Czimmer, A. v. Janssen Pharmaceuticals , 122 A.3d 1043 ( 2015 )

J-A30037-14
2015 Pa. Super. 175
APRIL CZIMMER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JANSSEN PHARMACEUTICALS, INC.
Appellant No. 459 EDA 2014
Appeal from the Judgment Entered January 2, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term 2011 No. 3459
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
OPINION BY MUNDY, J.: FILED AUGUST 20, 2015
Appellant, Janssen Pharmaceuticals, Inc. (Janssen),1 appeals from the
trial court’s order entering judgment in favor of Appellee, April Czimmer, as
guardian of Blake Czimmer, a minor,2 following a jury trial. After careful
review, we affirm.
We take the relevant facts and procedural history of this case from the
trial court’s January 2, 2014 opinion and our independent review of the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Janssen is a Pennsylvania Corporation with a principal place of business in
New Jersey. See Janssen’s Answer and New Matter, 3/15/13, at 2-3 ¶ 10.
2
As April and Blake Czimmer have the same surname, we will refer to them
by their first names for clarity.
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record. April has a history of migraine headaches dating back to when she
was a young teenager.3 In August 2006, physician’s assistant Lisa Basye
prescribed Topamax4 to April to treat her migraines, and April continued to
use the drug until February 2007. At the time Basye prescribed Topamax to
April, the Food and Drug Administration (FDA) categorized it as a Pregnancy
Category C drug.5
____________________________________________
3
April resided in Virginia during the relevant time-period and continued to
reside in that state when she filed the instant lawsuit. See Plaintiff’s Fact
Sheet, 12/23/11, at 2.
4
Janssen manufactures Topamax, an antiepileptic medication used to treat
epilepsy and migraines. See Janssen’s Brief at 10.
5
See Plaintiff’s Exhibits 1210-1211 (Topamax 2006 and 2007 Physicians’
Desk Reference excerpts). On March 4, 2011, the FDA classified Topamax
as a Pregnancy Category D drug. See Janssen’s Answer and New Matter,
3/15/13, at 6 ¶ 26.
The FDA has established 5 categories to indicate the
potential of a drug to cause birth defects if used during
pregnancy. Category A means that there are adequate, well-
controlled studies which have failed to demonstrate a risk to the
fetus. Few drugs are in category A because controlled studies of
medication use during pregnancy are ethically prohibited.
Category B means animal studies show no risk, but there are no
adequate and well-controlled studies of use by pregnant women.
Category C means that animal reproduction studies have shown
an adverse effect on the fetus, but there are no adequate and
well-controlled studies in humans, and so pregnant women
should weigh the potential benefits against the potential risks.
Category D is used when there is positive evidence of human
fetal risk based on adverse reaction data from investigational or
marketing experience or studies in humans, but potential
benefits may still warrant use of the drug. Category X is the
lowest category, used when use of the drug is not recommended
(Footnote Continued Next Page)
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In December 2006, April became pregnant with her son, Blake. Blake
was born on September 24, 2007, with a severe cleft lip and cleft palate with
a hole above his lip. Since his birth, he has undergone four surgeries to
repair his oral clefts and associated injuries. Blake will need to undergo a
number of surgeries in the future, including jaw reconstruction and a bone
graft at the time of maturity. He will also need speech therapy, treatment
for his hearing, and a psychological evaluation.
On May 31, 2011, April commenced this lawsuit against Janssen by
filing a writ of summons in the Philadelphia County Court of Common Pleas.
On November 7, 2011, she filed a short-form complaint against Janssen
alleging, in part, that it negligently failed to warn her prescribing health care
provider of the risks of potential birth defects associated with Topamax,
including cleft lip and/or palate, if used during pregnancy. On March 25,
_______________________
(Footnote Continued)
for any pregnant women, as the risks clearly outweigh any
benefits ….
In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., 26
F. Supp. 3d 449, 453 n.7 (E.D. Pa. 2014); see also Plaintiff’s Exhibit 1224,
3/08/13 (listing FDA Pregnancy Categories).
We note that decisions of the federal district courts are not binding on
Pennsylvania courts, but we may look to them as persuasive authority. See
Dietz v. Chase Home Fin., LLC, 41 A.3d 882, 886 n.3 (Pa. Super. 2012).
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2013, Janssen filed a motion for summary judgment, which the trial court
granted in part and denied in part.6
On October 15, 2013, the case proceeded to a jury trial on the
negligent failure to warn claim. On October 30, 2013, the jury returned a
verdict in favor of April, as guardian of Blake. It awarded $4,002,184.68 in
damages, comprised of $3,440,000.00 for the non-economic loss of pain and
suffering and $562,184.68 for future health care costs. On November 8,
2013, Janssen filed a post-trial motion requesting the trial court to grant
judgment notwithstanding the verdict (JNOV) or a new trial. On January 2,
2014, the trial court entered an order and opinion denying Janssen’s post-
trial motion. The trial court also entered judgment on the jury’s verdict,
adding $207,713.38 in delay damages, resulting in a total judgment against
Janssen for $4,209,898.06. This timely appeal followed.7
On appeal, Janssen raises the following issues for our review.
1. Does federal law preempt a state law negligent
failure to warn claim where (a) [Janssen] could not
have provided [April’s] proposed warning without the
Food and Drug Administration’s prior permission and
____________________________________________
6
The trial court granted summary judgment in favor of Janssen with respect
to April’s strict liability, negligent design, warranty, punitive damages, and
loss of consortium claims. The court denied the remainder of the motion.
See Trial Court Order, 7/16/13.
7
The trial court did not order Janssen to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), nor did it issue a Rule 1925(a) opinion. See Pa.R.A.P.
1925.
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assistance, and/or (b) there was clear evidence that
[the] FDA would not have approved that proposed
warning?
2. In a case governed by Virginia law, did the trial
court err in applying a “substantial factor” standard
of causation that the Supreme Court of Virginia has
expressly rejected as contrary to the law of Virginia?
3. Did the trial court err (a) by permitting a
negligent failure to warn claim to proceed to the jury
in an action involving a prescription drug warning,
when the prescribers of that drug testified that they
knew, at the time they prescribed the drug, of the
alleged risk of harm that formed the basis of the
claim, and/or (b) by excluding relevant evidence
related to those prescribers’ knowledge of the risk?
4. Did the trial court err (a) by permitting an
award of damages for Blake Czimmer’s future
healthcare costs incurred during his minority, when
his parents’ claim for those damages was time-
barred and Blake did not have a right of action to
recover them, and/or (b) by failing to ask the jury to
decide whether the parents had brought their claim
within the applicable limitations period?
Janssen’s Brief at 5.
We begin by stating our standard of review of a trial court’s denial of
post-trial motions for JNOV and a new trial.
An appellate court will reverse a trial court’s grant or
denial of a JNOV only when the appellate court finds an abuse of
discretion or an error of law. Our scope of review with respect to
whether judgment n.o.v. is appropriate is plenary, as with any
review of questions of law.
In reviewing a motion for judgment n.o.v., the
evidence must be considered in the light most
favorable to the verdict winner, and he must be
given the benefit of every reasonable inference of
fact arising therefrom, and any conflict in the
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evidence must be resolved in his favor. Moreover, a
judgment n.o.v. should only be entered in a clear
case and any doubts must be resolved in favor of the
verdict winner. Further, a judge’s appraisement of
evidence is not to be based on how he would have
voted had he been a member of the jury, but on the
facts as they come through the sieve of the jury’s
deliberations.
There are two bases upon which a judgment
n.o.v. can be entered: one, the movant is entitled to
judgment as a matter of law, … and/or two, the
evidence was such that no two reasonable minds
could disagree that the outcome should have been
rendered in favor of the movant[.] With the first a
court reviews the record and concludes that even
with all factual inferences decided adverse to the
movant the law nonetheless requires a verdict in his
favor, whereas with the second the court reviews the
evidentiary record and concludes that the evidence
was such that a verdict for the movant was beyond
peradventure.
Questions of credibility and conflicts in the evidence are for
the [fact-finder] to resolve and the reviewing court should not
reweigh the evidence. If there is any basis upon which the jury
could have properly made its award, the denial of the motion for
judgment n.o.v. must be affirmed.
Braun v. Wal–Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)
(brackets in original; citations and quotation marks omitted), affirmed, 106
A.3d 656 (Pa. 2014).
In reviewing a trial court’s denial of a motion for a new trial, the
standard of review for an appellate court is as follows:
[I]t is well-established law that, absent a clear
abuse of discretion by the trial court, appellate
courts must not interfere with the trial court’s
authority to grant or deny a new trial.
* * *
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Thus, when analyzing a decision by a trial
court to grant or deny a new trial, the proper
standard of review, ultimately, is whether the trial
court abused its discretion.
Moreover, our review must be tailored to a well-settled, two-
part analysis:
We must review the court’s alleged mistake
and determine whether the court erred and, if so,
whether the error resulted in prejudice necessitating
a new trial. If the alleged mistake concerned an
error of law, we will scrutinize for legal error. Once
we determine whether an error occurred, we must
then determine whether the trial court abused its
discretion in ruling on the request for a new trial.
ACE Am. Ins. Co. v. Underwriters at Lloyds and Cos., 939 A.2d 935,
939 (Pa. Super. 2007) (citations omitted), affirmed, 971 A.2d 1121 (Pa.
2009).
In its first issue on appeal, Janssen contends it is entitled to JNOV
because federal law preempts April’s state-law negligent failure to warn
claim. Janssen’s Brief at 20. Specifically, Janssen argues that it could not
have provided the proposed warning about potential oral birth defects
without the approval of the United States Food and Drug Administration
(FDA), and there was clear evidence that the FDA would not have approved
such a warning. Id. Janssen asserts that the doctrine of “impossibility
preemption” precludes the state-law claim of failure warn. Id. at 21, citing
PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011). This Court rejected an
identical argument by Janssen in Gurley v. Janssen Pharm., Inc., 113
A.3d 283 (Pa. Super. 2015), as follows.
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Appellant’s reliance on PLIVA is misguided. PLIVA
involved federal preemption of state-law failure to
warn claims brought against generic drug
manufacturers, and is not applicable to the instant
case involving a brand-name drug manufacturer.
See PLIVA, supra at 2574. The PLIVA Court
explained that, while a brand-name manufacturer is
responsible for the accuracy and adequacy of its
label, a generic manufacturer is responsible for
ensuring that its warning label is the same as the
brand name’s label. See id. The Court stated: “It is
beyond dispute that the federal statutes and
regulations that apply to brand-name drug
manufacturers are meaningfully different than those
that apply to generic drug manufacturers ….
[D]ifferent federal statutes and regulations may …
lead to different preemption results.” Id. at 2582.
Thus, we conclude that Appellant’s argument based
on PLIVA is not legally persuasive.
Gurley, supra at 291 (brackets and elipses in original, citation to trial court
opinion omitted). For the same reasons, Janssen’s identical argument in this
case is meritless.
Appellant also contends April’s failure to warn claim is preempted
because the FDA would not have approved the warnings April proposed
Janssen provide in its labeling. Janssen’s Brief at 25, citing Wyeth v.
Levine, 555 U.S. 555 (2009). Specifically, Janssen claims that, before
Blake’s conception, it attempted to insert a warning of genital birth defects
in the Topamax labeling, but the FDA precluded such a change to the label.
Again, this Court rejected this identical argument in Gurley as follows.
Upon review, we cannot credit Appellant's con-
tention that it presented “clear evidence that the
FDA would not have approved a change to
[Topamax’s] label,” to warn of increased risk of cleft
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lip/palate. Wyeth, supra at 571 (emphases added).
Appellant’s proposed change to the P[atient]
P[ackage] I[nsert (PPI)][8] in 2005 involved a
warning regarding a minor malformation in the
genitalia of some newborns born to mothers taking
Topamax; it did not address increased risk of cleft
lip/palate. Further, Appellant’s proposed change in
2005 was to the PPI, directed at patients, and not to
the Topamax label, directed at prescribers.
Therefore, we conclude that Appellant has failed to
establish federal preemption of Appellees’ state
failure to warn claim under Wyeth.
Gurley, supra at 291-292 (first brackets in original, emphasis in original,
parallel citation omitted). For the same reasons, we conclude Janssen’s
preemption argument based on Wyeth does not merit relief. Accordingly,
the trial court did not err as a matter of law in denying Janssen JNOV based
on preemption. See Braun, supra.
