J-A30036-14


                                   2015 PA Super 49

BRAYDEN & MICHAEL GURLEY AND                      IN THE SUPERIOR COURT OF
HALEY POWELL,                                           PENNSYLVANIA

                            Appellees

                       v.

JANSSEN PHARMACEUTICALS, INC.,

                            Appellant                  No. 239 EDA 2014


             Appeal from the Judgment Entered December 5, 2013
             in the Court of Common Pleas of Philadelphia County
                Civil Division at No.: May Term 2011 No. 02251


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

OPINION BY PLATT, J.:                                 FILED MARCH 16, 2015

        Appellant, Janssen Pharmaceuticals, Inc.,1 appeals from the judgment

entered in favor of Appellees, Haley Powell, Brayden Gurley, and Michael

Gurley, following a jury trial. We affirm.

        We take the relevant facts and procedural history of this case from the

trial court’s April 25, 2014 opinion and our independent review of the record.

In April 2005, at age eighteen, while living in Iva, South Carolina, Appellee

Haley Powell (Haley) experienced an epileptic episode that caused her to


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Janssen is a Pennsylvania Corporation with a principal place of business in
New Jersey. (See Appellant’s Answer and New Matter, 3/15/13, at 2-3 ¶
10).
J-A30036-14



lose consciousness.2       In May 2005, Powell’s neurologist, Dr. Bret Warner,

diagnosed her as having juvenile myoclonic seizures.       Dr. Warner initially

prescribed Keppra and Lexapro, and Haley discontinued Lexapro within a few

weeks. On March 27, 2006, Dr. Warner prescribed Topamax3 for Haley to

control her headaches and seizures, and she continued using Keppra as the

main agent in treating her seizure disorder.          Haley continued taking

Topamax through December 1, 2007.4 Neither Dr. Warner nor Haley were

aware that use of the drug during pregnancy could possibly cause birth

defects such as cleft lip, cleft palate, or oral palate. At the time Dr. Warner

prescribed Topamax to Haley, the Food and Drug Administration (FDA)

categorized it as a Pregnancy Category C drug.5
____________________________________________


2
  Haley continued to reside in South Carolina at the time she filed the instant
lawsuit. (See Plaintiff Fact Sheet, 10/16/11, at 2).
3
 Appellant manufactures Topamax, an antiepileptic medication used to treat
epilepsy and migraines. (See Appellant’s Brief at 12, n.5, 21).
4
 Haley filled the last Topamax prescription for a thirty-day supply under her
own name on June 27, 2007. Haley then continued using Topamax through
her mother, Sandra Powell’s, prescription by another doctor. Sandra Powell
had been taking the drug to treat migraines. Sandra testified that her family
was having financial difficulties and she filled her prescription instead of
Haley’s to save money on the insurance co-pay.
5
  (See Plaintiff’s Exhibits 1207-1208 (Topamax 2006 and 2007 Physicians’
Desk Reference excerpts)). On March 4, 2011, the FDA classified Topamax
as a Pregnancy Category D drug. (See Appellant’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
(Footnote Continued Next Page)


                                           -2-
J-A30036-14



      On November 19, 2007, Haley learned that she was pregnant with her

son, Brayden Gurley (Brayden). She and her husband, Michael Gurley, had

conceived Brayden in late October 2007.           On November 21, 2007, Haley

informed Dr. Warner that she was pregnant and he advised her to taper off

Topamax. Haley reduced her intake and completely stopped taking the drug

by December 1, 2007. When Haley was twenty-seven weeks pregnant, she

learned through an ultrasound that her son had a cleft lip on the right side of
                       _______________________
(Footnote Continued)

      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
      for any pregnant women, as the risks clearly outweigh any
      benefits. . . .

In re Zoloft (Sertraline Hydrochloride) Products Liability Litigation,
26 F.Supp.3d 449, 453 n.7 (E.D. Pa. 2014); (see also Plaintiff’s Exhibit
1221 (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 Finance, LLC, 41 A.3d 882, 886 n.3 (Pa. Super.
2012).




