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HomeMy WebLinkAbout02-5264IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lisa M. Gaffney and David A. Gaffney b./w 406 Berkshire Road Mechanicsburg, PA 17055 Plaintiffs. Sidmak Laboratories, Inc. 17 West Street East Hanover, NJ 07936 and Sobel N.V. NCB Weg 10 5681 RH BEST Netherlands and Giam Food Stores, LLC d/b/a Giam Pharmacy 1149 Harrisburg Pike Carlisle, PA 17013 Defendants. TO THE PROTHONOTARY: Civil Action PRAECIPE FOR WRIT OF SUMMONS Date: Issue Summons in Civil Action in the above case. Writ of Summons shall be forwarded to X A~l~ara~y .Sheriff / James~Tultz, Esq~.lfi' .~qlTE~D WILL~S LLP ~ 180~e Liberty P1ac~ ~-~adelphia, PA 19103 213-864-7021 ID No. 83417 SUMMONS IN CIVIL ACTION TO: Sidmak Laboratories~ Inc.~ 17 West Street, East Hanover, NJ 07936 and Sobel N.V., NeB Weg 10 5681 RH BEST, Netherlands and Giant Food Stores, LLC, d/b/a Giant Pharmacy 1149 Harrisburg Pike Carlisle, PA 17013. Prothonotary Deputy Prothonotary t Doc~: 1353521 vi - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lisa M. Gaffney and David A. Gaffney h/w 406 Berkshire Road Mechanicsburg, PA 17055 Plaintiffs. V. Sidmak Laboratories, Inc. 17 West Street East Hanover, NJ 07936 and Sobel N.V. NCB Weg 10 5681 RH BEST Netherlands and Giant Food Stores, LLC d/b/a Giant Pharmacy 1149 Harrisburg Pike Carlisle, PA 17013 Defendants. No. 02-5264 Civil Action COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA AFFIDAVIT OF SERVICE I, James D. Schultz, Esquire being duly sworn according to law, depose and say that: 1. On November 15, 2002, I mailed a Writ of Summons in the above matterby International Registed mail, article number RR 606160452US, return receipt requested, postage prepaid to Defendant, Sobel N.V., NCB Weg 10, 5681 RH Best, Netherlands. 2. Defendant received said documents on November 20, 2002 as evidenced by the signature on the International mail return receipt card which is attached hereto and marked Exhibit "A". of my knowledge, information and belief. SWORN TO AND SUBSCRIBED BEFORL~ME THISn ~ OF ~R~~b~ ~ot~ Publi~ I [ ~ of PhiMd~hia, ~unty of Philad~phM I /My ~mmi~io~ Expires Nov. ~5, ~ I I repIesem that the information" '~'; '~ ' this Affidavit is true and correct to the best By:~....~.~-'~-~ ~///.. I Doc#: 1367012vl ~ ...................... ' ' ' ered F,inted Recorded Delivery IltamDescnption ../Reglst . rnLetter r-~,,.#~, r'lOther I"l(Envo/aliwaison I-IMalllnter- (Nature de ~] Article (Envix ~, (Lettm) '"' '~.'. .... : .,-- (Aufm) '~,,~,,,~ - national "~ I I'envo/ ) recommanoe/ ' ,...~. ..... , ............ . -~_~ .... .--' . ...... 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UNITED STATE$ Return Receipt for International Mail ~ POSTAL SERVICE® (Registered, Insured, R~Express Mail) /~ .-,., "N..%,%' kPos~mar~ o~ ~' ' ['~./_ ~, '.~'~ ~eceipt d'Arf~rique The sender completes and indicates the address for the return of this receipt. quickest mute (A remplir par rexp~diteur, qui indiquera son adresse pour le mnvoi du prdsent avis.) nmil), a decouvert -,'r~.~*~.-,-.~__' ~.A~.\ ~_.~,.),-~.~ .4~ .[~...~ ....... ..k~.: .................. and postage free ......... ..'~b~..~-~.\o: ........ ~,~--'~-'~ ......................... la vole la plus Street and Number (Rue et no.) rapide (a~denne xc:~ \ I~ "..~ ou de surface), ~~ .~ d~,ouvert et City, State, and ZIP + z~l~'~ et code pds~l) en franchise de port. ~~s-Unis d'Am~rique Avis de rdception CN07 (Old C5) ~"'~'.~S Form 2865, February 1997 SHERIFF'S RETURN - REGULAR CASE NO: 2002-0S264 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GAFFNEY LISA M ET AL VS SIDMAK LABORATORIES INC ET AL RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon GI~uNT FOOD STORES LLC DBA GIANT PHARMACYthe DEFENDANT , at ~847:00 HOURS, on the 25th day of November at 1149 HARRISBURG PIKE , 2002 CARLISLE, PA 17013 JOHN MILLER, LEGAL by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing ~is attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service Affidavit 3.45 .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this /[~ day of ~ 2~D~ A.D. /Prothonotary.· So Answers: R. Thomas Kline 1112712002 WHITE & WILLIAMS By: .,~"~-~ ~ Deputy Sheriff SWEENEY & SHEEHAN By: WarrenE. Voter Identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney for: Defendant, Sidmak Laboratories, Inc. LISA M. GAFFNEY and DAVID A. GAFFNEY, w/h SIDMAK LABORATORIES, INC.; SOBEL, N.V. and GIANT FOOD STORES, LLC CIVIL ACTION NO. 02-5264 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendam, Sidmak Laboratories, Inc., in the above-captioned matter. Defendant requests a Jury at the time of trial in this matter. SWEENEY & SHEEHAN BY: DATE: December 19, 2002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lisa M. Gaffney and David A. C_raffney h/w 406 Berkshire Road Mechanicsburg, PA 17055 Plaintiffs. V. Sidmak Laboratories, Inc. 17 West Street East Hanover, NJ 07936 and Sobel N.V. NCB Weg 10 5681 RH BEST Netherlands and Giant Food Stores, LLC d/b/a Giant Pharmacy 1149 Harrisburg Pike Carlisle, PA 17013 Civil Action No. 02-52;64 Defendants. NOTICE TO DEFEND NOTICE You have been sued in court. If you wish to defend against thc claims set forth in the following pages, you mast take action within twenty (20) days after this ecmplaim and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. you are warned that if you fail to do so the case may ~d without you and a judgment may be entered against you by the court without further notice for any money claimed in the ccmplalm or for any other claim or relief requested by the plaintiff, you may line money or property or other fights impomm to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TE/.J~PHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE 100 SOUTI-I STREET CARLISLE, PA 17013 (717) 249-3166 PENNSYLVANIA LAWYER REFERRAL SERVICE P.O. BOX 1086 100 SOUTH STREET HARRISBURG, PA 17108 800- 692-7375/OU'T. OF. pA 717-238-6715 AVISO Lc lure demandado a nslcd cn la cortc. Si nsted quicre defendersc de estas demundas expuestas cn las p~ginns siguientes, ustcd fiene vcintc (20) dia de plazo al partir de la feeha de la demunda y la notificaci6n. Hace falta asentar una comparencia escri~a o cn persona o con un abogada y enlregar a h cone en fotura escrita sus defensns o sus objeciones a las demandns en contra de su persona. Sea avisado qu¢ si usted no se difiende, la corte tomar~ me{flOss y puede continaar la demanda en contra suya sin previo aviso o notificaci6n. Ademas, la cone puede dicidir a favor del demandante y requiere que usted eumpla con todas las provisiones de esta demanda. Usted paede perder dinero o sus propiedades u otres derechcs importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAM~N'I~. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O ~ POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE 100 SOUTH STREET CARLISLE, PA 17013 (717) 249-3166 PENNSYLVANIA LAWYER REFERRAL SERVICE P.O. BOX 1086 100 SOUTH STREET HARRISBURG, PA 17108 800-692-7375lOUT-OF.PA 717-238-6715 Doc#: 1359745 vi IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lisa M. Gaffney and David A. Gaffney h/w 406 Berkshire Road Mechanicsburg, PA 17055 Plaintiffs. V. Sidmak Laboratories, Inc. 17 West Street East Hanover, NJ 07936 and Sobel N.V. NCB Weg 10 5681 RH BEST Netherlands and Giant Food Stores, LLC d/b/a Giant Pharmacy 1149 Harrisburg Pike Carlisle, PA 17013 Defendants. Civil Action No. 02-5264 COMPLAINT The plaintiffs, Lisa M. Gaffiaey and David A. Gaffney, by and through their counsel, James D. Schultz, Esquire, hereby demand judgment against defendants, Sidmak Laboratories, Inc., Sobel N.V. and Giant Food Stores, LLC, and complains against the defendants as follows: 1. The plaintiffs, Lisa M. Gaffney and David A. Gaffney, husband and wife, are individuals residing at 406 Berkshire Road, Mechanicsburg, PA 17055. 