In an opinion filed January 8, 2018, Pennsylvania’s intermediate appellate court addressed multiple issues arising after a plaintiff’s verdict in a case from the In Re: Risperdal Litigation. The issues the court addressed are discussed below.
Initially, the court, citing Frye, reiterated that in Pennsylvania, a party wishing to introduce novel scientific evidence must demonstrate that the relevant scientific community has reached general acceptance of the principles and methodology employed by the expert witness to testify regarding his conclusions. However, the conclusions themselves need not also be generally accepted. In this particular instance, Dr. Solomon used the differential diagnosis method to conclude that Risperdal caused the plaintiff’s gynecomastia. The Superior Court essentially affirmed that in Pennsylvania differential diagnosis is a generally accepted scientific process to establish specific causation when applied appropriately.
The court also addressed whether the plaintiff’s evidence established proximate cause, i.e. that an inadequate warning caused the injury (gynecomastia). The court applied the “learned intermediary doctrine” which establishes that a manufacturer will be held liable only where it fails to exercise reasonable care to inform a physician of the facts which make the drug likely to be dangerous. In this particular case the treating physician testified that he would not have prescribed the drug had he been aware of the increased risk of gynecomastia. The court found that the plaintiff had put forth sufficient evidence that known increased risk data was not adequately communicated to the physician community. Thus, the court found that the learned intermediary doctrine did not prohibit plaintiff’s claims. The treating physician’s testimony highlights the importance of working up a physician deposition strategy that will best position a successful learned intermediary defense. Had the physician testified he was aware of the increased risks from published literature or elsewhere and/or would have prescribed the drug anyway, the strength of this defense would have been enhanced. The import of the treating physician work up was very recently forefront in another Philadelphia Judge’s decision to overturn a $28 million dollar plaintiff’s verdict in a separate mass tort case, as described by Matt Fair at Law360.
The third issue the court addressed was whether a “combined negligence” instruction was properly given to the jury. The court determined that Wisconsin law appropriately applied to this issue and the trial court properly instructed the jury that, among other things, “[a]n injury may be caused by one person’s negligence or by the combined negligence of two or more people.” This instruction, which is not quoted in full, was difficult for the defense to overcome because they had pointed the finger at the prescribing physician, arguing that he knew the risks and/or failed to read an updated label, but the jury was not in a position to apportion liability to the physician.
On cross-appeal, after determining that an issue can be properly preserved for appeal if argued in opposition papers, the Superior Court turned its attention to a choice of law analysis regarding the applicability of punitive damages. The court determined that a true conflict existed between the New Jersey Product Liability Act (NJPLA) and Wisconsin law. The main distinction being that punitive damages are not allowed in pharmaceutical product liability cases where the drug was approved by the FDA pursuant to the NJPLA but Wisconsin allows punitive damages (which are capped).
After determining there was a true conflict the court turned its attention to the second prong of Pennsylvania’s conflict of law analysis which is to determine which state had the most significant relationship to the parties and the occurrence. However, because the trial court had previously entered an order precluding punitive damages after considering whether Pennsylvania or New Jersey law applied, the Superior Court remanded the matter so that a record could be developed regarding the application of New Jersey versus Wisconsin law on the issue.
The final issue the Superior Court addressed was whether the jury should have been charged on future emotional distress damages which are recoverable under Wisconsin law. The Superior Court agreed with the trial court that the trial evidence did not support that plaintiff would suffer future emotional distress damages and therefore a jury charge on that issue was not warranted.
A link to the Pennsylvania Superior Court’s opinion can be found here.