                                            -3-
J-A30036-14



his mouth.6     On July 7, 2008, Brayden Gurley was born with a right side

unilateral cleft lip and gum line defects. Brayden had surgery to correct the

cleft lip on October 1, 2008. He still has a red scar running from under his

nose to his lip as a result of the surgery.      Brayden’s tooth never grew in

correctly in the area where there is a notch in his gum, which makes it

appear as though he is missing a tooth. Brayden has difficulties with speech

and becomes extremely frustrated when people cannot understand him. He

treats with a speech therapist twice a week and regularly visits a plastic

surgeon as part of a cleft lip and palate team. Treatments that Brayden will

need in the future may include graft surgery to repair the notch in his gums,

evaluations to test his hearing, psychological evaluations, dental care related

to dental abnormalities, and rhinoplasty for his nasal deformity.

       On May 19, 2011, Haley Powell, individually and as guardian of

Brayden Gurley, along with Michael Gurley, filed a negligence complaint

against Appellant based on a products liability theory.      Appellees alleged,

inter alia, that Appellant failed to warn Haley and her physician about the

risk of birth defects associated with Topamax use during pregnancy,

including the risk of cleft lip, and that this failure to warn resulted in




____________________________________________


6
  Neither Haley nor her husband has a family history of cleft lip or cleft
palate. (See N.T. Trial, 11/08/13, at 50-51).




                                           -4-
J-A30036-14



Brayden’s birth defect.7        On April 1, 2013, Appellant filed a motion for

summary judgment, which the trial court granted in part and denied in part.8

On June 10, 2013, Appellant filed a motion in limine, requesting that the trial

court preclude Appellees from offering evidence or argument that Appellant

could have unilaterally changed Topamax’s Pregnancy Category from C to D,

without FDA approval. On September 26, 2013, the court entered an order

granting Appellant’s motion in limine.9

       Appellees’ failure to warn claim proceeded to a jury trial on October

29, 2013. On November 19, 2013, the jury returned a verdict in favor of

Appellees.       It   awarded     Appellees    a   total   sum   of   $10,955,000.00;

$10,620,000.00 for non-economic loss, and $335,000.00 for future health

care costs.     On November 22, 2013, Appellees filed a post-trial motion
____________________________________________


7
  Appellees assert that Appellant had actual knowledge that Topamax could
cause birth defects in humans from 2000, and certainly by 2006, and that it
negligently chose to hide that safety information from prescribing healthcare
providers. (See Appellees’ Brief, at 18-19).
8
  The court granted summary judgment in favor of Appellant with respect to
Appellees’ strict liability design defect, negligent design, express warranty,
punitive damages, and gross negligence claims. It denied the remainder of
the motion. (See Order, 8/27/13, at 1).
9
  On January 28, 2014, after the trial in this case concluded, the court issued
an order applicable to all Topamax cases. The order clarified that, while
plaintiffs could not offer argument or evidence that Janssen could have
unilaterally changed Topamax’s Pregnancy Category, they were permitted to
introduce argument or evidence that Janssen could have sought or
requested a change in the drug’s Pregnancy Category from the FDA. (See
Order, 1/28/14, at 2).




                                           -5-
J-A30036-14



seeking the addition of delay damages to the verdict. Appellant filed a post-

trial motion on November 29, 2013, requesting the trial court to grant

judgment notwithstanding the verdict (JNOV) or a new trial. On December

3, 2013, the court denied Appellant’s post-trial motion.     On December 5,

2013, the court granted Appellees’ request for delay damages and ordered

$700,294.62 added to the verdict, resulting in a total judgment against

Appellant in the amount of $11,655,294.62. This timely appeal followed.10

       Appellant raises three issues for our review:

       1. Does federal law preempt a state-law negligent failure-to-
       warn claim where (a) [Appellant] could not have changed the
       pregnancy category without the Food and Drug Administration’s
       prior permission and assistance; and/or (b) there was clear
       evidence that the Food and Drug Administration would not have
       approved the proposed additional warning that [Appellees]
       advocate?


       2. Did the trial court err in permitting the negligent failure-to-
       warn claim to go to the jury when [Appellees] could not prove
       causation (a) because the Topamax Haley ingested was
       prescribed to a different patient in a higher dosage by a doctor
       who had never treated Haley; and/or (b) because [Appellees]
       failed to meet their burden of proving that their proposed
       changes to Topamax’s warnings would have caused either doctor
       not to prescribe Topamax?



____________________________________________


10
   Pursuant to the trial court’s order, Appellant timely filed a concise
statement of errors complained of on appeal on January 27, 2014. See
Pa.R.A.P. 1925(b). The court entered a Rule 1925(a) opinion on April 25,
2014. See Pa.R.A.P. 1925(a).