2. Upon information and belief, the defendant, Sidmak Laboratories, Inc. (hereinafter referred to as "Sidmak"), is a New Jersey corporation whose principal place of business is located at 17 West Street, East Hanover, NJ 07936, and at all relevant times hereto, engaged in the business Docg: 1359745 vi of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient phenylpropanolamine (hereinafter referred to as "PPA"), including, without limitation, the product known as guaifenesin/phenylpropanolamine, through interstate commerce and in the Commonwealth of Pennsylvania, including, but not limited to, Cumberland County. 3. Upon information and belief, the defendant, Sobel N.V. (hereinat~er referred to as "Sobel"), is a Dutch corporation with its principal place of business located in East Hanover, NJ, and at all relevant times hereto was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA, including, without limitation, the product known as guaifenesin/ phenylpropanolamine, through interstate commerce and in the Commonwealth of Pennsylvania, including, but not limited to, Cumberland County. 4. Upon information and belief, the defendant, Giant Food Stores, LLC dgo/a Giant Pharmacy (hereinafter referred to as "Giant"), is a Delaware limited liability company with its principal place of business located at 1149 Harrisburg Pike, Carlisle, PA 17013, and at all relevant times hereto, was engaged in the business of promoting, distributing and/or selling prescription pharmaceutical products containing the active ingredient PPA, including, without limitation, the Sidmak manufactured drag guaifenesin/phenylpropanolamine and distributed and/or sold said products through interstate commerce and in the Commonwealth of Pennsylvania, including Cumberland County. Doc#: 1359745 vl -2- GENERAL ALLEGATIONS 5. PPA is a sympathomimetic amine similar in structure and function to amphetamine and ephedrine. PPA was first used as a decongestant in 1936 and as an appetite suppressant in 1972. 6. In 1938, the Food and Drug Administration ("FiDA") was created as part of an enactment of the Federal Food, Drug and Cosmetic Act of 1938 (the "Act"), 52 Stat. 1040 (codified as amended 21 U.S.C. §§ 301, et seq. (2000)). Under the Act, new drugs required the approval of the FDA and existing drugs were "grandfathered" and thus exempted from testing requirements of new drugs. Having been on the market as a decongestant since 1936, PPA was exempt from the new drug approval process. Upon information and belief, for more than 20 years, the pharmaceutical industry, including Sidmak and Sobel, have been aware of reports of injuries, including, without limitation, strokes associated with the use of PPA. Further, published reports of PPA use associated with hypertension date back over 30 years. 7. Since 1979, there have been over 30 published ease reports of stroke and PPA ingestion in respected medical literature. A number of authors, medical authorities and medical "watch dog" agencies, such as Public Citizen, called for the removal of PPA from the market. 8. Upon information and belief, pharmaceutical companies, including Sobel and Sidmak, conspired and/or acted in concert to delay the removal of the preparations containing PPA from the marketplace and acted in furtherance of the conspiracy or concerted activities by, inter alio, suppressing or concealing knowledge of the great dangers from the consuming public and others, and/or suppressing the publication of articles by scientists who held views and opinions that were adverse to the defendants' interests. Doe#: 1359745 vl -3- 9. In 1990, a subcommittee of the U.S. House of Representatives Small Business Committee held hearings on OTC diet preparations containing PPA. At the hearings, several scientific witnesses and one national society of physicians called fbr the removal of PPA from over- the-counter status because of safety and health concerns. After the hearings, the subcommittee's chairman, U.S. Representative Ron Wyden, wrote to the FDA expressing his concerns about PPA. He noted that an epidemiological study demonstrated that PPA preparations lead all over-the-counter products and there were serious and fatal adverse effects in people under 29 years of age. Additionally, preparations containing PPA were the cause of the greatest number of contacts with the Poison Control Centers that year. 10. In 1991, the FDA held a public meeting to address issues regarding safety and effectiveness of PPA. Reports of hemorrhagic stroke associated with PPA were raised at the meeting. 11. In November of 1992, concerns that the FDA might remove over-the-counter PPA weight control preparations from the market lead to the Non-Prescription Drug Manufacturer's Association ("NDMA") to propose a large-scale epidemiologic case control study of PPA and hemorrhagic stroke. After review and modification of the study protocol by the FDA, the study began in September of 1994. The study was completed in or about June of 1999. 12. In March of 1993, the FDA issued a letter to the NDMA outlining its concerns regarding the safety of PPA and informed the industry that it intended to classify PPA as a category III drug (insufficient data to assess safety). To avoid this classification, manufacturers of PPA proposed a study, which later became known as the Yale Hemorrhagic Stroke Study (the "Yale Doc#: 1359745 vl -4- Study"), to investigate the link between PPA and strokes. While the study was ongoing, the manufacturers were able to continue selling PPA products. 13. Consumer Healthcare Products Association, an industry group, funded the Yale Study conducted by Ralph I. Horwitz, M.D., Lawrence M. Brass, M.D., Walter N. Keman, M.D. and Katherine M. Viscoli, Ph.D. of the Yale University School of Medicine. The Yale Study analyzed 2,000 adults aged 18 to 49, including 702 individuals who were hospitalized with subarachnoid or intercerebral hemorrhage without prior history of stroke. The study results revealed that stroke patients were 50% more likely than control subjects, which included those who did not suffer a stroke, to have been exposed to PPA within three days of their incident. Those who used PPA containing cough/cold remedies were approximately 23% more likely to have had a stroke during the study period. 14. On or about October 19, 2000, an advisory panel advised the FDA that PPA should be banned as exposure to it increased the risk of stroke. The 15-member panel voted overwhelmingly (13 in favor) that PPA was unsafe, and recommended to the FDA that PPA be removed from the marketplace. That finding and recommendation was the result of the Yale Study. 