In its second issue on appeal, Janssen asserts that it is entitled to a
new trial because the trial court erroneously used the phrase “substantial
factor” in its jury instructions on factual cause. Janssen’s Brief at 34. Our
deferential standard of review is as follows.
Our standard of review regarding jury
instructions is limited to determining whether the
trial court committed a clear abuse of discretion or
error of law which controlled the outcome of the
case. Error in a charge occurs when the charge as a
whole is inadequate or not clear or has a tendency to
____________________________________________
8
“A patient package insert contains information for patients’ understanding
of how to safely use a drug product.” Gurley, supra at 291 n.16, quoting
U.S. Department of Health and Human Services, U.S. Food and Drug
Administration Glossary of Terms (2015).
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mislead or confuse rather than clarify a material
issue. Conversely, a jury instruction will be upheld if
it accurately reflects the law and is sufficient to guide
the jury in its deliberations.
The proper test is not whether certain portions
or isolated excerpts taken out of context
appear erroneous. We look to the charge in its
entirety, against the background of the
evidence in the particular case, to determine
whether or not error was committed and
whether that error was prejudicial to the
complaining party.
In other words, there is no right to have any
particular form of instruction given; it is enough that
the charge clearly and accurately explains the
relevant law.
Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015) (citations and
internal quotation marks omitted). Further, “to obtain a new trial based on
the trial court’s treatment of a jury’s question, the moving party must
demonstrate in what way the trial error caused an incorrect result.” Jeter
v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. 1998)
(citation omitted).
Herein, Janssen contends the trial court disregarded Virginia law,
which the parties and trial court agreed applied to the negligent failure to
warn claim.9 Specifically, Janssen argues the trial court’s jury instructions
____________________________________________
9
Janssen and the trial court agree that Virginia law applies to April’s
negligent failure to warn claim. See Janssen’s Brief at 31-32; Trial Court
Opinion, 1/2/14, at 12; N.T., 10/09/13, at 73. April does not dispute that
(Footnote Continued Next Page)
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and verdict sheet overlooked the Virginia Supreme Court’s disapproval of
using the phrase “substantial factor” to explain factual causation.10
Janssen’s Brief at 36-37. Janssen’s argument invites us to isolate the words
“substantial factor” and take them out of the context of the entire charge.
Pursuant to our standard of review, we decline to do so. See Krepps,
supra. Instead, we examine the jury instructions in their entirety and
conclude that they accurately reflected the law and provided sufficient
guidance to the jury. Id.
Our review of the record reveals the trial court provided the following
instructions to the jury prior to closing arguments.
And then, of course, in a negligence case, in
order to find liability, it’s a two-step process. Not
only must you find negligence, but you have to find
the requisite causal connection between that
negligence and harm to the plaintiff.
In this case the plaintiff is the child, Blake.
…
So you will have three -- as many as three
questions to answer. And it depends on your answer
to the preceding question whether you go forward.
_______________________
(Footnote Continued)
Virginia law applies but instead maintains that the trial court’s jury
instruction “was correct as a matter of Virginia law.” Appellee’s Brief at 29.
10
The trial court opinion states that Janssen failed to preserve this issue.
Trial Court Opinion, 1/2/14, at 12. This statement is not supported by the
record, which reveals that Janssen raised the difference in Virginia law
regarding the use of “substantial factor” to explain causation. N.T.,
10/29/13 (afternoon), at 34, 43.
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The first question would be: Did the defendant,
Janssen, negligently fail to adequately warn
physicians/healthcare providers -- like Ms. Basye
[who] was a physician assistant -- of the extent of
the risk of birth defects stemming from the use of
Topamax?
That’s the negligence question. And if you
answer that, that they were not negligent, you
answer the question “No.” That ends your inquiry.
You don’t have to go to causation. That makes
sense.
And I gave you a rote instruction. But it would
make sense. I don’t think you need my rote
instruction.
If you answer that “Yes,” then you have to go
to the causation question, which is: Was the
Defendant Janssen’s negligence a substantial factor -
- or sometimes called a factual cause -- in bringing
about Blake Czimmer’s cleft lip/cleft palate? That’s
the issue of causation.
If you find negligence, did it cause the cleft lip
or cleft palate? I’ll define the legal term “substantial
factor” sometimes called “factual cause” in my -- in
my charge.
N.T., 10/30/13 (morning),11 at 12-14.
After closing arguments, the trial court instructed the jury with respect
to causation as follows.
____________________________________________
11
The morning and afternoon session of each day of trial were transcribed
separately, and the two sessions are not consecutively paginated.
Therefore, for clarity, we refer to the notes of testimony by both the date
and session.
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But when we talk about liability and
negligence, it’s a two-step process. Not only must
you find negligence, but you must find a causal
connection between that negligence and harm, in
this case, to the child. One without the other is not
enough. So you would reach the damage question
only if you’ve answered “yes” to the negligence and
causation questions, and then you would proceed to
damages.
… If you find negligence but no causation, you
don’t answer Question 3 involving damages.
Now, the plaintiff has the burden of proving by
what we call a fair preponderance or fair weight of
the evidence the liability and damages in this case;
that is to say, the plaintiff must prove the negligence
of Janssen and that that negligence caused the cleft
lip or cleft palate in Blake and Blake’s damages all by
what we call a fair preponderance or fair weight of
the evidence.
…
… As I’ve said, in order to find liability here,
you have to find negligence, and you have to find the
requisite causal connection between that negligence
and harm to the child in this case as I have put it in
Question 2.
…
But what I said or what I’ve given you in
Question 2 is: Was the Defendant Janssen’s
negligence a substantial factor in bringing about
Blake Czimmer’s cleft lip/cleft palate? That’s the
issue here. Did he suffer the cleft lip or cleft palate
arising from the negligence of the Defendant
Janssen?
Now, I sometimes use the word “factual cause”
in place of substantial factor. A few years ago we
had a state judicial conference in Hershey, and we
have it every summer. And we have about 50
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judges in there. And they were discussing causation
in cases like this, and there were 50 different
opinions as to how to define it. And I found, some
said use factual cause. Some said use substantial
factor. I think the words are synonymous. So I
have placed substantial factor in my question. But if
you want to use factual cause in thinking about it,
you can.
