A Pennsylvania court has offered another legal claim that consumers can pursue when filing product-liability lawsuits against drugmakers in the state. In a ruling involving the Redux diet pill, a Pennsylvania Superior Court panel decided that a claim of negligent design defect can be brought against Wyeth, which withdrew the drug in 1997 over links to serious heart and lung side effects.

As The Legal Intelligencer notes, Pennsylvania courts have interpreted a federal allow in such a way that lawsuits do not allow strict liability claims against drugmakers for manufacturing defects or a failure to warn prescribers of risks under the learned intermediary theory. But the panel ruled that one provision Comment K of the Restatement (Second) of Torts - should not be seen as an impediment to pursuing a negligent design defect claim. This is what the panel wrote:

“It is important to note that a negligent design defect claim is not foreclosed merely because summary judgment is granted in favor of a defendant on a plaintiff’s strict liability claim. This is because a strict liability design defect claim is distinct from a negligence design defect claim. Strict liability examines the product itself, and sternly eschews considerations of the reasonableness of the conduct of the manufacturer. In contrast, a negligence cause of action revolves around an examination of the conduct of the defendant” (here is the ruling).

In other words, a consumer must prove fault and show that the foreseeable risks of the harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, a lawyer for the plaintiff in the lawsuit tells the paper. Howard Bashman represents Patty Lance, whose daughter, Catherine, took Redux for three months before it was withdrawn and subsequently was diagnosed with primary pulmonary hypertension. She later died, although the cause of death has been in dispute. Her mother sued Wyeth, although a lower court dismissed the case.