1. Prior to March 11, 2002, Wyeth was known as American Home

Products Corporation.

2. Although Wyeth indicated that it also filed a similar motion

in Anthony Smith, et al. v. American Home Products Corp., Civil

Action No. 04-20219, the docket does not reflect such a filing.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: DIET DRUGS (PHENTERMINE/ )

FENFLURAMINE/DEXFENFLURAMINE) ) MDL NO. 1203

PRODUCTS LIABILITY LITIGATION )

___________________________________)

THIS DOCUMENT RELATES TO: )

)

ETHEL MARSHALL )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-20220

 )

JOYCE HARRIS, et al. )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-20224

 )

ANNA TILLAGE )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-20398

 )

PRISCILLA LEE, et al. )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-21806

 )

MEMORANDUM AND PRETRIAL ORDER NO. 

Bartle, C.J. August 27, 2008

Before the court are the motions of Wyeth to dismiss 1

the claims of and/or grant summary judgment against the remaining

plaintiffs in the above-captioned actions. Specifically, Wyeth 2

moves with respect to the following plaintiffs:

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 1 of 11
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• In Joyce Harris, et al. v. American Home

Products Corp., Civ. A. No. 04-20224,

plaintiffs: Geneva Anderson, Vera L.

Barnes, Lillie Birdon, Audrey Brown,

Mary Marie Brown, Bobbie Carr, Queen R.

Clark, Calvin Evans, Carro Lee Frye,

Sheila Gardner, Dolly Hargrave, Barbara

Harris, Linda Jackson, Cheryl Jeffus,

Bernadine Johnson, Flora Jones, Rosie

King, Jerry Lyles, Jr., Flora J.

Morales, Mary Ann Patterson, Melita W.

Pickett, Faye M. Reed, Diane C. Stokes,

Willie J. Watkins, Jr., Frances White,

Olivia Williams, Annie Jones Wilson, and

Arynita Woods.

• In Anna Tillage v. American Home

Products Corp., Civ. A. No. 04-20398,

plaintiff Anna Tillage.

• In Ethel Marshall v. American Home

Products Corp., Civ. A. No. 04-20220,

plaintiff Ethel Marshall.

• In Priscilla Lee, et al. v. American

Home Products Corp., Civ. A. No. 04-

21806, plaintiffs: Bessie Anderson,

Amanda Brown, Sarah Marchbanks, and

Eloise Tucker.

I.

On October 7, 2002, a complaint was filed in the

Circuit Court of Forrest County, Mississippi in the case of Joyce

Harris, et al. v. American Home Products Corp., et al. On

March 25, 2003, Wyeth removed the action to the United States

District Court for the Southern District of Mississippi. On

February 23, 2004, an order was entered transferring the case to

MDL No. 1203.

On November 21, 2003, a complaint was filed in the

United States District Court for the Western District of Alabama

in the case of Anna Tillage v. American Home Products Corp., et

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 2 of 11
3. On August 22, 1991, the Mississippi State Board of Medical

Licensure (the "Board") revoked Dr. Camatsos's medical license

for numerous violations of Mississippi law. See Ex. B to the

Harris/Lee and Marshall/Tillage Mot.s filed by Wyeth. On

March 18, 1993, the Board denied Dr. Camatsos's Petition for

Reinstatement. See Ex. E to the Harris/Lee and Marshall/Tillage

Mot.s filed by Wyeth. In addition, on August 30, 1991, Dr.

Camatsos was sentenced to 366 days incarceration for filing a

false tax return. See Ex. D to the Harris/Lee and

Marshall/Tillage Mot.s filed by Wyeth.

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al. On March 29, 2004, an order was entered transferring the

case to MDL No. 1203.

On November 24, 2003, a complaint was filed in the

United States District Court of the Middle District of Louisiana

in the case of Ethel Marshall v. American Home Products Corp., et

al. On March 11, 2004, an order was entered transferring the

case to MDL No. 1203.

On April 6, 2004, a complaint was filed in the United

States District Court for the Southern District of Mississippi in

the case of Priscilla Lee, et al. v. American Home Products

Corp., et al. On June 4, 2004, an order was entered transferring

the case to MDL No. 1203.