But whether you use substantial factor or
factual cause, it’s a legal cause. In order for the
plaintiff, Blake Czimmer, to recover in this case, the
defendant’s negligent conduct must have been a
substantial factor or factual cause in bringing about
his cleft lip/cleft palate. That is what the law
recognizes, as I have said, as a legal cause. A
substantial factor or factual cause is an actual real
factor, although the result may be unusual or
unexpected. But it is not an imaginary or fanciful
factor or a factor having no connection or only an
insignificant connection with the child Blake’s cleft lip
or cleft palate.
Now, keep in mind, you can have more than
one cause that is a substantial factor or factual cause
in bringing about a given end.
N.T., 10/30/13 (morning), at 127-128, 134-136.
Accordingly, the verdict sheet provided to the jury contained three
questions, two relating to negligence, and one to damages. See Verdict
Sheet, 10/30/13, at 1. The second question regarding causation asked,
“Was [Appellant’s] negligence a substantial factor in bringing about Blake
Czimmer’s cleft lip/cleft palate?” Id.
Janssen contends that the trial court’s use of “substantial factor”
overlooks the Virginia Supreme Court’s rejection of that language to explain
causation. Janssen’s Brief at 36-37, citing Ford Motor Co. v. Boomer, 736
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S.E.2d 724, 730 (Va. 2013). In Boomer, the Virginia Supreme Court
rejected the trial court’s use of “substantial contributing factor” without
further definition to define proximate cause because that language was
vague and confusing to the jury. Boomer, supra. The plaintiff in Boomer
sued Ford Motor Company for wrongful death due to mesothelioma caused
by exposure to asbestos in Ford’s automobile brakes. Id. at 726. The
Virginia Supreme Court explained that determining causation in
mesothelioma cases presents a challenge because identifying a particular
exposure as causative is difficult due to the long latency period and the
potential for multiple exposures to asbestos over an individual’s lifetime. Id.
at 729. In such “multiple-causation” cases, the Boomer court
acknowledged that the traditional “but for” conceptualization of causation
would make recovery difficult, if not impossible, due to the difficulty of
proving which exposure was the sole “but for” cause of the injury. Id. In
an attempt to guide the jury on the nuances of causation in multiple-
causation cases, the trial court instructed the jury that the plaintiff must
prove that either the exposure to asbestos in defendant’s products or the
defendant’s failure to warn of asbestos in its products was a “substantial
contributing factor” in causing plaintiff’s injury. Id.
The Virginia Supreme Court rejected the “substantial contributing
factor” language because without further definition its impact on the burden
of proof was ambiguous. Id. at 730. On one hand, the jury could view a
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“contributing” factor as something less than “but-for” cause, which would
lower the burden of proof. Id. Alternatively, the jury could interpret
“substantial” as elevating the burden of proof to something more than a
mere preponderance. Id. To avoid this confusion, the Virginia Supreme
Court articulated the standard for factual causation in multiple causation
cases was “exposure to the defendant’s product alone must have been
sufficient to have caused the harm[.]” Id. at 731 (italics in original).
In this case, looking at the trial court’s charge as a whole, we conclude
that the use of “substantial factor” does not implicate the same concerns as
in Boomer because here the trial court defined the term and its impact on
the burden of proof. Compare N.T., 10/30/13 (morning), at 127-128, 134-
136 (explaining “substantial factor”) with Boomer, supra at 730 (stating
“the circuit court in this case never defined the term ‘substantial contributing
factor’ in its jury instructions[,] … [so] some jurors might construe the term
to lower the threshold of proof required for causation while others might
interpret it to mean the opposite[]”). The trial court’s charge gave context
and meaning to the term “substantial factor” that was absent in Boomer.
The charge clarified that the plaintiff had to prove that “negligence caused
the cleft lip or cleft palate in Blake … by [] a fair preponderance or fair
weight of the evidence.” N.T., 10/30/13 (morning), at 128. The charge also
explained that the causation question on the verdict sheet of “[w]as the
Defendant Janssen’s negligence a substantial factor in bringing about Blake
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Czimmer’s cleft lip/cleft palate?” was asking the but for causation question of
“[d]id he suffer the cleft lip or cleft palate arising from the negligence of
the Defendant Janssen?” Id. at 135 (emphasis added); see also Boomer,
supra at 732 (defining a sufficient cause as one “arising from negligence”).
The trial court further clarified that “substantial factor” was synonymous with
“factual cause.” N.T., 10/30/13 (morning), at 135. The plain meaning of
“factual cause” is that the “harm would not have occurred absent the
conduct.” Boomer, supra at 731, quoting RESTATEMENT (THIRD) OF TORTS:
LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 (2010); see also BLACK’S LAW
DICTIONARY, cause (9th ed. 2009) (defining factual cause as “but for cause”).
Moreover, the trial court instructed the jury that it had to find
Janssen’s negligence was “an actual real factor” in “bringing about [the] cleft
lip/cleft palate,” “not an imaginary or fanciful factor or a factor having no
connection or only an insignificant connection.” N.T., 10/30/13 (morning),
at 136. Looking at the charge in its entirety, the trial court instructed the
jury it had to find, by a preponderance of the evidence, that Blake’s cleft lip
or palate arose from Janssen’s negligence, i.e., that Janssen’s negligence
was a factual, or but for, cause of Blake’s injury. Even though the charge
contained the words “substantial factor,” it adequately defined causation
such that the jury would not misconstrue the burden of proof. Therefore,
the trial court did not commit a clear abuse of discretion or error of law
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because the charge as a whole accurately reflects the law. See Krepps,
supra.
Further, in the context of the whole charge, Janssen has failed to
demonstrate in what way the use of the words “substantial factor” caused an
incorrect result. Janssen merely contends that the “[u]se of substantial
factor was prejudicial because Virginia has found it misleading, confusing,
and capable of imposing a more lenient burden of proof than the factual
cause standard actually requires.” Janssen’s Brief at 41, citing, Boomer,
supra at 730 & RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 26 cmt. j (2010). We decline to isolate the words
“substantial factor” from the context of the entire charge. See Krepps,
supra. Instead, as explained above, the trial court’s charge as a whole
adequately explained that the jury had to find that Blake proved by a
preponderance of the evidence that he suffered cleft lip or cleft palate
arising from Janssen’s negligence. This is not ambiguous, and it does not
impose a more lenient burden of proof. Instead, it is an accurate description
of the law. Accordingly, the trial court did not commit a clear abuse of
discretion or error of law that controlled the outcome of the case. See id.
