PER CURIAM:
Ronnie Bowman seeks to appeal the district court's order treating his Fed.R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp. 2010) motion, and dismissing it on that basis. Bowman also appeals the district court's subsequent order denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Bowman has not made the requisite showing. Accordingly, we deny Bowman's motion for a certificate of appealability and dismiss the appeal.
Additionally, we construe Bowman's notice of appeal and informal brief as an application to file a second or successive § 2255 motion. United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously un-available, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp. 2010). Bowman's claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
397 Pa.Super. 50,
579 A.2d 925, 927 (1990). The jury will be asked to determine whether the warnings were adequate to permit the physician to exercise his or her informed judgment in the patient's best interest in deciding whether to prescribe HRT medications.
See Simon v. Wyeth, 989 A.2d 356 (Pa.Super. 2009). This involves proof that a different warning would have altered the prescribing physician's actions such that a failure to warn was the proximate cause of the injuries.
Following an abnormal mammogram on October 4, 2000, Dr. Greathouse directed Ms. Coleman to see A.D. Smith, M.D., a surgeon, and not to take any more of her medication. Id. at 43. Ms. Coleman did not relate her cancer to the HRT therapy, thinking that she was told to stop taking the medication because "you never know if it is going to affect your surgery. . . ." Id. at 44. Dr. Webb, her surgeon, told her that her cancer was "estrogen receptor positive." "In [Ms. Coleman's] mind, it meant that the estrogen was in the cells or whatever they do when they biopsy you." Id. at 46. Ms. Coleman checked the box on the Fact Sheet that a physician had discussed that her "condition was related to the use of HRT medications" because "he told me it was estrogen positive." Id. at 148.
The trial court focused on the following excerpt from Ms. Coleman's deposition, finding it more than sufficient to trigger her duty to investigate a possible link between HRT medications and her breast cancer:
Q. Have any of your doctors told you that they think your breast cancer was caused by taking hormone therapy?
A. Not in so many words, no.
Q. Have they told you in any way?
A. Well, I was told it was estrogen positive.
Q. Do you interpret that to mean — that they think your breast cancer is caused by hormones?
A. I don't know. Q. Well, when I asked the first question, "Has your doctor told you that your breast cancer is caused by hormone therapy," and you said, "Not in so many words" right? Is that right?
A. Is that what I said?
Q. And then, my next question was, "Well, in what words are you thinking they told you that?" And you said, "They told me it was estrogen receptor positive;" right?
A, And it is — it was.
Q. Absolutely, that's what the records say about it?
A. That's right.
Q. It is estrogen positive. Did you think that meant that your breast cancer was caused by hormone therapy?
A. Yes, I guess. Yes.
Deposition, E. Coleman, 10/19/05 at 127-128.
Just moments later, Ms. Coleman was asked if there was anything about her answer that she wanted to change. She responded, "The doctor and I never discussed hormone therapy as a cause. I have seen it in the medium — media, 2003 or so, and that was my recollection of when I thought it was — might have been breast cancer related — you know, related." Id. at 129.
We view this exchange as further evidence that would permit a reasonable person to conclude that Ms. Coleman was confused and uncertain about the significance of the fact that her cancer was "estrogen positive." Moreover, the deposition questions were not sufficiently time specific so as to ensure that the answers truly reflected her knowledge and understanding at the time of the original conversation with her physician in October of 2000, rather than the knowledge she subsequently acquired. A jury could reasonably find that Dr. Webb's comment that Ms. Coleman's breast cancer was "estrogen receptor positive" did not constitute notice to her that the etiology of her cancer was the HRT medications. In fact, as discussed infra, Appellees' own experts have opined that the fact that a tumor is "estrogen receptor positive" is no indication that HRT had any effect on it.
Moreover, one could reasonably infer from the record that neither Dr. Jackson, Jr. nor Dr. Greathouse advised Ms. Coleman that taking Premarin and Provera, or Prempro, increased her chances of developing breast cancer. Both believed that the connection was inconclusive at that time and that nothing in the labeling suggested that Ms. Coleman would be at risk for breast cancer. When Ms. Coleman was diagnosed with breast cancer, Dr. Greathouse directed her to see Dr. Webb and to stop her medications. Ms. Coleman thought that surgery necessitated ceasing her medications. There is no evidence that Dr. Greathouse knew or that he told Ms. Coleman that the use of HRT medications may have contributed to the development of her breast cancer.
The record herein is factually indistinguishable from that in Simon, supra. Ms. Simon's first treating physician was unaware of any increased risk of cancer with HRT medications. The physician only learned of the increased risk when the WHI study was published. Ms. Simon's subsequent physician explained that, at the time she prescribed HRT, she did not believe the literature supported an increase in breast cancer. Ms. Simon's third physician, like Dr. Greathouse herein, denied that the WHI study made any difference in her prescribing practices, but later acknowledged that "the dialogue had to change. . . ." She acknowledged that the results of the WHI study had to be explained to patients and there was education that needed to be undertaken. In Simon, we reversed the trial court's grant of judgment NOV on the statute of limitations, holding:
based upon the evidence of record, the jury reasonably found that Appellant's cause of action failed to accrue until the WHI study was published on July 9, 2002. Appellant had no reason even to suspect that there was a link between her use of HRT and breast cancer until the WHI report was released. . . . .
It defies logic, contrary to the trial court's suggestion, that Appellant should have been aware of the risk of taking HRT through her own due diligence. It is entirely unreasonable that a lay person, completely lacking in medical training, would make the logical connection between HRT and breast cancer prior to the release of the WHI study, when three trained medical doctors believed there was no such connection.
Simon, Id. at 367. In reversing, we recognized that the trial court in
Simon had ascribed to the appellant therein a prior awareness not only of a possible connection between HRT and breast cancer, but that a causal connection was probable. On the basis of the record, the jury could reasonably have concluded that a lay person would not make the connection.
In reaching our conclusion herein, we find first that the trial court failed to view the record, together with all reasonable inferences therefrom, in the light most favorable to the non-moving party as required in a motion for summary judgment. The trial court held that "the instructions of Coleman's doctors to discontinue the HRT after her diagnosis put her on notice of a link between the drug and her cancer." Coleman Opinion, 9/24/07, at 22. Such a holding can only flow from an impermissible inference that Ms. Coleman understood this to mean that there was a causal connection between the two, an inference that is refuted by her pleadings, affidavit, and deposition testimony. Nor do we find factual support for the trial court's conclusion that it was "evident from Dr. Jackson's testimony that those in the medical profession were aware that HRT increased the risk of breast cancer." Id. at 14. Dr. Jackson testified that studies were inconclusive. The court's conclusion that "most doctors, including Dr. Jackson, were aware of the studies suggesting an increased risk of breast cancer and routinely discussed that information with their patients," is an inference that was not drawn in favor of the non-moving parties herein as required. Id. Dr. Jackson was equally aware of the studies suggesting possible breast protection and testified that it was "an unsettled issue." The information he typically shared with his patients at the time was, "simply that it was an unresolved issue in dispute." Deposition, Haynes Jackson, Jr. M.D., 11/18/05, Exhibit "B" at 58.
This reasoning was rejected by the Court of Appeals for the Eighth Circuit in Scroggin v. Wyeth (In re Prempro Products Liability Litigation), 586 F.3d 547 (8th Cir. 2009). Knowledge of a causal connection could not be assumed on Scroggin's part due to her physician's instruction to stop taking hormone replacement therapy when he diagnosed her with breast cancer because Premarin and Prempro labels stated that women already known to have breast cancer should not use Premarin or Prempro. The record contained expert testimony that the label included that instruction because estrogen can exacerbate existing breast cancer, not because it suggested a causal connection.
On the basis of the record before us, a jury could reasonably believe that Ms. Coleman had no reason to suspect that there was a causal link between her breast cancer and her ingestion of HRT medications until the WHI study was published and triggered inquiry. See Simon, supra. The issue of her reasonable diligence is a factual one for the jury. We believe that the recent pronouncements of our Supreme Court in Fine and Wilson reveal a strong judicial preference for the submission of such fact-intensive inquiries to the jury. A jury can properly apply a standard that is "sufficiently flexible . . . to take into account difference[s] between persons, their capacity to meet certain situations and the circumstances confronting them at the time in question." Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342, 347 (1982).
Nor do we find Love v. Raymark Indus., Inc., 430 Pa.Super. 155, 633 A.2d 1185 (1993), relied upon by the trial court, applicable to the facts herein. Coleman Opinion, at 23-24. Mr. Love, unlike Ms. Coleman, suspected that his lung cancer was related to his occupational exposure to asbestos. Furthermore, the causal connection between lung cancer and occupational exposure to asbestos was "neither obscure nor unascertainable." Love, at 1187. On those facts we held that Love's failure to inquire of his physicians as to the results of his lung biopsy was unreasonable as a matter of law where the presence of asbestos would have confirmed the cause of his cancer.
