Deceased v. Wyeth

• Decision Date: 01 October 2010
• Citation: 2010 PA Super 137,4 A.3d 160
• Parties: Patsy LANCE, Administratrix for the Estate of Catherine Ruth Lance, Deceased, Appellant v. WYETH, f/k/a, American Home Products Corporation, Appellee.
• Court: Pennsylvania Superior Court

4 A.3d 160

2010 PA Super 137

Patsy LANCE, Administratrix for the Estate of Catherine Ruth Lance, Deceased, Appellant

v.WYETH, f/k/a, American Home Products Corporation, Appellee.

Superior Court of Pennsylvania. Patsy LANCE, Administratrix for the Estate of Catherine Ruth Lance, Deceased, Appellant

v. WYETH, f/k/a, American Home Products Corporation, Appellee. Argued June 22, 2010.Filed Aug. 2, 2010.Reargument Denied Oct. 1, 2010.

Howard J. Bashman, Willow Grove, for appellant.

Michael T. Scott, Philadelphia, for appellee.

BEFORE: STEVENS, GANTMAN and ALLEN, JJ.

OPINION BY ALLEN, J.:

¶ 1 Plaintiff, Patsy Lance (“Appellant”), Administratrix for the Estate of Catherine Ruth Lance (“Lance”), appeals from the trial court's order granting summary judgment in favor of Wyeth, formerly known as American Home Products Corporation (“Wyeth”). We affirm in part and reverse in part.

¶ 2 In her short form complaint, Appellant alleged that Wyeth was negligent in placing an unreasonably dangerous prescription drug on the market and in failing to withdraw it upon discovering that it was unsuitable for public consumption. R.R. at 18. Appellant also asserted that Wyeth breached the standard of care in designing, developing, inspecting, testing and preparing the drug. R.R. at 45. The trial court concluded that Appellant failed to present a cognizable claim under Pennsylvania law.

¶ 3 The trial court set forth the facts and procedural history of this case as follows.

[Appellant] is a resident of the State of Ohio who alleges her daughter, decedent [Lance], ingested [Wyeth's] diet drug, Redux, from approximately January 15, 1997 to April 1997. Redux is prescribed to treat cases of obesity. The physicians who prescribed Redux to Lance for her obesity were Dr. John Imm, M.D., and Jim Doone, M.D., from Community Health Partners in Fremont, Ohio. The [Food and Drug Administration] (“FDA”) approved Redux as “safe and effective” on April 29, 1996, and the FDA continued to approve Redux after [Lance] stopped using it. Lance ingested the drug for approximately three (3) months before discontinuing its use. [On September 15, 1997, Wyeth voluntarily withdrew Redux from the market because of the risk that the drug may cause valvlular heart disease.]

On or around November 15, 2004, more than seven (7) years after Lance discontinued using Redux, she was diagnosed with Primary Pulmonary Hypertension (“PPH”) by Dean M. Bernardo, M.D. At that time[,] Lance first suspected that her ingestion of diet drugs was related to her diagnosis. Although Lance died in December 2004, the cause of her death is at issue and contested by the parties.

[Appellant] instituted the within Phen-Fen Mass Tort action by Short Form Complaint filed on November 13, 2006. [Appellant] alleged that on November 15, 2004, Lance was diagnosed with PPH as a result of her ingestion of ... Redux.

[I]n her Short Form Complaint, [Appellant included] an “Addendum of Additional Allegations” for “clarification of her claims.” [Appellant] stated that her negligence claim was based on “Unreasonable Marketing of a Dangerous Drug and Unreasonable Failure to Remove the Drug from the Market before January 1997.” Additionally, [Appellant] explicitly stated that she was making “No Inadequate Labeling Claims.”

[Appellant's] Complaint, although alleging Wyeth was negligent in marketing Redux, faile[d] to allege that any marketing of Redux by Wyeth was relied upon by [Lance] and influence[d] her decision to request that she be prescribed Redux from her physicians.

[As part of her short from complaint, Appellant also adopted the negligence count of the master complaint. R.R. at 17. In particular, Appellant alleged that Wyeth breached the standard of care in designing, developing, inspecting, testing and preparing Redux. R.R. at 45.]

Trial Court Opinion (T.C.O.), 1/07/10, at 1-2 (citations and footnotes omitted).