Therefore, Janssen’s second issue on appeal does not warrant relief. See
ACE Am. Ins. Co., supra.
Janssen’s third issue on appeal presents two sub-issues regarding the
testimony of Basye, the physician’s assistant who prescribed Topamax to
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April, and we address them in turn. First, Janssen argues that the trial court
erred in denying JNOV because the evidence did not establish causation, as
it did not show a warning pertaining to cleft lip or cleft palate would have
avoided Blake’s injury. Janssen’s Brief at 42. Specifically, Janssen claims
Basye understood the risk of birth defects associated with Topamax use
during pregnancy because it was a category C drug. Id. at 42-44. Janssen
essentially argues that a warning about cleft lip or cleft palate would not
have altered Basye’s decision to prescribe Topamax to April. The record
belies this contention.
Assuming that a plaintiff has established both duty
and a failure to warn, a plaintiff must further
establish proximate causation by showing that had
defendant issued a proper warning [ ], he would
have altered his behavior and the injury would have
been avoided. To create a jury question, the
evidence introduced must be of sufficient weight to
establish … some reasonable likelihood that an
adequate warning would have prevented the plaintiff
from receiving the drug.
Gurley, supra at 292 (alterations in original), quoting Maya v. Johnson &
Johnson, 97 A.3d 1203, 1213-1214 (Pa. Super. 2014), appeal denied, 112
A.3d 653 (Pa. 2015).
In cases involving the failure to warn of risks associated with
prescription drugs, Pennsylvania courts apply the “learned intermediary
doctrine.”
Under the learned intermediary doctrine, a
manufacturer will be held liable only where it fails to
exercise reasonable care to inform a physician of the
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facts which make the drug likely to be dangerous.
The manufacturer has the duty to disclose risks to
the physician, as opposed to the patient, because it
is the duty of the prescribing physician to be fully
aware of (1) the characteristics of the drug he is
prescribing, (2) the amount of the drug which can be
safely administered, and (3) the different
medications the patient is taking. It is also the duty
of the prescribing physician to advise the patient of
any dangers or side effects associated with the use
of the drug as well as how and when to take the
drug.
Id. at 292-293, quoting Cochran v. Wyeth, Inc., 3 A.3d 673, 676 (Pa.
Super. 2010), appeal denied, 20 A.3d 1209 (Pa. 2011). While the Virginia
Supreme Court has not explicitly adopted the learned intermediary doctrine,
it has seemingly approved it in cases involving prescription drugs. Pfizer,
Inc. v. Jones, 272 S.E.2d 43, 44 (Va. 1980); Talley v. Danek Medical,
Inc., 179 F.3d 154, 162 (4th Cir. 1999) (predicting the Virginia Supreme
Court would adopt the learned intermediary doctrine).
Here, April established causation through Basye’s deposition
testimony, presented to the jury, that she would not have prescribed
Topamax if Janssen had informed her of the specific risk of cleft lip or cleft
palate. Her testimony was presented to the jury, in part, as follows.
Q. As a P[hysician’s] A[ssistant], did you have the
authority to determine which medications would be
appropriate to treat a patient who had symptoms of
migraine?
A. Yes.
…
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Q. Do you expect the information that is provided in
the PDR[, Physician’s Desk Reference, containing the
drug’s label,] to be complete and accurate?
A. Yes, I do. I believe that it’s basically the best
source for a lot of information on all the drugs that
we prescribe at the time.
Q. Can you adequately perform a risk benefit
analysis if the PDR is not accurate and complete?
[A.] No.
…
Q. Let me ask you ask you about Categories C and
D. When you’re prescribing a medication to a
woman in her child-bearing years, do you pay
attention as to whether or not a medication is a C
versus a D?
A. Yes.
Q. Which one has more risk of harm to an unborn
fetus, a C or a D?
[A.] Category D.
Q. Do you prescribe Category D medications to
women in their child-bearing years?
A. Not to my knowledge.
Q. As you sit here today in reviewing [April’s]
medical records, if Topamax had been a Category D
when you first prescribed it to April, would you have
chosen Topamax to treat her migraines?
[A.] I don’t believe so.
…
Q. If you had been aware back in August of 2006
when you prescribed Topamax that there was a risk
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to her unborn fetus of cleft lip and cleft palate, would
that have altered your prescribing habits?
[A.] Yes.
Q. Would you have prescribed Topamax to April [] in
August of 2006 if you had known there was a risk to
her unborn fetus?
A. No.
Q. Would you have ever prescribed Topamax to
[April] if you had known that there was an increased
risk of cleft lip and cleft palate?
A. I don’t believe so.
…
Q. Does that PDR, that label, warn you as a
prescriber that Topamax carries with it an increased
risk of cleft lip and cleft palate?
[A.] No.
Q. Did you have any knowledge back in 2006 or
2007 that Topamax could cause cleft lip or cleft
palate?
A. No.
Q. Would [] [April] have received Topamax from you
if you had known that?
[A.] No.
[Q.] If Topamax had been a Class -- Category D
medication in 2006 and 2007 when you were
prescribing it to [April], would you have prescribed
it?
A. No.
Deposition of Lisa Basye, P.A., 9/21/12, at 14, 20-21, 40-41, 49.
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Based on the foregoing, the evidence was of sufficient weight to allow
the jury to conclude that Basye would not have prescribed Topamax to April
if Janssen had adequately warned Basye that Topamax carried the risk of
cleft lip or cleft palate. See Gurley, supra. Viewing the evidence in the
light most favorable to Blake and April, the record belies Janssen’s
contention that Blake and April did not establish causation. See id.
Accordingly, this claim does not warrant relief. See Braun, supra.
In Janssen’s second sub-issue, within its third issue on appeal, it
contests the trial court’s rulings to exclude some evidence for the purpose of
impeaching Basye. Janssen’s Brief at 46-47. Our standard of review is as
follows.
Admission of evidence is within the sound discretion
of the trial court and we review the trial court’s
determinations regarding the admissibility of
evidence for an abuse of discretion. To constitute
reversible error, an evidentiary ruling must not only
be erroneous, but also harmful or prejudicial to the
complaining party. For evidence to be admissible, it
must be competent and relevant. Evidence is
competent if it is material to the issue to be
determined at trial. Evidence is relevant if it tends
to prove or disprove a material fact. Relevant
evidence is admissible if its probative value
outweighs its prejudicial impact. The trial court’s
rulings regarding the relevancy of evidence will not
be overturned absent an abuse of discretion.
