Shoring up the Eastern District of Pennsylvania’s opinion, the U.S. Court of Appeals for the Third Circuit enforced the letter of the settlement agreement between Wyeth and the people who took the diet-drug cocktail commonly called Fen-Phen.

The appeals court on Monday affirmed the district court’s dismissal of a suit filed by Carmen Cauthen and her husband alleging that she developed primary pulmonary hypertension, called PPH, as a result of taking the drugs.

Although Cauthen was part of the class-action settlement with the pharmaceutical company a decade ago, she sought to exercise an exception to the agreement’s bar on further litigation against Wyeth.

In order to qualify for the exception, a plaintiff must prove through a pulmonary function test that he or she has developed PPH with a showing of total lung capacity greater than 60 percent of the predicted at-rest rate.

Cauthen’s test showed her lung capacity to be 56 percent.

“According to their argument, the district court should have disregarded the requirements of the settlement agreement because a physician unilaterally declared that Ms. Cauthen has PPH that was caused by the diet drugs and not restrictive lung disease,” Judge Kent A. Jordan wrote on behalf of the three-judge panel that included Judges D. Michael Fisher and Anthony Scirica.

“The settlement agreement, however, clearly and unambiguously states that a putative PPH plaintiff must demonstrate, through a [pulmonary function test], that her total lung capacity is greater than 60 percent of predicted at rest,” the court said.

The Cauthens filed their suit in 2011 in the Philadelphia Court of Common Pleas with results of the PFT from Dr. Terry Fortin. Since the test results showed Carmen Cauthen’s total lung capacity to be less than the 60 percent necessary to bring a suit, Wyeth asked the district court to enjoin the suit. It did and the Cauthens appealed.

This suit appears to be the only one of its kind brought to the Third Circuit. In 1997, the Judicial Panel on Multidistrict Litigation consolidated all Fen-Phen cases in the Eastern District of Pennsylvania.

The Cauthens argued on appeal that the district court had misunderstood Fortin’s medical evaluation of Carmen Cauthen, which indicated that the PFT wasn’t an accurate enough measure of lung capacity, and, second, that the district court should have amended the terms of the settlement because of improvements in diagnostic capabilities since it was drafted.

Fortin noted that part of the test for determining lung capacity is weighed against the average for people of similar height, weight, age and ethnicity, which can vary from person to person.

“Dr. Fortin concluded ‘to a reasonable degree of medical certainty that we just do not know conclusively what the true reference value for Ms. Cauthen should be,’” according to the opinion.

The settlement doesn’t allow for any substitutes of the PFT for those who want to bring suit against Wyeth for PPH, but even if it did, Jordan said, “the Cauthens have overstated Dr. Fortin’s position.”

“She never said that Ms. Cauthen’s lung capacity is actually greater than 60 percent of predicted at rest, only that it cannot be known ‘what the true reference value for Ms. Cauthen should be,’” Jordan said.

The district was correct to rule that the Cauthens’ arguments failed to stand up to the set terms in the agreement, the Third Circuit said.

“The settlement agreement unambiguously requires a showing through a PFT that a putative plaintiff’s lung capacity is greater than 60 percent of predicted at rest and that Dr. Fortin’s declaration did not provide that showing,” Jordan said.

As to the Cauthens’ second argument, that the terms of the settlement should be changed to accommodate diagnostic instruments developed since it was agreed to, the Third Circuit held that they had waived that argument since they hadn’t made it in the lower court.

“‘It is axiomatic that arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in this court absent exceptional circumstances,’” the Third Circuit said, quoting itself from its opinion in Tri-M Group LLC v. Sharp, issued in 2011.

Exceptional circumstances are absent here, the court held.

In a footnote, Jordan said, “Even in the absence of a waiver, it appears that the Cauthens would have difficulty with the merits of their argument.”

Neither Denise Rubin of Napoli Bern Ripka Shkolnik in New York, who argued on behalf of the Cauthens, nor Anand Agneshwar of Arnold & Porter in New York, who argued on behalf of Wyeth, could comment.

“We are pleased with the Third Circuit’s decision to affirm the dismissal of the Cauthen matter,” Chris Loder, spokesman for the defendant, said in a prepared statement. “We maintained all along that the plaintiffs did not meet the settlement’s definition of primary pulmonary hypertension and the Third Circuit today agreed with this position.”

Saranac Hale Spencer can be contacted at 215-557-2449 or Follow her on Twitter @SSpencerTLI.

(Copies of the 20-page opinion in In re Diet Drugs, PICS No. 13-0252, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •