The opinion
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: DIET DRUGS (PHENTERMINE/ )
FENFLURAMINE/DEXFENFLURAMINE) ) MDL NO. 1203
PRODUCTS LIABILITY LITIGATION )
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SHEILA BROWN, et al. v. AMERICAN ) CIVIL ACTION NO. 99-20593
HOME PRODUCTS CORPORATION )
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This document relates to: )
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DANIELLE NICHOL SZARELL )
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MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9529
Bartle, J. December 2, 2020
In or around September 2020, Danielle Nichol Szarell
filed a combined “Motion for Summary Judgement” [sic] and
“Plaintiff Motion for Filing Costs Waived.”1 Dkt. No. 209475.
According to Ms. Szarell, she was prescribed phentermine, which
“could have changed [her] life for the worst [sic] by taking the
medicine due to its side effects.” Mot. for Summ. J. at 1.
Ms. Szarell argues she is entitled to “damages designed to
punish the manufacturer for its role in contributing to harmful
side effects of her and to the community.” Id. at 3.
Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment should be “rendered if the
pleadings, the discovery and disclosure materials on file, and
1. Because there is not a filing fee associated with a motion
for summary judgment, this portion of Ms. Szarell’s motion will
be denied as moot.
any affidavits show that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A factual dispute is material when it
“might affect the outcome of the suit under the governing law.”
Id. After reviewing the evidence, the court makes all
reasonable inferences from the evidence in the light most
favorable to the non-movant. In re Flat Glass Antitrust Litig.,
385 F.3d 350, 357 (3d Cir. 2004).
According to Wyeth,2 Ms. Szarell’s motion is
procedurally improper and substantively meritless. As an
initial matter, Wyeth notes that Ms. Szarell has not filed a
complaint against Wyeth and, therefore, has not commenced a
civil action against Wyeth. Wyeth’s Resp. at 1. Wyeth contends
that even if Ms. Szarell’s motion for summary judgment is
construed as a complaint she has failed to state a claim because
she does not allege any facts to support a claim against Wyeth,
including when she allegedly ingested a medicine manufactured by
Wyeth, how long she allegedly took the medicine, and what harm
2. Prior to March 11, 2002, Wyeth was known as American Home
Productions Corporation (“AHP”). In 2009, Pfizer, Inc.,
acquired Wyeth.
she allegedly suffered. Id. at 2. In addition, Wyeth argues
that even if the allegations in Ms. Szarell’s motion for summary
judgment are accepted as true Ms. Szarell has not established
that she took a medicine manufactured by Wyeth because she
alleges she “was placed on Phentermine after she gained a total
of around 100 pounds” and Wyeth did not manufacture Phentermine.
Id. Wyeth further contends that (1) the Court does not have
subject matter jurisdiction over Ms. Szarell’s claims because
she does not allege any injuries and only purports to seek
$50,000 in damages; (2) Ms. Szarell does not have standing to
bring an action against it because she alleges that phentermine
“could have” changed her life, not that it actually caused her
harm; and (3) Ms. Szarell never registered for benefits under
the Diet Drug Nationwide Class Action Settlement Agreement, has
not filed an opt-out, and has not submitted the required
certification and/or medical evidence required by PTO Nos. 2383
and 9153. Id. at 2-3.
The Settlement Agreement approved by this court in
Pretrial Order (“PTO”) No. 1415 provides strict deadlines for
Class Members to seek benefits from the Trust. Specifically,
the Settlement Agreement provides, in part:
The following Class Members, and only such
Class Members, shall be entitled to the
compensation benefits from Fund B (“Matrix
Compensation Benefits”):
a. Diet Drug Recipients who have been
diagnosed by a Qualified Physician as
FDA Positive or as having Mild Mitral
Regurgitation by an Echocardiogram
performed between the commencement of
Diet Drug use and the end of the
Screening Period and who have
registered for further settlement
benefits by [May 3, 2003] . . . .
Settlement Agreement § IV.B.1.a. (emphasis added).
