In re Diet Drugs, 706 F.3d 217 (3d Cir. 2013). This is the latest of the many chapters in the Diet Drugs class action litigation, which was the subject of a global settlement in 1999. A pair of class members, the Cauthens, sought to bring a separate complaint for damages suffered because Ms. Cauthen suffered primary pulmonary hyptertension, allegedly caused by the diet drugs. Wyeth, the settling defendant, moved to enjoin that lawsuit, contending that it was not of a type that the settlement agreement permitted to go forward. The District Court agreed with Wyeth, and the Third Circuit, speaking through Judge Jordan, affirmed.
Much of the opinion is consumed with a discussion of medical issues. But near the end of the opinion, Judge Jordan concludes that the second of two arguments raised by the Cauthens was waived by their failure to present that issue below.
The “general rule” is that “arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in [the Third Circuit Court of Appeals] absent exceptional circumstances.” Judge Jordan did note that the waiver rule “is one of discretion rather than jurisdiction, and it may be relaxed whenever the public interest so warrants.” That discretion is “exercised on the facts of individual cases.” But the “waiver rule applies with greatest force where the timely raising of the issue would have permitted the parties to develop a factual record.” That was the situation here. Accordingly, the Cauthens’ second issue was waived.
This reasoning of this decision was consistent with that of Barefoot Architect, Inc. v. Bunge, 632 F.3d 822 (3d Cir. 2011), cited by Judge Jordan and discussed here. Waiver continues to be the general rule, subject to a “public interest” exception. But that exception can be a challenging one to meet.