                                           -6-
J-A30036-14


       3. Did the trial court err in affirming the non-economic damage
       award of $10,620,000?

(Appellant’s Brief, at 5).11

             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
              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
____________________________________________


11
    We note that Appellant’s eleven-page Rule 1925(b) statement of errors
contains issues that it did not address in its statement of questions involved
or in the body of its brief, including a statute of limitations claim. (See Rule
1925(b) Statement, 1/27/14, at 1-11). Because Appellant has abandoned
these issues on appeal, we will not address them. See Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”); see also Pa.R.A.P.
2119; In re Jacobs, 936 A.2d 1156, 1167 (Pa. Super. 2007) (issue is
waived for purposes of appellate review when an appellant does not develop
it in brief).




                                           -7-
J-A30036-14


           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),

affirmed, 2014 WL 7182170 (Pa. filed Dec. 15, 2014) (citations and

quotation marks omitted).

     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.

                                 *    *  *
                 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

                                    -8-
J-A30036-14


              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 Companies, 939 A.2d

935, 939 (Pa. Super. 2007), affirmed, 971 A.2d 1121 (Pa. 2009) (citations

omitted).

       In its first issue, Appellant argues that it is entitled to JNOV because

Appellees’ only claim at trial, their state-law negligent failure to warn claim,

was preempted by federal law.                  (See Appellant’s Brief, at 23-40).

Specifically, Appellant contends that Appellees’ claim is preempted because

the federal regulatory scheme prevented it from unilaterally changing the

Pregnancy Category in Topamax’s labeling without prior FDA approval. (See

id. at 21, 28). The trial court determined, however, that federal law did not

preempt Appellees’ claim, and that the issue of preemption is controlled by

the United States Supreme Court’s decision in Wyeth v. Levine, 555 U.S.

555 (2009). (See Trial Court Opinion, 4/25/14, at 12-13). Upon review of

the record and relevant case law, we agree with the trial court.12

       In Wyeth, the plaintiff contended that Wyeth, the brand-name drug

manufacturer of Phenergan, an antihistamine used to treat nausea,13 had

____________________________________________


12
   “Issues of preemption comprise pure questions of law, of which the
standard of review is de novo and the scope of review plenary.” Ruspi v.
Glatz, 69 A.3d 680, 684 (Pa. Super. 2013), appeal denied, 81 A.3d 78 (Pa.
2013) (citation omitted).
13
   Phenergan causes irreversible gangrene if it enters a patient’s artery. The
plaintiff in Wyeth developed gangrene after receiving an injection of
(Footnote Continued Next Page)


                                           -9-
J-A30036-14



breached a state tort-law duty to provide an adequate warning label.14 See

Wyeth, supra at 558-59.              The United States Supreme Court held that

federal law did not preempt the lawsuit because it was possible for Wyeth to

comply with both state and federal law. See id. at 573. Specifically, the

FDA’s Changes Being Effected (CBE) regulation15 permitted a brand-name

drug manufacturer like Wyeth “to unilaterally strengthen its warning”

without prior FDA approval.           Id.    Therefore, federal regulations allowed

Wyeth to strengthen its label to comply with its state law duty to provide an

adequate warning. The Court stated:

        it has remained a central premise of federal drug regulation that
        the manufacturer bears responsibility for the content of
        its label at all times. It is charged both with crafting an
        adequate label and with ensuring that its warnings
        remain adequate as long as the drug is on the market.
        See, e.g., 21 CFR § 201.80(e) (requiring a manufacturer to
                       _______________________
(Footnote Continued)

Phenergan in April 2000, and as a result, doctors amputated her right hand
and forearm. See Wyeth, supra at 558-59.
14
   A drug’s “FDA approved label is the official description of a drug product
which includes indication (what the drug is used for); who should take it;
adverse events (side effects); instructions for uses in pregnancy, children,
and other populations; and safety information for the patient.”          U.S.
Department of Health and Human Services, U.S. Food and Drug
Administration Glossary of Terms (2015). Drug labeling is “[t]he centerpiece
of risk management for prescription drugs” because it “communicates to
health care practitioners the [FDA’s] formal, authoritative conclusions
regarding the conditions under which the product can be used safely and
effectively.” 71 Fed.Reg. 3934 (2006). A drug’s label is a pharmaceutical
company’s primary mechanism to communicate with physicians. (See N.T.
Trial, 10/30/13, at 19-20; N.T. Trial, 11/13/13, at 12).
15
     See 21 CFR §§ 314.70(c)(6)(iii)(A),(C).



