Cross-posted by at On the Docket

Common sense and the principles of tort law in the American civil justice system are not always synonymous. One would think, for instance, that plaintiffs would always have to show that they suffered an actual injury, and that a defendant’s specific conduct, or product, caused that injury. That is generally the case in tort law, but because some court have embraced such novel claims as “medical monitoring” or have accepted “fear of injury” as sufficient to sue, plaintiffs’ lawyers will continue to push the proverbial envelope, especially in areas such as product liability. Judges’ desire to redistribute wealth or make their mark on a prominent area of law can be powerful incentives to throw common sense, and established principles, out the window.

That was the hope of one plaintiff and her lawyers in a suit involving the Wyeth diet drug Redux filed in Pennsylvania, Cochran v. Wyeth.  We mention this July 2010 decision now because the Pennsylvania Supreme Court declined Cochran’s request for review late last week.

For one year back in the late 1990s, plaintiff Cochran used Redux. In 2004, Cochran developed primary pulmonary hypertension (PPH).  Wyeth had provided a warning on the product label that ingestion of Redux could lead to PPH.  So no “failure to warn” could be argued there.

Instead, Cochran’s lawyers argued that Redux also has been shown to cause valvular heart disease (VHD), a condition which was not warned of on the Redux label.  Even though Cochran had not developed VHD, her lawyers claimed that Wyeth’s failure to warn about VHD was the proximate cause of her developing PPH.  Logically speaking, this doesn’t compute.  Legally speaking, Cochran’s lawyer pointed to the testimony of Cochran’s doctor.  The doctor claimed that had he known that VHD was a Redux side effect, he would not have prescribed it for Cochran. That testimony was enough to establish causation, the lawyer argued, despite the fact that Cochran never suffered from the unwarned condition of VHD.

Wyeth argued, and the three-judge Superior Court of Pennsylvania agreed, that in a failure to warn case, the plaintiff has to suffer from the actual condition of which the drug company failed to warn.  Law here followed common sense, but because judges can’t just cite to common sense, the Superior Court panel had to justify their ruling by basing it on established case law.  The plaintiff’s claim was so novel that the panel found absolutely no case law in Pennsylvania or elsewhere directly on point, and the supposedly analogous cases cited by plaintiff and defendant offered the court no help.

The panel instead looked to the case law of the tort “informed consent,” which governs injuries allegedly caused by a doctor’s failure to warn a surgical patient of all the possible risks of surgery. Informed consent case law dictates that if the patient does not suffer the injury that the surgeon failed to warn of, proximate cause between injury and failure to warn cannot be established.  In other words, as the Superior Court put it, “An unrevealed risk . . . however unpardonable, is legally without consequence. [N]egligence unrelated to injury is nonactionable.” The panel thus affirmed the trial court’s dismissal of Cochran’s complaint.

Without a doubt, plaintiffs’ lawyers will try to advance this theory in other jurisdictions, and maybe even again in Pennsylvania now that the state’s highest court has denied review. But if they do, the Cochran ruling is available as a well-reasoned precedent and a model for how judges must respect basic tort law principles as proximate cause and the need for an actual injury.