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A pharmaceutical company that warned doctors what happens when bipolar patients do not take their lithium pills cannot be sued over a young patient’s inability to obtain his medication under a promotional coupon campaign allegedly mismanaged by the company, the Pennsylvania Superior Court has ruled. Pierce v. Northwestern Human Services Inc. stems from the 1999 suicide attempt of Jeffrey Pierce, who was 22 at the time. Though Pierce’s suicide attempt was unsuccessful, according to the panel’s memorandum decision in the matter, he did suffer severe injuries to his face as a result. He sued, among other defendants, Solvay Pharmaceuticals Inc., claiming that an error in its coupon program caused him to be unable to get his Solvay-manufactured lithium medication from his local pharmacy, thus triggering his suicidal episode. But the judges in Pierce, affirming a ruling by Philadelphia Common Pleas Judge Nitza I. Quinones Alejandro, rejected Pierce’s argument that Solvay could be held liable for “negligent promotion.” Counsel for Solvay, Beatrice O’Donnell of Duane Morris, said an opposite result could have opened up pharmaceutical companies to a “breadth of lawsuits anytime there was any trouble obtaining a prescription.” “To have created a duty on the part of pharmaceutical manufacturers in this setting would discourage them from providing free or low-cost prescription options under a variety of circumstances,” O’Donnell said. Pierce’s attorney, solo practitioner John McKelligott of Newtown Square, Pa., did not immediately respond to a call seeking comment. The Pierce panel consisted of Judges Michael T. Joyce, Maureen Lally-Green and Richard B. Klein. According to the opinion, the symptoms of Pierce’s mental condition included manic depression, anxiety, panic attacks and suicidal tendencies. His psychiatrists prescribed medication aimed at balancing out the lithium level in his blood. In June 1999, according to the opinion, one of Pierce’s treating psychiatrists decided to switch him to a new lithium drug, the Solvay-manufactured Lithobid. Because it was his first Lithobid prescription, Pierce was given a coupon for 100 free tablets of the drug. Pierce later said when he went to his local Downingtown, Pa., pharmacy to fill the Lithobid prescription, he was told that the coupon was either unable to be processed or unredeemable. Pierce said he then called the offices of his treating psychiatrists and was told that the coupon was valid and that he should return to the pharmacy. According to Pierce’s account, the lack of lithium medication triggered some of the symptoms of his condition and he tried to kill himself with a gun. By October 2003, Pierce had settled with all the defendants in the case except for Solvay, which had successfully filed preliminary objections. On appeal, Pierce cited the Pennsylvania Supreme Court’s 1971 decision in Incollingo v. Ewing. In that case, the justices ruled that it was permissible for a plaintiff to present evidence that a pharmaceutical manufacturer’s proper warnings concerning a particular drug were canceled out by the salesmanship of “detail-men.” “[Pierce] contends that the trial court erroneously granted the preliminary objections in light of Incollingo because [Solvay] warned ‘physicians of the danger of permitting a bipolar patient’s lithium blood serum to fall below therapeutic levels’ yet ‘negligently administered the promotional coupon program,’ thereby preventing [Pierce] from obtaining the medication,” the opinion states, quoting court papers filed by Pierce. “We cannot agree with [Pierce's] interpretation of the law.” Incollingo and its progeny, the panel argued, address either a manufacturer’s failure to adequately warn physicians of a drug’s risks or a manufacturer’s decision to have its representatives falsely assure physicians. “The duty in these cases is premised on duty to warn,” the Pierce opinion states. “Contrary to [Pierce's] assertions, there exists no duty to ensure that a prospective patient is provided accessibility to a drug. Therefore, the trial court did not err in granting [Solvay's] preliminary objections.”

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