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The coordinating judge of Philadelphia’s Complex Litigation Center has granted a defense motion for summary judgment in a case in which the doctor who prescribed diet drugs to a fen-phen plaintiff died before he could be deposed. Because Oklahoma resident Mary Anderson has no way to show that her physician would not have prescribed her diet drugs had he received a different warning from Wyeth as to their possible side effects, she “is unable to establish that Wyeth’s alleged failure to warn was the proximate cause of her injuries,” Judge Norman C. Ackerman held in Anderson v. Wyeth. According to Ackerman’s opinion, Anderson took Pondimin and other Wyeth-manufactured diet drugs between 1996 and 1997; they were prescribed to her by her family doctor, A.B. Husky. Anderson had to have mechanical heart valve surgery in April 2001 and roughly a year later suffered a stroke, the resulting impairments of which she claims to continue to suffer, according to the opinion. In October 2003, 10 months into the pendency of her and husband Scott’s case against Wyeth, Husky died at the age of 50. “The mere fact that for some unknown reason plaintiffs did not take the deposition of Dr. Husky, to preserve his testimony during his lifetime while the instant case was pending, provides no justification for a change or expansion of existing law,” Ackerman wrote. “Any absence or death of a material witness in any litigation is a risk that falls upon the party who depends upon that witness to satisfy [his or her] burden. “Accordingly, no material issue of fact existed as to causation and the plaintiffs failed to supply evidence satisfying their burden in that regard. The affidavit of [plaintiffs' expert cardiologist William] Pentz did not satisfy that burden or create any material issue of fact [absent] evidence from Dr. Husky, himself, that he would not have prescribed the diet drugs.” Anderson was represented by Lee Balefsky of Kline & Specter. The lead counsel on behalf of Wyeth was Joseph Hetrick of Dechert. According to the opinion, when the Anderson litigation began, Husky’s office provided all parties in the matter with a complete set of his medical records on Anderson. The only evidence concerning both Husky’s prescribing the diet drugs to Anderson and his decision roughly a year later that she should no longer take them was testimony by Anderson, according to the opinion. (Anderson stopped taking diet drugs about seven months before Wyeth voluntarily withdrew Pondimin from the market.) In March of this year, Wyeth moved for summary judgment, arguing that Anderson could not prove her doctor would not have prescribed diet drugs to her had the pharmaceutical giant provided him with a different warning about their use. Ackerman granted that motion last month. “At issue in the instant case is whether the record before this court contained sufficient evidence to permit Anderson to proceed to trial,” Ackerman wrote. “Specifically, Wyeth argued that under the learned intermediary doctrine, Anderson needed to show that had [Husky] received a different warning regarding the association between diet drugs and valvular heart disease, he would have altered his prescribing habits and thus her injury would have been avoided.” Under the Superior Court’s 1996 decision in Demmler v. SmithKline Beecham Corp., Ackerman wrote, when the defense has moved for summary judgment, the burden is on the plaintiffs to show that different warnings to learned intermediaries would have resulted in different prescribing inclinations. Anderson argued that Demmler allows for courts to adduce “sufficient evidence of some reasonable likelihood” that different warnings would have changed prescribing doctors’ minds, but Ackerman disagreed. “The evidence of sufficient weight to establish a reasonable likelihood is evidence that the learned intermediary, Dr. Husky, and only Dr. Husky, would provide to the effect that he, Dr. Husky, would have altered his behavior,” Ackerman wrote. “That is the express language of Demmler.” Ackerman also concluded that the “heeding presumption” is not applicable in Anderson, as it has been applied only to strict liability claims. He also rejected the argument that Husky — and the entire medical community at large — could not be considered “learned intermediaries” in the context of diet drugs, as the warnings the pharmaceutical industry provided them with were fundamentally insufficient. “The term ‘learned intermediary’ does not mean that he is ‘learned’ because of information obtained from the pharmaceutical manufacturer but rather because of his own training and experience,” he wrote. Hetrick, Wyeth’s attorney, said that he knows of several pending fen-phen cases in which the prescribing physician’s testimony has not been preserved for one reason or another and that he hopes Ackerman’s decision will aid in the disposition of those matters. Balefsky, who represented Anderson, said he was “absolutely flabbergasted” by Ackerman’s decision. Balefsky said he did not immediately depose Husky — whose death was sudden — right after the case was filed because he did not have reason to expect the middle-aged physician would die before the matter came to trial and because he did not believe the success of his client’s case would hinge on her prescribing physician’s testimony. “What the judge appears to be saying here is, that if a doctor prescribes a medication to someone on Jan. 1, and then dies on Jan. 2, then that person can’t bring a claim against a pharmaceutical company, because the doctor is not available to testify,” Balefsky said. “That has never, in our view, been the law in Pennsylvania.”

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