Jon Campisi Oct. 24, 2012, 4:50pm

A federal judge in Philadelphia has granted in part, and denied in part a motion to

dismiss that had been filed by Takeda Pharmaceuticals in a products liability case brought by a plaintiff who claims he sustained weakened bone structure as a result of taking the heartburn drug Prevacid.

Delaware County, Pa. resident David S. Tatum filed suit against Takeda and various company subsidiaries back in March of this year over claims that Prevacid, which the plaintiff ingested through 2010, caused him to develop avascular necrosis of the left hip that ultimately led to him having to undergo total hip replacement surgery.

In his lawsuit, the plaintiff claimed that the defendants were aware of the risks associated with Prevacid, but chose not to disclose them to the consuming public.

The defendants subsequently filed a motion to dismiss 11 of 14 counts contained within the complaint, in addition to the plaintiff’s demand for punitive damages.

Those counts included the following: equitable tolling of applicable statute of limitations; negligent misrepresentation; breach of express and implied warranties; strict product liability; unjust enrichment; fraudulent concealment; and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

In an Oct. 18 memorandum, U.S. District Judge Jan E. DuBois, of the Eastern District of Pennsylvania, issued a mixed verdict on the defendants’ dismissal motion.

The breakdown of his decision is as follows:

DuBois dismissed with prejudice the equitable tolling of applicable statute of limitations count, the strict product liability–defective design count, the strict product liability–failure to warn count, and the unjust enrichment count.

The judge denied the defendants’ motion to dismiss the following claims: negligent misrepresentation, breach of express and implied warranties, strict product liability–manufacturing defect, fraudulent concealment, and violations of Pennsylvania’s Unfair Trade and Practices Consumer Protection Law.

DuBois also denied the defendants’ motion to dismiss the punitive damages count.

The judge further wrote that many of Tatum’s remaining claims are redundant or “otherwise unnecessary, making this case unduly complicated.”

The plan is for the court to address narrowing the scope of the issues presented during a forthcoming preliminary pretrial conference, although a date has yet to be scheduled for that proceeding.

As for the judge’s decision to dismiss the strict liability claims for design defect or failure to warn, DuBois determined that those counts are not permitted under Pennsylvania law.

Under the Restatement (Second) of Torts, the Pennsylvania Supreme Court ruled that “where the adequacy of warnings associated with prescription drugs is at issue, the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturer’s negligence, is the only recognized basis of liability.”

That ruling came out of Hahn v. Richter.

DuBois did, however, allow Count X, which alleges a claim of strict liability based on manufacturing defect, to move forward.

Many courts have interpreted Hahn to broadly preclude all strict liability claims, DuBois wrote, but this court concluded that strict liability claims for manufacturing defects are not prohibited.

On the three breach of warranty claims, DuBois wrote that he denied the motion to dismiss the count involving breach of implied warranty fitness for a particular purpose and breach of implied warranty of merchantability because both are not cognizable under Pennsylvania law to the extent that they are based on a design defect or failure to warn, but are permissible if based on manufacturing defect or any other theory.

DuBois denied the motion to dismiss the breach of express warranty claim because the court concluded that such a claim is permitted in this case.

The judge also allowed the negligent misrepresentation claim to move forward, since Tatum’s allegation that the defendants falsely represented that Prevacid was safe and fit for its intended use, was of merchantable quality, did not produce any dangerous side effects, and had been adequately tested was a “sufficiently specific allegation,” despite a defense claim to the contrary.

DuBois also denied the motions to dismiss the fraudulent concealment claim and the alleged violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law under the reasoning that Hahn does not preclude claims where the plaintiff alleges that the seller had knowledge of the risks of prescription drugs and intentionally concealed them.

“The court in Hahn stated that a seller of prescription drugs must not only warn of risks of which he reasonably should have knowledge, but also warn of risks of which he did, in fact, have knowledge,” DuBois wrote.

The judge did, however, agree to dismiss the unjust enrichment claim, writing that under Pennsylvania law, “the plaintiff must demonstrate that he conferred a benefit on the defendant, that the defendant knew of the benefit and accepted or retained it, and that it would be inequitable to allow the defendant to keep the benefit without paying for it.”

“This is not a case in which a claim for unjust enrichment is appropriate,” the ruling states. “Specifically, there is no allegation that defendants refused to provide a service or goods after Tatum provided defendants with a benefit.”

Lastly, the judge wrote that while the defendants are correct in their assertion that under Pennsylvania law, punitive damages are not an independent cause of action, in this case the punitive damages claim can move forward because Tatum did not assert an independent claim for punitive damages in his First Amended Complaint, but rather requested punitive damages as a remedy.

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