Each of the above-named plaintiffs alleges Diet Drug

usage based on an affidavit from George Camatsos, M.D. ("Camatsos

Affidavit") dated March 17, 2003. According to Wyeth's motions,

Dr. Camatsos is a former Mississippi physician. Attached to Dr. 3

Camatsos's affidavit is a seven-page list of 284 individuals that

Dr. Camatsos claims to "recognize, either of [his] own knowledge

or by reference to medical records, to have been patients ... to

whom [he] prescribed the diet drug Pondimin (Fen-Phen)." See

Exhibit A to the Harris/Lee and Marshall/Tillage motions filed by

Wyeth.

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 3 of 11
4. When a motion for summary judgment is unopposed, Rule 56 of

the Federal Rules of Civil Procedure provides that judgment be

entered against the non-movant only "if appropriate." See

(continued...)

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On October 18, 2004, Wyeth's counsel met with Carroll

Ingram, Esquire of Ingram & Associates, PLLC "to express Wyeth's

concern" regarding these claims and the supporting Camatsos

Affidavit. Following this meeting, on or about October 21, 2004,

Mr. Ingram filed a motion for voluntary dismissal on behalf of

certain plaintiffs in these actions. On January 6, 2005, Mr.

Ingram and his associate, Jennifer I. Wilkinson, Esquire, filed

motions to withdraw as counsel for the remaining plaintiffs in

the actions at issue.

We subsequently granted the motions for leave to

withdraw, subject to counsel notifying plaintiffs that they

"shall have thirty (30) days from the date of this order to

secure new counsel, and that at the expiration of the thirty-day

period, the case shall proceed on its normal trial schedule

whether or not plaintiffs have secured new counsel". See

Pretrial Order ("PTO") No. 7372 (Aug. 22, 2007), PTO No. 7374

(Aug. 22, 2007), PTO No. 7703 (Feb. 19, 2008), and PTO No. 7705

(Feb. 20, 2008). Counsel has complied with the conditions

outlined above and thirty days have passed since entry of the

orders.

II.

Wyeth argues that the plaintiffs' claims should be

dismissed with prejudice, or in the alternative, summary judgment

should be granted, because the Camatsos Affidavit is highly

suspicious and unreliable. None of the plaintiffs has opposed

Wyeth's motions.4

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 4 of 11
4. (...continued)

Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175

(3d Cir. 1990).

-5-

III.

"Summary judgment is proper if there is no genuine

issue of material fact and if, viewing the facts in the light

most favorable to the non-moving party, the moving party is

entitled to judgment as a matter of law." Pearson v. Component

Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord FED. R. CIV.

P. 56(c). Thus, this court will enter summary judgment only when

"the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law." 

FED. R. CIV. P. 56(c).

An issue is "genuine" if supported by evidence such

that a reasonable jury could return a verdict in the non-moving

party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is "material" if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. In determining whether a genuine issue

of material fact exists, the court must view the facts and all

reasonable inferences drawn from those facts in the light most

favorable to the non-moving party. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party,

however, may not rely upon a "plainly implausible" affidavit to

withstand summary judgment. See Camfield Tires, Inc. v. Michelin

Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 5 of 11
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Initially, the moving party has the burden of

demonstrating the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323. Once the moving party has met this

burden, the non-moving party must identify, by affidavits or

otherwise, specific facts showing that there is a genuine issue

for trial. See id. Thus, to withstand a properly supported

motion for summary judgment, the non-moving party must identify

specific facts and affirmative evidence that contradict those

offered by the moving party. Anderson, 477 U.S. at 256-57. "A

non-moving party may not 'rest upon mere allegations, general

denials or ... vague statements ....'" Trap Rock Indus., Inc. v.

Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d

Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500

(3d Cir. 1991)). Indeed, the plain language of Rule 56(c)

mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear

the burden of proof at trial. Celotex, 477 U.S. at 322.

