Justices take up case on negligent design drug claim
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The state Supreme Court has taken up a case about whether plaintiffs may sue pharmaceutical drug companies on theories that the companies were negligent in testing, marketing and designing their prescription drug products.
The Supreme Court's decision to grant allocatur in Lance v. Wyeth last week has the potential to change the landscape of prescription drug liability in Pennsylvania. The case involves an Ohio woman who died seven years after taking a diet and obesity drug for a four-month period in 1997.
Currently, lawyers say the only cognizable claims plaintiffs can make in Pennsylvania are that drug manufacturers were negligent in failing to warn the plaintiffs' prescribers of the risks of using their products, or that drugmakers are strictly liable for manufacturing defects.
According to the order granting allocatur, the justices are prepared to consider the validity of a claim for negligent design defect of a prescription drug. Another issue in the case is whether Pennsylvania law should recognize a claim against drug manufacturers for alleged negligence in failing to test drugs for harmful side effects.
The case also presents the issue of whether state drug law would allow plaintiffs to sue on the theory that drugmakers can be negligent in marketing a drug and failing to withdraw the drug from the market if the federal Food and Drug Administration ultimately orders that drug be withdrawn because it is too dangerous for anyone to use.
The court granted plaintiff Patsy Lance's and drugmaker Wyeth's cross-petitions for allowance of appeal.
The Superior Court panel held that plaintiffs can make a negligent design defect claim. But the three-judge panel declined to impose upon drugmakers a common law duty to recall drugs or to let plaintiffs pursue theories of a negligent failure to test or negligence in marketing.
Among other arguments, Wyeth, now owned by Pfizer, argues that plaintiffs in a design defect case must plead and prove a feasible alternative design.
Plaintiff Ms. Lance, of Fremont, Ohio, is the administratrix for the estate of her late daughter, Catherine Lance. Catherine Lance took Wyeth diet drug Redux from January to April 1997, court papers said. Catherine Lance died from complications related to primary pulmonary hypertension. Redux was withdrawn from the market September 1997.
First Published March 28, 2011 12:00 am