Pursuant to Rule of Evidence 402, relevant evidence
is generally admissible, and irrelevant evidence is
inadmissible. Further, relevant evidence may be
excluded if its probative value is outweighed by its
potential for unfair prejudice, defined as a tendency
to suggest decision on an improper basis or to
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diver[t] the jury’s attention away from its duty of
weighing the evidence impartially.
Conroy v. Rosenwald, 940 A.2d 409, 417 (Pa. Super. 2007) (bracket in
original; citations omitted).
Janssen contends the trial court erred in excluding evidence that
“demonstrates Ms. Basye understood the risks Plaintiffs’ [sic] claim Janssen
failed to convey.” Janssen’s Brief at 47. This included evidence that Basye
prescribed April another Category D drug, Paxil, during her child-bearing
years and evidence of Basye’s refusal to refill April’s Topamax prescription
once she became pregnant because of the risk to the fetus. Id. at 47. The
trial court explained that it excluded the testimony regarding the
circumstances under which Basye prescribed Paxil because it “was not
relevant since it is an entirely different drug and was prescribed under
entirely different circumstances. The [trial] [c]ourt did not want to open the
door to a side trial as to why Paxil was prescribed.” Trial Court Opinion,
1/2/14, at 13-14. We discern no abuse of discretion in the trial court’s
decision to exclude evidence relating to Paxil, as it does not tend to prove or
disprove whether Janssen provided an adequate warning regarding
Topamax. See Conroy, supra. Therefore, the trial court’s ruling to exclude
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evidence of Paxil does not warrant a new trial because it was reasonable and
not an abuse of discretion.12 See ACE Am. Ins. Co., supra.
The trial court also properly excluded evidence of Basye’s refusal to
refill April’s Topamax prescription once she became pregnant as such
evidence is not relevant to the question of whether Janssen provided an
adequate warning before Basye prescribed Topamax to April. Moreover,
Janssen cannot show the exclusion of this evidence was prejudicial because
it was cumulative of other evidence in the record that Janssen introduced to
support its contention that Basye knew of the risks associated with taking
Topamax during pregnancy at the time she prescribed it to April. See
Janssen’s Motion for Post-Trial Relief, 11/8/13, at 5-10. Therefore, the trial
court did not abuse its discretion in denying Janssen’s motion for a new trial
based on excluding portions of Basye’s testimony. See ACE Am. Ins. Co.,
supra.
In its fourth issue on appeal, Janssen contends it was entitled to JNOV
on the award of future healthcare costs to Blake that he will incur as an
unemancipated minor, until he attains the age of 18, as his parents’ claim
____________________________________________
12
Even if the trial court erred in excluding the evidence of Paxil, it is a
harmless error. The overwhelming evidence established that Basye would
not have prescribed Topamax to April if she knew of the risk of birth defects.
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for those healthcare costs was time-barred.13 Janssen’s Brief at 49-56. Our
review is guided by the following. “The question of whether a statute of
limitations has run on a claim is usually a question of law for the trial judge,
but, at times, a factual determination by the jury may be required.” Sch.
Dist. of Borough of Aliquippa v. Md. Cas. Co., 587 A.2d 765, 768 (Pa.
Super. 1991) (citations omitted). “The issue of which limitations period
applies to a particular cause of action is a question of law. As such, we
exercise de novo review which is plenary in scope.” Burger v. Blair Med.
Assocs., Inc., 964 A.2d 374, 378 (Pa. 2009) (citations omitted).
We begin by addressing which state’s statute of limitations applies in
this case. Because the Czimmers’ claims accrued in Virginia but were filed in
Pennsylvania, we apply the Pennsylvania Uniform Statute of Limitations on
Foreign Claims Act, 42 Pa.C.S.A. § 5521. According to that statute, we must
apply the statute of limitations of the state with the shorter limitations
period, including accrual and tolling rules. 42 Pa.C.S.A. § 5521(b).
Pennsylvania has a two-year statute of limitations for a claim brought on
behalf of an unemancipated minor to recover future health care expenses
incurred until the minor reaches majority, while Virginia has a tolling
____________________________________________
13
Blake’s father, Aaron Czimmer, and April brought claims for Blake’s pre-
majority health care costs in the trial court. The trial court, however,
dismissed the parents’ claims as time-barred, but permitted Blake to recover
for those expenses in his own right. Thus, on appeal, the Appellee is April,
as guardian on behalf of Blake.
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provision that expands the limitations period to five years for such claims.
Compare 42 Pa.C.S.A. § 5524(2) (codifying two-year statute of limitations),
Wilson v. El-Daief, 964 A.2d 354, 361 (Pa. 2009) (noting claim accrues
when injury is sustained), 42 Pa.C.S.A. § 5533(b) (providing that an
unemancipated minor’s cause of action is tolled until minor attains majority),
and Fine v. Checcio, 870 A.2d 850, 858-859 (Pa. 2005) (describing
Pennsylvania’s “discovery rule” tolling doctrine), with Va. Code Ann. § 8.01-
243(B) (extending two-year statute of limitations for personal injury actions
to five years when a minor’s parents assert claims on behalf of the minor for
personal injury), Id. § 8.01-230 (prescribing claim accrues from the date
injury is sustained), Id. § 8.01-229(2)(a) (stating that unemancipated
minor’s claim is tolled), and Chalifoux v. Radiology Assocs. of
Richmond, Inc., 708 S.E.2d 834, 837 (Va. 2011) (noting Virginia has not
adopted the “discovery rule”). Because Pennsylvania’s statute of limitations
is shorter, we apply Pennsylvania law.14
“Under Pennsylvania Law[,] personal injury to a minor gives rise to
two separate and distinct causes of action, one the parents[’] claim for
medical expenses and loss of the minor’s services during minority, the other
the minor’s claim for pain and suffering and for losses after minority.”
____________________________________________
14
The parties and trial court also agree that Pennsylvania’s two-year
limitations period for personal injury actions applies to the future health care
costs incurred until Blake attains the age of 18. Janssen’s Brief at 50;
Appellee’s Brief at 55; Trial Court Opinion, 1/2/14, at 9.
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Bowmaster ex rel. Bowmaster v. Clair, 933 A.2d 86, 88 (Pa. Super.
