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Key Claims Survive Dismissal In Pa. Federal Case Alleging Prevacid Bone Damage

Pennsylvania federal Judge DuBois keeps major products claims in after ruling on defendants’ motion to dismiss.  David S. Tatum v. Takeda Pharmaceuticals North America, Inc., et al., No. 12-1114, E.D. Pa.

David S. Tatum was prescribed Prevacid, a drug made by Takeda Pharmaceuticals and approved to treat gastroesophageal reflux disease (GERD, or heartburn). After taking the drug, Tatum experienced pain in his left hip, and he was diagnosed with Stage III avascular necrosis.   Tatum’s bones became weakened or brittle, causing multiple fractures.  He eventually underwent total hip replacement surgery.  Tatum sued Takeda and related entities in the U.S. District Court for the Eastern District of Pennsylvania.  Takeda moved to dismiss his 14 counts and his demand for punitive damages.

Noting that Tatum filed his complaint on March 1, 2012, and claims that he experienced no hip pain prior to March 2010, Judge Jan E. DuBois said Tatum’s allegations falls within Pennsylvania’s two-year statute of limitations.

Applying the Pennsylvania Supreme Court’s ruling in Hahn v. Richter, Judge DuBois said that under comment k to Section 402A of the Second Restatement of Torts, failure of a manufacturer to exercise reasonable care to warn of dangers is the only recognized basis of liability.  As a result, he said Tatum cannot bring his claim of strict liability for design defect and failure to warn.

Judge DuBois did however hold that Tatum’s claim of strict liability for manufacturing defect is permissible. Citing the District Court’s ruling in Dougherty v. C.R. Bard, Inc. (No. 11-6048, E.D. Pa. July 18, 2012), he said that strict liability claims for manufacturing defect are not prohibited.

As to Tatum’s claims for breach of implied warranty of merchantability of fitness for a particular purpose and breach of implied warranty of merchantability, Judge DuBois said that neither claim is cognizable under Pennsylvania law “to the extent they are based on design defect or failure to warn, but are permissible if based on manufacturing defect or any other theory.  Noting a split among federal courts, Judge DuBois found that Tatum’s breach of express warranty claim is permitted under Pennsylvania law.

On Tatum’s claims of fraudulent concealment and violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, Judge DuBois said Hahn does not preclude claims where the plaintiff alleges that the seller had knowledge of the risks of prescription drugs and intentionally concealed them.

Judge DuBois granted Takeda’s motion to dismiss the unjust enrichment claim. He said there is “no allegation that defendants refused to provide a service or goods after Tatum provided defendants with a benefit.  Takeda is correct that under Pennsylvania law, punitive damages are not on independent cause of action, the judge said. However, he said Tatum did not assert an independent claim for punitive damages but rather requested them as a remedy.

Tatum is represented by Claudine Q. Homolash of CQH Firm in Philadelphia and Kenneth G. Gilman of Gilman Law in Bonita Springs, Fla.


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