In the Superior Court of Pennsylvania - How Appealing

discovery rule should apply in cases such as this simply does not exist. Two
separate three–judge panels of the Superior Court have reached the identical result
on the very issue presented in these cases, and defendants have failed to point to
any ruling that is actually in conflict with the outcome of these cases. 6
6 Wyeth and Upjohn’s contention that the Superior Court’s ruling on these 14
consolidated appeals conflicts with this Court’s decision in Wilson ignores this
Court’s actual holdings in Wilson that: (1) the Superior Court erred in affirming the
trial court’s grant of summary judgment in favor of the defendant on the discovery
rule issue; and (2) the discovery rule’s applicability in Wilson must be submitted to
and decided by the jury. See Wilson, 600 Pa. at 181, 964 A.2d at 365 (“we conclude
that, in the present circumstances, the ordinary rule should apply that factual
issues pertaining to the plaintiff’s notice and diligence are for the jury”).
Moreover, defendants’ contention that the Superior Court’s ruling on these 14
consolidated appeals conflicts with four rulings that the Superior Court issued
between 1991 and 1995 — at least ten years before this Court’s far more recent
discovery rule decisions in Fine and Wilson — is equally without merit. The
Superior Court’s rulings in Ingento v. AC&S, Inc., 633 A.2d 1172 (Pa. Super. Ct.
1993), and Love v. Raymark Indus., Inc., 633 A.2d 1185 (Pa. Super. Ct. 1993), both
involved lung cancer diagnoses received by plaintiffs with extensive workplace
exposures to asbestos — a substance that had long before been established as a
cause of lung cancer. In Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d 423
(Pa. Super. Ct. 1995), the plaintiff suffered immediate pain following surgery to
implant a medical device, and the plaintiff immediately suspected that the surgery
had been improperly performed. Moreover, the Superior Court in Bigansky
remarked with respect to its statute of limitations holding that “this case is unique
as to its particular facts.” Id. at 431. Finally, in Carns v. Yingling, 594 A.2d 337 (Pa.
Super. Ct. 1991), the Superior Court actually ruled that the discovery rule did apply
and that the statute of limitations did not begin to run until the plaintiff “was
aware of his injury and that it had been caused by another’s conduct.” Id. at 340.
The Superior Court’s ruling in Carns is thus entirely in accord with the Superior
Court’s ruling on these 14 consolidated appeals.
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