2007), quoting Hathi v. Krewstown Park Apartments, 561 A.2d 1261,
1262 (Pa. Super. 1989), vacated sub nom., E.D.B. ex rel. D.B. v. Clair,
987 A.2d 681 (Pa. 2009); accord Baumann v. Capozio, 611 S.E.2d 597,
599 (Va. 2005) (recognizing the same two causes of action for personal
injury to a minor under Virginia law).
The two-year statute of limitations on a minor’s independent cause of
action that accrues before the age of 18 is tolled until the minor turns 18 by
Section 5533 of the Judicial Code, which provides as follows.
§ 5533. Infancy, insanity or imprisonment
…
(b) Infancy.--
(1) (i) If an individual entitled to bring a civil
action is an unemancipated minor at the time
the cause of action accrues, the period of
minority shall not be deemed a portion of the
time period within which the action must be
commenced. Such person shall have the same
time for commencing an action after attaining
majority as is allowed to others by the
provisions of this subchapter.
(ii) As used in this paragraph, the term “minor”
shall mean any individual who has not yet
attained 18 years of age.
…
42 Pa.C.S.A. § 5533(b)(1)(i)-(ii). Accordingly, the limitations period for a
minor’s claim is measured from the time the minor turns 18 irrespective of
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when the claim accrues. Fancsali ex rel. Fancsali v. Univ. Health Ctr. of
Pittsburgh, 761 A.2d 1159, 1164 (Pa. 2000). Even though the statute of
limitations is tolled, a parent or guardian may still commence an action on
behalf of a minor at any time after it accrues. Id. Such an action does not
affect the limitations period; it remains suspended until the minor turns 18.
Id.
The minority tolling provision, however, does not apply to the parents’
nonderivative claim for medical expenses and loss of the minor’s services
during minority. Hathi, supra at 1263. Accordingly, the limitations period
for the parents commences when the minor’s cause of action accrues.
Fancsali, supra.
Based on these principles, Blake’s parents’ claim for medical expenses
he will incur during the period of time before he turns 18 is time-barred. A
two-year statute of limitations applies to Blake’s parents’ claim for personal
injuries resulting from Janssen’s negligence. 42 Pa.C.S.A. 5524(2). The
claim accrued on September 24, 2007, the day on which Blake was born
with a cleft lip/palate. As such, his parents had until September 24, 2009 to
commence their cause of action. They did not file this action until May 31,
2011, over one and one-half years after the limitations period had expired.
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Therefore, their claim was time-barred.15 See Hathi, supra; Fancsali,
supra.
The trial court found that the parents’ claim for healthcare costs during
minority was barred by the statute of limitations.16 Trial Court Opinion,
1/2/14, at 9. Despite this, the trial court allowed Blake to proceed in his
own right on the claim for future medical costs he will incur until he turns
18. Id. The jury awarded Blake $562,184.68 for future health care costs.17
Verdict Sheet, 10/30/13, at 1. Janssen contends the trial court should have
entered JNOV on the future medical costs issue because Blake, as a minor,
does not have an independent right to recover these expenses when his
____________________________________________
15
We note that on appeal, April attempts to argue that the trial court erred
in not applying the discovery rule to toll the statute of limitations on the
parents’ claim for future medical expenses. Appellee’s Brief at 55-58.
However, after a careful review of the record, we agree with the trial court
that the parents have waived this argument, as they did not raise it in the
trial court. Trial Court Opinion, 1/2/14, at 10; Pa.R.A.P. 302(a).
16
In its second sub-issue of its fourth issue on appeal, Janssen argues that
the trial court erred in failing to ask the jury to decide whether Blake’s
parents had brought their claim within the applicable limitations period.
Given that the trial court properly concluded that the parents’ claim was
time-barred, this issue is meritless.
17
In addition, the jury awarded Blake $3,440,00.00 for pain and suffering,
which Janssen does not claim is barred by the statute of limitations. Verdict
Sheet, 10/30/13, at 1.
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parents’ claim for the same is time-barred because the right to recover
belongs to Blake’s parents alone.18 Janssen’s Brief at 53-55.
Traditionally, Pennsylvania courts have held that the right to recover
medical expenses a minor incurs before attaining the age of 18 accrues only
to the parents, and the minor cannot independently recover those expenses.
E.g., Bowmaster, supra at 89 (concluding “it is clear [the unemancipated
minor] could not have asserted a claim for medical expense in her own right
during her time of minority[]”). In Bowmaster, the parents of a minor born
with severe birth defects filed an action against the hospital on her behalf
two months before her 18th birthday. Id. at 87. The parents did not assert
an independent cause of action on their behalf for medical expenses paid
during the time before she turned 18. Id. at 88. Notice of the lawsuit was
given to the Pennsylvania Department of Public Welfare (DPW), as the minor
had been receiving medical assistance throughout the time before she
turned 18, and DPW asserted a lien for the amount of benefits it had paid
out to cover the minor’s medical expenses. Id. at 87. The parents
____________________________________________
18
Janssen also argues that the trial court violated the law of the case
doctrine when it allowed Blake to recover despite a March 25, 2013 order
from the Honorable Arnold L. New that denied the Czimmers’ motion to
transfer the parents’ claim to Blake. Janssen’s Brief at 52-53. This
argument is misplaced. The trial court found the parents’ claim was barred
by the statute of limitations and, thus, did not transfer it. Notwithstanding
that determination, the trial court decided that Blake, in his own right, could
recover future medical expenses during his minority. Trial Court Opinion,
1/2/14, at 10-11.
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eventually settled the claims on behalf of the minor against the hospital. Id.
The parents sought to avoid DPW’s lien by asserting that the settlement
proceeds did not represent any reimbursement for the medical expenses the
parents incurred on behalf of the minor because such a claim was not part of
the lawsuit. Id. at 88. DPW asserted it was entitled to reimbursement
under the Fraud and Abuse Control Act (FACA), 62 P.S. §§ 1401-1418. Id.
This Court held that DPW was not entitled to reimbursement because the
parents were the true beneficiary of the benefits DPW paid during the
minor’s minority, and those payments were not part of the suit because the
parents were not parties. Id. at 91. In so concluding, the Court relied on
the Pennsylvania common law principle that an unemancipated minor cannot
recover medical expenses incurred during the time before he or she turns
18. Id.
After Bowmaster, the Commonwealth Court decided a factually
similar case, but reached the opposite conclusion. Shaffer-Doan v.