In deciding the merits of a party's motion for summary

judgment, the court's role is not to evaluate the evidence and

decide the truth of the matter, but to determine whether there is

a genuine issue for trial. Anderson, 477 U.S. at 249.

Credibility determinations are the province of the fact finder.

Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363

(3d Cir. 1992).

IV.

Wyeth argues that the Camatsos affidavit is "highly

suspicious and drawn in the most general and conclusory language

possible." In support, Wyeth offers several points. First,

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 6 of 11
-7-

Wyeth argues that the affidavit is inadequate because it does not

set forth the dates on which the claimants were prescribed Diet

Drugs. Rather, the affidavit only states generally that Dr.

Camatsos treated 284 persons identified in an attached schedule

during the time he practiced medicine in Natchez, Mississippi,

which was between 1972 and 1992. 

In Maldonado v. Ramirez, 757 F.2d 48, 49 (3d Cir.

1985), Maria Maldonado brought an action for breach of contract

against Orlando Ramirez when he failed to repair defects in her

house pursuant to a contract between them. Ramirez moved for

summary judgment on the ground that his obligations under the

contract were discharged in bankruptcy. Id. To prove that

Maldonado had notice of the bankruptcy, Ramirez submitted an

affidavit from his attorney, which stated that Maldonado had been

continuously represented by the same attorney and that this

attorney acknowledged receipt of the bankruptcy notice. Id. at

51. In reversing the district court's grant of summary judgment,

the Third Circuit held that Ramirez's affidavit did not satisfy

the requirements of Rule 56 of the Federal Rules of Civil

Procedure. Id. The court reasoned that an affidavit "must

ordinarily set forth facts, rather than opinions or conclusions. 

An affidavit that is essentially conclusory and lacking in

specific facts is inadequate to satisfy the movant's burden." 

Id. (internal citations omitted).

Here, like in Maldonado, the affidavit of Dr. Camatsos

does not satisfy the requirements of Rule 56 of the Federal Rules

of Civil Procedure. Rather than setting forth the specific facts

relating to each claimant's Diet Drug usage, the affidavit

concludes merely that, at some point between 1972 and 1992, Dr.

Camatsos prescribed Diet Drugs to an attached list of patients. 

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 7 of 11
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Such an affidavit is inadequate to meet plaintiffs' burden on

summary judgment. "A non-moving party may not 'rest upon mere

allegations, general denials or ... vague statements ...'"). 

Trap Rock Indus., Inc., 982 F.2d at 890 (quoting Quiroga, 934

F.2d at 500). See also Hurd v. Williams, 755 F.2d 306, 309 (3d

Cir. 1985).

Second, Dr. Camatsos states that he "recognize[s],

either of [his] own knowledge or by reference to medical

records," the persons identified in the attached schedule. Wyeth

argues that the affidavit from Dr. Camatsos is insufficient

because he failed to attach the relevant "medical records" he

reviewed. We agree. Indeed, Rule 56(e) of the Federal Rules of

Civil Procedure states that "[i]f a paper or part of a paper is

referred to in an affidavit, a sworn or certified copy must be

attached to or served with the affidavit." FED. R. CIV. P. 56(e)

(2007). Dr. Camatsos' affidavit does not meet this requirement.

Third, and finally, Wyeth argues that an examination of

the schedule attached to the affidavit from Dr. Camatsos reveals

that there are two lists that appear to be prepared at different

times. Again, we agree. The attached schedule is not in a

consistent format. In addition, the list is in alphabetical

order but restarts mid-way through with additional names.

Based on the above, we find that the affidavit from Dr.

Camatsos is the type of affidavit that is "plainly implausible"

and cannot satisfy plaintiffs' burden here. Indeed, the utility

of summary judgment to screen the sham and frivolous case would

be severely impaired if such an affidavit were permitted. See

Martin v. Merrell Dow Pharms., Inc., 851 F.2d 703, 706 (3d Cir.

1988). Accordingly, Wyeth is entitled to summary judgment as to

each plaintiff's claim.

