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PA High Court Embraces Negligent Design Defect; Invites New Run on Reforming Philly Courts

Perhaps inviting a new stampede of speculative and opportunistic litgation on the courts of the former #1 Judicial Hellhole, Philadelphia, a 4-2 majority of the Pennsylvania Supreme Court last week ruled in Lance v. Wyeth that pharmaceutical companies can now be held liable for “negligent design defect” — a theory of liability not previously available to plaintiffs in the Keystone State.
Law 360’s Dan Packel report’s that the plaintiff “argued the drug was so dangerous that it should never have been introduced or marketed, but [the trial] judge threw out the suit in 2008, concluding she could not bring claims over a drug that had been properly tested and labeled, as well as approved by the U.S. Food and Drug Administration
The suit was reinstated in 2010 by an intermediate appellate court, which ultimately ruled that Wyeth’s marketing of the drug, Redux, a “fen-phen” substitute, subjected the pharmaceutical company to design-based liability claims.
But in no previous filing before reaching the state’s highest court did plaintiff’s counsel assert the “negligent design defect” theory, or give Wyeth any notice that would have allowed preparation of a defense.
Nonetheless, the high court majority found that the plaintiff did preserve the issue for appeal by arguing “negligent marketing” and “negligent failure to withdraw” theories of liability.
“To the degree plaintiff wishes to couch the lack of due care manifested in such circumstances as negligent marketing, this is consistent with her prerogative as master of her own claim.”
Though it’s been reforming its courts impressively in recent years, Philadelphia’s past history as a Judicial Hellhole was full of plaintiffs’ lawyers rushing there from all across the country to be masters of their own couched claims, with a lot of help from local judges who were eager to expand liability.
So ATRA will keep a close eye on pharmaceutical litigation in Pennsylvania to determine if this irresponsible high court ruling does, in fact, invite the type of abusive litigation that could again make the City of Unbrotherly Torts a destination for litigation tourists.

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