Here, the record does not reveal any basis upon which
to conclude that Ms. Szarell timely registered for benefits
under the Settlement Agreement. Despite an opportunity to
refute that she did not timely register for benefits,
Ms. Szarell did not respond to Wyeth’s argument that any claim
by her is barred.
In addition, to the extent Ms. Szarell alleges that
she suffers from primary pulmonary hypertension (“PPH”) as a
result of her ingestion of Diet Drugs, see Mot. for Summ. J. at
1-2, she is not entitled to pursue such a claim. Paragraph 7 of
PTO No. 1415, in which this court approved the Settlement
Agreement, provides:
The court hereby bars and enjoins all class
members who have not, or do not, timely and
properly exercise an Initial, Intermediate,
Back-End or Financial Insecurity Opt-Out
right from asserting, and/or continuing to
prosecute against [Wyeth] or any other
Released Party any and all Settlement Claims
which the class member had, has or may have
in the future in any federal, state or
territorial court.
PTO No. 1415 ¶ 7.
Under the Settlement Agreement, PPH is excluded from the
definition of Settled Claims, and therefore PPH claims are not
subject to the release and bar provisions of the Settlement
Agreement. Settlement Agreement § VII.B. However, with respect
to a living individual, the definition of PPH requires an
individual’s medical condition meet the following criteria:
(1) (a) Mean pulmonary artery pressure by
cardiac catheterization of > 25 mm Hg at
rest or > 30 mm Hg with exercise with a
normal pulmonary artery wedge pressure < 15
mm Hg; or
(b) A peak systolic pulmonary artery
pressure of > 60 mm Hg at rest measured
by Doppler echocardiogram utilizing
standard procedures; or
(c) Administration of Flolan to the
patient based on a diagnosis of PPH
with cardiac catheterization not done
due to increased risk in the face of
severe right heart dysfunction; and
(2) Medical records which demonstrate that
the following conditions have been
excluded by the following results:
(a) Echocardiogram demonstrating no primary
cardiac disease including, but not limited
to, shunts, valvular disease (other than
tricuspid or pulmonary valvular
insufficiency as a result of PPH or trivial,
clinically insignificant left-sided valvular
regurgitation), and congenital heart disease
(other than patent foramen ovale); and
(b) Left ventricular dysfunction defined as LVEF
< 40% defined by MUGA, Echocardiogram or
cardiac catheterization; and
(c) Pulmonary function tests demonstrating the
absence of obstructive lung disease
(FEV1/FVC > 50% of predicted) and the
absence of greater than mild restrictive
lung disease (total lung capacity > 60% of
predicted at rest); and
(d) Perfusion lung scan ruling out pulmonary
embolism; and
(e) If, but only if, the lung scan is
indeterminate or high probability, a
pulmonary angiogram or a high resolution
angio computed tomography scan demonstrating
absence of thromboembolic disease; and
(3) Conditions known to cause pulmonary hypertension
including connective tissue disease known to be
causally related to pulmonary hypertension, toxin
induced lung disease known to be causally related
to pulmonary hypertension, portal hypertension,
significant obstructive sleep apnea, interstitial
fibrosis (such as silicosis, asbestosis, and
granulomatous disease) defined as greater than
mild patchy interstitial lung disease, and
familial causes, have been ruled out by a Board-
Certified Cardiologist or Board-Certified
Pulmonologist as the cause of the person's
pulmonary hypertension.
Settlement Agreement § I.46.a.(2)(a).
We previously have stated that PTO No. 1415 requires
“this court to decide if there is a genuine issue of material
fact as to whether plaintiff suffers from PPH. If no such issue
exists, this court will enjoin the plaintiff from going forward.
Otherwise, it is a matter for the trial court.” PTO No. 3699
at 4 (July 6, 2004).
Ms. Szarell has not attempted to satisfy the
three-part PPH definition set forth in the Settlement Agreement.
She therefore has not raised a genuine issue of material fact to
support any claim that she may suffer from PPH. Accordingly, we
will deny her motion for summary judgment on this basis as well.