In the Superior Court of Pennsylvania - How Appealing

In these 14 consolidated appeals, the Superior Court — in accordance with its
earlier unanimous ruling in Simon — held that plaintiffs’ invocation of the
discovery rule to make their suits timely could not be resolved in favor of the
defendants as a matter of law on summary judgment. Rather, the Superior Court
ruled that numerous genuine issues of material fact existed — concerning both
plaintiffs’ invocation of the discovery rule in general and the question of plaintiffs’
reasonable diligence to discover whether their breast cancers had been caused by
the tortious conduct of a third–party — necessitating that juries resolve the
discovery rule’s applicability in each of these 14 cases.
In violation of Pennsylvania Rule of Appellate Procedure 1115(d), which
requires the petitioner to present with “accuracy * * * whatever is essential to a
ready and adequate understanding of the points requiring consideration,” Wyeth
and Upjohn’s Petition for Allowance of Appeal incorrectly contends that the
Superior Court has ruled 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. Had the Superior Court in fact so ruled, the Superior Court
trial court had originally failed to address in violation of Pa. R. Civ. P. 227.1(e),
instead of pursuing allowance of appeal in this Court from the Superior Court’s
reversal of the trial court’s entry of j.n.o.v. in Upjohn’s favor. Upjohn’s failure to
seek allowance of appeal from the Superior Court’s statute of limitations ruling in
Simon indicates that Upjohn realized that the discovery rule issue presented in
Simon (and, by extension, in these 14 consolidated cases) does not satisfy the
stringent criteria for review on allowance of appeal.
– 21 –