Commonwealth Dep’t of Pub. Welfare, 960 A.2d 500, 516 (Pa. Commw.
Ct. 2008). In Shaffer-Doan, a minor’s parents asserted both a claim on
behalf of their minor son for medical expenses he anticipated incurring after
he turned 18 and a claim on their own behalf for medical expenses that they
would incur before the minor turned 18. Id. at 503. The trial court granted
partial summary judgment as to the parents’ claim because it was time-
barred. Id. The parties then settled. Id. When DPW asserted a lien
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against the settlement proceeds, the parents attempted to avoid the lien by
arguing that the settlement did not represent payment for any medical
expenses incurred before the minor turned 18, which was identical to the
argument of the parents in Bowmaster. Id. at 506. In its opinion, the
Commonwealth Court examined and ultimately rejected this Court’s
approach in Bowmaster. Id. at 512-514. Instead, the Commonwealth
Court applied the language of the FACA and “conclude[d] that a minor is not
prevented from seeking medical expenses incurred while he is a minor, so as
to enable DPW to recover its lien for monies it has expended, as long as
such a claim is not duplicated by the parents.” Id. at 516 (footnote
omitted).
While Shaffer-Doan was pending in the Commonwealth Court, our
Supreme Court granted allowance of appeal in Bowmaster, under the name
of E.D.B. ex rel. D.B. v. Clair. E.D.B., supra at 683. In its decision, the
Supreme Court recognized the conflict between this Court’s holding in
Bowmaster and the Commonwealth Court’s conclusion in Shaffer-Doan.
Id. at 687. In vacating Bowmaster, the Court approved of Shaffer-
Doan’s critique of Bowmaster as based on the antiquated view that
children were the property of their father. Id. at 688. The Court decided
that DPW was entitled to reimbursement solely on statutory grounds,
declining to decide the larger question of whether a minor has an
independent right to recover for the medical expenses incurred before the
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age of 18. Id. at 691 n.10 (noting, “[w]e have cited the Commonwealth
Court’s thoughtful summary of the history of the rights and duties of parents
with respect to their children. However, we must point out that the broad
question of the continuing validity of the common law doctrine that bars an
individual from bringing suit for medical expenses incurred during his or her
minority is not before us and is not the basis for our decision[]”) (citation
omitted). Thus, while not explicitly deciding the question of whether a minor
may recover for medical expenses incurred before the age of 18, the
Supreme Court in judicial dicta called into doubt the continuing validity of
the common law doctrine that supplied the rationale for the Bowmaster
decision. Id.
The Supreme Court held that, “pursuant to the [FACA], a Medicaid
beneficiary has a cause of action against his or her tortfeasor to recover and
reimburse DPW for Medicaid benefits received during the beneficiary’s
minority.” Id. at 691. Earlier in its opinion, the Court noted that “DPW’s
claim in this case is far less than one-half of [the minor’s] monetary
recovery.” Id. at 690 n.8. Because the monetary award occurred pursuant
to a settlement, we cannot determine how much of the total amount was
apportioned as compensation for the minor’s medical expenses incurred pre-
majority as opposed to post-majority. Nonetheless, the Court’s decision
recognizes a minor’s statutory cause of action for medical expenses incurred
during minority, and does not appear to put a limit on the amount of pre-
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majority medical expenses that the minor can recover. In fact, capping the
amount at the total of benefits already received would contradict the
reasoning of the Court that it is in the public interest to protect taxpayers
from assuming a cost that should be paid by a tortfeasor. See id. at 691.
Instead, allowing the minor to recover all pre-majority medical expenses,
whether incurred or anticipated, would best serve the public interest and
avoid giving a windfall to tortfeasors who are sued earlier in a minor’s life.
In light of the Supreme Court’s holding in E.D.B., vacating this Court’s
order in Bowmaster, we conclude the common law doctrine prohibiting a
minor from recovering damages for medical expenses incurred before age 18
is no longer viable.19 The common law doctrine rested on the premise that
parents, specifically fathers, were solely responsible for the support of
minors, including medical expenses, and minors were the property of their
fathers until turning 18. The common law rule was motivated by a desire to
allow the party who actually suffered the damages, i.e. the parents with a
support obligation, to recover for the loss caused by a tortfeasor, and to
____________________________________________
19
We recognize that “[i]t is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court, Commonwealth v. Hull,
705 A.2d 911, 912 (Pa. Super. 1998), except in circumstances where
intervening authority by our Supreme Court calls into question a previous
decision of this Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2
(Pa. Super. 2002).” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.
Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert. denied, 555
U.S. 881 (2008). We conclude that E.D.B. called into question the reliance
of Bowmaster on the aforementioned common law doctrine.
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prevent double recovery by both the parents and the minor for the same
expenses. Shaffer-Doan, supra at 509-511. However, as the
Commonwealth Court in Shaffer-Doan explained, the development of the
law and legislation has come to recognize that the cause of action to recover
pre-majority medical expenses belongs to both the parents and the minor.
See id. at 513, citing DeSantis v. Yaw, 434 A.2d 1273, 1275 (Pa. Super.
1981). E.D.B. represents the latest expansion of a minor’s right to recover
medical expenses during minority. Thus, we conclude the minor has an
independent right to recover medical expenses incurred before turning 18,
as long as the parents do not duplicate the claim. We base our conclusion
on the primary public policy that a tortfeasor should be responsible for the
harm its tortious conduct causes. We cannot discern any reason to allow a
tortfeasor to avoid penalty based on the failure of the minor’s parents to
bring a timely action. This is an unwarranted windfall in favor of a
responsible tortfeasor due to a victim’s age. Therefore, the trial court did
not err in declaring that Blake was not time-barred from independently
recovering his pre-majority medical expenses. Accordingly, the trial court
did not err in denying Janssen’s motion for JNOV. See Braun, supra.
Based on the foregoing, we conclude all of Janssen’s issues on appeal
are meritless. The trial court did not commit a clear abuse of discretion or
error of law that would warrant JNOV or a new trial. See id.; ACE Am. Ins.
Co., supra. Therefore, we affirm the January 2, 2014 judgment.
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Judgment affirmed.
Judge Lazarus joins the opinion.
Judge Platt files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2015
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