In the Superior Court of Pennsylvania - How Appealing

of limitations to begin to run based on what a plaintiff knew or should have known
had she conducted a reasonable investigation. But the purpose of the reasonable
investigation requirement is not to force a plaintiff to squander resources on a fool’s
errand where such a reasonable investigation would not have revealed that the
injury was caused by the negligence of a third–party. In other words, a plaintiff’s
failure to conduct a reasonable investigation is of consequence under Pennsylvania
law only where the investigation would have revealed that a third–party’s
negligence was the cause of the plaintiff’s injury. That was not the case here.
As explained below, Wyeth and Upjohn have failed to establish any “special
and important reasons” for granting allowance of appeal. See Pa. R. App. P. 1114.
The Superior Court’s ruling in this case does not conflict with any ruling of this
Court or of the Superior Court; rather, these consolidated cases simply represent an
unremarkable and unquestionably correct application of the discovery rule. Indeed,
as explained below, one current member of this Court and one former member of
this Court have joined in the Superior Court’s decisions holding that whether the
discovery rule applies in these hormone replacement therapy breast cancer cases
presents a jury question due to the existence of genuine issues of material facts that
would allow a reasonable jury to find in favor of either side.
For these reasons and the other reasons explained below, the Petition for
Allowance of Appeal should be denied.
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