Appellants contend further that, even if Ms. Coleman and the other Appellants suspected that HRT may have caused their breast cancer, "a diligent investigation" of the cause would not have led them to reasonably conclude that hormone therapy was the cause of their breast cancers. Appellants' brief at 4. Appellants maintain that the FDA apparently concluded when it approved Wyeth's warnings that the majority of studies showed no increased risk. Id. at 26. Ms. Coleman's doctors were unsure of the risk. The product information that came with the HRT medications did not advise of the risk and studies were inconclusive of any causal link or increased risk of breast cancer. Even Appellees' own experts acknowledge that the literature showed no causal connection between HRT medications and breast cancer. For all these reasons, we hold that there are genuine issues of fact as to whether, with the exercise of due diligence, the causal connection between HRT and breast cancer was knowable until the results of the WHI study were revealed. Thus, summary judgment was improperly granted on this ground.
Following Coleman, the trial court granted summary judgment in the thirteen other cases presently before us on the same basis: as a matter of law, Appellants knew or should have known of a connection between their breast cancer and their ingestion of HRT medications had they exercised reasonable diligence. The records in these cases, however, do not contain depositions of the parties or treating physicians, being limited to pleadings, Fact Sheets, affidavits, and medical and popular literature. On the basis of the records before us, we hold that there are genuine issues of material feet that preclude the entry of summary judgment.
Each Appellant pled in her complaint that she "first learned that her injuries described herein were related to the ingestion of an HT medication on or about July 9, 2002." Appellants' Complaints at either ¶ 4 or ¶ 5. All of the Appellants except Ms. Hess responded in the affirmative to the Fact Sheet Question XI, asking whether they had a conversation with at least one of their physicians following diagnosis in which they were told that their condition was "related to" or "may be related to" their use of HRT. Many of the Appellants filed affidavits clarifying that the conversation with their physicians did not include any discussion that HRT caused their breast cancer and that they did not suspect a causal connection until publication of the WHI study. For the reasons that follow, the trial court erred in disregarding or discrediting these affidavits. This evidence, together with inconclusive medical studies, contradictory literature, and conflicting expert medical opinions, is sufficient to raise genuine issues of material fact as to when or whether Appellants knew or should have known of a causal link between HRT medications and breast cancer.
We agree with Appellants that the trial court further erred in supporting its entry of summary judgment by drawing impermissible inferences from their Fact Sheet responses to Question XI and then in treating them as judicial admissions. Specifically, each Appellant (with the exception of Ms. Hess) placed an "X" next to a form response that she had discussions with a medical professional that her "condition" "is related to" or "may be related to" ingestion of HRT medications. Appellees argued that the Fact Sheet responses constituted judicial admissions conclusively establishing that Appellants knew or should have known of a causal link and urged the court to disregard Appellants' affidavits to the contrary.
Fact Sheet question XI provided:
XI. INJURY CLAIMS
A. Have you had discussions with any physician(s) about whether your condition is related to the use of HT medications?
Yes ___ No ___ Don't know ___ If yes, please identify:
Name of Doctor: _______
Address: _______
Specialty: _______
Date of discussion: _______
and, check one of the following
1. ___ I was told my condition is related to the use of HT medications.
2. ___ I was told my condition is not related to HT medications.
3. ___ I was told my condition may be related to HT medications.
4. ___ I was told by the doctor that he or she does not know whether my condition is related to the use of HT medications.
5. ___ I don't recall what I was told.
___ Other: (describe discussion regarding HT)
Most of the Appellants had placed an "X" next to the "related to" or "may be related to" option. Later, in their affidavits, they explained why they marked that option: that the tumor was estrogen positive, or that estrogen fed the tumor, or that they should stop taking their HRT medications. They averred that they were never told that HRT medications caused their breast cancer.
Relying upon Stephens v. Paris Cleaners, Inc., 885 A.2d 59 (Pa.Super. 2005) and Stone v. Wyeth, 2005 WL 3589423, 2005 Phila.Ct.Com.Pl. LEXIS 371, aff'd memorandum, 905 A.2d 1056 (Pa.Super. 2006), the trial court agreed with Appellees that the responses to Question XI constituted judicial admissions conclusively establishing that Appellants knew of the causal link and held their affidavits to be "wholly incredible as they contradicted prior facts in evidence." Medwid. Trial Court Opinion, 12/9/08, at 6-7. The result was a finding that there was no genuine issue of material fact and thus, summary judgment was proper. Id.
The trial court may rely on trial court decisions. However, neither a trial court decision nor an unpublished Superior Court memorandum is binding on us. "An unpublished Superior Court memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding." Schaaf v. Kaufman, 850 A.2d 655, 662 (Pa.Super. 2004), quoting Superior Court Internal Operating Procedures, § 65.37(A.), 21 Pa. Code § 65.37.