15. On November 6, 2000, the FDA, in reliance upon its advisory committee and the findings of the Yale Study, officially recommended that all makers of over-the-counter drugs that contain PPA voluntarily remove this chemical from those products. By correspondence of that same date, the FDA urged all manufacturers and sellers of the over-the-counter products containing PPA to immediately stop distribution and sale of those products. 16. On November 6, 2000, pharmaceutical companies, including Sidmak, issued a press release announcing that it would cease shipping of all products containing the drag PPA. Doc#: 1359745 vl =5- 17. Well before November, 2000, defendants, Sidmak and Sobel, had actual knowledge that PPA made their products unreasonably dangerous. Moreover, they had actual knowledge of a safer active ingredient which was available on the market in lieu of PPA, and used in many competing products. This safe ingredient is known as pseudoephedrine. 18. Upon information and belief, some of the defendants thought PPA containing products were defective in design because they included agents and properties which actually increased the risk of hemorrhagic stroke posed by PPA. 19. Upon information and belief, defendants, Sobel and Sidmak, were negligent in the design and manufacture of their PPA containing products because they incorporated ingredients such as aspirin and/or delivery systems, which exacerbated the risk of a PPA induced stroke. Upon information and belief, pharmaceutical manufacturers which marketed and manufactured drugs containing PPA have taken the position in prior judicial proceedings that products containing PPA cause vascular problems and injuries, including cerebral vascular accidents. 20. Consumers throughout the United States purchased approximately 6 billion doses of PPA during the calendar year of 1999. PPA is available in several dosage types. 21. On or about January 5, 1998, Dr. David Wenner of 2140 Fisher Road, Mechanicsburg, PA, issued a prescription for Lisa M. Gaffney for PPA/GG-LA, N-DC #50111-0385- 01. Dr. Wenner's prescription called for Ms. Gaffney to take one tablet twice daily. There were 20 tablets called for in the prescription. 22. On or about January 5, 1998, plaintiff filled the prescription and purchased PPA/GG- LA from the Giant Pharmacy located at 6560 Carlisle Pike, Suite 100, Mechanicsburg, PA 17050. Doc#: 1359745 vl -6- 23. On or about January 8, 1998, at approximately 8:00 p.m., after she took the prescription medication referenced above, Ms. Gaffney suffered a cerebral event which caused her speech to become slurred and caused numbness throughout her entire body. Plaintiff claims that the aforementioned pharmaceutical containing PPA caused her injuries. COUNT I - NEGLIGENCE PLAINTIFF, LISA M. GAFFNEY V. DEFENDANT, SIDMAK LABORATORIES. INC. 24. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 25. Defendants had a duty to exercise reasonable care in the manufacture, sale and/or distribution of pharmaceuticals containing PPA in the stream of commerce, including a duty to ensure that the product did not pose a significant increased risk of injury, including, without limitation, strokes. 26. Defendant knew or should have known that consumers such as plaintiff could foreseeably suffer injury as a result of defendant's failure to exercise ordinary care as described above. 27. Prior to when the plaintiff ingested the product containing the drug PPA, defendant knew or had reason to know or in the existence of reasonable care should have known the following: (a) there had been as many as 30 published case reports in the medical literature associating PPA with strokes; and (b) a safer, alternative design of cough/cold products was available to defendant, by substitution of pseudoephedrine for PPA. Doc#: 1359745 vl -7- 28. Defendant negligently breached its duty to the plaintiffs, as set forth in the preceding paragraph, to discover, warn and implement the safer alternative product with respect to the risk of injuries, including, without limitation, strokes, from the ingestion of products containing the drag PPA. 29. As a proximate result of the defendant's negligence, as set forth above, plaintiff has incurred and will continue to incur serious physical injury, pain and suffering, loss of income, loss of opportunity, loss of family and social relationships, and medical, hospital and other expenses relating to the diagnosis and treatment thereof, for which defendants are individually, jointly and severally liable. 30. Defendant's failure to warn was reckless and without regard for the public safety and welfare. The defendant mislead both the medical community and the public at large, including the plaintiffs herein, by making false representations about the safety of its products. 31. The defendant downplayed, understated and/or disregarded its knowledge of the serious and permanent side effects associated with PPA despite available information demonstrating its products were likely to cause serious and sometimes fatal side effects to the users. 32. The defendant was or should have been in possession of evidence demonstrating that its products caused serious side effects. Nevertheless, it continued to market the products by providing false and misleading information with regard to safety and efficacy. 33. The defendant's conduct, as more particularly described above, was performed willfully, intentionally and with reckless disregard for the rights of the plaintiff herein and the public at large. Accordingly, plaintiff seeks and is entitled to punitive or exemplary damages in an amount to be determined at trial. Doc#: 1359745 vl -8- WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. COUNT II - BREACH OF WARRANTY PLAINTIFF, LISA M. GAFFNEY V. DEFENDANT, SIDMAK LABORATORIES. INC. 34. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 35. The pharmaceutical product containing the drag PPA, as purchased and ingested by the plaintiff, was formulated, manufactured, marketed, packaged, labeled and sold by defendant with implied warranties of merchantability and fimess for its intended purposes, namely for a nasal decongestant, without risk of permanent damage to purchasers and/or consumers' body and health. The defendant is a seller of and merchants with respect to the product containing the drug PPA. 36. The plaintiff relied upon the defendant's implied warranties, as well as upon its skill and judgment, in purchasing and ingesting products containing the drug PPA. 37. Defendant breached its implied warranties to the plaintiff in violation of Sections 2314 and 2315 of the Pennsylvania Uniform Commercial Code or, if applicable, the equivalent UCC provisions: (a) by manufacturing, marketing, packaging, labeling and selling the product containing the drug PPA to the plaintiff with the risk of injuries, including, without limitation, strokes, without warning or disclosure thereof, by Doc#: 1359745 vi -9- package and label, of such risk to the plaintiff or its physician or pharmacist, and/or without so modifying or excluding such implied warranties; (b) by manufacturing, marketing, packaging, labeling and selling to the plaintiff products containing the drug PPA, which failed to control plaintiff's nasal congestion in a safe manner and without injuries, including, without limitation, strokes; and (c) by manufacturing, marketing, packaging, labeling and selling to plaintiff the products containing the drug PPA, which caused plaintiff serious physical injury and pain and suffering and attendant economic loss. 38. As a proximate result of defendant's breach of implied warranties, plaintiff has incurred and will continue to incur serious physical injury, pain and suffering, loss of income, loss of opportunity, loss of family and social relationships, and medical, hospital and other expenses related to the diagnosis and treatment thereof for which defendants are jointly and severally liable. 