In re Drugs, No. 02-4020 (Fed. 3rd Cir. 3/10/2005)
| Decision Date | 10 March 2005 |
| Docket Number | No. 02-4020.,No. 03-2627.,No. 03-2766.,No. 03-2695.,No. 02-4074.,No. 03-4830.,No. 02-4021.,02-4020.,02-4021.,02-4074.,03-2627.,03-2695.,03-2766.,03-4830. |
| 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 in No. 02-4020. RONALD R. BENJAMIN<SMALL><SUP>*</SUP></SMALL>, Appellant in No. 02-4021 FLEMING & ASSOCIATES, L.L.P., individually and on behalf of those clients subject to a 6% or 4% attorneys' fee assessment, Appellant in No. 02-4074. LOPEZ, HODES, RESTAINO, MILMAN & SKIKOS, Members of the Plaintiffs' Management Committee and ROBINSON, CALCAGNIE & ROBINSON, Appellants in No. 03-2627. CAROL BLOOM, JERRIE RAWLS, NORMA JEAN NORSE, and TAMMY STATEN, and their counsel, THE NON-PMC REFUND COUNSEL, Appellants in No. 03-2695. NISEN & ELLIOTT, EDWARD T. JOYCE & ASSOCIATES, P.C., BURKE & BURKE and THE LAW OFFICES OF PATRICK J. SHERLOCK, Appellants in No. 03-2766. RANDY HAGUE, SAUNDRA J. SCHAAD, NICHOLAS F. ARACE, LISA LENEE BRATTON, and their attorney in this matter, BRIAN S. RIEPEN, Appellants in No. 03-4830. |
On Appeal from the United States District Court for the Eastern District of Pennsylvania, MDL No. 1203, District Court Judge: The Honorable Harvey Bartle, III.
Bruce A. Finzen, Gary L. Wilson, Stephanie J. Kravetz, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402-2015, Attorneys for Appellants, Lois Gooch-Kiel and Linda L. Marull.
George M. Fleming, Sylvia Davidow, Rand P. Nolen, Fleming & Associates, LLP, 1330 Post Oak Blvd., Suite 3030, Houston, TX 77056.
Mike O'Brien, Mike O'Brien, P.C., 1330 Post Oak Blvd., Suite 2960, Houston, TX 77056, Attorneys for Appellant, Fleming & Associates, LLP.
Ronald R. Benjamin, Law Office of Ronald R. Benjamin, 126 Riverside Drive, P.O. Box 607, Binghamton, NY 13902-0607, Attorney for Appellant Ronald R. Benjamin.
Jonathan Massey (argued), 7504 Oldchester Road, Bethesda, MD 20817, Attorney 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, 312 Walnut Street, Suite 2090, Cincinnati, OH 45202, Attorneys 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, 1050 30th Street, N.W., Washington, D.C. 20007, Attorneys 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, 200 West Adams Street, Suite 2500, Chicago, Illinois 60606,
William J. Winning, Cozen & O'Connor, 1900 Market Street, Philadelphia, PA 19103, Attorneys for Appellants, Nisen & Elliott, Edward T. Joyce & Associates, P.C., Burke & Burke and the Law Offices of Patrick J. Sherlock,
Howard J. Bashman (argued), 1250 Virginia Drive, Suite 1000, Fort Washington, PA 19034, Attorney 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, Arnold & Levin, 510 Walnut Street, Suite 500, Philadelphia, PA 19106,
Charles R. Parker, John Roberson (argued), Hill & Parker, 5300 Memorial Drive, Suite 700, Houston, TX 77077,
John J. Cummings, III, Cummings, Cummings & Dudenhefer, 416 Gravier Street, New Orleans, LA 70130, Attorneys for Appellees Plaintiffs' Management Committee, Class Counsel, Plaintiffs' Counsel and Common Benefit Attorneys.
Peter L. Zimroth, Arnold & Porter, 399 Park Avenue, New York, NY 10022, Attorney 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 (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 heartvalve 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...
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