"To the extent any ambiguity can be said to exist in the Settlement Agreement, the notice sent to class members in the spring of 2000 about the proposed settlement confirms our analysis," U.S. Judge Harvey Bartle III of the Eastern District of Pennsylvania said in a memorandum and order. "Included in the packet of materials comprising the notice was a color brochure described as 'A Class Member's Guide to the Diet Drug Litigation Settlement' (the 'Guide'). The words 'Official Court Notice' in bold letters were imprinted on the front. On page fourteen of the Guide was the statement 'If you have a PPH claim, as defined in the Settlement Agreement, you may pursue that claim in court outside of this Settlement, whether or not you Opt-Out.'

"Thus, class members were told that their rights to sue for a PPH claim would be the same whether or not they exercised an initial opt-out," Judge Bartle said. "By exercising an initial opt-out, a class member would no longer be a part of the settlement and would not be bound by any contractual limitations with respect to settled claims. Since an initial opt-out plaintiff could introduce evidence of VHD [valvular heart disease] in a lawsuit involving PPH if allowed by state law, class members such as the three plaintiffs here who did not initially opt out must have the same opportunity."

Plaintiffs with state court cases, including those above, had sought reconsideration of a May 22 injunction barring plaintiff Merle Hall (Linda Boderek v. American Home Products, No. A-160872, Jefferson Co., Texas) from introducing evidence of Wyeth's conduct regarding settled claims, most problematically VHD. They argued that nothing in the language of the settlement restricted the evidentiary rights of PPH claimants and that they would be hampered in their ability to establish causes of action without reference to Wyeth's conduct regarding VHD, which is far more common among former diet drug users than PPH.

Class counsel weighed in with a warning that restricting the trial rights of individuals with a latent disease could raise the sort of "futures" problem that was fatal to earlier class action settlements.