Judge DuBois in the Eastern District of Pennsylvania has denied the bulk of a motion to dismiss claims that Defendant Takeda Pharmaceuticals filed in a case brought by David Tatum for injuries caused by the drug Prevacid. The ruling clears the way for Tatum's major products liability claims to advance.
In Tatum v. Takeda Pharmaceuticals, et. al., No. 12-1114, E.D.Pa., Plaintiff Tatum has alleged that he developed avascular necrosis, causing bones became weak and brittle and fracture after he was prescribed Prevacid, a drug manufactured by Takeda that is indicated to treat gastroesophageal reflux disease, or "GERD" (more commonly called acid reflux or heartburn).
Tatum felt pain in his left hip after taking the drug, and he was diagnosed with Stage III avascular necrosis. He was forced to undergo total hip replacement surgery.
Takeda's motion sought dismissal of Tatum's 14 counts and his demand for punitive damanges.
Judge DuBois held that Tatum's claim of strict liability based on manufacturing defects, breach of express warranty, fraudulent concealment and violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law could go forward. Additionally, Tatum's request for punitive damages could go forward, not as an independent cause of action, but as a remedy for his injuries.
However, finding that comment k to Section 402A of the Second Restatement of Torts only recognizes failure of a manufacturer to exercise reasonable care to warn of dangers as a basis of liability, Tatum cannot bring his claims of strict liability for design defect and failure to warn. (Applying Pennsylvania Supreme Court’s ruling in Hahn v. Richter). Other related claims dismissed were an unjust enrichment claim, as well as Tatum's claims for breach of implied warranty of merchantability of fitness for a particular purpose and breach of implied warranty of merchantability.
Tatum is represented by Claudine Q. Homolash of Sheller P.C. in Philadelphia and Kenneth G. Gilman of Gilman Law in Bonita Springs, Fla.
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