                                            - 10 -
J-A30036-14


      revise its label “to include a warning as soon as there is
      reasonable evidence of an association of a serious hazard with a
      drug”); § 314.80(b) (placing responsibility for postmarketing
      surveillance on the manufacturer); 73 Fed.Reg. 49605
      (“Manufacturers continue to have a responsibility under Federal
      law ... to maintain their labeling and update the labeling with
      new safety information”).

                                    *   *     *

           Of course, the FDA retains authority to reject labeling
      changes made pursuant to the CBE regulation in its review of the
      manufacturer’s supplemental application, just as it retains such
      authority in reviewing all supplemental applications.        But
      absent clear evidence that the FDA would not have
      approved a change to [a drug’s] label, we will not
      conclude that it was impossible for Wyeth to comply with
      both federal and state requirements.

                                    *   *     *

            In short, Wyeth has not persuaded us that failure-to-warn
      claims . . . obstruct the federal regulation of drug labeling.

Id. at 570-71, 581 (emphases added); see also Maya v. Johnson and

Johnson, 97 A.3d 1203, 1213 (Pa. Super. 2014) (rejecting federal

preemption argument made by brand name drug manufacturer claiming that

it could not be found negligent for failing to add “skin reddening,” “rash,”

and “blisters” to the list of symptoms in drug’s Allergy Alert when they were

not required by the FDA) (citing Wyeth).

      Here, Appellant attempts to circumvent the clear holding in Wyeth by

asserting “[a]t trial, [Appellees] contended that [it] should have unilaterally

changed the pregnancy category for Topamax from C to D.”           (Appellant’s

Brief, at 28) (record citation omitted). It argues “[b]ecause [Appellees’] first

theory—that [Appellant] should have changed the pregnancy category from

                                     - 11 -
J-A30036-14



C to D—was a change that was within [the] FDA’s sole control, it was

preempted.” (Id. at 27).

      After review, we conclude that this argument lacks record support, and

we agree with Appellees that it is an “irrelevant red herring.”   (Appellees’

Brief, at 22).   As noted above, prior to trial, the court entered an order

specifically prohibiting Appellees from presenting any argument or evidence

that Appellant could have unilaterally changed the Topamax pregnancy

category without FDA-approval. (See Order, 9/26/13). Appellees maintain

that they fully adhered to the court’s order during trial.   (See Appellees’

Brief, at 23).   Appellant has not directed this Court to any place in the

voluminous record where Appellees failed to comply with this order by

contending that Appellant should have unilaterally changed its pregnancy

category.   (See Appellant’s Brief, at 28).   Moreover, as the Wyeth Court

explained, the FDA’s CBE regulation allows drug manufacturers to make

certain changes to update and strengthen safety information in its label

before receiving the FDA’s approval. See Wyeth, supra at 568; (see also

N.T. Trial, 10/30/13, at 19-20).      Accordingly, we find this portion of

Appellant’s argument specious.

      Appellant also attempts to evade the Wyeth decision by relying on the

United States Supreme Court’s holding in PLIVA, Inc v. Mensing, 131

S.Ct. 2567 (2011), to argue that it “cannot be held accountable under state

law for failing to do something that it could not do without the FDA’s prior

authorization.” (Appellant’s Brief, at 29) (citing PLIVA, supra at 2577-78).

                                   - 12 -
J-A30036-14



However, we agree with the trial court that Appellant’s reliance on PLIVA is

misguided. (See Trial Ct. Op., at 14). 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 pre-

emption results.” Id. at 2582. Thus, we conclude that Appellant’s argument

based on PLIVA is not legally persuasive.