Ms. Medwid explained that she placed an "X" on the line beside "is related to" because she was told by her oncologist several months after her mastectomy that her cancer was "estrogen positive which meant that hormones fed the tumor and made it grow faster." Medwid Affidavit, Medwid's Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 7. She stated further that "at no time did any physician state or imply that her breast cancer could have been caused by her use of Prempro." Id.
Ms. Weinberger's physician told her that estrogen was causing her cancer to grow, explaining why she placed an "X" next to "related to." However, he never suggested that HRT medications caused her cancer in the first place. Nor did he explain whether it was her own hormones or the HRT that was feeding the tumor. The first time she became aware that HRT may have caused her breast cancer was when she saw a commercial on television after the WHI study was released. Weinberger Affidavit, Weinberger's Brief in Opposition to Wyeth's Motion for Summary Judgment on the Statute of Limitations, Exhibit 7.
Ms. Reed placed an "X" next to "related to" because her doctor told her to stop taking HRT when she was diagnosed with breast cancer. She, like Ms. Weinberger, did not know whether her own hormones or the HRT medications were feeding the tumor. She did not suspect that HRT medications caused her breast cancer until after the WHI study was published. Reed Affidavit, Reed Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 7. Ms. Stephenson had a similar understanding. Stephenson Affidavit, Stephenson Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 7. Appellants' confusion was plausible considering the expert medical testimony of Suzanne Klimberg, M.D., provided via deposition, 4/10/06, 104:22-107:6, to the effect that a woman's endogenous hormones can potentially affect the tumor; that is the reason why tamoxifen is prescribed after surgery. Weinberger Opposition to Wyeth's Motion for Summary Judgment, Exhibit 9.
Ms. Morales checked "Yes," that she was told by Dr. Sam Oronan on September 14, 2001 that "her condition was related to" the use of HT medications. Exhibit C to Wyeth's Motion for Summary Judgment at XI. No specifics or explanation was provided.
Ms. Lenzi stated she had a discussion with her OBGYN/surgeon in July of 2000 wherein she was told that her condition was related to the use of HRT medications. Lenzi Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 6. In her affidavit, Ms. Lenzi explained that this was a reference to a conversation during which she was instructed to stop taking her HRT medications. She was not informed whether her own hormones or the hormone replacement therapy was feeding the tumor. Id. at Exhibit 7. Ms. Lenzi offered the curriculum vitae and an excerpt of a deposition of Dr. Mary Jane Minkin, board-certified in Obstetrics and Gynecology, to the effect that most people recommend that one cease taking an estrogenic substance with estrogen-receptor-positive tumors because they promote growth of the tumor. Id. at Exhibit 8.
Ms. Schirn responded that she had discussions after her cancer was diagnosed in 2001, but she could not remember with whom. On the Fact Sheet, she placed "X — s next to "is related to" and "may be related to" HT medications. Schirn Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 6. She, too, was directed to cease taking her HRT medications but she was not advised whether it was her own hormones or the HRT medications that would feed the tumor. Id. at Exhibit 7.
Ms. Fleming-Crain was informed by her physician in approximately March of 2001 that her condition was related to the use of HRT. Fleming-Crain Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 6. On dates unknown, she had discussions with doctors and was told that HRT increased the risk of breast cancer. Id. In a subsequent affidavit, however, Ms. Fleming-Crain stated that her doctor never told her that HRT caused her tumor and that she did not discover the cause of her breast cancer until after publication of the WHI study. Id. at Exhibit 7.
Ms. Honaker answered in the affirmative in response to Question XI of the Fact Sheet that she had a discussion with her oncologist on an unknown date that her condition "is related to" and "may be related to" her HRT medications. That response was later supplemented to provide a date of approximately September 1999. Wyeth's Brief in Support of Summary Judgment, Exhibit B. In her affidavit, she explained that her doctor directed her to stop taking her HRT medications, but that she was not told that HRT caused the tumor in the first place. She did not become aware of the cause until after release of the WHI report. Honaker Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 7.
Ms. Hansen responded to question XI that she had a discussion with her oncologist in June 1999 that her condition "is related" to her ingestion of HRT medications. Hansen Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 6.
Ms. Blaylock answered "Yes," to Question XI that she had a discussion with a physician wherein she was advised that her condition "was related to" HRT medications. Blaylock Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 6. Ms. Blaylock explained further that the discussion took place in November 2001 with her oncologist who informed her that her breasts, "are estrogen receptive and now I must take medication for five years to ensure my estrogen is low." Id. In her affidavit, Ms. Blaylock stated that she was told to stop taking HRT after her diagnosis. She did not know whether her own hormones or the HRT were feeding the tumor and she was not told that HRT caused her cancer. She was not aware of the cause until the WHI study was released. Id. at Exhibit 7.
