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A federal appeals court last week dismissed seven appeals filed by plaintiffs attorneys in the massive fen-phen diet drug litigation who are fighting over an interim award of attorney fees amounting to $153.7 million. Plaintiffs have secured a multibillion-dollar class action settlement with the manufacturer of the drug cocktail. A three-judge panel of the 3rd U.S. Circuit Court of Appeals concluded that the district court’s interim award in In re Diet Drug Products Liability Litigation was not a final order and, the appellate court lacked jurisdiction to consider the appeals. “We have been instructed that absent jurisdiction, we are to dismiss the appeals filed and take no further action,” wrote Senior 3rd Circuit Judge Leonard I. Garth, who was joined by 3rd Circuit Judges Richard Lowell Nygaard and Thomas L. Ambro. “We do so here.” In 1997, Pennsylvania corporation American Home Products (now the Madison, N.J.-based Wyeth) withdrew its diet-drug combination known as fen-phen from the market after medical studies reported the drugs could cause heart trouble in some people. Thousands of people filed lawsuits against the manufacturer. The federal cases were transferred to the district court in Philadelphia and coordinated for pretrial purposes, and in January 2002 that court approved the class-action settlement agreement. A trust created to administer settlement claims is still at work. In May 2003, U.S. District Judge Harvey Bartle III awarded the interim fees to 83 plaintiffs’ firms for their work in the settlement up to June 30, 2001. Lawyers had asked for $567 million in their fee petition. Several groups of attorneys appealed the award, four attacking the procedures Bartle used to allocate the fees and three attacking the allocation itself as unfair. Some of the complaining attorneys argued that because one of the three settlement funds to which Bartle’s orders applied has been almost exhausted, the circuit panel should regard that fund as being a “final” judgment sufficient to invoke the circuit court’s jurisdiction. Garth said the problem with the attorneys’ contention was that the existence of the two other funds — neither of which have been exhausted — and the intermingling of money from all three funds in the interim award “prevent finality from attaching” to Bartle’s decision. “There can be no such thing as ‘partial jurisdiction’ or ‘partial finality,’” Garth wrote. “In this case, the entire $153 million interim fee that was allocated stemmed from all three funds and we know of no authority that allows us to divide the $153 million into three parts, granting jurisdiction to one part and denying it to the other parts. Nor has counsel advised or informed us of such a doctrine.” And while it’s arguable that the distribution of fees from the one fund is final, distributions from the other funds “are far from being exhausted, and are neither finite nor final,” Garth explained. Because questions about the value of the settlement and the benefits conferred on class members are still unsettled, Bartle found he could not make a full award of attorney fees. “Only after the remaining issues, affecting the overall value and efficacy of the settlement, have been resolved will the district court be in a position to consider making a final fee award to class counsel,” Garth wrote. The panel also rejected the attorneys’ argument that the appellate panel could review Bartle’s ruling under the collateral order doctrine, concluding that Bartle expressed “unequivocally” that he plans to revisit the issue to determine a final award. A failure to immediately review Bartle’s decision would not cause harm, Garth reasoned. Ambro wrote separately to concur with Garth’s opinion.

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