39. Defendant's breach of implied warranties was reckless and without regard for the public safety and welfare. The defendant misled both the medical community, the public at large, and the plaintiffs herein, making false representations about the safety of its products. 40. The defendant downplayed, understated and/or disregarded its knowledge of the serious and permanent side effects associated with the use of its products despite available information demonstrating these products would likely cause serious and sometimes fatal side effects to the users. Doc#: 1359745 vl -10- 41. The defendant was or should have been in possession of evidence demonstrating that its products caused serious side effects. Nevertheless, it continued to market the products by providing false and misleading information with regard to safety and efficacy. WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. COUNT III - STRICT LIABILITY PLAINTIFF, LISA M, GAFFNEY V. DEFENDANT. SIDMAK LABORATORIES, INC. 42. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 43. At the time they were formulated, manufactured, marketed, packaged, labeled and sold to plaintiffs, the products containing the drug PPA were defective and unreasonably dangerous to human health because: (a) they were sold without adequate warning to the plaintiff, other uses and consumers, physicians and pharmacists of the risk, with respect to a significant percentage of prospective and actual consumers thereof, of injuries, including, without limitation, strokes; (b) they failed to control plaintiWs nasal congestion in a safe manner and without injuries, including, without limitation, strokes; and Doc#: 1359745 vl -11- (c) defendant failed to develop and make available alternative products that were designed in a safer manner, even though such products were feasible and marketable. 44. The defects, as set forth in the preceding paragraph, were the proximate cause of the plaintiff's injuries, including, without limitation, stroke suffered by plaintiff for which defendant is strictly liable. 45. As a proximate result of defendant's defective product, and the injuries, including, without limitation, stroke, the product has caused to plaintiff, the plaintiff has incurred and will continue to incur serious physical injury, pain and suffering, loss of income, loss of oppommity, loss of family and social relationships, and medical, hospital and other expenses related to the diagnosis and treatment thereof, for which defendants are individually, jointly and severally liable. 46. The defendant's failure to warn was reckless and without regard for the public's safety and welfare. The defendant mislead both the medical community and the public at large, including the plaintiffs herein, by making false representations about the safety of its products. The pharmaceutical defendant downplayed, understated and/or disregarded its knowledge of the serious and permanent side effects associated with the use of its product despite available information demonstrating this product was likely to cause serious and sometimes fatal side effects to the users. 47. The defendant was or should have been in possession of evidence demonstrating that its product caused serious side effects. Nevertheless, it continued to market and sell the product while providing false and misleading information with regard to safety and efficacy. 48. The defendant's action described above was performed willfully, intentionally and with reckless disregard for the rights of the plaintiffs and the public. Doc#: 1359745 vl -12- 49. Accordingly, plaintiffs seek and are entitled to punitive or exemplary damages in an amount to be determined at trial. WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. COUNT IV - LOSS OF CONSORTIUM PLAINTIFF. DAVID A. GAFFNEY V. DEFENDANT. SIDMAK LABORATORIES. INC, 50. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 51. David A. Gaffney, at all times relevant herein, the husband of the plaintiff and, as such, lives and cohabits with her. 52. By reason of the foregoing, David A. Gaffney has necessarily paid and has become liable to pay for medical aid, treatment, and for medications, and will necessarily incur further expenses of a similar nature in the future. 53. By reason of the foregoing, David A. Gaffney has been caused, presently and in the future, the loss of his wife's companionship, services, society, and the ability of Lisa M. Gaffney in said respects has been impaired and depreciated, and the marital association between husband and wife has been altered, and as such the plaintiffs have been caused great mental anguish. WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as Doc#: 1359745 vl -13- provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. COUNT V - NEGLIGENCE PLAINTIFF. LISA M. GAFFNEY V. DEFENDANT. SOBEL N.V. 54. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 55. Defendants had a duty to exercise reasonable care in the manufacture, sale and/or distribution of pharmaceuticals containing PPA in the stream of commerce, including a duty to ensure that the product did not pose a significant increased risk of injury, including, without limitation, strokes. 56. Defendant knew or should have known that consumers such as the plaintiff could foreseeably suffer injury as a result of defendant's failure to exercise ordinary care as described above. 57. Prior to when the plaintiff ingested the product containing the drag PPA, defendant knew or had reason to know or in the existence of reasonable care should have known the following: (a) there had been as many as 30 published case reports in the medical literature associating PPA with strokes; and (b) a safer, alternative design of cough/cold products was available to defendant, by substitution ofpseudoephedrine for PPA. 58. Defendant negligently breached its duty to the plaintiffs, as set forth in the preceding paragraph, to discover, warn and implement the safer alternative product with respect to the risk of Doc#: 1359745 vl -14- injuries, including, without limitation, strokes, from the ingestion of products containing the drug PPA. 59. As a proximate result of the defendant's negligence, as set forth above, plaintiff has incurred and will continue to incur serious physical injury, pain and suffering, loss of income, loss of opportunity, loss of family and social relationships, and medical, hospital and other expenses relating to the diagnosis and treatment thereof, for which defendants are individually, jointly and severally liable. 60. Defendant's failure to warn was reckless and without regard for the public safety and welfare. The defendant mislead both the medical community and the public at large, including the plaintiffs herein, by making false representations about the safety of its products. 