Lineberger v. Wyeth

• Decision Date: 23 February 2006
• Citation: 894 A.2d 141
• Court: Pennsylvania Superior Court
• Parties: Patricia R. LINEBERGER, Appellant, v. WYETH F/K/A American Home Products Corporation, Wyeth-Ayerst Pharmaceuticals, Inc. and Wyeth-Ayerst Laboratories, Division of American Home Products Corporation, Appellees.

894 A.2d 141

Patricia R. LINEBERGER, Appellant, v. WYETH F/K/A American Home Products Corporation, Wyeth-Ayerst Pharmaceuticals, Inc. and Wyeth-Ayerst Laboratories, Division of American Home Products Corporation, Appellees.

Superior Court of Pennsylvania.

Argued October 19, 2005.

Filed February 23, 2006.

COPYRIGHT MATERIAL OMITTED

Harry Potter, Houston, TX, for appellant.

Michael T. Scott, Philadelphia, for appellee.

BEFORE: FORD ELLIOTT, STEVENS, and GANTMAN, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Patricia R. Lineberger, asks us to determine whether the trial court erred when it granted summary judgment in favor of Appellee, Wyeth f/k/a American Home Products Corporation, Wyeth-Ayerst Pharmaceuticals, Inc., and Wyeth-Ayerst Laboratories, Division of American Home Products Corporation ("Wyeth"), and dismissed all of Appellant's claims with prejudice. We hold Appellant waived her issues on appeal, because her court-ordered Rule 1925(b) concise statement of matters complained of on appeal was vague and overly broad. Appellant also waived the Nanty-Glo¹ issue, because she has raised it for the first time on appeal. In any event, Appellant's claims on appeal do not warrant the relief she requests. Accordingly, we affirm.

¶ 2 The relevant facts and procedural history of this appeal are as follows. Between late 1995 and early 1997, Appellant took fen-phen, a prescription drug diet therapy manufactured by Wyeth. Appellant received fen-phen prescriptions from her physician, Dr. John Lafferty. The fen-phen therapy consisted of prescriptions for fenfluramine (Pondimin®) combined with various types and dosages of phentermine. In 1996 and 1997, Wyeth issued "Dear Doctor" letters concerning fenfluramines and their potential to produce myocardial infarctions and cardiac arrest.

¶ 3 Dr. Floyd Burke performed an echo-cardiogram on Appellant on June 17, 2002, which revealed moderate mitral valve regurgitation and mild aortic insufficiency. Appellant commenced this action by complaint on November 13, 2002. Appellant filed an amended complaint on November 27, 2002, alleging that she had developed the aortic insufficiency and mitral valve regurgitation from her ingestion of fen-phen.

¶ 4 On February 25, 2005, Wyeth filed a motion for summary judgment, in which it argued that Appellant could not establish proximate causation between Appellant's injuries and Wyeth's failure to warn. Appellant could not "prove that a different warning from Wyeth regarding the association between the ingestion of [fen-phen] and valvular heart disease would have deterred [Dr. Lafferty] from prescribing the drugs to her." (Wyeth's Motion for Summary Judgment Based on Lack of Proximate Cause, 2/25/05, at 1; R.R. at 24a). Citing Dr. Lafferty's deposition transcripts, Wyeth argued that Dr. Lafferty did not relay all the risks identified in the Physician's Desk Reference or the Pondimin® label to his patients and if valvular heart disease had been on the warnings, he still would have prescribed fen-phen to Appellant. (Id. at 6; R.R. at 29a). Wyeth also argued that expert testimony cannot establish whether "[Dr. Lafferty] would have altered his behavior in the face of a different warning on the drug label." (Id. at 8; R.R. at 31a).

¶ 5 In her opposition to Wyeth's summary judgment motion, Appellant argued that factual disputes concerning causation precluded summary judgment. ([Appellant's] Response to Wyeth's Motion for Summary Judgment Based on Lack of Proximate Cause, 3/14/05, at 1-2; R.R. at 42a). Also citing Dr. Lafferty's deposition transcript, Appellant argued that if Wyeth had issued an adequate warning, Dr. Lafferty would have warned Appellant of the material risk of heart disease; and, Appellant would have refused fen-phen, thereby avoiding her injuries. (Id. at 11; R.R. at 52a). Appellant referenced Incollingo v. Ewing [444 Pa. 299, 282 A.2d 206 (1971)],² to suggest there is a jury issue on whether Wyeth's salesperson or detail person nullified any warning Dr. Lafferty might have received regarding heart disease, by failing to emphasize the dangers related to taking fen-phen for an extended time. ([Appellant's] Response to Wyeth's Motion for Summary Judgment Based on Lack of Proximate Cause, 3/14/05, at 1-2; R.R. at 58a-59a). Appellant also argued that a jury should decide whether Dr. Lafferty would have heeded the warning of heart disease, provided Wyeth had published an adequate warning. (Id. at 18; R.R. at 59a).