       Appellant next attempts to fit within Wyeth’s holding to establish

preemption by arguing there is clear evidence that the FDA would not have

approved Appellees’ proposed change to the Topamax label to warn that the

drug could cause oral clefts in newborns prior to Brayden’s conception. (See

Appellant’s Brief, at 33, 36-37 (citing Wyeth, supra at 571 (“absent clear

evidence that the FDA would not have approved a change to [a drug’s] label,

we will not conclude that it was impossible for Wyeth to comply with both

federal and state requirements.”)).        Appellant maintains that, because the

“FDA rejected [its] attempts to link human birth defects to Topamax use[,]”

                                        - 13 -
J-A30036-14



in its Patient Package Insert (PPI)16 in 2006, “[i]t follows that [Appellees’]

contention that Topamax’s label should have stated that Topamax caused

oral clefts in humans would not have been approved at that time.” (Id. at

36) (record citation omitted). In support of this argument, Appellant points

to evidence showing that in September 2005, it submitted a revised version

of Topamax’s PPI to the FDA, proposing to include the following language:

“Birth defects have been reported, including a minor malformation of the

penis called hypospadias, in newborns of women who used TOPAMAX during

pregnancy.”     (Appellant’s Brief, at 34 (emphasis omitted); Exhibit D-1196,

9/29/05, at 3). Appellant argues that because the FDA did not accept this

proposed change to the Topamax PPI,17 the agency would have also rejected

a proposed change to the Topamax label to warn that the drug caused oral

clefts in humans. (See Appellant’s Brief, at 34-36).
____________________________________________


16
   “A patient package insert contains information for patients’ understanding
of how to safely use a drug product.” U.S. Department of Health and Human
Services, U.S. Food and Drug Administration Glossary of Terms (2015).
17
   Specifically, in May 2006, the FDA sent Appellant a draft PPI that did not
include Appellant’s proposed change and instead included the following
language: “Various abnormalities have been described in the offspring of
animals exposed to TOPAMAX during pregnancy.” (Appellant’s Brief, at 35
(emphasis omitted); Exhibit D-1206, 5/02/06, at unnumbered page 5).
Although the FDA provided no commentary in this specific section of the
draft PPI, it did advise “[t]he PPI is not expected to contain all
known/possible side effects. . . . If . . . information is important for
prescribers and patients, its prominence in the label should be elevated[.]”
(Exhibit D-1206, 5/02/06, at unnumbered page 5) (emphases added).




                                          - 14 -
J-A30036-14



       Upon review, we cannot credit Appellant’s contention 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 lip/palate.         Wyeth,

supra at 571 (emphases added). Appellant’s proposed change to the PPI 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. Accordingly, Appellant’s first issue does not merit relief.

       In Appellant’s second issue, it claims that the trial court erred in

permitting Appellees’ negligent failure-to-warn claim to go to the jury where

they could not prove that Topamax proximately caused Brayden’s cleft lip.

(See Appellant’s Brief, at 5, 40-53).18        Specifically, it argues that because

Haley ingested Topamax using her mother’s prescription instead of her own
____________________________________________


18
   The trial court, after conferring with the parties, gave a modified charge to
the jury incorporating South Carolina terminology regarding causation. (See
N.T. Trial, 11/14/13, at 108-09, 111-12). The court acknowledged that
causation is essentially the same concept in South Carolina and
Pennsylvania.     (See id. at 112; see also Trial Ct. Op. at 18 (citing
Pennsylvania law with respect to causation)).            Specifically, the court
instructed the jury that it was to decide the issue: “[W]as [Appellant’s]
negligent conduct a proximate cause in bringing about Brayden Gurley’s
harm?” (N.T. Trial, 11/15/13, at 22). The court’s standard charge used the
term “factual cause.” (See N.T. Trial, 11/14/13, at 112).



                                          - 15 -
J-A30036-14



in the months before her pregnancy, she severed the link between the

learned intermediary (the prescribing physician, Dr. Warner) and herself as

the patient. (See id. at 42-47). Appellant also claims that Appellees failed

to prove that Dr. Warner’s prescribing decision would have been different if

the Topamax label had warned of an increased risk of cleft lip or cleft palate.

(See id. at 47-53). This issue lacks merit.

            Proximate cause is an essential element in a failure to
      warn case.      A proximate, or legal cause, is defined as a
      substantial contributing factor in bringing about the harm in
      question. 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.

Maya, supra at 1213-14 (citation omitted).

      In cases involving the failure to warn of risks associated with

prescription drugs, both Pennsylvania and South Carolina 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 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.

                                    - 16 -
J-A30036-14



Cochran v. Wyeth, Inc., 3 A.3d 673, 676 (Pa. Super. 2010), appeal

denied, 20 A.3d 1209 (Pa. 2011) (citations and quotation marks omitted);

see also Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992)

(applying South Carolina law and stating that sole issue in case controlled by

learned intermediary doctrine is whether an adequate warning to patient’s

doctor about injury would have deterred doctor from prescribing product).