Ms. Manalo responded to the Fact Sheet question that she had a discussion in November 2000 that her "condition may be related" to HRT. Manalo Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 3. In her affidavit, she explained that she was told that her breast cancer may be related to several different factors, including hormone replacement therapy, but that it was impossible for anyone to pinpoint or prove the cause of the breast cancer with any assurance. Id. at Exhibit 2. Ms. Manalo understood that her breast cancer may or may not have been caused by hormone replacement drugs, "but that I would never be able to know for certain." Id. That is why she checked "may be related," understanding it to mean may or may not be related. Ms. Manalo averred that she did not see any news reports or read the study regarding estrogen replacement. The first time she knew that HRT posed a "significantly increased risk" of breast cancer was in the early part of 2004, after she saw an advertisement regarding the release of the WHI study. Id. at Exhibit 2.
The trial court inferred from the Fact Sheet responses that "related to" meant "caused by," and held that these responses constituted judicial admissions that conclusively established Appellants' knowledge of a causal relationship shortly after their respective surgeries. Therefore, the trial court disregarded Appellants' affidavits as "contradictory" and "wholly incredible."
We find the undefined term "related to" to be ambiguous and capable of multiple meanings. It may mean causally related; it may mean correlated with, or having some relation to after the fact. We agree with Appellants that the trial court's conclusion equating "related to" with "caused by" required the drawing of an impermissible inference in Appellees' favor. The court then held that it constituted a judicial admission, giving it conclusive effect. For the following reasons, we disagree.
Statements of fact by one party in pleadings, stipulations, testimony, and the like, made for that party's benefit, are termed judicial admissions and are binding on the party. Nasim v. Shamrock Welding Supply Co., 387 Pa.Super. 225, 563 A.2d 1266, 1267 (1989) ("It is well established that a judicial admission is an express waiver made in court or preparatory to trial by a party or his attorney, conceding for the purposes of trial, the truth of the admission."). As we held in John B. Conomos, Inc. v. Sun Co., 831 A.2d 696, 712 (Pa.Super. 2003),
For an averment to qualify as a judicial admission, however, it must be a clear and unequivocal admission of fact. Judicial admissions are limited in scope to factual matters otherwise requiring evidentiary proof, and are exclusive of legal theories and conclusions of law.
Glick, 458 F.2d at 1291. The fact must have been unequivocally admitted and not be merely one interpretation of the statement that is purported to be a judicial admission.
Jones v.
Constantino, 429 Pa.Super. 73,
631 A.2d 1289, 1293-94 (Pa.Super. 1993) (finding no admission where "the evidence could be reasonably construed to admit of more than one meaning");
see also, Phila,
Reinsurance Corp. v. Employers Ins. of Wausau, 61 FedAppx. 816, 2003 U.S.App. LEXIS 6198 (3d Cir. 2003) ("An unequivocal statement is one that is clear, unambiguous and expresses only one meaning.");
Glick, 458 F.2d at 1291;
The Doyle, 105 F.2d 113, 117 (3d Cir. 1939) (holding that
"admissions to be binding must be unequivocal, . . . and anyway they may be disregarded in the interests of justice"). An admission is not conclusively binding when the statement is indeterminate, inconsistent, or ambiguous.
Greater Valley Terminal Corp. v.
Goodman, 405 Pa. 605,
176 A.2d 408, 410 (1962);
Dible v. Vagley, 417 Pa.Super. 302,
612 A.2d 493, 499 (1992) (finding no admission in a statement in which "pronouns are burdened with ambiguous antecedents, and syntax is opaque" and that "to be an admission, a statement must at least be intelligible [and its] subject matter . . . readily determinable");
AstraZeneca AB v. Mutual Pharm. Co., 250 F.Supp.2d 506, 518 (E.D.Pa. 2003). When there is uncertainty surrounding a conceded fact, it is the role of the judge or jury as fact finder to determine which facts have been adequately proved and which must be rejected.
See Oscanyan v. Arms Co., 103 U.S. 261, 263-64,
26 L.Ed. 539 (1880).
The answers herein were not made for Appellants' benefit. Nor are they clear and unequivocal and capable of only one meaning because of the ambiguity inherent in the terms used. The responses were not factual because the question invited the respondent to draw a conclusion from words uttered. Thus, we find that Appellants' Fact Sheet responses do not meet the well-established criteria for judicial admissions.