¶ 4 On March 6, 2008, Wyeth filed a motion for summary judgment, contending that as a matter of law, Appellant did not assert a cognizable claim. In particular, Wyeth argued that in Pennsylvania, a plaintiff can only recover from a drug manufacturer by proving either that the drug had a manufacturing defect or an inadequate warning. Wyeth maintained that because Appellant did not aver a manufacturing defect claim and admitted that her negligence claim was not based on a failure to warn, Appellant failed to plead a valid cause of action.

¶ 5 In opposition, Appellant conceded that she was not asserting a failure to warn claim. Appellant, however, argued that Wyeth was negligent in placing an unreasonably dangerous product into the market. Appellant further asserted that Wyeth was negligent in failing to properly test Redux before the FDA approved the drug and in failing to withdraw Redux from the market after discovering that it was unreasonably dangerous. Finally, Appellant proposes that she advanced a viable negligent design defect claim. On these grounds, Appellant submitted that her claims were actionable under Pennsylvania law.

¶ 6 On September 19, 2008, the trial court granted summary judgment in favor of Wyeth. The trial court concluded that as a matter of law, Appellant failed to plead a cognizable cause of action. This appeal ensued.

¶ 7 Appellant raises the following issue for review:

Did the trial court err as a matter of law in holding on summary judgment that Pennsylvania law would not recognize plaintiff's claims that Wyeth was negligent in bringing Redux to the market and in failing to withdraw Redux from the market before the drug was prescribed to plaintiff's decedent, [ ] Lance?

Brief for Appellant at 3.

¶ 8 We review a grant of summary judgment under the following well-settled standards:

Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontraverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.

Wright v. Allied Signal, Inc., 963 A.2d 511, 514 (Pa.Super.2008) (citation omitted).

¶ 9 Here, Wyeth did not claim that Appellant was unable to adduce evidence sufficient to establish a prima facie case. Rather, Wyeth argued that as a matter of law, Appellant failed to allege a cognizable cause of action in her complaint. As such, this Court is presented with a pure question of law, i.e., whether Appellant pursued a viable cause of action. ¹

¶ 10 According to the short form complaint, Appellant asserted three legal claims. First, Appellant asserted a claim for “Negligence-Unreasonable Marketing of a Dangerous Drug.” R.R. at 18. To support this claim, Appellant alleged, inter alia, that “Redux was so unreasonably dangerous and defective in design that it never should have been on the market.”

R.R. at 19. Second, Appellant averred a claim for “Negligence-Unreasonable Failure to Remove [Redux] from the Market before January 1997.” R.R. at 18. In support of this claim, Appellant contended that Wyeth was negligent in failing to withdraw Redux after discovering in 1994 that the drug was associated with heart valve disease. R.R. at 19. Third, Appellant raised a standard negligence count; in this claim, Appellant alleged that Wyeth breached the standard of care in designing, developing, inspecting, testing and preparing Redux. R.R. at 45.

¶ 11 Appellant first argues that the trial court erred in granting summary judgment on her “Unreasonably Marketing of a Dangerous Drug” claim. Appellant maintains that Wyeth was negligent in placing an unreasonably dangerous drug on the market and contends that the overall risks of Redux outweighed the drug's benefits for any class of persons. In addition, Appellant asserts that Redux was unreasonably dangerous because it was defective in design and chemical composition. Appellant proposes that Pennsylvania law recognizes this type of claim as a legal basis for relief. Finding that Appellant's purported cause of action is a design defect claim sounding in products liability, we do not agree.

¶ 12 In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), our Supreme Court adopted The Restatement (Second) of Torts § 402A. This section governs products liability claims and allows recovery where a product causes harm to a plaintiff and is in “a defective condition unreasonably dangerous to the consumer or user[.]” Restatement (Second) of Torts, § 402A(1). In general, there are three types of defective conditions which may give rise to strict liability: a manufacturing defect, a design defect, and a failure to warn defect. Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995).

¶ 13 In Pennsylvania, however, products liability law is superseded as it applies to prescription drugs. In Hahn v. Richter, 543 Pa. 558, 673 A.2d 888, 889-90 (1996), our Supreme Court continued to “den[y] application of strict liability to products such as prescription drugs, which, although dangerous in that they are not without medical risks, are not deemed defective and unreasonably dangerous when marketed with proper warnings.” Id. Relying on previous case law, our Supreme Court in Hahn adopted comment k of the Restatement (Second) of Torts, § 402A. In pertinent...