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The coordinating judge of Philadelphia’s Complex Litigation Center has dismissed two more fen-phen cases in which the physicians who originally prescribed the plaintiffs diet drugs were not deposed and are currently unavailable to testify. In separate but similarly worded opinions in Adams v. Wyeth and Berry v. Wyeth, Judge Norman C. Ackerman wrote that summary judgments in favor of Wyeth were proper because the plaintiffs, two Utah women, could not establish that their doctors would have altered their prescription habits had the pharmaceutical giant issued different warnings concerning the potential risks of ingesting the diet drug Pondimin. The decisions in those two cases, filed Monday, come roughly two weeks after Ackerman dismissed an Oklahoma woman’s case on virtually identical grounds. That case was captioned Anderson v. Wyeth. “This court concludes that [plaintiff] cannot establish that Wyeth’s alleged failure to warn of the risk of valvular hear disease was the proximate cause of her injury,” Ackerman wrote in both Adams and Berry. “Therefore, summary judgment was warranted and this court’s order should be affirmed [by the Superior Court].” In Adams, Laura Adams took Pondimin for roughly 10 months beginning in early 1996. Her only prescribing physician had been J. Anthony Gillett, a psychiatrist for whom she had worked as a secretary from 1994 to 1998, according to Ackerman’s opinion. Gillett was never deposed by Adams’ counsel. During her deposition, Adams testified that Gillett was quite old when she worked for him, and thus she assumed that he had died by the time she filed her complaint in January 2003. Berry involves two doctors who prescribed Pondimin to Lori Berry during the six-month period she took the drug beginning in early 1997. John Bezzant, her dermatologist, testified that he had prescribed Pondimin only twice — once to Berry and once to a neighbor — and that he had never read any warnings concerning the diet drug, according to the opinion. A scheduled deposition of Berry’s other prescribing physician, Bruce Guernsey, was canceled and his testimony was never taken down. He subsequently moved to Russia and cannot be located. Both Adams and Berry were represented by Robert Curran of Curran & Byrne in Media, Pa., Steven Kherkher of Williams Bailey in Houston and other attorneys. In arguing against Wyeth’s summary judgment motion, both attorneys cited the Pennsylvania Supreme Court’s 1932 decision in Borough of Nanty-Glo v. American Surety Co. of New York. But in both instances, Ackerman found that the Nanty-Glo rule was inapplicable, as both plaintiffs had failed to put forward a prima facie case. And as he did in Anderson, Ackerman noted in Adams and Berry that the term “learned intermediary” does not mean a physician is “learned” because of information he or she receives from pharmaceutical companies, but because of his or her training and experience. And as he also held in the previous case, Ackerman ruled Monday that the heeding presumption does not apply to Adams or Berry, as that precept has only been applied to strict liability claims in Pennsylvania. Ackerman stressed in both decisions that because the key prescribing physicians were unavailable to testify as to how they would have interpreted a different warning on diet drugs from Wyeth, neither plaintiff could establish proximate cause. Plaintiffs attorney Curran said Ackerman’s recent decisions could have an effect on how soon witnesses are deposed in diet drug cases. “I think they’re unfair,” Curran said of the rulings. “I think that our Superior Court would want to take a look at these decisions.” Wyeth has been represented by Michael Scott, Tracy Weiss and other Reed Smith attorneys. “I think that we will be able to use [these holdings] in future cases,” Weiss said.

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