In the Superior Court of Pennsylvania - How Appealing

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I. INTRODUCTION Plaintiffs/respondents in these 14 cases that the Superior Court of Pennsylvania consolidated on appeal respectfully submit this answer in opposition to the Petition for Allowance of Appeal that defendants Wyeth and Upjohn have filed. The Petition for Allowance of Appeal fails to fairly portray the relevant facts that give rise to the discovery rule issue in these cases and is based on a false premise. The Superior Court’s unanimous and carefully reasoned opinion does not hold that the discovery rule will toll the running of the statute of limitations in a prescription drug failure to warn lawsuit until a “definitive causal link” or “conclusive connection” is established between the medication and the plaintiff’s injury. One searches in vain for any such holding in the Superior Court’s opinion, because it simply is nowhere to be found. Rather, the Superior Court’s opinion merely holds, in accordance with well–established Pennsylvania law, that even after a claim has accrued, the statute of limitations is tolled until a plaintiff reasonably should have discovered that her injury was caused by the negligent conduct of a third–party. As the appellate courts of Pennsylvania have held time and again, application of the “discovery rule” and resolution of the question of reasonable diligence are fact issues that a jury must decide unless no reasonable person could disagree over them. In accordance with that large body of precedent, the Superior Court’s opinion simply holds that the trial court erred in resolving the discovery
ule issue in these 14 cases as a matter of law against the plaintiffs. Instead, as the Superior Court unanimously ruled, the applicability of the discovery rule in these 14 cases is for the jury to decide. Thus, the Superior Court’s opinion does not deny Wyeth or Upjohn the ability to raise a statute of limitations defense before the juries in these cases; rather, the Superior Court merely has held that the trial court erred in holding on summary judgment, as a matter of law, that plaintiffs could not invoke the discovery rule to establish that their actions are timely. The “confusion” that Wyeth and Upjohn contend exists concerning how the discovery rule should apply in cases such as these is nothing more than a figment of petitioners’ imagination. Two separate three–judge panels of the Superior Court of Pennsylvania, in deciding two separate sets of appeals, have unanimously concluded that whether the discovery rule applies under the exact circumstances of these cases presents a jury question — and, in case after case, juries have been resolving that question in favor of the plaintiffs and finding that the lawsuits were timely filed. The Superior Court carefully applied this Court’s precedent and its own earlier precedent in reaching its plainly correct decision in these 14 consolidated cases. The Petition for Allowance of Appeal should also be denied because it inaccurately contends that, under Pennsylvania law, a plaintiff must investigate the cause of her injury even in the absence of any reasonable basis to believe, or ability to determine, that the injury may have been caused by a third–party. To be sure, the “constructive knowledge” aspect of the discovery rule can cause the statute – 2 –
Page 1 and 2: In the Supreme Court of Pennsylvani
Page 15 and 16: TABLE OF CONTENTS Page I. INTRODUCT
Page 17: Simon v. Wyeth Pharm., Inc., 989 A.
Page 21 and 22: II. COUNTER-STATEMENT OF THE CASE A
Page 23 and 24: Attachments to Pa. Super. Ct. Brief
Page 25 and 26: products. R.1678a, 1682a. It is not
Page 27 and 28: The results of the WHI received wid
Page 29 and 30: By affidavit, Mrs. Manalo explained
Page 31 and 32: with physicians about breast cancer
Page 33 and 34: fact sheets that they had discussed
Page 35 and 36: Q: Well, when I asked the first que
Page 37 and 38: east cancer but less than two years
Page 39 and 40: would have necessarily decided that
Page 41 and 42: which this Court has described as
Page 43 and 44: And, although “there are [very] f
Page 45 and 46: to sue had expired, that her surgeo
Page 47 and 48: articles per day nationwide. Larger
Page 49 and 50: • A clinical trial of combination
Page 51 and 52: Moreover, the Superior Court’s re
Page 53 and 54: summary judgment in these 14 appeal
Page 55 and 56: Defendants’ argument appears to b
Page 57 and 58: demonstrating that the Superior Cou
Page 59 and 60: Pennsylvania law concerning limitat
Page 61 and 62: IV. CONCLUSION be denied. For the r
Page 63: CERTIFICATE OF SERVICE I hereby cer

In the Superior Court of Pennsylvania - How Appealing

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