We made no secret that we were appalled by the result in Lance v. Wyeth, 85 A.3d 434 (Pa. 2014), as soon as it came down. We’re still appalled. Lance remains our current front-runner for worst decision of the 2014. But a couple of recent cases have suggested that there may be a very thin silver lining to Lance.
That has come about because, whatever its other faults (and they are many), Lance reaffirmed “this Court’s refusal to extend strict liability to prescription drug manufacturers,” 85 A.3d at 438 (citing in Hahn v. Richter, 673 A.2d 888, 889 (1996)).. “[F]or policy reasons, this Court has declined to extend strict liability into the prescription drug arena.” 85 A.3d at 453. Thus, what the court had previously ruled in Hahn about Restatement §402A, comment k precluding strict liability across the board remains intact: “the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturer’s negligence, is the only recognized basis of liability.” 85 A.3d 434, 45 n.19 (quoting Hahn, 673 A.2d at 891)).
These statements have had the effect of stemming what had been an unfortunate trend – again among Pennsylvania federal courts applying diversity jurisdiction that should know better − of allowing certain non-warning or warranty-based strict liability claims to survive.
In Rowland v. Novartis Pharmaceuticals Corp., 2014 WL 3735622 (E.D. Pa. July 28, 2014), the latest Pennsylvania Aredia/Zometa case, the defendant made a “universal argument,” based in part on Lance, that all “non-negligence-based claims (those for strict liability and breach of express and implied warranties) are prohibited by Pennsylvania law.” Id. at *7. The court agreed. With the Hahn rule bolstered by Lance, the court first barred all strict liability claims, regardless of theory. Id. at *9. The court also barred all express and implied warranty claims involving a prescription drug. Id. at *10. Significantly, Rowland recognized that some courts had started allowing “express warranty” claims notwithstanding Hahn. It refused to follow those cases:
Here, Plaintiffs’ breach of express warranty claims are grounded in the allegation that [defendant] failed to properly warn their physicians of the risks posed by [the drug], and in doing so falsely warranted that [it] was safe for its intended uses. This directly implicates the language in Hahn[quotation of “only recognized” language omitted]. Additionally, none of the cases excepting breach of express warranty claims from Hahn’s bar have dealt with prescription drug products; all have involved a prescription medical device. While prescription drugs and medical devices are often lumped together in this area of the law, the Court declines to apply [medical device] dicta regarding permissible prescription drug express warranty claims in the face of a uniform body of prescription drug cases reading Hahn as barring such claims.
Id. at *10 n.8 (citations omitted).
There are other interesting rulings in Rowland (as is usually the case with A/Z cases) − (1) no learned intermediary duty to warn to non-prescribing physicians, id. at 11; and (2) no heeding presumption applies to prescription drugs, id. at 12 n.10 – but this post is focused on Lance’s impact on strict liability theories.
The second recent case applying Lance to bolster Hahn is Terrell v. Davol, Inc., 2014 U.S. Dist. Lexis 103695 (E.D. Pa. July 30, 2014). Terrell is a device case, and the defendant moved to dismiss manufacturing defect claims. The initial proposition was an easy one. Comment k applies to medical devices. “Numerous” courts have so found. Id. at *12 & n.6. Then the court turned specifically to manufacturing claims. Recognizing that some federal courts pre-Lance had allowed strict liability for manufacturing claims to survive, Terrell held that after Lancethere was no basis for doing that any longer:
Plaintiff contends that Hahn does not prevent strict liability claims based on manufacturing defects. This Court does not agree. Although federal courts are currently split on this issue of whether 402A applies to medical devices, and some allow strict liability claims to proceed when a manufacturing defect is alleged, the decisions of these courts pre-date Lance. There, the Pennsylvania Supreme Court reiterated the principle that a strict liability claim based on a defective prescription drug is barred. In explaining this principle, the Court did not exempt from this bar a claim based on a manufacturing defect. Based on the above, this Court predicts that the Supreme Court of Pennsylvania would come to the same conclusion with respect to defective medical devices.
Id. at *16-18 (citations and footnote omitted). Similarly, the court dismissed implied warranty claims. Id. at *18-24. Only negligence claims survived the defendant’s motion to dismiss inTerrell.
Thus, it appears that Lance, while allowing a terrible (albeit probably preempted) no-alternative design, stop-selling claim under the rubric of negligence, has bolstered the converse principle of Pennsylvania law that strict liability claims against prescription medical products are barred. That’s a rather thin lining around a pretty dark cloud, but since Lance is what it is, we might as well get whatever benefit we can obtain from it.