In Re Diet Drugs ( 2010 )


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  •                                                                  NOT PRECEDENTIAL
    
              UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
    
    
                                          No. 09-2424
    
    
     IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE)
                        PRODUCT LIABILITY LITIGATION
    
    
                                    DENISE SWANIGAN,
                                             Appellant
    
    
    
    
                        On Appeal from the United States District Court
                              for the Eastern District of Pennsylvania
                                     (D.C. Civil No. 99-20593)
                    District Judge: Honorable Harvey Bartle, III, Chief Judge
    
    
    
    
                          Submitted Under Third Circuit LAR 34.1(a)
                                       April 13, 2010
    
              Before: SLOVITER, NYGAARD, Circuit Judges, and RESTANI,* Judge
    
                                     (Filed: April 14, 2010)
    
    
    
    
                                           OPINION
    
    RESTANI, Judge.
    
    
    
    
          *
             Honorable Jane A. Restani, Chief Judge of the United States Court of
    International Trade, sitting by designation.
           Denise Swanigan appeals the order of the United States District Court for the
    
    Eastern District of Pennsylvania affirming an arbitrator’s denial of additional benefits
    
    under the Diet Drug Nationwide Class Action Settlement Agreement (“Settlement
    
    Agreement”) with Wyeth Corporation (“Wyeth”).1 We will affirm.
    
                                                 I.
    
           Swanigan, a class member under the Settlement Agreement, seeks benefits from
    
    the AHP Settlement Trust (“Trust”), which was established to resolve claims against AHP
    
    arising from the sale, distribution, and use of certain diet drugs.2 Swanigan submitted a
    
    Pink Form in August 2000 to register with the Trust and attached a supporting declaration
    
    by Dr. Albert Brown (“Brown Declaration”) to prove diet drug ingestion. The Trust
    
    determined that she was eligible to receive a screening echocardiogram and a partial
    
    refund for the diet drugs. After her screening, Swanigan received a $6,000 “FDA
    
    Positive” cash benefit, which signified that she exhibited some non-trivial level of heart
    
    valve leakage, and a $500 Prescription Reimbursement benefit. In January 2003,
    
    Swanigan submitted a Green Form to the Trust stating that her medical condition entitled
    
    her to additional benefits.
    
           In September 2003, the Trust issued a deficiency notice to Swanigan because her
    
    
    
           1
            Prior to March 2002, Wyeth Corporation was known as American Home
    Products Corporation (“AHP”).
           2
             The settlement class includes “[a]ll persons . . . who ingested [diet drugs]” even
    after the action began. (App. 110.)
    
                                                  2
    proof of ingestion documents did not meet the requirements of the Settlement Agreement.
    
    In November 2003, Swanigan wrote to the Trust indicating that she was unable to locate
    
    Dr. Brown, and she submitted affidavits from her mother, co-worker, family doctor, and
    
    herself. Between November 2003 and September 2006, Class Counsel and the Trust
    
    contacted Swanigan several times by letter and telephone to inquire about her diet drug
    
    prescription. Swanigan provided no further proof of diet drug ingestion. In September
    
    2006, the Trust denied Swanigan’s Green Form claim for additional benefits. Swanigan
    
    appealed the Trust’s denial, and the matter was referred to arbitration pursuant to the
    
    Settlement Agreement.
    
           The arbitrator issued a report and award affirming the Trust’s determination, which
    
    Swanigan appealed to the District Court. In April 2008, the District Court affirmed the
    
    arbitrator’s report and award, Brown v. Am. Home Prods. Corp. (In re Diet Drugs), No.
    
    99-20593, 
    2008 WL 1776443
     (E.D. Pa. 2008), and denied Swanigan’s subsequent motion
    
    for reconsideration and petition to submit new evidence. Swanigan now appeals those
    
    decisions.
    
                                                 II.
    
           This Court has jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing a
    
    district court’s order confirming an arbitration award, we review the district court’s
    
    findings of fact for clear error and exercise plenary review over the district court’s
    
    determination of questions of law. China Minmetals Materials Imp. & Exp. Co., v. Chi
    
    
    
                                                  3
    Mei Corp., 
    334 F.3d 274
    , 278 (3d Cir. 2003) (citing First Options of Chicago, Inc. v.
    
    Kaplan, 
    514 U.S. 938
    , 947–48 (1995)).
    
                                                 III.
    
            Swanigan appeals, contending that she provided sufficient proof of diet drug
    
    ingestion. In the event that this Court does not agree, Swanigan argues that the Trust
    
    should be equitably estopped from denying her claim. Alternatively, Swanigan claims
    
    that this Court should bar the Trust from requiring Swanigan to substantiate her diet drug
    
    ingestion under the doctrine of laches. Swanigan also argues that the Pink Form
    
    constituted a contract which required Wyeth to consider her proof of diet drug ingestion
    
    sufficient for additional benefits. Finally, Swanigan seeks to admit two documents
    
    regarding Dr. Brown as further proof of her diet drug ingestion. We will address each in
    
    turn.
    
            The Settlement Agreement requires “documentary proof” of diet drug ingestion to
    
    complete the submission of a claim. (App. 185.) If pharmacy or medical records are
    
    unobtainable,3 the “proof must include . . . an affidavit . . . from the prescribing physician
    
    or dispensing pharmacy identifying the Diet Drug Recipient, the drug(s) prescribed or
    
    dispensed, the date(s), quantity, frequency, dosage and number of prescriptions or refills
    
    of the Diet Drug(s).” (App. 186.) The Brown Declaration was Swanigan’s attempt to
    
    
    
    
            3
          It is undisputed that Swanigan did not submit any pharmacy or medical records
    documenting diet drug use.
    
                                                  4
    fulfill this requirement.
    
