
Michael H. Moirano (argued), Nisen & Elliott, Chicago, Illinois, William J. Winning, Cozen & O'Connor, Philadelphia, PA, for Appellants Nisen & Elliott, Edward T. Joyce & Associates, P.C., Burke & Burke and the Law Offices of Patrick J. Sherlock.
Howard J. Bashman (argued), Fort Washington, PA, for Appellants Randy Hague, Saundra J. Schaad, Nicholas F. Arace, Lisa Lenee Bratton, and their attorney in this matter, Brian S. Riepen.
Arnold Levin (argued), Michael D. Fishbein (argued), Fred S. Longer, Levin, Fishbein, Sedran & Berman, Philadelphia, PA, Charles R. Parker, John Roberson (argued), Hill & Parker, Houston, TX, John J. Cummings, III, Cummings, Cummings & Dudenhefer, New Orleans, LA, for Appellees Plaintiffs' Management Committee, Class Counsel, Plaintiffs' Counsel and Common Benefit Attorneys.
Peter L. Zimroth, Arnold & Porter, New York, NY, for Appellee American Home Products Corporation (Wyeth Corporation).
Before NYGAARD, AMBRO and GARTH, Circuit Judges.
These seven appeals have been filed by counsel to various claimants in the Diet Drugs Product Liability Multidistrict Litigation ("MDL 1203"), charging essentially that the District Court abused its discretion in awarding and allocating an interim award of attorneys' fees. In the alternative, several of the complaining attorneys petition this Court to issue a writ of mandamus reversing the award. Because we conclude that the orders from which the appeals were taken, Pretrial Order Nos. 2622 & 2859, are not final and appealable orders, we will dismiss each of these appeals for want of appellate jurisdiction. We will also deny the Petition because the circumstances do not warrant relief by way of mandamus.
In November 1999, American Home Products Corporation ("AHP"),1 which had sold two prescription drugs for the treatment of obesity, fenfluramine and dexfenfluramine, marketed as "Pondimin" and "Redux," entered into a Nationwide Class Action Settlement Agreement (the "Settlement Agreement") with a coalition of plaintiffs' attorneys. These attorneys represented those individuals, in both MDL 1203 and the coordinated state class actions, who had sought monetary damages and other relief from their purchase and ingestion of the diet drugs.
Comprehensive in its description of the various classes or categories of claimants which it comprised, the Settlement Agreement also made provision for the payment of legal fees. In particular, the Settlement Agreement established two accounts (to be funded by Wyeth) — the Fund A Legal Fee Escrow Account and the Fund B Legal Fee Escrow Account — to provide for an appropriate award of attorneys' fees. Additionally, the District Court ordered a percentage of fees from settlements or other recoveries achieved by opt-out plaintiffs in individual actions to be paid into a separate account — the MDL 1203 Fee & Cost Account — to compensate the Plaintiffs' Management Committee (the "PMC") for its common benefit work in MDL 1203. The District Court's interim award of attorneys' fees ($153,722,911.25) was comprised of funds from all three accounts.2
The overarching question presented by four of the seven current appeals3 is whether the District Court properly sequestered a percentage of funds from individual settlements or recoveries to compensate the PMC in cases where individual plaintiffs and their attorneys did not utilize the PMC's discovery or trial preparation materials and thus received no ostensible benefit from the PMC. These four appeals, consequently, focus only on that portion of the interim fee award drawn from the MDL 1203 Fee & Cost Account. The three remaining appeals4 raise the question of whether the District Court fairly allocated the interim fee award among the PMC, Class Counsel and other common benefit attorneys claiming entitlement to share in the award.
A threshold issue here, however, is that of our appellate jurisdiction, for absent jurisdiction we cannot decide the many issues raised before us. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). We are confronted with appeals from an award of attorneys' fees, which, by their interim nature, may lack the necessary elements of finality to properly invoke this Court's appellate jurisdiction. At the outset, therefore, but not before we describe the nature of the interim fee award within the broader context of this litigation, we turn to the resolution of our jurisdiction.
Some of the details of this complex case can be found in the opinions from this Court dealing with issues concerning the Settlement Agreement and its Amendments.5 However, other facts less relevant to the prior appeals, or cursorily mentioned in prior opinions, assume greater salience here, thus warranting renewed and extended discussion. The relevant, although abbreviated, aspects of this factual history are reproduced here and taken largely from the District Court's descriptions in its three pretrial orders. See Pretrial Order Nos. 1415, 2622 and 2859.
Between 1995 and 1997, four million people took Pondimin and two million people took Redux. In September 1997, the U.S. Food and Drug Administration ("FDA") issued a press release reporting abnormal echocardiograms in a "higher than expected percentage of" patients taking the drugs. See Press Release, FDA, FDA Announces Withdrawal of Fenfluramine and Dexfenfluramine (Fen-Phen) (Sept. 15, 1997). Subsequent studies suggested that the drugs may have been linked to serious cardiopulmonary side effects, including heart-valve regurgitation (the reverse flow of blood through a closed valve of the heart) and primary pulmonary hypertension (a progressive and fatal disease affecting pulmonary circulation).
After the withdrawal of the diet drugs, 18,000 individual suits and 130 class actions were filed in state and federal courts. In December 1997, the federal cases were transferred to the Eastern District of Pennsylvania for consolidated or coordinated pretrial purposes by the Judicial Panel on Multidistrict Litigation pursuant to 28 U.S.C. § 1407. In November 1999, Wyeth entered into the Settlement Agreement with users of the diet drugs in the United States. After conducting fairness proceedings, the District Court in the Eastern District of Pennsylvania certified a settlement class and approved the Settlement Agreement. See Pretrial Order No. 1415. Appeals of Pretrial Order No. 1415 followed, with Final Judicial Approval, as defined in the Settlement Agreement, occurring in January 2002.
About 50,000 diet drug recipients ultimately exercised their "initial opt-out rights" to resolve their claims independent of the terms of the class settlement. Soon thereafter, Wyeth settled the claims of all but 600 of these "initial opt-outs," including nearly all of the claims that had been pending in the MDL 1203 proceedings as of November 1999.
Two categories of benefits were and are available to all Class Members under the Settlement Agreement. First, Class Members may apply for medical monitoring and refund benefits. These benefits differ depending upon the length of time that a Class Member ingested diet drugs. Second, Class Members who have serious valvular heart disease ("VHD") may apply for "matrix benefits." The value of matrix benefits for Class Members ranges from $7,389 to $1,485,000. Under the Settlement Agreement, a particular Class Member's benefit is calculated based on his or her age at the time of diagnosis of a matrix-level condition and the severity of the condition. Recognizing the progressive nature of VHD, the Settlement Agreement also allows for damage payments to Class Members who develop serious levels of VHD at any time up to December 31, 2015.
Two separate funds were established under the Settlement Agreement to provide the above benefits to Class Members, and the AHP Settlement Trust...
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