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A Pennsylvania Superior Court panel has affirmed the conclusion by the head judge of the Philadelphia Complex Litigation Center that under Pennsylvania law, a pharmaceutical manufacturer’s duty to warn runs to prescribing physicians, and not to patients. CLC Coordinating Judge Norman C. Ackerman has frequently granted summary judgment motions to fen-phen manufacturers whose supporting arguments were based on the learned intermediary doctrine. But in his May decision Lineberger v. Wyeth, Ackerman for the first time set out in an opinion why he believes that in order to prove liability, a fen-phen plaintiff needs to show that his or her doctor would not have prescribed the diet drug if the manufacturer had offered a different warning. Ackerman found, and the panel agreed, that Pennsylvania courts have long held that the heeding presumption doctrine applies in strict liability claims — such as asbestos cases — but not pharmaceutical failure to warn actions, in which negligence is the only basis for liability. “[Patricia R. Lineberger] certifies that she would not have taken the drugs if she had known about the risk of valvular heart disease,” the panel’s memorandum decision in Lineberger states. “On these grounds, [she] concludes her case should have gone to a jury. We cannot agree.” The panel consisted of Judges Correale F. Stevens and Susan Peikes Gantman, with Judge Kate Ford Elliott concurring in the result. Wyeth’s attorney, Michael Scott of Reed Smith, said that despite Ackerman’s rulings in favor of the defense in Lineberger and cases with basically identical fact patterns, fen-phen plaintiffs with similar cases continue to argue that the heeding presumption should apply to their cases. “It’s nice to have the Superior Court put the nail in it,” Scott said, adding later, “With this affirmance in place, I think it will make it more clear to the parties, and to the trial court, which cases should be dismissed on summary judgment.” Scott said he would ask the court to officially publish the panel’s Lineberger opinion. Lineberger’s attorney, Robert Curran of Curran & Byrne in Media, was out of the state late last week and could not immediately be reached for comment. Lineberger of Lincolntown, N.C., filed her lawsuit against Wyeth in 2002. She alleged that taking the diet drugs Pondimin and Redux caused her heart valves to leak and that Wyeth failed to provide an adequate warning about the association between the drugs and valvular heart disease. However, according to the panel’s opinion, her prescribing doctor, John Lafferty, testified during a deposition that he would have most likely prescribed the diet drugs to Lineberger even if he had been informed of the associated risk of valvular hear disease. Wyeth filed for summary judgment, and their motion was granted by Ackerman in late March of this year. On appeal to the Superior Court, Lineberger argued that Ackerman’s ruling should be reversed for three reasons: Wyeth’s summary judgment motion violated the Nanty-Glo rule; a jury should determine whether Wyeth’s warning to Lafferty was adequate; and she should have been allowed to introduce evidence that she herself would have refused to take the diet drugs if she had been told about the risk of heart disease. Before addressing the merits of Lineberger’s argument, the panel ruled that the issues she had raised on appeal had been waived, as she had not made reference to them in the Rule 1925(b) statement she filed with Ackerman. (Her latter two claims had been laid out when she formally opposed Wyeth’s summary judgment motion, they noted.) But the judges went on to state that they would have ruled against Lineberger even if her points had been properly preserved for appeal. Her argument that Wyeth improperly relied in its summary judgment motion exclusively on oral testimony — that of her doctor, Lafferty — ignored the exception set forth by the state Supreme Court in its 1932 opinion in Nanty-Glo Borough v. American Surety Co. that the moving party may rely solely on oral testimony if the statements in question are made by a witness for the opposing side. They also held that case precedent did not support the positions of her second and third issues on appeal. “[Lineberger] presented no evidence that a different warning would have changed Dr. Lafferty’s decision to prescribe fen-phen for [her],” the opinion states. “Based on this testimony, a reasonable jury would have to agree that even if a different warning had been issued, Dr. Lafferty would still have prescribed the drug for [her].”

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