2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-14-2014

In Re: Diet Drugs

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4731

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Recommended Citation

"In Re: Diet Drugs" (2014). 2014 Decisions. Paper 714.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-4731

_____________

IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE)

PRODUCTS LIABILITY LITIGATION

 Tonya R. Marler,

 Appellant 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 99-cv-20593; MDL Nos. 11-md-1203 and 16-md-1203)

District Judge: Hon. Harvey Bartle, III 

_______________

Submitted Under Third Circuit LAR 34.1(a)

July 11, 2014

Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.

(Filed: July 14, 2014)

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Tonya Marler appeals an order of the United States District Court for the Eastern 

District of Pennsylvania denying her recovery under the terms of the Diet Drug 
2

Nationwide Class Action Settlement Agreement (“Settlement Agreement”).1 We will 

affirm.

This appeal relates to the settlement of multi-district products liability litigation 

regarding the diet drugs Pondimin® and Redux®, previously sold by American Home 

Products (“AHP”).2 Marler’s claim for benefits based on moderate mitral regurgitation

was first approved by an auditing cardiologist, then was rejected by the Settlement Trust 

based on evidence of intentional misrepresentation of her echocardiogram test, and,

finally, was denied by the District Court for failure to demonstrate a reasonable medical 

basis for her condition. She appeals,3arguing that the evidence in the record met that

 

1 Marler is one of three claimants who have appealed simultaneously through the 

same counsel, the others being Ruth Sanders (Case No. 13-4548) and Elizabeth Lassetter 

(Case No. 13-4730). All three relied on the same attesting physician in submitting their 

claims; they appeal the same issue – whether there was a reasonable medical basis to 

conclude they all suffered from moderate mitral regurgitation; and they raise the same 

arguments. The briefs on appeal are almost identical, as are the District Court’s opinions 

regarding each claimant. For efficiency’s sake, then, we designate our opinion regarding 

Ruth Sanders as primary and incorporate the background portion of that opinion herein. 

2

In several prior decisions, we have provided a detailed description of the Diet 

Drugs litigation. See, e.g., In re Briscoe, 448 F.3d 201, 206-08 (3d Cir. 2006); In re Diet 

Drugs Prods. Liab. Litig., 401 F.3d 143, 147-48 (3d Cir. 2005); In re Diet Drugs Prods. 

Liab. Litig., 385 F.3d 386, 389-92 (3d Cir. 2004); In re Diet Drugs Prods. Liab. Litig., 

282 F.3d 220, 225-29 (3d Cir. 2002). We will therefore limit our discussion to the 

essential facts of the instant appeal. 

3

The District Court had original jurisdiction over all terms of the Settlement 

Agreement under 28 U.S.C. §§ 1332 and 1407. We exercise jurisdiction over a final 

order of the District Court pursuant to 28 U.S.C. § 1291. As discussed in In re Diet 

Drugs Products Liability Litigation (Sanders), we review for an abuse of discretion the 

District Court’s exercise of its authority to administer and implement a class action 

settlement. No. 13-4548, at 6 n.5.
3

burden of proof and that the Court erred by deputizing the Technical Advisor with 

judicial power.4 

Regarding both of Marler’s arguments, we find that she has failed to show any 

abuse of discretion in the District Court’s interpretation or factual findings. The Court 

undertook a thorough review of the record, including both parties’ statements and the 

opinions of both auditing cardiologists, the Technical Advisor, and Marler’s own 

attesting physician. The District Court’s reliance on the Technical Advisor was also 

within the limitations set by the Settlement Agreement. 

III. Conclusion

For the foregoing reasons, we will affirm. 

 

4 Marler also brings other meritless arguments that we briefly address and reject in 

Sanders, No. 13-4548, at *6 n.6.