The trial court cited Stone v. Wyeth, supra, a case for personal injuries arising out of the use of the diet drug, "phen fen," as a basis for its decision herein; however, Stone does not support a finding that the Fact Sheet responses herein constituted judicial admissions. Stone asserted in her complaint that she learned of her heart valve injury and its related cause on March 21, 2000, more than two years before she filed her complaint. Stone later sought to contradict that assertion by denying that she knew the cause of her injury at that time so that she could argue that her action was not time-barred due to the discovery rule. Wyeth argued that the allegations in Stone's complaint, consistent with her later discovery responses, constituted binding judicial admissions that could not later be contradicted by the party who had made them. The court agreed that Stone was bound by the assertions in her complaint and fact sheet and therefore unable to contradict her earlier admission, thus losing the benefit of the discovery rule.
If we were to apply the court's analysis in Stone, supra, on the facts at bar, we would be compelled to conclude that the averments in Appellants' complaints (Paragraphs 4 or 5) that they "did not know that their breast cancer was related to their ingestion of HRT medications until July 9, 2002, the publication of the WHI study," are the operative "judicial admissions." Adopting the Stone reasoning herein, the complaint controls. The affidavits are then admissible to explain what each Appellant understood the phrase "is related to" to mean.
Nothing in the Rules of Civil Procedure nor in our case law supports the construction of Fact Sheet responses as judicial admissions. The Fact Sheet involved herein was prefaced with the statement that it was "completed pursuant to the Pennsylvania Rules of Civil Procedure governing discovery." It consisted of open-ended questions much like interrogatories to a party as described in Pa.R.C.P. 4005. Rule 4005 provides that responses to interrogatories can be supplemented and "used to the same extent as provided in Pa.R.C.P. 4020 for the use of a deposition of a party." Rule 4020 provides that all or part of a deposition (and hence interrogatory responses), so far as admissible under the Rules of Evidence, may be used against any party for purposes such as impeachment or as party admissions. However, "[a]t trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party." Pa.R.C.P. 4020(d). Thus, under the Pennsylvania Rules of Civil Procedure, depositions and interrogatory answers are not binding admissions.
Requests for admission, in contrast, are governed by Pa.R.C.P. 4014. They are requests submitted to the opposing party that certain matters be admitted or denied. Matters admitted under Pa. R.C.P. 4014 are "conclusively established" unless they are withdrawn or admitted with court permission. However, our Supreme Court in Stimmler, supra, faced with summary judgment granted on the basis of untimely responses that were deemed admitted, discouraged an inflexible application of Pa.R.C.P. 4014. This Court was criticized for being "quick on the trigger" in determining that summary judgment on the basis of "deemed admissions," was appropriate. The Supreme Court, finding that the factual foundations for the requests for admission were insufficient to support the conclusion that appellees wished to reach, reversed the grant of summary judgment. In so holding, the Court cautioned that Rule 4014 was designed to ensure that a case was determined on its merits, not disposed of summarily.
Our examination of the Fact Sheet question at issue confirms that it is not a request for admission and that it is not conclusive. More importantly, however, the instant case presents an even more compelling example of a court "too quick on the trigger" in treating an ambiguous Fact Sheet question and answer as a binding judicial admission and granting summary judgment based upon it.
Applying the Pennsylvania Rules of Civil Procedure governing discovery to determine the effect to be given to the Fact Sheet responses, we conclude that the answers therein should be accorded the weight of interrogatory responses: admissible when otherwise permitted under the rules of evidence, but subject to rebuttal. The Fact Sheet responses do not constitute binding admissions in the nature of judicial admissions. We note that our finding is consistent with the effect given to the Fact Sheet responses in the Prempro multi-district litigation in Arkansas, where the court determined that the plaintiffs' verifications to Fact Sheet information had "the same legal significance as responses to interrogatories or requests for production." In re Prempro Products Liability Litigation, 2010 WL 703151, 2010 U.S. Dist. LEXIS 23832 (E.D.Ark. February 23, 2010).
Furthermore, in construing the Fact Sheet responses as conclusive on the issue of Appellants' knowledge or notice of the cause of their breast cancer, the trial court again drew impermissible inferences in favor of Appellees. The error was compounded when the trial court then refused to consider, or held "wholly incredible," the affidavits submitted by Appellants clarifying their responses. The trial court erred in granting summary judgment where there were genuine issues of fact for the jury.
Ms. Hess presented a unique factual situation. Her breast cancer was diagnosed on April 19, 2002. In her complaint, she pled that she "first learned that her injuries described herein were related to the ingestion of a HRT medication on or about July 9, 2002." Hess Complaint ¶ 4(a). In response to Question XI of the Fact Sheet, Ms. Hess stated that she could not remember her conversation with her physician. Thus, the record contained no "judicial admission" that conclusively established notice or knowledge of the cause of her breast cancer and no basis for refusing to consider Ms. Hess's affidavit. In her affidavit dated November 30, 2007, Ms. Hess stated that neither her doctor nor anyone else told her that hormone therapy could cause breast cancer. She had two aunts with breast cancer and, at the time, thought her sister also had breast cancer. Ms. Hess wondered if her family history was the cause of her breast cancer. She had no awareness that her use of Prempro may have been the cause of her breast cancer until she saw an advertisement on television shortly after the release of the WHI study suggesting such a link. Affidavit, Hess Brief in Opposition to Summary Judgment, Exhibit 2.
