March 28, 2011 

By: Paulyne Gardner-Smith and Charles M. Adams

This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.

The Pennsylvania Supreme Court agreed to review the Superior Court's novel ruling in Lance v. Wyeth, 4 A.3d 160 (Pa. Super. 2010), which recognized for the first time a claim against a pharmaceutical manufacturer for negligent product design. Prior to this decision, Pennsylvania's courts had limited product liability claims against pharmaceutical manufacturers to manufacturing defect and failure to warn claims.

The case alleges development of pulmonary hypertension following ingestion of Wyeth's diet drug, Redux. In a motion for summary judgment, Wyeth claimed plaintiff, Patsy Lance, Administratrix for the Estate of Catherine Ruth Lance, deceased, could only recover if she could prove a manufacturing defect or an inadequate warning existed and that no so such claims were made. Ms. Lance contended she had asserted actionable claims, including one for negligent design. The Superior Court agreed with Ms. Lance that the trial court erred in granting Wyeth's motion because she had raised a claim that Wyeth breached its standard of care in its design of Redux. In arriving at its decision, the Superior Court reasoned that a negligent design claim is not automatically foreclosed because a plaintiff's strict product liability claim on improper design has failed.

In agreeing to hear the matter, the Pennsylvania Supreme Court will decide whether a claim for negligent design defect should be recognized under Pennsylvania law or if such a claim conflicts with settled precedent limiting product liability claims against prescription drug manufacturers. We will continue to follow and report on developments in this case.

Nelson Levine de Luca & Hamilton offers comprehensive legal services to the insurance industry in the areas of reinsurance, regulatory, complex liability, class action, coverage, subrogation, bad faith and fraud. With offices in Pennsylvania, New York, New Jersey, Ohio and London, NLdH is devoted solely to providing legal representation to the insurance industry. For additional information related to this or other insurance issues, please contact Paulyne Gardner-Smith at 215.358.5192 or via email at pgardner-smith@nldhlaw.com.