61. The defendant downplayed, understated and/or disregarded its knowledge of the serious and permanent side effects associated with PPA despite available information demonstrating its products were likely to cause serious and sometimes fatal side effects to the users. 62. The defendant was or should have been in possession of evidence demonstrating that its products caused serious side effects. Nevertheless, it continued to market the products by providing false and misleading information with regard to safety and efficacy. 63. The defendant's conduct, as more particularly described above, was performed willfully, intentionally and with reckless disregard for the rights of the plaintiff herein and the public at large. Accordingly, plaintiff seeks and is entitled to punitive or exemplary damages in an amount to be determined at trial. WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as Doc#: 1359745 vi -15- provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. COUNT VI - BREACH OF WARRANTY PLAINTIFF. LISA M. GAFFNEY V. DEFENDANT. SOBEL N.V. 64. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 65. The pharmaceutical product containing the drag PPA, as purchased and ingested by the plaintiff, was formulated, manufactured, marketed, packaged, labeled and sold by defendant with implied warranties of merchantability and fitness for its intended purposes, namely for a nasal decongestant, without risk of permanent damage to purchasers and/or consumers' body and health. The defendant is a seller of and merchants with respect to the product containing the drag PPA. 66. The plaintiff relied upon the defendant's implied warranties, as well as upon its skill and judgment, in purchasing and ingesting products containing the drug PPA. 67. Defendant breached its implied warranties to the plaintiff in violation of Sections 2314 and 2315 of the Pennsylvania Uniform Commercial Code or, if applicable, the equivalent UCC provisions: (a) by manufacturing, marketing, packaging, labeling and selling the product containing the drag PPA to the plaintiff with the risk of injuries, including, without limitation, strokes, without warning or disclosure thereof, by package and label, of such risk to the plaintiff or its physician or pharmacist, and/or without so modifying or excluding such implied warranties; Doc#: 1359745 vi -16- (b) by manufacturing, marketing, packaging, labeling and selling to the plaintiff products containing the drug PPA, which failed to control plaintiff's nasal congestion in a safe manner and without injuries, including, without limitation, strokes; and (c) by manufacturing, marketing, packaging, labeling and selling to plaintiff the products containing the drag PPA, which caused plaintiff serious physical injury and pain and suffering and attendant economic loss. 68. As a proximate result of defendant's breach of' implied warranties, plaintiff has incurred and will continue to incur serious physical injury, pain and suffering, loss of income, loss of oppommity, loss of family and social relationships, and medical, hospital and other expenses related to the diagnosis and treatment thereof for which defendants are jointly and severally liable. 69. Defendant's breach of implied warranties was reckless and without regard for the public safety and welfare. The defendant misled both the medical community, the public at large, and the plaintiffs herein, making false representations about the safety of its products. 70. The defendant downplayed, understated and/or disregarded its knowledge of the serious and permanent side effects associated with the use of its products despite available information demonstrating these products would likely cause serious and sometimes fatal side effects to the users. 71. The defendant was or should have been in possession of evidence demonstrating that its products caused serious side effects. Nevertheless, it continued to market the products by providing false and misleading information with regard to safety and efficacy. Doc#: 1359745 vl -17- WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. COUNT VII - STRICT LIABILITY PLAINTIFF. LISA M. GAFFNEY V. DEFENDANT. SOBEL N.V. 72. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 73. At the time they were formulated, manufactured.., marketed, packaged, labeled and sold to plaintiffs, the products containing the drug PPA were defective and unreasonably dangerous to human health because: (a) they were sold without adequate warning to the plaintiff, other uses and consumers, physicians and pharmacists of the risk, with respect to a significant percentage of prospective and actual consumers thereof, of injuries, including, without limitation, strokes; (b) they failed to control plaintiff's nasal congestion in a safe manner and without injuries, including, without limitation, strokes; and (c) defendant failed to develop and make available alternative products that were designed in a safer manner, even though such products were feasible and marketable. Doc/t: 1359745 vl -18- 74. The defects, as set forth in the preceding paragraph, were the proximate cause of the plaintiff's injuries, including, without limitation, stroke suffered by plaintiff for which defendant is strictly liable. 75. As a proximate result of defendant's defective product, and the injuries, including, without limitation, stroke, the product has caused to plaintiff, the plaintiff has incurred and will continue to incur serious physical injury, pain and suffering, loss of income, loss of opportunity, loss of family and social relationships, and medical, hospital and other expenses related to the diagnosis and treatment thereof, for which defendants are individually, jointly and severally liable. 76. The defendant's failure to warn was reckless and without regard for the public's safety and welfare. The defendant mislead both the medical community and the public at large, including the plaintiffs herein, by making false representations about the safety of its products. The pharmaceutical defendant downplayed, understated and/or disregarded its knowledge of the serious and permanent side effects associated with the use of its product despite available information demonstrating this product was likely to cause serious and sometimes fatal side effects to the users. 77. The defendant was or should have been in possession of evidence demonstrating that its product caused serious side effects. Nevertheless, it continued to market and sell the product while providing false and misleading information with regard to safety and efficacy. 78. The defendant's action described above was performed willfully, intentionally and with reckless disregard for the rights of the plaintiffs and the public. 79. Accordingly, plaintiffs seek and are entitled to punitive or exemplary damages in an amount to be determined at trial. Doc#: 1359745 vi -19- WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. COUNT VIII - LOSS OF CONSORTIUM pLAINTIFF. DAVID A. GAFFNEY V. DEFENDANT. SOBEL N.V. 80. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 81. David A. Gaffney, at all times relevant herein, the husband of the plaintiff and, as such, lives and cohabits with her. 82. By reason of the foregoing, David A. Gaffney has necessarily paid and has become liable to pay for medical aid, treatment, and for medications, and will necessarily incur further expenses of a similar nature in the future. 