PENNSYLVANIA RECORD

A Philadelphia trial court judge recently filed a lengthy opinion outlining why she feels

the state Superior Court should quash an appeal by pharmaceutical manufacturer McNeil in a products liability case that ended in the spring of 2011 with a $10 million plaintiff’s verdict.

The litigation involved what may be a case of first impression in Pennsylvania involving a claim of injury resulting from the use of over-the-counter children’s pain relievers.

Alicia E. Maya had sued a host of pharmaceutical companies in early 2009 over claims that her daughter, Brianna Maya, developed Stevens Johnson Syndrome and Toxic Epidermal Necrolysis in November 2000 after ingesting Children’s Motrin and Children’s Tylenol.

On May 24, 2011, after 46 days of testimony, a jury found in favor of the plaintiff and against McNeil PPC only, as successor in interest to defendant McNeil Consumer Products Company, and awarded the plaintiff $10 million in compensatory damages.

McNeil subsequently filed a post-trial motion that was denied by the judge overseeing the case.

The company then filed a notice of appeal with the state Superior Court.

In the defendant’s accompanying statement of errors complained of on appeal, McNeil addressed legal arguments that it claimed the trial court judge erred in denying its numerous motions for summary judgment, compulsory nonsuit, directed verdict, judgment notwithstanding the verdict or, in the alternative, its motion for a new trial.

McNeil further contended that the judge made numerous evidentiary and charging errors that were prejudicial and tainted the jury’s verdict.

In her Jan. 7 opinion, Philadelphia Common Pleas Court Judge Nitza I. Quinones Alejandro wrote that she disagreed, further asserting that McNeil’s appeal to Superior Court should be quashed on the grounds that the defendant’s statement of errors complained of on appeal “failed to adhere to proper legal procedure.”

“This trial judge disagrees and for the reasons stated herein, respectfully recommends that Defendant McNeil’s appeals either be quashed for failure to conform to the Pennsylvania Appellate Rules of Procedure (Pa. R.A.P.) or, alternatively, denied for lack of merit,” Quinones Alejandro wrote in her amended 113-page opinion.

Alicia Maya initially sued on behalf of her child, Brianna, back on Feb. 19, 2009, with her attorneys filing an amended complaint on Nov. 22, 2010, the record shows.

Jurors rendered their $10 million plaintiffs’ verdict on May 24, 2011, following nearly two months of trial, according to the court record.

Before trial, the judge dismissed certain counts against the defendants, but let stand various counts of strict products liability, negligent products liability, negligence, and fraudulent misrepresentation.

The plaintiffs later voluntarily withdrew the fraudulent misrepresentation claim.

According to the jury verdict sheet, the jurors found that McNeil negligently failed to warn of risks associated with over-the-counter Children’s Motrin, that the negligent failure to warn was a factual cause of Brianna Maya’s injuries, that McNeil didn’t negligently design Children’s Motrin and that the company’s conduct was not outrageous.

About a week later, on May 31, attorneys for McNeil filed a post-trial motion requesting either judgment notwithstanding the verdict, or, in the alternative, a new trial on the negligent failure to warn claim and on damages, the record shows.

On Oct. 17, 2011, the judge denied the motion; McNeill subsequently appealed to Superior Court.

The defense attorneys argued that the trial court erred in various ways, including, but not limited to, not enforcing at trial its rulings on motions in limine about other incidents and determinations about Children’s Motions in other countries, saying the admission of the evidence at the Philadelphia trial was prejudicial; by allowing testimony about other drugs and the withdrawal of other drugs; by admitting “irrelevant and hearsay” evidence that supposedly showed Tylenol was a safer drug than Children’s Motrin; by allowing the plaintiff’s counsel to talk about the number of experts he presented compared with those presented by the defense and about the size of the defendant and its “army” of lawyers; and by allowing the admission of other evidence that was supposedly “irrelevant, hearsay and unduly prejudicial.”

In her opinion, Quinones Alejandro wrote that while she normally steers clear of commenting on the conduct of trial counsel, in this case she made an exception because she was “overly challenged by the combative nature and unpleasant disposition exhibited by all counsel to each other during the course of the nine week trial.

“A reading of the trial transcript reveals the constant morning and evening cries of unfair play and improper tactics counsel lodged against each other,” the judge wrote. “Based upon the trial experience, it does not surprise this trial judge that Defendant McNeil ushers forth an armada of every conceivable issue available to object to rather than present for appellate review a concise argument of meritorious issues.”

Quinones Alejandro went on to write that case law has held that when appellants raise an “outrageous” number of issues in their statement of errors, they have “deliberately circumvented the meaning and purpose of Rule 1925(b) and ha[ve] thereby effectively precluded appellate review of the issues [they] now seek to raise.”

Quinones Alejandro also wrote that appellants engage in misconduct when they attempt to overwhelm the trial court by filing a statement that contains a multitude of issues that the appellants don’t intend to raise and/or cannot raise before the appellate court.

“Accordingly, this trial judge respectfully opines that Defendant McNeil’s … statement of errors is clearly a violation of the rules of appellate procedure and a waiver of all issues,” the judge wrote. “It is respectfully recommended that the appeal be quashed since the statement of errors is anything but concise.”

Quinones Alejandro further wrote that the appeal should be quashed for lack of merit.

“This trial judge opines that no errors of law were committed in denying Defendant McNeil’s motion for post-trial relief which warrant the granting of any of the remedies sought,” she wrote in her conclusion.