This post is not from the Dechert side of the blog, because of that firm’s involvement in this matter.
We mentioned, in the “here’s what’s out there” portion of our 2013 Top Ten post that “The long-pending Lance case (2010 #-6) remains undecided by the Pennsylvania Supreme Court, some three years after oral argument.” Full disclosure: Some of us worked on the Lance case in the past, but none of us currently represents anybody in that litigation. So, while we are quite familiar with Lance, the post here does not address anything outside of the Supreme Court’s opinions and official record.
Lance pends no longer. And if Lance in the Pennsylvania Superior Court warranted #6 on 2010’s worst ten list, the Pennsylvania Supreme Court’s equally unpalatable effort is likely to rank significantly higher on the still-young 2014’s eventual list. For background (since it has been a long time), here is our description of Lance in the Superior Court from back in 2010:
6. Lance v. Wyeth, 4 A.3d 160 (Pa. Super. 2010). . . . Lance is another example of the disturbing trend in post-Levine cases for plaintiffs to push for – and, worse, for courts to allow – “design” related claims against prescription drugs that are really frontal assaults on FDA drug approval decisions. Here, the claim was “negligent design,” which had never before been recognized in a prescription drug product liability case in Pennsylvania. 4 A.3d at 165-66. Disturbingly, the opinion does not discuss the requirement, imposed in negligent design cases involving other products, that the plaintiff must prove the existence of a safer alternative design. Compounding matters, Lance also included gratuitous dictum suggesting that a post-sale duty to warn may exist in prescription drug cases, id. at 167-68 – despite that theory being a form of strict liability, which Pennsylvania doesn’t recognize at all in prescription medical product litigation. If not for other, favorable, aspects of Lance (rejecting the “unreasonably dangerous product theory allowed in Wimbush and also failure to test or to recall), Lance might rank even higher/lower. We discussed Lance here. An appeal to the Pennsylvania Supreme
Court is pending.
Quite frankly, nothing in Lance improved in the 2+ year wait for it to be decided. After all this time we had frankly thought the Court to be irretrievably split 3-3, with the newly appointed interim justice, Stevens, recused due to his participation at the Superior Court level. Thus, we had been speculating that the
most likely outcome would be a to vacate and remand after the court decides Tincher v. OmegaFlex (discussed here, here, and here) and clarifies Pennsylvania product liability law generally.
No such luck, although Lance does allow for some interesting speculation about what might ultimately happen in Tincher (see below). That’s particularly true because Justice Thomas Saylor, ordinarily the court’s most conservative member on product liability matters (and thus our favorite), wrote the majority opinion in Lance, aligning himself in this instance with justices with whom he frequently disagrees with on tort issues. The vote was 4-2, with Chief Justice Castille and Justice Eakin dissenting.
So what happened?
The first half of the majority opinion describes the proceedings below and the arguments of the parties in considerable detail. To us, the most interesting aspects of the first 24 pages of that opinion are footnotes and other asides. Thus, we have footnote 6, reaffirming the learned intermediary rule: “Per the learned intermediary doctrine, the manufacturer’s duty to warn is directed to physicians.” Maj. Op. at 5. We have footnote 8 (discussed more later), chastising the lower court for equating “strict liability” with “product liability.” Id. at 8-9. We also have footnote 11 reaffirming the essential holding of Hahn v. Richter, 673 A.2d 888 (Pa. 1996), that Pennsylvania law has adopted, and applies, Restatement §402A, comment k across the board: “Other [jurisdictions], including Pennsylvania, have taken a blanket approach applying comment k to preclude strict-liability design-defect claims for all prescription drugs.” Maj. Op. at 13.