In granting summary judgment for Appellees, the trial court held that Ms. Hess's claims were time-barred as of June 29, 2004, for the reasons enunciated in Coleman. The trial court found that there was sufficient information available at the time of Ms. Hess's diagnosis which warned of the risk of developing breast cancer from the ingestion of HRT drugs, and that as a matter of law, she knew or should have known of the causal connection. The court further held that her affidavit failed to raise an issue of material fact as to when she learned that HRT was related to her breast cancer; she had the ability, "exercising reasonable diligence, to ascertain the fact of a cause of action" and thus, was under a duty to investigate the possible causes of her injury at the time she was diagnosed in April 2002. Hess Trial Court Opinion, 12/8/08 at 8. Had Ms. Hess exercised due diligence, the court continued, she would have discovered the reports and studies and been placed on notice of the causal connection within the two-year statute of limitations.
The trial court, in essence, held as a matter of law that a diagnosis of breast cancer alone was sufficient to trigger inquiry into whether it was caused by a third party. Furthermore, the inability of Ms. Hess to discover the causal connection within two years was a failure to exercise due diligence as a matter of law.
We hold that such a conclusion flies in the face of our highest court's decisions in Fine and Wilson, supra and stands contrary to our recent holding in Simon, supra. The trial court failed to "take into account the differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question." Fine, at 858. We find that Ms. Hess's complaint, Fact Sheet, affidavit, and the reams of product information, articles, medical studies, and popular literature discussing HRT that are contained in the record before us, raise genuine issues of material fact as to when she knew or should have known that her breast cancer was caused by the ingestion of HRT medications. Consequently, the issue should have been submitted to the jury. The trial court failed to view the record in a light most favorable to Ms. Hess, as it was required to do, and drew impermissible inferences from her failure to make a causal connection within two years of her diagnosis. Therefore, summary judgment was improper.
Ms. Coleman is a resident of Arkansas and Ms. Manalo is a resident of Illinois. In addition, ten of the Appellants are from California. The trial court did not reach the issue of whether the Arkansas, California, or Illinois statutes of limitations were applicable, or whether, under Pennsylvania's borrowing statute, Pennsylvania law applied.
Pennsylvania's borrowing statute governs claims accruing outside the Commonwealth.
The Uniform Statute of Limitations on Foreign Claims Act, 42 Pa.C.S. § 5521, provides in pertinent part
(b) General Rule — The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.
Prior to January 1, 2003, the California statute of limitations in personal injury actions was one year. On that date, California increased the limitations period for personal injury actions to two years. However, the new statute enlarging the limitations period applied only to actions not already barred by the original limitations period as of January 1, 2003. Andonagui v. May Dept. Stores Co., 128 Cal.App.4th 435, 27 Cal.Rptr.3d 145 (2005). California, like Pennsylvania, has a discovery rule that "postpones accrual of a cause of action until a plaintiff discovers, or has reason to discover, the cause of action." Norgart v. Upjohn, 21 Cal.4th 383, 397, 87 Cal.Rptr.2d 453, 981 P.2d 79 (1999); Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 27 Cal.Rptr.3d 661, 110 P.3d 914 (2005). If the discovery rule delayed accrual until July 9, 2002, as Appellants contend, then Appellants' actions were not barred by California's one-year statute of limitations, and the two-year statute governed. Under our borrowing statute, we would apply Pennsylvania law.
The applicable prescriptive period in Arkansas is three years; in Illinois, two years. Both states have discovery rules that are virtually identical to Pennsylvania's. Martin v. Arthur, 3 S.W.3d 684, 690 (Ark. 1999). (statute does not run until the plaintiff knew, or by the exercise of reasonable diligence, should have discovered the causal connection between the product and the injuries suffered); Healy v. Owens-Illinois, Inc., 359 Ill.App.3d 186, 295 Ill.Dec. 700, 833 N.E.2d 906 (2005); Roper v. Markle, 59 Ill.App.3d 706, 713, 16 Ill.Dec. 827, 375 N.E.2d 934 (1978) ("the limitations period does not begin to run until there exists actual or constructive knowledge of both a physical problem and that someone is or may be at fault for its existence"). Thus, Pennsylvania's two-year statute applies.
