In re Phenylpropanolamine (PPA) Litigation

69 Pa. D. & C.4th 320, 2003 Pa. Dist. & Cnty. Dec. LEXIS 81
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedSeptember 2, 2003
Docketno. 0001
StatusPublished

This text of 69 Pa. D. & C.4th 320 (In re Phenylpropanolamine (PPA) Litigation) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Phenylpropanolamine (PPA) Litigation, 69 Pa. D. & C.4th 320, 2003 Pa. Dist. & Cnty. Dec. LEXIS 81 (Pa. Super. Ct. 2003).

Opinion

ACKERMAN, J.,

INTRODUCTION

A. Trach As the Legal Guide to the Use of Extrapolation As a Generally Accepted Methodology To Satisfy Frye

This court is guided by the opinion of the Superior Court of Pennsylvania en banc by the Honorable Judge Ford Elliott in the case of Trach v. Thrift Drug Inc., 817 A.2d 1102 (Pa. Super. 2003).

The Trach case involved a negligence action brought by a customer against a pharmacist arising from cognitive and vision problems the customer developed, allegedly resulting from taking medication that was erroneously dispensed to him by the pharmacist. The majority of the Trach court held that the Frye test governing the admissibility of expert testimony only applies to determine if the relevant scientific community has generally accepted principles and methodology that the scientist employs and not conclusions the scientist reaches before the court may allow an expert to testify.

In the Trach case, the customer’s expert witness used the methodology of extrapolation to deduce that the customer’s chronic symptoms, including glaucoma, were the result of a massive overdose of Doxepin. The Trach court held that the methodology of extrapolation, in the context of the case before it, was generally accepted in the scientific community and thus the testimony in question was admissible.

The Trach court emphasized that “Frye is an exclusionary rule of evidence” and that “as such, it must be construed narrowly so as not to impede admissibility of [323]*323evidence that will aid the trier of fact in the search for truth.” See PaJR.E. 702,42 Pa.C.S., but “noting that Rule 702 does not alter Pennsylvania’s adoption of the Frye standard.” (At 1102.)

In the Track case, it was noted that Doxepin when taken in the recommended dosage may result in blurred vision, confusion, disorientation and hallucinations, (emphasized by the court) (At 1104.) In Track, there had been no proposed studies to determine the effect of a massive dose of Doxepin, such as the dose Track took.

Dr. Shane was Track’s expert witness who relied upon clinical trials prior to the approval of the drug by the FDA and also from clinical experience since the drug had been on the market, as well as from the side effects and contraindications for a therapeutic dose as noted in the PDR. Dr. Shane also testified as to the mechanism that leads to glaucoma.

The Track court reviewed a dissent by Justice Castille in the case of Blum v. Merrell Dow Phamaceuticals Inc., 564 Pa. 3, 764 A.2d 1 (2000) at 7-8, and notes that the testimony in the Blum case “demonstrates how ‘scientific consensus’ can be created through purchased research and the manipulation of a ‘scientific’ literature funded as part of litigation defense, and choreographed by counsel” rather than from the required objective evidence.

The Track court held that Dr. Shane employed the generally accepted principle of the “ ‘dose-response,’ a principle ‘as old as the pyramids.’ ”

Finally, Track held that “extrapolation is one of the methodologies Dr. Shane used to conclude that a massive overdose of Doxepin could result in permanent and/or [324]*324exacerbated adverse effects documented at the recommended dose, is not science: in fact, it is a logical method used to ‘estimate the value of a variable outside its tabulated or observed range’ or ‘to infer (that which is not known) from that which is known,’ Webster’s 505. The question then becomes whether extrapolation, although not science, is a methodology generally accepted and used by scientists within the relevant scientific community.” (At 1114.)

Track cited the case of Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 262 Ill. Dec. 854, 767 N.E.2d 314 (2002), as persuasive authority while not binding precedent as follows: “As the Donaldson court observed, ‘extrapolation is commonly used by scientists in certain limited instances . ..’; for example, when the medical inquiry is new or the opportunities to examine a specific cause and effect relationship are limited; when the number of cases limits study of the disease, or, as noted supra, when ethical considerations prevent exposing individuals to a toxic substance for research purposes. Id. at 85, 87, 262 Ill. Dec. 854, 767 N.E.2d at 328, 330. According to the Donaldson court, when an expert relies upon scientific literature discussing similar, but not identical, cause and effect relationships, the fact that the expert must extrapolate affects the weight of the testimony rather than its admissibility. Id. at 85, 262 Ill. Dec. 854, 767 N.E.2d at 328. (citation omitted)” (At 1115.)

Track further cites Donaldson, which stated that “the method of extrapolation does not concern a technique new to science that may instill a sense of ‘false confidence’ or carry a misleading sense of scientific ‘infallibility.’ Id. at 86, 262 Ill. Dec. 854, 767 N.E.2d at 329. [325]*325(citation omitted) As the Donaldson court continued, ‘[Extrapolation by nature admits its fallibility — the lack of specific support to establish the existence of a known cause and effect relationship.’ Id. at 87, 292 Ill. Dec. 854, 767 N.E.2d at 329. (citation omitted)” (At 1115-16.)

The court also cited the case of Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984), as follows: “As long as the basic methodology employed to reach such a conclusion is sound, such as use of tissue samples, standard tests, and patient examination, products liability law does not preclude recovery until a ‘statistically significant’ number of people have been injured or until science has had the time and resources to complete sophisticated laboratory studies of the chemical.” (At 1116.)

The Track court, after reviewing Donaldson, supra, and Ferebee, supra, stated as follows: “We find the facts of this case even more compelling than the facts of Ferebee, supra, or Donaldson, supra, based on the even stronger logical inference that a substance known to cause adverse side effects in its recommended dose is likely to cause a heightened level of the same or similar adverse effects when taken in a massive overdose.” (emphasis supplied) (At 1116.)

Accordingly, if there is a strong logical inference to support extrapolation, which is a generally accepted methodology, then Frye will be satisfied.

B. HSP Report Relevant Conclusions

We next will examine Phenylpropanolamine & Risk Of Hemorrhagic Stroke: Final Report Of The Hemor[326]*326rhagic Stroke Project as it affects the gender-related issue to be discussed infra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Trach v. Fellin
817 A.2d 1102 (Superior Court of Pennsylvania, 2003)
Blum v. Merrell Dow Pharmaceuticals, Inc.
764 A.2d 1 (Supreme Court of Pennsylvania, 2000)
Scheffel & Co., P.C. v. Fessler
827 N.E.2d 1 (Appellate Court of Illinois, 2005)
Donaldson v. Central Illinois Public Service Co.
767 N.E.2d 314 (Illinois Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
69 Pa. D. & C.4th 320, 2003 Pa. Dist. & Cnty. Dec. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-phenylpropanolamine-ppa-litigation-pactcomplphilad-2003.