NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No s . 1 4

- 1337 and 14

- 1502

IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION

RAN DALL D. HERMAN; RAYNA HERMAN, Appellants in 14

- 1337

MICHAEL HIRSCHBEIN; SANDRA HIRSCHBEIN, Appellants in 14

- 1502

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. Nos. 2

- 9 9

- c v

- 2 05 9 3 and 2

- 16

- md

- 01203 ) District Judge: Honorable Harvey Bartle, III

Submitted under Third Circuit LAR 34.1(a)

on September 9, 2014

Before: SM ITH , SHWARTZ and ROTH, Circuit Judges

( F iled: February 20, 2015 )

O P I N I O N *

ROTH
, Circuit Judge :

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute bindin g precedent.2

Randall Herman and Michael Hirschbein (collectively, Claimants ) appeal from the

District Court ’s orders
, denying their claim s for Matrix A, Level III benefits under the

Diet Drug Nationwide Class Action Settlement Agreement . We will affirm.

I.

Herman and Hirschbein are members of the certified settlement class who seek

benefits under the Settlement Agreement. We ha ve previously discussed the litigation

background , Settlement Agreement terms , and significant medical issues. 1 Thus, w e
limit our discussion here to the facts relevant to the present appeal.

In 2011, Herman and Hirschbein submitted cla ims for Matrix A , Level III benefits

under the Settlement Agreement. Th e AHP Settlement Trust then submitted both claims

for audit

. The Trust subsequently denied Herman’s claim and limited Hirs ch bein’s claim

to M atrix B benefits

. Specifically, the Trust credited the findings of the auditing

cardiologists , who determined there was no reasonable basis for Herman’s treating
physician’s representation that he ha d mild aortic re gurgitation or Hirschbein ’s treating
physician’s representation that he d id not ha ve aortic stenosis. Herman and Hirschbein
both contested the Trust’s post

- audit determinations but the Trust affirmed its decisions.

Both claimants again disputed the Trust’s findings and the Trust applied to the

District Court to require them to show ca use why their claims should be paid. The

District Court referred the matter s to the Special Master, who appointed a Technical

1 See In re Diet Drugs (Phentermine/Fenfluramine/Dex fenfluramine ) Prods. Liab. Litig.
, 543 F.3d 179, 181

- 90 (3d Cir. 2008).3

Advisor to prepare a n independent report

. Like the auditing cardiologist s , the Technical

Advisor concluded that there was no rea sonable basis for the representation that Herman

ha d mild aortic re gurgitation or that Hirschbein d id not have aortic stenosis. Crediting

the T echnical A dvisor and auditing cardiologists’ findings, the Distri ct Court determined

that both claimants failed to meet their burden of establishing a reasonabl e medical basis

for their claims. Thus , the District Court affirmed the denial of Herman and Hirschbein’s

claims for Matrix A , Level III benefits

.

II. 2

“We review a District Court’s exercise of its equita ble authority to administer and
implement a class action settlement for abuse of discretion.” 3 To constitute an abuse of
discretion, the District Court must have relied on a “clearly erroneous finding of fact, an

errant conclusion of law or an improper ap plication of law to fact.” 4 “The test is not what

this court would have done under the same circumstances; that is not enough

. ” 5

C onstruction of settlement agreements, however, is a question of law mandating plenary

review. 6

A s a preliminary matter, C laiman ts seek plenary review because they claim that

the threshold issue in this appeal is defining the term “reasonable medical ba sis.”

According to Claimants , the District Court has not provided a rule of law or standard for

2 The District Court had jurisdiction under 28 U.S.C. § 1332(a)(1), and we exercise jurisdiction under 28 U.S.C. § 12 91.
3 See In re Diet Drugs , 543 F.3d at 184 n.10

. 4 In re Orthopedic Bone Screw Prods. Liab. Litig ., 246 F.3d 315, 320 (3d Cir. 2001).
5 Id. (quotations omitted).
6 In re Diet Drug s (Phentermine/Fenfluramine/Dex fenfluramine ) Prods. Liab. Litig. , 706 F.3d 217, 223 n.4 (3d Cir. 2013).4

determining whether a reason able medical basis exists . We disagree. The District Court

has applied the reasonable medical basis standard in a litany of past decisions
, and those

opinions are an appropriate place for guidance here

. 7 Although these decisions do not

provide a one

- siz e

- fits

- all definition, they offer C laimants “sufficient notice of the

reasonable medical ba sis standard. ” 8 As a result, we consider only whether the District

Court abused its discretion by finding that Claimants failed to meet their burden of

establishing a reasonable medical basis for their claims.

The District Court did not abuse its discretion in holding that Herman failed to

rebut the opinions of the auditing cardiologist and the Technical Advisor that he did not

have mild regurgitation

. In large par t, H erman stands on his own physicians’

affirmations, which disag ree with those findings. D isagreement, however, is not enough

to constitute an abuse of discretion. 9 Herman also argue s that he met his burden by

submitting a n aortic regurgitation measurem ent based on more than a single frame and
including some indication of the maximum jet’s representativeness. Yet
, Herman relies

on a prior decision in this litigation, where we merely stated that the “identification of a

single jet without any e xplanation or indication of its representativeness will not satisfy

the claimant’s burden.” 10 Claimants next claim that the auditing cardiologi st’s findings

were unreasonable because they did not include regurgitation measurements

. But

quant ita tive measurement is u nnecessary where , as here, an auditing cardiologist

7 See , e.g. , Pretrial Order No. 2640, Pretrial Order No. 2825.
8 See In re Diet Drugs , 543 F.3d at 187 n.16.
9 See In re Orthoped ic Bone Screw Prods. , 246 F.3d at 320.
10 See In re Diet Drugs , 543 F.3d at 185.5

indicates that regurgita tion is well below the necessary threshold

. 11 Furthermore,

Herman mischaracterize s the auditing cardiologist’s method for measurin g Herman’s

aortic regurgitation, and therefore Her man do es not demonstrate that the cardiologist’s

approach departed from accepted medical standards

.
Nor did the District Court abuse its discretion in determining that Hirschbein

failed to rebut the opinions of the auditing cardiologist and the Technica l Advisor that he

had aortic stenosis

. As with Herman’s claim, Claimants mistakenly argue that the
opinions of Hirschbein’s treating physicians are eno ugh to compel reversal here . They

are not. Similarly, Claimants argue that the District Court abused i ts discretion by not

considering the re presentative measurements by Hirschbein’s treating physicians . But

the District Court conducted an extensive review of the record, and simply chose to credit

different findings. Lastly, Claimants ’ arguments regardin g the reliability of the Technical

A dvisor’s findings are misplaced.

II I

. For the foregoing reasons, we will affirm the District Court’s judgment

.

11 See id. at 188

- 89

.