The Frye Argument
Appellants argue alternatively that the trial court erred in granting summary judgment because, under Pennsylvania law, their claims did not accrue and the statute of limitations did not even begin to run until they were capable of proving each element of their claims. Appellants rely upon our Supreme Court's decision in Fine, supra, which holds that a cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion.
Generally, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises, normally when the plaintiffs injury is inflicted. Id. Appellants assert that their "claims did not accrue until at least July 9, 2002 because before that date [they] could not establish by a preponderance of the evidence that hormone therapy causes breast cancer." Appellants' brief at 23. In support of their argument, they allege that Wyeth's pre-July 2002 labeling for Premarin and Prempro reassured physicians and patients that there was no likely risk of breast cancer from using the drugs. Weinberger Brief in Opposition to Wyeth's Motion for Summary Judgment, Exhibit 10. Warnings on Upjohn's Provera labels pre-July 2002 were limited to the presence of mammary nodules in beagle dogs.
Appellants argue that neither Wyeth nor Upjohn provided adequate warnings on their labels about the possibility of a causal link between hormone therapy and an increased risk of breast cancer although their approved labels "collectively reflected the state of scientific knowledge within the medical community at that time." Appellants' brief at 24.
Appellants insist that it was not until publication of the WHI study that it became generally accepted within the scientific community that estrogen plus progesterone caused breast cancer because the approach utilized was "much more scientifically reliable than the preceding studies that had examined the question." Appellants' brief at 27. Prior to that date, Appellants argue that they would have been unable to procure expert scientific testimony to establish that Appellees' medications caused their breast cancer because the scientific community had not reached consensus as to the reliability of the expert's approach under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), (adopted in Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977)). See also Blum v. Merrell Dow Pharmaceuticals, Inc., 564 Pa. 3, 764 A.2d 1 (2000). Without such testimony, Appellants contend that no cause of action could be maintained to a successful conclusion. Therefore, Appellants assert that no cause of action accrued until publication of the WHI study on July 9, 2002 because only at that time was there generally accepted scientific evidence under Frye to support expert testimony. Appellees counter that this argument is waived because it was not made below nor raised in Appellants' Pa.R.A.P. 1925(b) statements.
This argument is premised on the construction of the statutory language in 42 Pa. C.S. § 5502(a), "from the time the cause of action accrued."
Our review of the record in these consolidated cases confirms that this issue was not raised in the trial court nor identified in Appellants' Pa.R.A.P. 1925(b) statements. Hence, we agree that it is waived under both Pa.R.A.P. 302(a) arid Pa.R.A.P. 1925(b).
As this argument was not advanced in the trial court, the record is devoid of any evidence that, prior to the WHI study, no expert testimony would have been available to Appellants that would meet the Frye general acceptance standard. Thus, even if this issue were properly preserved, the record is inadequate to permit us to review whether Frye would have presented an insurmountable barrier to Appellants' successful maintenance of actions within two years of their diagnoses. We note that on August 16, 2006, the Coleman trial court denied Wyeth's motion, pursuant to Pa.RX.P. 207.1, to exclude plaintiff's novel expert testimony under Frye.
Conclusion
For all of the foregoing reasons, we reverse the trial court's orders granting summary judgment and remand for proceedings consistent with this opinion.
We note that our holding is consistent with the majority of courts in other jurisdictions who have found that genuine issues of material fact precluded entry of summary judgment on statute of limitations grounds in hormone replacement therapy cases. In Scroggin v. Wyeth (In re: Prempro Products Liability Litigation), 2007 WL 3228125, at *1 (E.D.Ark. 2007), the district court denied summary judgment on statute of limitations grounds finding genuine issues of material fact. Then, following a jury verdict for plaintiff, Wyeth's motion for judgment as a matter of law on statute of limitations grounds was denied by the trial court. The Court of Appeals for the Eighth Circuit affirmed, holding that on the basis of the evidence a jury could find that Scroggin's cause of action accrued at some point after the publication of the WHI study's results, noting change in product labeling and widespread publicity following publication of the WHI study. Scroggin v. Wyeth (In re Prempro Products Liability Litigation), 586 F.3d 547 (8th Cir. 2009). Motions for summary judgment based on the statute of limitations were also denied in Rush v. Wyeth (In re Prempro Products Liability Litigation), Case No. 4:05CV00497-WRW (E.D.Ark. 2005) (Order, May 12, 2006) and Deutsch v. Wyeth, MID-L998-06 MT (N.J.Super.Ct. June 14, 2007).
Orders granting summary judgment reversed. Cases remanded. Jurisdiction relinquished.