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 8 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: DIET DRUGS (PHENTERMINE/ )

FENFLURAMINE/DEXFENFLURAMINE) ) MDL NO. 1203

PRODUCTS LIABILITY LITIGATION )

___________________________________)

THIS DOCUMENT RELATES TO: )

)

ETHEL MARSHALL )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-20220

 )

JOYCE HARRIS, et al. )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-20224

 )

ANNA TILLAGE )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-20398

 )

PRISCILLA LEE, et al. )

v. )

AMERICAN HOME PRODUCTS CORP. ) CIVIL ACTION NO. 04-21806

 )

PRETRIAL ORDER NO. 

AND NOW, on this 27th day of August, 2008, for the

reasons set forth in the accompanying Memorandum, it is hereby

ORDERED as follows:

(1) the motion of Wyeth for summary judgment on the

remaining plaintiffs' claims is GRANTED and judgment is entered

in favor of Wyeth and against:

(a) Ethel Marshall, Civ. A. No. 04-20220;

(b) Dolly Hargrave, Civ. A. No. 04-20224;

(c) Diane C. Stokes, Civ. A. No. 04-20224;

(d) Bernadine Johnson, Civ. A. No. 04-20224;

(e) Audrey Brown, Civ. A. No. 04-20224;

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 9 of 11
-2-

(f) Olivia Williams, Civ. A. No. 04-20224;

(g) Queen R. Clark, Civ. A. No. 04-20224;

(h) Sheila Gardener, Civ. A. No. 04-20224;

(i) Cheryl Jeffus; Civ. A. No. 04-20224;

(j) Rosie King; Civ. A. No. 04-20224;

(k) Mary Ann Patterson, Civ. A. No. 04-20224;

(l) Arynita Woods, Civ. A. No. 04-20224;

(m) Calvin Evans, Civ. A. No. 04-20224;

(n) Barbara Harris, Civ. A. No. 04-20224;

(o) Geneva Anderson, Civ. A. No. 04-20224;

(p) Bobbie Carr; Civ. A. No. 04-20224;

(q) Vera L. Barnes, Civ. A. No. 04-20224;

(r) Lillie Birdon, Civ. A. No. 04-20224;

(s) Mary Marie Brown, Civ. A. No. 04-20224;

(t) Carro Lee Frye, Civ. A. No. 04-20224;

(u) Linda Jackson, Civ. A. No. 04-20224;

(v) Flora Jones, Civ. A. No. 04-20224;

(w) Jerry Lyles, Jr., Civ. A. No. 04-20224;

(x) Flora J. Morales, Civ. A. No. 04-20224;

(y) Melita W. Pickett, Civ. A. No. 04-20224;

(z) Faye M. Reed, Civ. A. No. 04-20224;

(aa) Willie J. Watkins, Jr., Civ. A. No. 04-20224;

(bb) Frances White, Civ. A. No. 04-20224;

(cc) Annie Jones Wilson, Civ. A. No. 04-20224;

(dd) Anna Tillage, Civ. A. No. 04-20398;

(ee) Bessie Anderson, Civ. A. No. 04-21806;

(ff) Amanda Brown, Civ. A. No. 04-21806;

(gg) Sara Marchbanks, Civ. A. No. 04-21806; and

(hh) Eloise Tucker, Civ. A. No. 04-21806;

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 10 of 11
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(2) the motions to stay and motions for conditional

revocation of intermediate opt-out rights and dismissal without

prejudice of specific plaintiffs' claims (Civ. A. No. 04-20220

(Docket No. 2); Civ. A. No. 04-20224 (Docket No. 8); Civ. A. No.

04-20398 (Docket No. 2); and Civ. A. No. 04-21806 (Docket No. 2))

and the motions to stay and notice of intent of certain

plaintiffs (Civ. A. No. 04-20398 (Docket No. 7); Civ. A. No. 04-

20224 (Docket No. 14); and Civ. A. No. 04-21806 (Docket No. 8))

are DENIED as moot; and

(3) the Clerk is directed to close the above-captioned

actions.

BY THE COURT:

/s/ Harvey Bartle III 

C.J.

Case 2:04-cv-20398-HB Document 12 Filed 08/27/08 Page 11 of 11