83. By reason of the foregoing, David A. Gaffney has been caused, presently and in the future, the loss of his wife's companionship, services, society, and the ability of Lisa M. Gaffney in said respects has been impaired and depreciated, and the marital association between husband and wife has been altered, and as such the plaintiffs have been caused great mental anguish. WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. Doc#: 1359745 vi -20- COUNT IX - STRICT LIABILITY PLAINTIFF. LISA M. GAFFNEY V. DEFENDANT. GIANT FOOD STORES. LLC D/B/A GIANT PHARMACY 84. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 85. At the time they were formulated, manufactured, marketed, packaged, labeled and sold to plaintiffs, the products containing the drug PPA were defective and unreasonably dangerous to human health because: (a) they were sold without adequate warning to the plaintiff, other uses and consumers, physicians and pharmacists of the risk, with respect to a significant percentage of prospective and actual consumers thereof, of injuries, including, without limitation, strokes; (b) they failed to control plaintiff's nasal congestion in a safe manner and without injuries, including, without limitation, strokes; and (c) defendant failed to develop and make available alternative products that were designed in a safer manner, even though such products were feasible and marketable. 86. The defects, as set forth in the preceding paragraph, were the proximate cause of the plaintiff's injuries, including, without limitation, stroke suffered by plaintiff for which defendant is strictly liable. 87. As a proximate result of defendant's defective product, and the injuries, including, without limitation, stroke, the product has caused to plaintiff, the plaintiff has incurred and will Doc#: 1359745 vl -21- continue to incur serious physical injury, pain and suffering, loss of income, loss of oppommity, loss of family and social relationships, and medical, hospital and other expenses related to the diagnosis and treatment thereof, for which defendants are individually, jointly and severally liable. 88. The defendant's failure to warn was reckless and without regard for the public's safety and welfare. The defendant mislead both the medical community and the public at large, including the plaintiffs herein, by making false representations about the safety of its products. The pharmaceutical defendant downplayed, understated and/or disregarded its knowledge of the serious and permanent side effects associated with the use of its product despite available information demonstrating this product was likely to cause serious and sometimes fatal side effects to the users. 89. The defendant was or should have been in possession of evidence demonstrating that its product caused serious side effects. Nevertheless, it continued to market and sell the product while providing false and misleading information with regard to safety and efficacy. 90. The defendant's action described above was performed willfully, intentionally and with reckless disregard for the rights of the plaintiffs and the public. 91. Accordingly, plaintiffs seek and are entitled to punitive or exemplary damages in an amount to be determined at trial. WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable Court. Doc#: 1359745 vi -22- Date: COUNT X - LOSS OF CONSORTIUM PLAINTIFF. DAVID A. GAFFNEY V. DEFENDANT. GIANT FOOD STORES. LLC D/B/A GIANT PHARMACY 92. Plaintiffs incorporate by way of reference all averments contained in the preceding paragraphs of this Complaint as if the same were fully set forth herein at length. 93. David A. Gaffi~ey was, at all times relevant herein, the husband of the plaintiff and, as such, lives and cohabits with her. 94. By reason of the foregoing, David A. Gaffney has necessarily paid and has become liable to pay for medical aid, treatment, and for medications, and will necessarily incur further expenses of a similar nature in the future. 95. By reason of the foregoing, David A. Gaffney has been caused, presently and in the future, the loss of his wife's companionship, services, society, and the ability of Lisa M. Gaffney in said respects has been impaired and depreciated, and the marital association between husband and wife has been altered, and as such the plaintiffs have been caused great mental anguish. WHEREFORE, plaintiffs demand judgment against defendants, individually, jointly and severally, for damages, both compensatory and punitive, interest, attorney's fees, costs of suit as provided by law, and any such other relief as may be deemed just and equitable by this Honorable WHIT_/E~_ .D/WILL'I~S LLP 1800/OneJ~lberty Plac0Xx Phildd~ia, PA 19103-~395 215-864-7021 ~ ID No. 83417 Doc#: 1359745 vl -23- VERIFICATION We, Lisa M. Gaffney and David A. Gaffney, duly depose and state that we are the plaintiffs in the foregoing matter and, as such, verify and state that the facts contained in the foregoing Complaint are tree and correct to the best of our knowledge, information and belief. We make these statements subject to the penalties of 18 Pa. C.S.A. {}4904 relating to unswom falsification to authorities. Dated: l--/~ ~3 Doc#: 1359745 vl F:WILESXDATAF1LEXMacdoc.curX278.pra 1/nlm Created: 2/24/03 1:12:07 PM Revised: 2/24/03 2:14:39 PM 9500.278 LISA M. GAFFNEY AND DAVID A. GAFFNEY, h/w, Plaintiffs SIDMAK LABORATORIES, INC., SOBEL, N.V., and GIANT FOOD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5264 CIVIL ACTION-LAW STORES, LLC d/b/a GIANT PHARMACY,: Defendants · JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS & OTTO on behalf of Defendant Giant Food Stores, LLC d/b/a Giant Pharmacy in the above matter. Defendant hereby demands a twelve juror jury trial in the above captioned action. Dated: February 24, 2003 MARTSON ~, ~ORFF WILLIAMS & OTTO By ~~i Georg['~. ~aller, Jr., Esqu'~ I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Giant Food Stores, LLC clfo/a Giant Pharmacy CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent for Manson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: James D. Schultz, Esquire WHITE AND WILLIAMS, LLP 1800 One Liberty Place Philadelphia, PA 19103 Warren E. Voter, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102 Sobel N.V. NCB Weg 10 5681 RH BEST Netherlands MARTSON DEARDORFF WILLIAMS & OTTO Nl'~h6le L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 24, 2003 SHERIFF'S RETURN - REGULAR CASE NO: 2002-05264 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GAFFNEY LISA M ET AL VS SIDMAK LABORATORIES INC ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GIANT FOOD STORES LLC DBA GIANT PHARMACY the DEFENDANT at 1149 HARRISBURG PIKE , at 1606:00 HOURS, on the 20th day of February , 2003 CARLISLE, PA 17013 CHRISTINA WARNER, LEGAL ASST a true and attested copy of COMPLAINT & NOTICE by handing to ADULT IN CHARGE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 3 45 00 10 00 00 31 45 Sworn and Subscribed to before me this ~ Y day of '~~ ~,~2.~ A.D. ' ' Prothonotary ' ' So Answers: R. Thomas Kline 02/21/2003 ~ WHITE & WILLIAM~ / / - De~u%y' SKeriff ~ SWEENEY & SHEEHAN By: Warren E. Voter Identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney fi)r: Defendant, Sidmak Laboratories, Inc. LISA M. GAFFNEY and DAVID A. GAFFNEY, h/w Vo SIDMAK LABORATORIES, INC.; SOBEL N.V. and GIANT FOOD STORES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION JURY TRIAL DEMANDED NO. 02-:5264 DEFENDANT, SIDMAK LABORATORIES, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT 1. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. 2. Admitted in part; denied in part. Answering Defendant Sidmak admits that it is foreign corporation with its principal place of business in New Jersey and is engaged in the business of manufacturing independent generic medicines, including some medicines which have contained PPA. Sidmak lacks sufficient information to admit or deny the remaining allegations contained therein and therefore denies same. 3. The averments contained in this paragraph relate to a Defendant other than 1417660.1 information sufficient to affirm or deny the averments contained therein and therefore denies same. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. 17. Denied. Answering Defendant denies that their products were unreasonably dangerous. Answering Defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 18. It is unclear whether the averments contained in this paragraph are made against Answering Defendant and therefore do not require an answer. To the extent the Court deems an answer necessary, all averments specific to Answering Defendant are denied. Answering Defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 19. Answering Defendant denies it was negligent. Moreover, this averment constitutes a conclusion of law requiring no answer. Answering Defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 20. This paragraph contains no averments against Answering Defendant and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 1417660.1 (4) 21. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. 22. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. 23. Answering Defendant denies that plaintiff sustained any injuries as a result of products manufactured by Answering Defendant. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the remaining averments of this Paragraph and strict proof is demanded at time of trial. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT I - NEGLIGENCE 24. Answering Defendant, Sidmak Laboratories, Inc., incorporates its answers to paragraphs one through twenty-three of Plaintiffs' Complaint as if the same were set forth herein at length. 25. 26. 27(a)-(b). This averment constitutes a conclusion of law requiring no answer. This averment constitutes a conclusion of law requiring no answer. After reasonable investigation, Answering Defendant is without 1417660.1 (5) demanded at time of trial. requiring no response. 28. 29. 30. 31. answer. 32. answer. 33. answer. information sufficient to affirm or deny the averments of this Paragraph and strict proof is For further answer, these averments constitutes a conclusion of law This averment constitutes a conclusion of law requiring no answer. This averment constitutes a conclusion of law requiring no answer. This averment constitutes a conclusion of law requiring no answer. Denied. Moreover, this averment constitutes a conclusion of law requiring no Denied. Moreover, this averment constitutes a conclusion of law requiring no Denied. Moreover, this averment constitutes a conclusion of law requiring no WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT II - BREACH OF WARRANTY 34. Answer Defendant, Sidmak Laboratories, Inc., incorporates its answers to paragraphs one through thirty-three of Plaintiffs' Complaint as if the same were set forth herein at length. 35. After reasonable investigation, Answering Defendant is without information 1417660. I (6) sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. Moreover, Answering Defendant incorporates its answer to Paragraph 2 as if more fully set forth at length. 36. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 37(a) - (c). This averment constitutes a conclusion of law requiring no answer. 38. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 39. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 40. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no 1417660.1 (7) response. 41. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT III - STRICT LIABILITY 42. Answering Defendant, Sidmak Laboratories, Inc., incorporates its answers to paragraphs one through forty-one of Plaintiffs' Complaint as if the same were set forth herein at length. 43(a)-(c). After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 44. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 1417660.1 (8) 45. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 46. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 47. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 48. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 49. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 1417660.1 (9) WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT IV - LOSS OF CONSORTIUM 50. Answering Defendant, Sidmak Laboratories, Inc., incorporates its answers to paragraphs one through forty-nine of Plaintiffs' Complaint as if the same were set forth herein at length. 51. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. 52. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. 53. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this Paragraph and strict proof is demanded at time of trial. For further answer, these averments constitutes a conclusion of law requiring no response. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, 1417660.1 (10) counsel fees and costs. 54. COUNT V - NEGLIGENCE Answering Defendant, Sidmak Laboratories, Inc. incorporates its answers to paragraphs one through fifty-three of Plaintiffs' Complaint as if the same were set forth herein at length. 55. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 56. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 57. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 58. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 59. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 1417660.1 (11) 60. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 61. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 62. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 63. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT VI - BREACH OF WARRANTY 64. Answering Defendant, Sidmak Laboratories, Inc., incorporates its answers to paragraphs one through sixty-three of Plaintiffs' Complaint as it' the same were set forth herein at length. 65. The averments contained in this paragraph relate to a Defendant other than 1417660.1 (12) Answering Defendant and no answer ~s required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 66. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 67. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer ~s required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 68. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 69. