Citing Linda Boderek v. American Home Products, in which U.S. Judge Harvey Bartle III of the Eastern District of Pennsylvania enjoined PPH plaintiff Merle Hall from presenting evidence relating to valvular heart disease, neurotoxicity or Wyeth's conduct on those topics, the firms say in a July 7 motion that the court "has applied the settlement to burden class members asserting PPH and PH claims, even though the settlement provides no benefits for PPH and PH claims, and no class representatives asserted PPH or PH claims against Wyeth."

Representation

"Adequacy of representation is the bedrock guarantee for all absent class members in every form of class action in every court, federal and state," the firms say in a supporting brief. "It is the rule because it is consistent with basic understandings of procedural justice that underlie much of the Supreme Court's Due Process Clause jurisprudence."

The firms argue that the U.S. Supreme Court's recent affirmation of collateral attack on a class action settlement by an empty-handed class member claiming inadequate representation in Agent Orange Product Liability Litigation, In re:, Dow Chemical Co., et al. v. Daniel Raymond Stephenson, et al. supports the position of empty-handed PH and PPH victims that they were inadequately represented.

"These class members did not have a place at the table during any phase of Brown," the firms say. "They did not have a class representative. They did not have subclass counsel. Not surprisingly, the settlement provided no benefits to them, but imposed only burdens on PPH and PH plaintiffs, as PTO Nos. 2383 and 2867 illustrate. Quite obviously, there is a serious question whether the interests of PPH and PH plaintiffs were traded off to promote the interests of other members of the class."

2 Occasions

"Since certification and final judicial approval of the class action, the Court has had two occasions to broadly consider the rights of class members asserting claims for PPH," the firms say. "In Memorandum and Pretrial Order 2383 the Court provided a mechanism whereby Wyeth could challenge class members' eligibility to pursue PPH claims in this Court, regardless of where the case was pending, including whether it was in state court or federal court. In Memorandum and Pretrial Order No. 2867, the Court enjoined PPH victim, Merle Hall, from introducing any evidence or making any argument to the court or jury related to valvular heart disease, neurotoxicity, and/or Wyeth's conduct in those regards.

"Class action law mandates that class representatives be part of the class and posses the same interests and suffer the same injuries as the class members," the firms say. "A class member cannot be bound by a judgment or settlement unless the Rule 23 and due process requirement of adequate representation is satisfied. Yet no class representative or subclass counsel was originally or has subsequently been appointed by this court to represent the interests of those class members suffering from primary pulmonary hypertension or pulmonary hypertension. Therefore, PPH and PH class members did not receive the constitutionally required structural protection of adequate representation in Brown, and cannot be bound by the terms and conditions of the Nationwide Class Action Settlement Agreement with American Home Products Corporation."

No Relief

"The Settlement Agreement provides no relief for people suffering from elevated pulmonary hypertension as result of taking Pondimin or Redux, who don't meet the Settlement Agreement's definition of PPH," the firms say. "Although there is no question that diet drugs cause elevations in pulmonary pressure, the court concluded that only those who actually meet the Settlement Agreement's PPH definition may assert causes of action against Wyeth for their injuries. . . . Thus, class members who discovered during the Brown screening period that they suffer from chronic elevation of pulmonary artery pressure due to the direct toxic effects of fenfluramine on their pulmonary artery bed have no right to seek compensation for their injuries because they do not meet the Brown definition for PPH.

"The issue presented here is about the power of courts to bind people to court judgments purporting to extinguish their rights," the firms say. "Indeed, the analysis requires the court to determine the constitutional limits of legitimate jurisdiction under the Due Process Clause of the Fifth Amendment and Fourteenth Amendment. In Hansberry v. Lee,311 U.S. 32 (1940), Justice Stone did not use the word jurisdiction in holding that the Due Process Clause had been violated, but the opinion makes clear that the limits of legitimate jurisdiction lay at the heart of the case.

"Justice Stone's comments provide substantial guidance for determining whether absentees can be bound in a class action," they say. "Adequacy of representation is the deciding factor - the due process procedural protection that allows a court to bind absentees. The proposition that due process demands the adequate representation in fact of absent class members for the class action court to have jurisdiction over them is well explained in Phillips Petroleum v. Shutts, 472 U.S. 797 Shepardize (1985). In Shutts, the Court held that 'the Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of absent class members.' Id. at 812. The particular issue before the court in Shuttswas whether a court in one state may exercise jurisdiction over absent class members from other states who otherwise lack any connection to the forum state, and it was in that setting that the Supreme Court held that due process forbids the exercise of such jurisdiction without adequate representation and notice (and, at least in some class actions, a right to opt-out)," they say.

Reasoning Remains Binding

"The reasoning of Hansberry and Shuttson jurisdiction remains as binding today as when they were written," they say. "The exercise of jurisdiction over absentees, represented in court by substitutes whom they did not choose and over whom they exercise no control, can be reconciled with time-honored notions of due process only if those representatives are adequate. Brown provides no direct payments to anyone suffering from PPH or PH . . . but pursuant to this court's orders, defines PPH and PH class members' rights. . . . Indeed, Brown defines PH class members' claims (discovered during the screening period) out of existence."

The motion was filed by George M. Fleming and Rand P. Nolen of Fleming & Associates in Houston, Paul J. Napoli of Napoli Bern in New York and Mario D'Angelo of Hariton &D'Angelo in Great River, N.Y.

The Plaintiffs Management Committee class counsel and subclasses are represented by Arnold Levin and Fishbein of Levin, Fishbein, Sedran & Berman in Philadelphia, Stanley Chesley of Waite, Schneider, Bayless & Chesley in Cincinnati, John J. Cummings III of Cummings, Cummings & Dudenhefer in New Orleans, Gene Locks of Greitzer& Locks in Philadelphia, Sol H. Weiss of Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley in Philadelphia, Charles R. Parker of Hill & Parker in Houston, Diane Nast of Roda & Nast in Lancaster, Pa., Richard Lewis of Cohen, Milstein, Hausfeld & Toll in Washington, Mark W. Tanner of Feldman, Shepherd & Wohlgelerntner in Philadelphia, R. Eric Kennedy of Weisman, Goldberg, Weisman & Kaufman in Cleveland and Richard Wayne of Strauss & Troy in Cincinnati.