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The class members who exercised intermediate or back end opt outs are collectively referred to as “downstream opt outs.” In exchange for Wyeth's waiver of a statute of limitations defense, class members exercising downstream opt out rights cannot sue for punitive damages. The District Court's legal conclusions are subject to plenary review. The general principle is that “there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it.” Hansberry v. These Appellants have been afforded the due process protections necessary for the Settlement Agreement to bind them.

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The District Court heard extensive testimony concerning various conditions and their connection to diet drug use and approved the exclusion of PH from the Settlement Agreement. In fact, the District Court specifically treated PH as a symptom of many heart conditions, rather than a separate injury caused by diet drugs in its detailed discussion of the medical evidence. Further, the District Court approved the Settlement Agreement's definition of PPH, a serious lung disease that these Appellants argue is based on a flawed definition that wrongly excludes them. As discussed above, the District Court heard and rejected arguments that representation was not adequate for those with differing conditions. The District Court specifically found that class members had “meaningful opt out rights,” unlike the class members in Amchem. In addition, beyond the District Court's consideration of these issues at the fairness hearing, the District Court has already heard and rejected collateral challenges by various class members based on these same arguments.

See PTO 2383 (appointing special master to administer screening of class members who meet requirements for PPH delineated in PTO 1415), PTO 2623 (concluding that moving class members do not meet definition of PPH, denying argument that definition of PPH should be expanded, and finding that class members' due process rights were not violated by the Settlement Agreement).

This challenge is clearly inappropriate as it is not a component of a due process challenge, appropriate for collateral attack.

See Orthopedic Bone Screw, 350 F.3d at 364-65 (holding that a collateral challenge to class settlement's terms is foreclosed). Thus, all three groups of Appellants cannot collaterally challenge the class settlement here and the District Court will be affirmed. In March 2002, the manufacturer of the drugs in question changed its name from American Home Products to Wyeth. “FDA Positive VHD” refers to a severity of heart valve regurgitation, as defined in the Settlement Agreement.3.

Dow Chemical Co., 273 F.3d 249 (2d Cir.2001), aff'd by equally divided Court, 539 U. Current Challenges to the Settlement Agreement The appeals before this Court are from three Pretrial Orders of the District Court, all addressing variations on the same situation.

Appellants understandably rely heavily on Stephenson v. Thus, it follows that challenges to the terms of a settlement agreement, itself, are not appropriate for collateral review. Litig., 350 F.3d 360, 364-65 (3d Cir.2003) (holding that a “challenge to the propriety of the settlement agreement and its terms” is foreclosed by the approval of the settlement agreement in a final, unappealable order.)IV.

The settlement did not include any recovery for plaintiffs alleging a variety of conditions, including neurotoxicity and elevated pulmonary hypertension (“PH”), because the District Court found that the evidence did not support a connection between the use of diet drugs and these conditions. Jurisdiction and Standard of Review We have jurisdiction over Pretrial Orders 2929, 38 because they are all final orders of the District Court within the meaning of 28 U. This is for the same fundamental reason as the downstream opt outs-the issues raised here were raised by class members at the fairness hearing and rejected by the District Court.

Pretrial Order 3849 (appeal docketed at 04-3661) was the grant of a motion by Wyeth to enjoin Appellants, who were not diagnosed by the settlement deadline, from bringing suit in New York to challenge the adequacy of their notice and representation at settlement.

Those class members diagnosed as having FDA positive VHD by a specified date could either register for further benefits or exercise an “intermediate opt out” and sue Wyeth in the state tort system. Sales Practice Litig., 261 F.3d 355, 363 (3d Cir.2001). All underlying factual issues are reviewed for clear error. A threshold question in all three of these appeals is whether these Appellants are entitled to bring a collateral attack on the Settlement Agreement. See In re Diet Drugs, 282 F.3d 220, 231 (3d Cir.2002) (“That various subclasses in the Brown class could find themselves in competition does not by itself establish an actual conflict undermining adequacy of representation”), In re Diet Drugs, 93 Fed. 338, 344 (3d Cir.2004) (observing “[t]hat certain class members were differently situated with respect to filing deadlines should not be taken to mean that their overall interests diverged from that of the general class” and concluding that representation was adequate).

In addition, those class members diagnosed as having a lesser condition, mild mitral regurgitation, could either claim compensation under the settlement or exercise a “back end opt out” and sue Wyeth in the tort system. We review the District Court's determination of adequacy of representation as an exercise of its discretionary authority in class action proceedings for abuse of discretion. A class member must have certain due process protections in order to be bound by a class settlement agreement. This first group of Appellants, the downstream opt outs, were adequately represented at settlement and that same issue has already been raised and litigated.


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