           The District Court found that the Brown Declaration was insufficient to prove diet
    
    drug ingestion because: (1) the time period during which Dr. Brown alleged he dispensed
    
    the drugs to Swanigan was ambiguous; (2) that time period was inconsistent with
    
    Swanigan’s affidavit regarding her dates of usage; (3) Dr. Brown attested that he illegally
    
    dispensed the diet drugs to Swanigan after the drugs were removed from the market; and
    
    (4) the Brown Declaration states dosages that are inconsistent with the dosages at which
    
    the drugs were issued. Brown, 
    2008 WL 1776443
    , at *3–4. The District Court similarly
    
    found that Swanigan’s affidavits had no probative value because they did not comply with
    
    the terms of the Settlement Agreement. Id. at *3 n.6. Even if the affidavits were proper
    
    forms of proof, none supply any detail regarding Swanigan’s diet drug prescription or
    
    ingestion as required by the Settlement Agreement. The District Court did not err when it
    
    determined that Swanigan did not provide the proof of diet drug ingestion required to
    
    support her claim for additional benefits.
    
           Swanigan’s equitable estoppel claim is similarly unavailing. Equitable estoppel
    
    “arises when a party intentionally or through culpable negligence induces another to
    
    believe certain facts to exist and the other party rightfully relies and acts on such belief to
    
    its detriment.” Kirleis v. Dickie, McCamey & Chilcote, P.C., 
    560 F.3d 156
    , 165 (3d Cir.
    
    2009) (internal quotation marks and citation omitted). Nothing in the record suggests that
    
    Appellees misrepresented the status of Swanigan’s claim, causing her to remain inactive
    
    
    
                                                   5
    in pursuing proper documentation of ingestion from Dr. Brown to her detriment. In fact,
    
    Swanigan acknowledged that the check stub for the benefits she received in 2001
    
    indicated that if she were to file a Green Form, “the Trust will determine Diet Drug use
    
    [and] duration of use . . . without regard to any of the Trust determinations which
    
    qualified [her] to receive this [benefit].” (App. 85.) Thus, Swanigan did not prove that
    
    she detrimentally relied on any misrepresentation by Appellees.
    
           Swanigan also argues that the equitable doctrine of laches is applicable here. “[A]
    
    party still must unequivocally put its position before the trial court at a point and in a
    
    manner that permits the court to consider its merits.” Shell Petroleum, Inc. v. United
    
    States, 
    182 F.3d 212
    , 218 (3d Cir. 1999). It is not clear that Swanigan’s mere mention of
    
    the term “laches” in her briefs sufficiently put this argument before the District Court and
    
    we will not “consider issues that are raised for the first time on appeal.” Id. at 219. Even
    
    if we were to decide that Swanigan made a laches argument that was not considered by
    
    the District Court, it would not change the outcome of this case. Laches is most
    
    commonly raised as an affirmative defense to a lawsuit and requires inexcusable delay in
    
    bringing suit and prejudice to the defendant as a result of the delay. See Univ. of
    
    Pittsburgh v. Champion Prods., 
    686 F.2d 1040
    , 1044 (3d Cir. 1982). The facts of this
    
    case do not fit this doctrine. In any event, the District Court did not err in determining
    
    that the Trust placed Swanigan on notice of the insufficiency of her proof of diet drug
    
    ingestion within nine months of submitting her Green Form claim. See Brown, 
    2008 WL 6
    1776443, at *2. It does not seem reasonable that Swanigan would have considered the
    
    Trust’s right to ask for further substantiation of diet drug ingestion abandoned after a
    
    mere nine months.
    
           Swanigan also argues that the Pink Form constituted a contract between Swanigan
    
    and Wyeth and that Wyeth was bound to consider her proof of diet drug ingestion
    
    sufficient for additional benefits. She grounds her claim in the instructions on the Pink
    
    Form, which indicated that by supplying certain information the applicant has “fulfilled
    
    th[e] requirement” of diet drug usage. (App. 32.) The District Court interpreted the Pink
    
    Form as merely implementing the Settlement Agreement and not modifying it in any way.
    
    Brown, 
    2008 WL 1776443
    , at *2. The plain meaning of the Pink Form’s language
    
    supports this interpretation.4 Consequently, the District Court did not err in its
    
    determination that the Pink Form did not create a new and independent agreement with
    
    the Trust.
    
           Finally, Swanigan seeks to admit two documents regarding Dr. Brown. The first,
    
    an Illinois Division of Professional Regulation website print-out, indicates that Dr. Brown
    
    was arrested and, while in custody, he instructed his unlicensed employees to dispense
    
    controlled substances in his absence. The second document is an appointment summary
    
    allegedly showing that Dr. Brown regularly met with diet drug salesmen. Federal Rule of
    
    
           4
             The Pink Form states that “[t]he Settlement Agreement, including, without
    limitation its benefits and its release provisions, is incorporated by reference into this
    Individual Agreement as if fully set out at length.” (App. 29.)
    
                                                   7
    Appellate Procedure 10(e)(2) permits this Court to correct the omission of material
    
    evidence from the district court record. See Fed. R. App. P. 10(e)(2) (emphasis added).
    
    The evidence Swanigan seeks to admit, however, is not material because it does not
    
    substantiate her claim of diet drug ingestion.
    
                                                IV.
    
           For the foregoing reasons, we will affirm the Orders of the District Court.
    
    
    
    
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