¶ 6 In its response, Wyeth reasserted its position that Appellant could not causally connect her injuries to Wyeth's failure to warn. During his deposition, Dr. Lafferty testified that he would have likely prescribed the medication to Appellant, even if a warning of valvular heart disease had been included on the label or in the PDR. (Wyeth's Reply to [Appellant's] Opposition to Wyeth's Motion for Summary Judgment, 3/21/05, at 2; R.R. at 100a). Wyeth further noted:

[T]here is absolutely no testimony from Dr. Lafferty regarding any communication from the "detail men" concerning [fen-phen]. At best Dr. Lafferty recalls being visited, but he had no recollection of any discussion with the detailers [concerning fen-phen. Appellant] would be asking the jury to speculate not only to the content of any discussion with detailers that Dr. Lafferty may or may not have had, but also to speculate as to whether any such conversation could have "nullified" any warnings provided with [fen-phen].

(Id. at 3; R.R. at 101a). Additionally, Wyeth presented case law stating that the heeding presumption applied only to asbestos cases, not to pharmaceutical failure to warn cases.

¶ 7 The trial court granted Wyeth's motion for summary judgment by order filed on March 22, 2005. On April 18, 2005, Appellant filed her notice of appeal. Appellant submitted a court-ordered Rule 1925(b) concise statement of matters complained of on appeal on May 2, 2005. Appellant's Rule 1925(b) statement said:

The matters complained of by [A]ppellant on appeal are as follows:

a. the Court committed an error of law by granting [Wyeth's] Motion for Summary Judgment based on lack of proximate cause and dismissing [Appellant's] case with prejudice.

(Concise Statement of Matters Complained of on Appeal, dated 5/02/05, at 2).

¶ 8 The trial court's Rule 1925(a) opinion affirmed its decision to grant summary judgment in Wyeth's favor. Under the learned intermediary doctrine, "the prescribing doctor must testify that had he received a different warning, he would have altered his prescribing habits." (Trial Court Opinion, dated May 23, 2005, at 9; R.R. at 122a). Dr. Lafferty "testified that had a warning for valvular heart disease been given, he still would have prescribed the drugs to selected patients," including Appellant. (Id. at 6; R.R. at 119a) (citations omitted). "Without evidence that Dr. Lafferty would not have prescribed the diet drugs, [Appellant] is unable to establish that Wyeth's alleged failure to warn was the proximate cause of her injuries." (Id. at 7; R.R. at 120a). Appellant's "detail person" argument failed primarily because "it is evident from Dr. Lafferty's testimony that Wyeth's `detail men' had no effect on his decisions to prescribe the diet drugs." (Id. at 9; R.R. at 122a).

¶ 9 The trial court further noted that the heeding presumption applies exclusively to strict liability claims, such as asbestos claims, whereas "[n]egligence is the only recognized basis of liability for failure to warn for manufacturers of prescription drugs." (Id. at 8; R.R. at 121a) (citations omitted). The Pennsylvania courts have refused to apply the heeding presumption to pharmaceutical failure to warn cases. (Id.). "Our courts have emphasized this guiding principle by repeatedly ruling that in such cases the manufacturer's duty runs not to the patient but to the physician." (Id.).

¶ 10 On appeal, Appellant raises the following issues for our review:

WHETHER THIS HONORABLE COURT SHOULD REVERSE THE DECISION AND ORDER OF THE TRIAL COURT BECAUSE THE TRIAL COURT COMMITTED AN ERROR OF LAW IN GRANTING WYETH'S MOTION FOR SUMMARY JUDGMENT BASED ON AN ALLEGED LACK OF PROXIMATE CAUSE:

(a) WHETHER THIS HONORABLE COURT SHOULD FIND THAT THE NANTY-GLO RULE PROHIBITS SUMMARY JUDGMENT FOR [APPELLEE] BECAUSE THE MOTION RELIED EXCLUSIVELY ON ORAL TESTIMONY.

(b) WHETHER THIS HONORABLE COURT SHOULD FIND THAT [APPELLANT'S] SUMMARY JUDGMENT EVIDENCE RAISED MATERIAL ISSUES OF FACT PRECLUDING SUMMARY JUDGMENT FOR WYETH.

(c) WHETHER THIS HONORABLE COURT SHOULD FIND THAT THE TRIAL COURT APPLIED AN UNDULY RESTRICTIVE INTERPRETATION OF PROXIMATE CAUSE.

(Appellant's Brief at 3).³

¶ 11 "Our scope of review of an order granting summary judgment is plenary." Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1103 (Pa.Super.2000), appeal denied, 566 Pa. 664, 782 A.2d 546 (2001). "[W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact." Id. "We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered." Caro v. Glah, 867 A.2d 531, 533 (Pa.Super.2004) (citing Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002)).

¶ 12 Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of her cause of action. Grandelli v. Methodist Hosp., 777 A.2d 1138, 1145 n. 7 (Pa.Super.2001). Summary judgment is proper "if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden...