IN THE SUPERIOR COURT OF PENNSYLVANIA
MARY SMITH, Executrix of the
Estate of Anne Doe, Deceased,
JANUARY PHARMACEUTICA, INC.,
MARCH & MARCH, and
APRIL E.P.S. PHARMACY,
MAY HEALTH, INC.,
BRIEF OF APPELLANT
Appeal from the Order of January XX, 20XX entered
in the Court of Common Pleas of Washington County
at docket number XXXX-XXXX
Patrick P. Lawyer, Esquire
XXX Forest Avenue
Attorney No. XXXXX
Attorney for Appellant
TABLE OF CONTENTS
TABLE OF CITATIONS …………………………….…….….
STATEMENT OF JURISDICTION …………………….….…
STATEMENT OF THE SCOPE OF REVIEW AND
STANDARD OF REVIEW …………………….…….
ORDER IN QUESTION …………………………….….….…
STATEMENT OF THE QUESTION INVOLVED ……….….
STATEMENT OF THE CASE ……………………….……
SUMMARY OF THE ARGUMENT ……….……….….…….
OPINION OF THE TRIAL COURT ……………………
STATEMENT OF MATTERS COMPLAINED
OF ON APPEAL …………………………….……
CERTIFICATE OF SERVICE ……………………….….
TABLE OF CITATIONS
Brandon v. Ryder Truck Rental, Inc.
34 A3d 104 (Pa. Super. 2011) ……………………………
Chepkevich v. Hidden Valley Resort, L.P.
607 Pa. 1, 2 A3d 1174 (2010) ……………………….….
Coker v. S.M. Flickinger Company, Inc.
533 Pa. 441, 625 A2d 1181 (1993) ………………………
Donoughe v. Lincoln Electric Co.
936 A2d 52 (Pa. Super. 2007) ……………………………
Grossman v. Barke
868 A2d 561 (Pa. Super. 2005) …………………….…….
Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc.
515 Pa. 334, 528 A2d 590 (1987) …………………….…
Morrison v. Commonwealth, Department of Public Welfare
538 Pa. 122, 646 A2d 565 (1994)
Toy v. Metropolitan Life Insurance Company
593 Pa. 20, 928 A2d 186 (2007) …………………….….
Webb v. Zern
422 Pa. 424, 220 A2d 853 (1966) ……………………….
Wiggins v. Synthes (USA)
29 A3d 9 (Pa. Super. 2011) ………………………………
Statutes / Court Rules
42 Pa.C.S. § 742 ………………………………………….……
Pennsylvania Rule of Appellate Procedure 341(b) …………….
Pennsylvania Rule of Civil Procedure 1035.2 ………………….
Restatement (Second) of Torts, §402A ………………….…….
STATEMENT OF JURISDICTION
This appeal is from an Order that granted summary judgment in favor
of the Appellees. It disposed of all remaining claims and all remaining
parties and, as such, was a "final order". Pa.R.App.P. 341(b). In light of
this, the Superior Court has jurisdiction pursuant to 42 Pa.C.S. § 742, which
The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.
42 Pa.C.S. § 742.
STATEMENT OF THE
SCOPE OF REVIEW AND STANDARD OF REVIEW
Scope of Review
As stated in Morrison v. Commonwealth, Department of Public
, 538 Pa. 122, 646 A2d 565 (1994):
‘Scope of Review' refers to ‘the confines within which an appellate court must conduct its examination.' In other words, it refers to the matters
(or ‘what') the appellate court is permitted to examine.
at 131, 646 A2d at 570 (emphasis in original) quoting Coker v. S.M.
Flickinger Company, Inc.
, 533 Pa. 441, 450, 625 A2d 1181, 1186 (1993)
Where, as in the present case, the Superior Court is asked to resolve a
question of law, its review is plenary. See Chepkevich v. Hidden Valley
, 607 Pa. 1, 2 A3d 1174 (2010).
Standard of Review
The "Standard of Review" relates to the manner in which an
Appellate Court is to examine the record and sets the degree of scrutiny to
be applied to the Lower Court's Decision. Morrison v. Commonwealth,
Department of Public Welfare
An Appellate Court may reverse an order granting summary judgment
if there has been an abuse of discretion or an error of law. Toy v.
Metropolitan Life Insurance Company
, 593 Pa. 20, 928 A2d 186 (2007).
ORDER IN QUESTION
This appeal is taken from the Order of January XX, 20XX entered by
the Honorable Pauline Public. It stated –
AND NOW, this XXX day of January, 20XX, upon consideration of
Plaintiff Mary Smith, Executrix of the Estate of Anne Doe's Motion to
Vacate and Reconsider Order Granting Summary Judgment, and after briefs
and argument thereon, it is hereby ORDERED, ADJUDGED, AND
DECREED that said Motion is DENIED.
On September 10, 2012 this Court entered an Order granting summary
judgment in favor of Defendants January Pharmaceutica, Inc., February
Corporation, and March & March and dismissing the case. On October 9,
2012, Plaintiff filed a Motion to Vacate and Reconsider that Order and set
this case for trial. The Court heard argument on Plaintiff's Motion on
October 25, 2012. The Court, after reviewing the record, briefs, and
applicable case law can find no reason to disturb its prior Order.
A court has the inherent power to reconsider its own rulings. Moore
, 634 A2d 163, 167 (Pa. 1993); Hutchison v. Luddy
, 611 A2d 1280,
1288 (Pa. Super. 1992). See also
42 Pa.C.S.A. §5505 (trial court may
reconsider its own order within thirty days of entering the order). However,
motions for reconsideration are generally discouraged unless law or facts not
previously brought to the attention of the Court are raised. They serve to
cure a clear error of law or an abuse of discretion rather than as a "second
bite at the apple".
Here, Plaintiff argues that the Court erred in granting Defendants'
Motions for Summary Judgment because a genuine issue of material fact
exists as to whether there was a defect in the Duragesic patch worn by the
decedent, Anne Doe. In support of her contentions Plaintiff relies upon the
July 27, 2009 and April 4, 2012 reports of Frederick Roe, Ph.D. and the
April 6, 2012 report of Dr. Cyril Boe. Additionally, Plaintiff contends that
the Court improperly relied on MA Laboratory's toxicology testing to
conclude that Ms. Doe had a therapeutic level of fentanyl in her blood at the
time of her death. Plaintiff asserts that Dr. Roe's July 27, 2009 report casts
such doubt on the reliability of MA's analysis that it should be excluded.
Importantly, Plaintiff presents no evidence or law that was not before the
Court at the time of its disposition of Defendants' Motions for Summary
Judgment. Rather she merely disagrees with the Court's conclusion and
argues that issues of fact remain for a jury to consider.
The Court notes that it specifically considered and rejected Dr. Roe's
April 4, 2012 report as creating a material issue of fact. (See Omnibus
Opinion and Order at 18-19). Indeed, the Court incorporates by reference all
of its' analysis and conclusions contained in its Omnibus Opinion and Order
as if fully set forth herein. Additionally, the Court did consider Dr. Boe's
report of April 6, 2012, but did not specifically cite to it in its Opinion as his
conclusions were similarly insufficient to create a genuine issue of material
fact as to a defect in the fentanyl patch. At best, both experts opine that the
alleged area of edema on Doe's shoulder is indicative of a fentanyl welt
which is then circumstantial evidence that the patch was defective and
delivered an overdose of fentanyl. (See April 4, 2012 report of Dr. Roe at 4
and April 6, 2012 report of Dr. Boe at 2-3).
However, Plaintiff ignores the fact that she has never had an expert
examine the patch, despite having access to it. Dr. Coe, the only expert to
examine the patch found that it had a complete seal and was free from
defects. Plaintiff's expert, Dr. Kris Green, who only observed screen
captures of Dr. Coe's inspection admitted that she did not "have any
absolute hard facts that there was a breach [in the seal of the patch]." (Green
Deposition at 53:12-15). She also opined that examining the patch in-person
using a light microscope "would be a necessary means to determine the
patch's integrity." (Green Depo at 39:23-41:5). Ultimately, Dr. Green does
not offer an opinion to a reasonable degree of scientific certainty that the
patch was defective in her deposition or expert report.
It is axiomatic that to establish a prima facie case of strict product
liability, the threshold inquiry is whether there is a defect in the product.
Donoughe v. Lincoln Electric Co.
, 936 A2d 52, 61 (Pa. Super. 2007).
where the product is extant and readily available, the Plaintiff had to
establish by expert testimony the existence of a defect in the patch.
However, despite the long and contentious discovery process, Plaintiff never
had an expert inspect the patch. Rather, she relies upon the alleged fentanyl
welt, which can manifest at therapeutic levels, to infer the possibility of a
genuine issue of material fact as to defect. This is simply not enough to
survive summary judgment when all of the available objective evidence
demonstrates that the patch was free of defects and that the decedent had a
therapeutic level of fentanyl in her blood.
As to the admissibility of MA Laboratory's post-mortem toxicology
results, there is no dispute that Ms. Doe's blood specimen was lost between
2006 and 2008 and is no longer available for retesting. The only available
GC/MS test result established that Ms. Doe had a therapeutic level of
fentanyl (1.1 ng./mL) in her blood at the time of her death. (MA Laboratory
Report, attached as Exhibit X of Defendant January Pharmaceutica's Motion
for Summary Judgment). Plaintiff asserts again, as she did at the time of
summary judgment, that this result should be excluded because MA
Laboratory was unable to produce the "validation package" which typically
accompanies such testing. (July 27, 2009 Report of Dr. Roe at 3-4).
Plaintiff claims she is prejudiced by her inability to retest the blood sample.
However, Plaintiff does not seem to be contesting this Court's finding that
Defendants and MA Laboratory did not conspire to fabricate the fentanyl
test result or destroy Doe's blood sample.
After once again reviewing the transcript from the spoliation hearing
as well as the expert report of Dr. Roe, the Court finds that Dr. Roe's
criticism of MA Laboratory's methodology and reliability go more to the
weight rather than to the admissibility of the fentanyl test result. Defendants
and MA Laboratory have given a reasonable explanation for how the
validation package was lost. Additionally, this Court found that MA
Laboratory is a fully accredited laboratory and did not engage in a
conspiracy to fabricate the test result. The Court also found that Plaintiff
failed to fulfill her duty to secure the blood sample and test it when this
litigation commenced. Therefore, Defendants are no less prejudiced than
Plaintiff in this regard as they have had to respond to Plaintiff's claims of
spoliation and are unable to retest the blood to definitively rebut Plaintiff's
scandalous accusations. A finder of fact could reasonably weigh the
fentanyl immunoassay result with Dr. Roe's report, as well as the other
evidence. Therefore, Plaintiff's Motion to Exclude MA Laboratory's Post
Mortem Toxicology Results is once again DENIED.
PAULINE PUBLIC, JUDGE
(RR at 410a-414a).
STATEMENT OF THE QUESTION INVOLVED
Whether the Lower Court erred when it granted summary judgment in
favor of Appellees January Pharmaceutica, Inc., February Corporation and
March & March where a substantial question of material fact exists as to
whether the Duragesic fentanyl patch in question was defective in that it
leaked an excessive amount of fentanyl onto the decedent causing her to
overdose on the drug?
(Answered in the negative by the Court below)
STATEMENT OF THE CASE
Anne Doe was a 49 year old woman who suffered from a number of
physical problems, including chronic low-back pain, as a result of a fall.
Over the years, she took an array of medications to relieve her intense pain
and assist her in sleeping. These included Elavil, Neurontin, MS Contin and
even morphine. (RR at 106a, 110a).
In June of 2002, she was also prescribed fentanyl, which is a synthetic
opioid approximately 80 times more potent than morphine, its natural
counterpart. (RR at 312a). This drug was administered to her by way of a
"Duragesic" transdermal patch designed and manufactured by February
Corporation, and distributed by January Pharmaceutica, Inc. and March &
March. The structure of the patch was described in its literature –
DURAGESIC is a rectangular transparent unit comprising a protective liner and four functional layers. Proceeding from the outer surface toward the surface adhering to skin, these layers are: 1) a backing of polyester film; 2) a drug reservoir or fentanyl and alcohol USP gellied with hydroxyethyl cellulose; 3) an ethylene-vinyl acetate copolymer membrane that controls the rate of fentanyl delivery to the skin surface; and 4) a fentanyl containing silicone adhesive. Before use, a protective liner covering the adhesive layer is removed and discarded.
(RR at 61a). The following diagram of the system was also provided in the
(RR at 61a). Essentially, the "protective liner" is pulled off and the
"adhesive" layer is attached to the patient's skin.
The patch contains highly concentrated fentanyl gel which can cause
a fatal overdose if it comes into direct contact with unprotected skin. (RR at
312a-313a). This manifests itself with respiratory depression that
progresses to complete respiratory suppression and death. (RR at 312a).
The victim essentially dies of suffocation. (RR at 312a).
Ms. Doe was initially administered patches that released 50 µg/hr 1 of
the drug but her dosage was increased on February 9, 2004 to 75 µg/hr. (RR
at 106a- 107a). April E.P.S. Pharmacy delivered the first 75 µg/hr patches
to her on February 10, 2004.
1 The designation "µg/hr" denotes micrograms released per hour.
Just one month later, on March 11, 2004, a friend found her dead in
An autopsy was performed and the coroner's report noted that a 75
µg/hr Duragesic fentanyl patch was present on her shoulder. (RR at 150a).
Samples of her blood and urine were taken for toxicological examination
and the coroner concluded that she died "as a result of combined drug
toxicity: morphine and fentanyl". (RR at 146a).
On March 9, 2006, Mary Smith, the Executrix of Ms. Doe's estate,
commenced the present wrongful death and survival action and asserted
claims of strict product liability and negligence against February
Corporation, January Pharmaceutica, Inc., March & March, and April E.P.S.
Pharmacy. The latter defendant then added May Health, Inc. as an
additional defendant 2.
Ms. Smith averred that the patch worn by the decedent was defective
and had leaked a fatal amount of fentanyl into her system.
On March 9, 2012, April E.P.S. Pharmacy filed a motion for summary
judgment, which was later granted by the Lower Court. That Order is not at
issue in this appeal.
2 On April 26, 2012, the case against May Health, Inc. was discontinued and "dismissed with prejudice". None of the parties to this appeal have contested that dismissal.
The remaining defendants filed a joint motion for summary judgment
and argued that no issue of material fact existed as to whether the patch was
defective. They asserted that (1) the medical examiner who retrieved the
patch from Ms. Doe's shoulder visually inspected it and did not note any
damage to it; (2) the toxicology report detected a toxic level of morphine in
her system and the post-mortem fentanyl level was within the therapeutic
range; and (3) a purported expert in material sciences, Dr. Maureen Coe, had
inspected the patch and concluded that its "seal was ‘fully intact and
functional'". (RR at 27a-30a).
In her response to the joint motion, Ms. Smith argued that her experts
believed, with a reasonable degree of scientific certainty, that the patch was
defective and leaked a fatal dose of fentanyl onto Ms. Doe.
In an Order dated September 10, 2012, however, the Lower Court
granted the joint motion for summary judgment and dismissed the cases
against those defendants "with prejudice". In its view, Ms. Smith "failed to
demonstrate any issues of material fact as to whether there was a defect in
the patch worn by Ms. Doe at the time of her death". (RR at 330a).
Ms. Smith filed a motion to reconsider and vacate that Order and, on
October 9, 2012, the Lower Court vacated it "pending reconsideration".
On January 18, 2013, however, it denied the motion for
reconsideration. (RR at 410a-414a).
A timely appeal was then taken by Ms. Smith and, at the direction of
the Lower Court, she submitted a Statement of Matters Complained of on
Appeal that included the argument discussed in this brief. That Court's
Opinion has now been filed and the case is ready for appellate review.
SUMMARY OF THE ARGUMENT
Summary judgment can only be entered where there are no genuine
issues as to any material fact and the right to it is clear and free from doubt
after viewing the record in the light most favorable to the non-moving party.
In the present case, the Lower Court granted the joint motion for
summary judgment of February Corporation, January Pharmaceutica, Inc.
and March & March, and dismissed the cases against them with prejudice.
Its Decision was based on the belief that Ms. Smith "failed to demonstrate
any issues of material fact as to whether there was a defect in the patch worn
by Ms. Doe at the time of her death".
This was error since, when the correct standard is applied and the
record is viewed in the light most favorable to Ms. Smith, it is clear that
issues of fact remain as to whether the patch was defective and leaked a fatal
dose of fentanyl onto the decedent.
Thus, summary judgment should not have been entered.
The Lower Court erred when it granted summary judgment in favor of
Appellees January Pharmaceutica, Inc., February Corporation and March
& March since a substantial question of material fact exists as to whether
the Duragesic fentanyl patch in question was defective in that it leaked an
excessive amount of fentanyl onto the decedent causing her to overdose on
This case involves an Order granting summary judgment to the
Appellees in accordance with Pennsylvania Rule of Civil Procedure 1035.2.
In general, summary judgment can only be entered where there are no
genuine issues as to any material fact and the right to it is clear and free from
doubt after viewing the record in the light most favorable to the non-moving
party. Toy v. Metropolitan Life Insurance Company
, 593 Pa. 20, 928 A2d
On appeal, an Order granting summary judgment is reviewed to
determine whether an abuse of discretion or an error of law has occurred.
The term, "discretion", is one of art and refers to "the exercise of
judgment, wisdom and skill so as to reach a dispassionate conclusion".
Coker v. S.M. Flickinger Company, Inc.
, 533 Pa. 441, 625 A.2d 1181, 1184
(1993) (citation omitted). As noted by the Supreme Court – "discretionary
power can only exist within the framework of the law, and is not exercised
for the purpose of giving effect to the will of the judge". Id
. It must be
"exercised on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions". Id
. Applying these principles,
Court formulated a standard for determining when an "abuse of
discretion" occurs –
Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.
. In short, "an inquiry into an abuse of discretion is operationally
equivalent as one into the merits of the trial court's decision". Id
As will be explained below, when the Court reviews the merits of the
Order at issue herein, it will be clear that summary judgment was
This case involves products liability and negligence claims relating to
a defective Duragesic fentanyl patch that leaked an excessive and fatal
amount of fentanyl onto the decedent.
With regard to the products liability claim, Pennsylvania has adopted
Section 402A of the Restatement (Second) of Torts which provides, in
pertinent part –
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Restatement (Second) of Torts, §402A(1). See also Webb v. Zern
, 422 Pa.
424, 220 A2d 853 (1966).
To prevail on this theory, therefore, an injured plaintiff must establish
just two elements – "(1) the existence of a defect in the product that was
present at the time the product left the control of the manufacturer; and (2)
that the defect caused the plaintiff's injuries". Donoughe v. Lincoln Electric
, 936 A2d 52, 61 (Pa. Super. 2007). See also Wiggins v. Synthes (USA)
29 A3d 9 (Pa. Super. 2011) (A plaintiff presents a prima facie
case of strict
liability by establishing that the product was defective and that the product
caused his injury).
A negligence claim is distinct from one based on products liability. In
a negligence action, the liability of the defendant is measured by his
behavior while, in a products liability case, it is measured solely by the
characteristics of the product at issue. Lewis v. Coffing Hoist Division,
Duff-Norton Co., Inc.
, 515 Pa. 334, 528 A2d 590 (1987).
In general, a negligence claim is established by proof of four
elements: "(1) a duty or obligation recognized by law; (2) a breach of that
duty; (3) a causal connection between the conduct and the resulting injury;
and (4) actual damages". Grossman v. Barke
, 868 A2d 561, 566 (Pa.
Super. Ct. 2005) (citation omitted). Applying this to a products liability
case, a plaintiff must prove that his injury was "proximately caused by a
specific defect in design or construction" of the product at issue. Brandon
v. Ryder Truck Rental, Inc.
, 34 A3d 104, 110 (Pa. Super. 2011) (citation
In the present case, the Lower Court determined that no genuine issue
of material fact existed as to whether the patch in question leaked a fatal
dose of fentanyl onto the decedent and concluded from this that no defect
That, however, was error.
In their motion for summary judgment, the Appellees asserted that (1)
the medical examiner who retrieved the patch from Ms. Doe's shoulder
visually inspected it and did not note any damage to it; (2) the toxicology
report detected a toxic level of morphine in her system and the post-mortem
fentanyl level was within the therapeutic range; and (3) a purported expert in
material sciences, Dr. Maureen Coe, inspected the patch and concluded that
its "seal was ‘fully intact and functional'". (RR at 27a-30a).
In her response to that motion, Ms. Smith asserted that her experts
believed, with a reasonable degree of scientific certainty, that the patch was
defective and leaked a fatal dose of fentanyl onto Ms. Doe. She attached the
experts' reports for the Court's consideration.
The first was Dr. Kris Noel Green, an assistant professor at Carnegie
Mellon University in its Departments of Biomedical Engineering and
Chemical Engineering. She was highly critical of the inspection method
used by the defense expert, Dr. Coe. After noting that she watched the video
of Dr. Coe's inspection, read her report and attended her deposition, Dr.
Green stated –
After first viewing the videotape, I was surprised at the imprecise nature used to inspect the patch. Defects, including micro-defects, can not all be observed by the naked eye, in my scientific opinion and experience.
(RR at 299a). She further noted that, in the past, Dr. Coe had also concluded
that naked eye inspection is not sufficient for this purpose. (RR at 299a-
300a). Dr. Green then concluded –
It is my opinion that microscopic observation, using a light microscope, which is least destructive, could be a necessary means to determine the patch's integrity.
(RR at 300a). She characterized this as "absolutely necessary". (RR at
Another expert, Dr. Frederick W. Roe noted that "when fentanyl is
delivered at greater than label doses, erythematous skin hypersensitivity
occurs". (RR at 307a). In other words, "the result of greater than label
fentanyl doses is a fentanyl wheal or flair [welt]". (RR at 307a).
Such a welt was found post-mortem on Ms. Doe's shoulder where the
patch was removed. (RR at 307a). It had "a pattern of deep fissures" that
corresponded to certain "black lines on the membrane" of the patch in
question. (RR at 307a). There were also brown spots on the patch that, in
the doctor's view, were "probably cellular fluids from the cellular necrosis,
blood, serum or all three". (RR at 307a-308a).
As explained by Dr. Roe - "the fissures in the fentanyl welt are
evidence that fentanyl was in overdose in the vasculature underlying the
fentanyl welt" and that there was a "fatal fentanyl overdose". (RR at 307a).
He also noted that the black lines found on the patch post-mortem were
either "fentanyl aggregations that accumulated from a defect in the patch and
caused the cellular necrosis that caused the fissures in the welt or fentanyl
crusts with a high fentanyl concentration". (RR at 307a).
From all this he concluded –
Based upon the available data, at this point in time, it is my opinion, that the fissures in the fentanyl welt on Ms. Doe's shoulder and the black lines and brown spots on the transfer membrane of the 75 microgram per hour Duragesic Transdermal System removed from Ms. Doe post mortem is evidence that the patch removed from Ms. Doe post mortem had a defect that delivered a fatal fentanyl overdose.
A third expert retained by Ms. Smith was a forensic pathologist, Dr.
Cyril H. Boe. He agreed with Dr. Roe on the significance of the fentanyl
welt on Ms. Doe's shoulder. (RR at 312a-313a). To quote his report –
The presence of the fentanyl welt on the area of skin below the site on Ms. Doe's shoulder where Dr. Jones removed the Duragesic Patch during autopsy is pathological evidence that highly concentrated fentanyl gel came in contact with Ms. Doe's skin. The size and severity of the irritated area of skin is forensic evidence that the fentanyl gel contacted most, if not all, of the skin under the patch, and was in high enough concentration to raise the welt under the complete area of the patch. That amount of fentanyl gel provided forensic evidence that Ms. Doe received a fatal fentanyl overdose from a defect in the patch that allowed the highly concentrated fentanyl gel to leak from the drug reservoir on the patch, and then come into contact with Ms. Doe's skin
(RR at 313a) (emphasis supplied).
Dr. Boe also pointed out that her corpse was found lying on its side,
the same position she was in when last seen alive in her bed. (RR at 313a).
He surmised from this that, when she rolled over on her side, she "released
the fentanyl gel … in one massive overdose". (RR at 313a).
All three experts rendered their opinions with a reasonable degree of
scientific or medical certainty.
Despite this evidence, the Lower Court granted summary judgment.
Although the Judge purported to view the evidence in the light most
favorable to Ms. Smith, that clearly did not happen. This is reflected in the
following statement from her Omnibus Opinion and Order of September 10,
Dr. Green admitted that she lacked ‘hard facts' of a defect in the patch. She failed to offer an opinion to a reasonable degree of scientific certainty that the patch was defective in either her deposition or her expert report. Nor did she ever actually inspect the patch with a light microscope, which in her opinion ‘would be a necessary means to determine the patch's integrity'. Additionally, even if Ms. Doe had a fentanyl welt as Dr. Roe opines, the evidence establishes that she had a therapeutic level of fentanyl in her blood. Therefore, if the welt did exist, it is not evidence of a fentanyl overdose.
(RR at 332a-333a) (references to the record omitted).
The Judge then issued a second Order on January 18, 2013 in which
she adopted the above statement. She further noted that Dr. Coe had not
seen a broken seal on the patch and reiterated her belief that the fentanyl
level in Ms. Doe's blood was at "therapeutic levels". (RR at 412a).
She also made the curious and unsupported statement that a fentanyl
welt "can manifest at therapeutic levels". (RR at 412a).
It is clear from all this that the Judge failed to view the record in the
light most favorable to Ms. Smith. Instead, she weighed the evidence and
then accepted as true Dr. Coe's opinion and the toxicology report that
allegedly reflected a "therapeutic level" of fentanyl in the decedent's blood.
It was for the jury to determine, after cross-examination of both Dr.
Coe and the proponent of the toxicology report, whether to accept their
findings as true or whether to accept the opinions of Ms. Smith's experts that
the welt on Ms. Doe's body indicated a fentanyl overdose.
In general, therefore, when the record is viewed in the light most
favorable to Ms. Smith and all doubts as to the existence of an issue of fact
are resolved in her favor, it is clear that questions of fact remain as to
whether the patch in question was defective and leaked a fatal amount of
fentanyl onto Ms. Doe. Thus, summary judgment should not have been
granted in favor of January Pharmaceutica, Inc., February Corporation and
Based upon the arguments raised herein, the Order granting summary
judgment to Appellees January Pharmaceutica, Inc., February Corporation
and March & March should be reversed and the case remanded for trial.
Patrick P. Lawyer, Esquire
Attorney for Appellant
CERTIFICATE OF SERVICE
I, Patrick P. Lawyer, do hereby certify that, on the _ day of
August, 2013, I did serve six copies of the foregoing document upon the
following person by first class mail. This manner of service is in
conformance with the Pennsylvania Rules of Appellate Procedure.
John H. Attorney, Esquire
123 West Third Street Pittsburgh, PA 15222
Patrick P. Lawyer, Esquire
A triage guide for tinnitus James A. Henry, PhD; Tara L. Zaugg, AuD; Paula J. Myers, PhD; Caroline J. Kendall, PhD; Ringing in the ears may be symptomatic of a serious Elias M. Michaelides, MD condition—or it may be benign. Th is guide can help you Veterans Affairs RR&D National Center for tell the diff erence. Rehabilitative Auditory Research, VA Medical Center, Portland, Ore (Drs. Henry and Zaugg); Department of Otolaryngology/Head and Neck Surgery, Oregon Health & Science
Inter national Organization for Succulent Plant Study para el Estudio de Plantas Suculentas de Recherche sur les Plantes Succulentes Inter nationale Organisation A short history of Repertorium Plantarum Succulentarum The first issue of Repertorium Plantarum Succulentarum (RPS) was produced in 1951 byMichael Roan (1909−2003), one of the founder members of the International Organizationfor Succulent Plant Study (IOS) in 1950. It listed the ‘majority of the new names [ofsucculent plants] published the previous year'. The first issue, edited by Roan himself withthe help of A.J.A Uitewaal (1899−1963), was published for IOS by the National Cactus &Succulent Society, and the next four (with Gordon Rowley as Associate and later JointEditor) by Roan's newly formed British Section of the IOS. For issues 5−12, GordonRowley became the sole editor. Issue 6 was published by IOS with assistance by theAcclimatisation Garden Pinya de Rosa, Costa Brava, Spain, owned by Fernando Riviere deCaralt, another founder member of IOS.