     Here, in order to establish causation, Appellees presented to the jury

the following deposition testimony of Dr. Warner:

     Q. Do you expect that the information that is provided to you
     through the PDR [Physicians’ Desk Reference, containing the
     drug’s label] to be accurate and complete?

     A.    Yes.

     Q. Do you expect manufacturers of medications to fully inform
     you as to the risks of the medication through the PDR?

     A: As thoroughly as possible.

                                 *    *       *

     Q: Did you avoid using Depakote because of the high risk of
     birth defect?

     A: Yes.

                                 *    *       *

     Q: Doctor, when you prescribed Topamax for Haley on March the
     27th, 2006, did you do a risk/benefit analysis at that time?

     A: Yes

     Q: Did you have any knowledge in March of 2006 of Topamax
     putting a patient at an increased risk for cleft lip or cleft palate,


                                     - 17 -
J-A30036-14


     more specifically, the unborn child at risk for cleft lip or cleft
     palate?

     A: No.

                                  *      *     *

     Q: If you had been aware of a risk with Topamax and a risk of a
     cleft lip or cleft palate to an unborn fetus, is that a risk that you
     would have taken into consideration when prescribing it to Haley
     in March of 2006?

     A: Yes.

     Q. If you had been aware of cleft lip or cleft palate as a risk with
     Topamax when you prescribed it to Haley in March of 2006,
     would it have altered your prescribing habits?

     A: It would have had a major impact, I think.

(Deposition of Dr. Bret Warner, 7/30/12, at 3, 7, 14, 20).

     Dr. Warner further testified that on November 28, 2007, after learning

that Haley was pregnant, he immediately advised her to taper off Topamax.

(See id. at 18). He testified that he had no reason to believe that she had

stopped taking Topamax before he instructed her not to, and that he

believed that she had been continuously using the drug since he first

prescribed it to her in March 2006. (See id. at 19). Haley testified that she

ingested Topamax on a daily basis from the time Dr. Warner prescribed it to

her until he instructed her to discontinue the drug.          (See N.T. Trial,

11/08/13, at 32-34, 36, 38, 41-42).

     Based on the foregoing, we conclude that the trial court properly

determined that “the evidence introduced [was] of sufficient weight to

establish . . . some reasonable likelihood that an adequate warning would

                                      - 18 -
J-A30036-14



have prevented [Haley] from receiving the drug.”          Maya, supra at 1214

(citation omitted). The testimony showed that Dr. Warner was unaware of

Topamax’s increased risk of cleft lip and/or palate in newborns when he

prescribed the drug to Haley, and that knowledge of this risk would have

deterred him from prescribing the medication for her.            Haley ingested

Topamax on a daily basis from the time Dr. Warner prescribed it to her until

he instructed her to discontinue it.           The fact that Haley obtained the

Topamax for a few months using her mother’s prescription instead of her

own because of the family’s financial difficulties does not permit Appellant to

evade liability for Brayden’s injuries. Accordingly, the trial court did not err

in allowing the issue of causation to go to the jury, or in subsequently

denying Appellant’s motion for JNOV on this issue.         See Braun, supra at

891.   The jury clearly credited Dr. Warner and Haley’s testimony and this

Court will not reweigh the evidence. See id. Appellant’s second issue does

not merit relief.

       In its third issue, Appellant claims that the evidence does not support

the jury’s award of $10,620,000.00 in noneconomic damages19 and that it is

therefore entitled to remittitur.          (See Appellant’s Brief, at 5, 53-58).

Appellant argues that the award is excessive in light of Brayden’s injuries,


____________________________________________


19
     “Noneconomic loss is composed of (1) pain and suffering, (2)
embarrassment and humiliation, (3) loss of ability to enjoy the pleasures of
life, and (4) disfigurement.” Renna, infra at 672 n.4 (citation omitted).



                                          - 19 -
J-A30036-14



under circumstances where his cleft lip has been repaired, he has only a

faint scar, and his injury does not prevent him from attending school and

developing normal relationships with his peers.    (See id. at 54-56).      This

issue does not merit relief.

