In the Superior Court of Pennsylvania - How Appealing

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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. – 43 –
IV. CONCLUSION be denied. For the reasons set forth above, the Petition for Allowance of Appeal should Dated: December 23, 2010 – 44 – Respectfully submitted, Howard J. Bashman 2300 Computer Avenue Suite G–22 Willow Grove, PA 19090 (215) 830–1458 Counsel for Respondents Fredric S. Eisenberg Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C. 1634 Spruce Street Philadelphia, PA 19103 (215) 546–6636 Counsel for Coleman Stephen A. Corr Mellon, Webster & Shelly 87 N. Broad Street Doylestown, PA 18901 (215) 348–7700 Counsel for Medwid James A. Morris, Jr. Morris Law Firm 11614 Bee Cave Road Suite 220 Austin, TX 78738 (512) 263–7739 Counsel for Weinberger; Reed; Taw; Morales; Lenzi; Schirn; Fleming– Crain; Honaker; Hansen; and Blaylock
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In the Supreme Court of Pennsylvani
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Page 9 and 10: In the Supreme Court of Pennsylvani
Page 15 and 16: TABLE OF CONTENTS Page I. INTRODUCT
Page 17 and 18: Simon v. Wyeth Pharm., Inc., 989 A.
Page 19 and 20: ule issue in these 14 cases as a ma
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: Pennsylvania law concerning limitat
Page 63: CERTIFICATE OF SERVICE I hereby cer
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