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.
J-A30037-14


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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J-A30037-14


      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).




                                            -3-
J-A30037-14


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.



                                           -4-
J-A30037-14


            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

                                     -5-
J-A30037-14


           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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J-A30037-14


                 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.

                                   -7-
J-A30037-14


            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

                                     -8-
J-A30037-14


              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).



                                           -9-
J-A30037-14


              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)


                                          - 10 -
J-A30037-14


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.



                                           - 11 -
J-A30037-14



                    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.



                                          - 12 -
J-A30037-14


                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

                                  - 13 -
J-A30037-14


            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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J-A30037-14


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


                                      - 15 -
J-A30037-14


“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


                                       - 16 -
J-A30037-14


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




                                            - 17 -
J-A30037-14


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


                                     - 18 -
J-A30037-14


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

                                     - 19 -
J-A30037-14


              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.

                                         …


                                       - 20 -
J-A30037-14


          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

                                     - 21 -
J-A30037-14


           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.

                                    - 22 -
J-A30037-14


      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

                                      - 23 -
J-A30037-14


                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




                                          - 24 -
J-A30037-14


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.




                                          - 25 -
J-A30037-14


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.



                                          - 26 -
J-A30037-14


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.



                                          - 27 -
J-A30037-14


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


                                     - 28 -
J-A30037-14


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.




                                    - 29 -
J-A30037-14


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.




                                          - 30 -
J-A30037-14


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.



                                          - 31 -
J-A30037-14


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


                                    - 32 -
J-A30037-14


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


                                   - 33 -
J-A30037-14


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-


                                    - 34 -
J-A30037-14


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.



                                          - 35 -
J-A30037-14


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.


                                   - 36 -
J-A30037-14


     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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