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The “two-disease” rule developed by Pennsylvania courts in the wake of the asbestos litigation explosion does not need to be applied to the fen-phen arena, a Philadelphia judge stressed in a recent opinion. In his amended opinion in Hansen v. Wyeth, Judge Mark I. Bernstein also asked the Superior Court to uphold his decision not to let the defense introduce at the last minute of trial a report of foreign origin about which the plaintiffs had no chance to cross-examine witnesses. In his May opinion in Hansen, Bernstein found that there were insufficient factual bases for a number of conclusions reached by a pharmacology expert for the case’s group of three Utah plaintiffs. He ordered a new trial as to liability in the trio’s litigation against Wyeth. According to that earlier opinion, Harris Busch — a longtime professor of pharmacology who argued at trial that Wyeth failed to recognize signals that the drug Pondimin was associated with a risk of valvular heart disease — was the only expert as to Wyeth’s negligence at a November 2004 jury trial that resulted in damages totaling roughly $1.35 million for Lucy Hansen, Mildred Hill and Joyce Jensen. While concluding that Busch was highly qualified as a pharmacology expert, Bernstein found that Busch’s testimony did not meet the factual basis standard of Pennsylvania Rule of Evidence 705. Bernstein granted Wyeth’s post-verdict motions for a new trial as to liability. (Fen-phen cases tried in Philadelphia Common Pleas Court follow a reverse-bifurcation process, with damages being decided before liability.) On appeal, Wyeth argued that Bernstein had erred in sustaining the plaintiffs’ objection to a foreign report the defense attempted to introduce. In his most recent opinion in Hansen, Bernstein noted that while on the stand, Busch had made a “passing reference” to the “Belgium report.” No defense experts testified as to the contents of the report. “Although the defense had the ability to present the Belgium report in cross-examination of plaintiff’s expert or as a part of direct examination of any defense expert, defendants withheld the Belgium report until the very end of trial in order to avoid any cross-examination of its contents,” Bernstein wrote. “One may wonder whether expert opinion certified by the government of Canada might be more acceptable than that certified by the government of Belgium, which would in turn be more acceptable than that certified [by] a Third World nation such as Iran, Afghanistan, Libya or Iraq,” he added later. “Indeed, by defendants’ theory of expert opinion evidence, the ‘scientific’ orthodoxy of any rogue nation could be presented without exposure to cross-examination or even evaluation of the credentials of the authors beyond their local political pedigree.” In a footnote, Bernstein called attention to the fact that the South African Ministry of Health has officially stated that HIV is not related to AIDS. “It is entirely foreseeable that scientific theory based on religious tracts and dogma could be certified as official documents and, pursuant to this novel theory of expert opinion testimony, become substantively admissible solely because of the certification afforded by the official seal of a foreign nation whose science is grounded in medieval religious doctrine,” Bernstein wrote in that footnote. Wyeth has also argued on appeal that JNOV should have been granted in Hansen because the “two-disease” rule — established by the state Supreme Court in its 1996 decision in Simmons v. Pacor Inc. — should be applied to fen-phen litigation. The essence of the two-disease rule is that absent a compensable physical injury or disease, a plaintiff cannot recover for the increased risk and/or fear of developing a more serious disease — such as cancer in asbestos cases — in the future. If and when the disease manifests itself, the courts have said, all actual damages may be claimed. Bernstein wrote that the two-disease rule was adopted by Pennsylvania courts at a time when they were “deluged with thousands of unmanageable asbestos claims,” and the possibility of more if plaintiffs were able to file suit over injuries that had not yet physically materialized. “The policy reasons behind the adoption of the two-disease rule do not exist in the Philadelphia fen-phen litigation,” Bernstein wrote. “While it is true that thousands of fen-phen cases are pending in Philadelphia County, a systematic approach to case management has resulted in the orderly processing, scheduling for trial and resolution of these cases on a timely basis. No crisis exists in the fen-phen litigation comparable to the clear and present dangers posed by the burgeoning asbestos litigation … when the two-disease rule was adopted.” Michael Scott of Reed Smith, who has served as counsel for Wyeth in fen-phen litigation in Philadelphia, said Bernstein’s holding on the two-disease rule issue was first set out in an opinion this summer involving the case McMurdie v. Wyeth, another Utah fen-phen plaintiff. In March, Bernstein had set aside the $780,000 verdict awarded to that co-plaintiff of the Hansen trio. The two-disease rule issue has already been briefed before the Superior Court in McMurdie, Scott said. “We think that this is entirely analogous to the asbestos situation,” Scott said of the two-disease rule issue. “It was well established in the asbestos litigation that plaintiffs who are completely asymptomatic, who have no impairment or limits on their daily lives … don’t have a current cause of action. And that’s exactly the situation with the vast majority of the diet drug plaintiffs who allege valvular regurgitation.” As for Bernstein’s argument concerning the Belgium report, Scott said that “it does present an interesting issue.” The plaintiffs in Hansen have been represented by attorneys from Houston-based personal injury firm Williams Bailey. A call to the firm seeking comment was not immediately returned.

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