            Our standard of review from the denial of a remittitur is
      circumspect and judicial reduction of a jury award is appropriate
      only when the award is plainly excessive and exorbitant. The
      question is whether the award of damages falls within the
      uncertain limits of fair and reasonable compensation or whether
      the verdict so shocks the sense of justice as to suggest that the
      jury was influenced by partiality, prejudice, mistake, or
      corruption.     Furthermore, [t]he decision to grant or deny
      remittitur is within the sole discretion of the trial court, and
      proper appellate review dictates this Court reverse such an
      Order only if the trial court abused its discretion or committed an
      error of law in evaluating a party’s request for remittitur.

Renna v. Schadt, 64 A.3d 658, 671 (Pa. Super. 2013) (citations and

quotation marks omitted).

      We begin with the premise that large verdicts are not necessarily
      excessive verdicts. Each case is unique and dependent on its
      own special circumstances and a court should apply only those
      factors which it finds to be relevant in determining whether or
      not the verdict is excessive. A court may consider the following
      factors, inter alia:

                   (1) the severity of the injury; (2) whether the
            plaintiff’s injury is manifested by objective physical
            evidence or whether it is only revealed by the
            subjective testimony of the plaintiff (. . . where the
            injury is manifested by broken bones, disfigurement,
            loss of consciousness, or other objective evidence,
            the courts have counted this in favor of sustaining a
            verdict); (3) whether the injury will affect the
            plaintiff permanently; (4) whether the plaintiff can
            continue with his or her employment; (5) the size of
            the plaintiff’s out-of-pocket expenses; and (6) the
            amount plaintiff demanded in the original complaint.

                                    - 20 -
J-A30036-14




Gbur v. Golio, 932 A.2d 203, 212 (Pa. Super. 2007), affirmed, 963 A.2d

443 (Pa. 2009) (citation omitted).

      “In reviewing the award of damages, the appellate courts should give

deference to the decisions of the trier of fact who is usually in a superior

position to appraise and weigh the evidence.” Ferrer v. Trustees of Univ.

of Pennsylvania, 825 A.2d 591, 611 (Pa. 2002) (citation omitted).

      Here, the trial court stated that:

              [it] did not find that the verdict was excessive or shocking
      to the conscience given the evidence and issues in this case. In
      addition, it should be noted that the jury based their verdict on
      evidence presented by both Appellant and [Appellees]
      throughout the trial. The jury heard testimony from various
      physicians that testified to Brayden Gurley’s injuries and
      accompanying treatments that would be needed to correct those
      injuries.      [(See Deposition Testimony of Dr. Russell Reid,
      10/08/13, at 14-16; see also N.T. Trial, 11/07/13 at 127-28,
      164-65)]. The jury also heard testimony from Braydon Gurley’s
      stay-at-home mother who is responsible for his care. [She]
      testified how the surgery for his severe cleft lip has negatively
      affected his self-esteem, confidence and his ability to have a
      simple conversation with others. [(See N.T. Trial, 11/08/13, at
      58, 60, 63, 66)]. [She] also stated that her son becomes
      extremely frustrated when people do not understand him and
      suffers from embarrassment due to the residual scar from his
      cleft lip surgery. [(See id. at 65-66)]. Additionally, physicians’
      testimony as to Braydon Gurley’s injuries included[:] ongoing
      visits with a plastic surgeon, dental surgery, speech therapy,
      auditory evaluations, oral surgery, possible rhinoplasty and
      treatment for possible psychological issues related to these
      various corrective surgeries. [(See Deposition Testimony of Dr.
      Russell Reid, 10/08/13, at 14-16; N.T. Trial, 11/07/13, at 128-
      29, 164)]. Given the injuries that will plague Brayden Gurley
      into adulthood, the award determined by the jury can hardly be
      said to be excessive.



                                     - 21 -
J-A30036-14


            This verdict does not shock this court’s sense of justice nor
      does it demonstrate the jury was influenced by partiality,
      prejudice, mistake or corruption. Rather, this verdict shows the
      jury made an informed and educated finding based on the facts
      and evidence presented at trial. Brayden Gurley’s pain, suffering
      and loss were significant and demonstrated on the record
      throughout the trial. Hence, the jury decided on a just and fair
      award to compensate Brayden Gurley for his injuries.

(Trial Ct. Op., at 35-36).

      Upon review of the record, we conclude that it supports the trial

court’s ruling regarding the jury’s damage award.       We find no abuse of

discretion, and no basis to disturb the jury’s verdict. See Renna, supra at

671. Appellant’s final issue on appeal does not merit relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2015




                                    - 22 -