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer ~s required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 70. The averments contained in this paragraph relate to a Defendant other than Answenng Defendant and no answer ~s required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 71. The averments contained in this paragraph relate to a Defendant other than Answenng Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answenng Defendant, they are denied as conclusions of law. 1417660.1 (13) WItEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT VII - STRICT LIABILITY 72. Answering Defendant, Sidmak Laboratories, Inc. incorporates its answers to paragraphs one through seventy-one of Plaintiffs' Complaint as if the same were set forth herein at length. 73. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 74. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 75. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 76. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 77. The averments contained in this paragraph relate to a Defendant other than 1417660.1 (14) Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 78. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 79. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT VIII - LOSS OF CONSORTIUM 80. Answering Defendant, Sidmak Laboratories, Inc. incorporates its answers to paragraphs one through seventy-nine of Plaintiffs' Complaint as if the same were set forth herein at length. 81. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 82. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this 1417660.1 (15) paragraph relate to Answering Defendant, they are denied as conclusions of law. 83. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT IX - STRICT LIABILITY 84. Answering Defendant, Sidmak Laboratories, Inc., incorporates its answers to paragraphs one through eighty-three of Plaintiffs' Complaint as if the same were set forth fully at length herein. 85. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 86. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 87. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 1417660.1 (16) 88. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 89. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 90. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 91. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT X - LOSS OF CONSORTIUM 92. Answering Defendant, Sidmak Laboratories, Inc., incorporates its answers to paragraphs one through ninety-one of Plaintiffs' Complaint as if the same were set forth herein at length. 93. The averments contained in this paragraph relate to a Defendant other than 1417660.1 (17) Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 94. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 95. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. NEW MATTER At the time of the preparation of this Answer, Answering Defendant is unaware of all the facts and circumstances giving rise to the claims set forth in the Complaint. The following New Matter are raised so as not to be waived as a matter of law. The New Matter will be relied upon to the extent the facts developed show that they apply. 96. Plaintiff's cause of action is barred by the contributory negligence of Plaintiff. 97. The provisions of the Pennsylvania Comparative Negligence Act, 17 P.S. Sections 2101, 2102, apply in this case to limit or bar Plaintiff's cause of action. 98. Plaintiff assumed the risk of her own conduct. 1417660.1 (18) 99. 100. 101. 102. Plaintiff's cause of action is barred by the applicable Statute of Limitations. This Court lacks subject matter of the within action. Plaintiff's Complaint fails to state a claim upon which relief can be granted. In the event that the Plaintiff requests damages for delay pursuant to Pa.R.Civ. P. 238, Answering Defendant challenges the applicability and constitutionality of said Rule and places same at issue. Plaintiff's claim is barred and/or limited by the Doctrine of Spoliation of 103. Evidence. 104. 105. 106. limited or modified. Plaintiff's breach of warranty claim must fail for lack of notice. PlaintiW s breach of warranty claim must fail for lack of privity. Plaintiff's claim is barred in that any warranties were effectively disclaimed, SWEENEY & SHEEHAN Warren E. Voter Attorney for Defendant, Sidmak Laboratories, Inc. 1417660.1 (19) SWEENEY & SHEEHAN By: Warren E. Voter Identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney for: Defendant, Sidmak Laboratories, Inc. LISA M. GAFFNEY and DAVID A. GAFFNEY, h/w SIDMAK LABORATORIES, INC.; SOBEL NV and GIANT FOOD STORES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION JURY TRIAL DEMANDED NO. 02-5264 CERTIFICATE OF SERVICE I, Warren E. Voter, Esquire, hereby certify that a tree mad correct copy of DEFENDANT, SIDMAK LAB ORA TORIES, INC. 'S ANSWER TO PLAINTIFFS' COMPLAINT was provided to all counsel and unrepresented parties by United States First Class Mail, postage prepaid on the date listed below: SWEENEY & SHEEHAN By: Warren E. Voter Attorney for Defendant, Sidmak Laboratories, Inc. DATE: March 7, 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LISA M. GAFFNEY and DAVID A. GAFFNEY, H/W V. SIDMAK LABORATORIES, INC. SOBEL N.V. and GIANT FOOD STORES, LLC CIVIL ACTION NO. 02-5264 PLAINTIFFS LISA M. GAFFNEY AND DAVID A. GAFFNEY'S RESPONSE TO NEW MATTER OF DEFENDANT SIDMAK LABORATORIES, INC. 96. Denied. Plaintiffs specifically deny that they were contributorily negligent. 97. Objection. Plaintiffs object to the averment as a conclusion of law to which no responsive pleading is necessary. By way of further resl0~onse, without waiving the foregoing objection, plaintiffs specifically deny that they were comparatively negligent. 98. Objection. Plaintiffs object to the averments contained within this paragraph as conclusions of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objections, plaintiffs did assume any risk in connection with the allegations set forth in their Complaint. 99. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objection, plaintiffs deny that the causes of action have been barred by the statute of limitations. 100. Denied. Plaintiffs deny that this court lacks subject matter jurisdiction of the within action. DOCS_PH 1425205vl 101. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objection, plaintiffs aver that they have stated a valid claim upon which relief may be granted. 102. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. 103. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objection, plaintiffs have not spoliated any evidence which may support the allegations set forth in plaintiffs' Complaint. 104. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, the averment is specifically denied. 105. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, the averment is specifically denied. 106. Objection. responsive pleading is necessary. denied. Plaintiffs object to this averment as a conclusion of law to which no By way of further response, the averment is specifically BYe. _.,/~ .,/ J~e~7 Schu'lt~/Esquire ~ One Lib~la"y Place Philadelphia, PA 19103 215-864-7021 Attorney I.D.#83417 -2- DOCS_PH 1425205vl CERTIFICATE OF SERVICE I, James D. Schultz, Esquire, hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Answer to New Matter of Defendant, Sidmak Laboratories, Inc.on the 15th day of May, 2003, via First Class Mail upon the following: George B. Failer, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Warren E. Voter, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102 By: ~.mfl~ ~ ch_~?ltz' E sj{~ife ~Orfiey for Pla7 DOCS_PH 1425205vl -3- LISA M. GAFFNEY AND DAVID A. GAFFNEY, h/w, Plaintiffs SIDMAK LABORATORIES, INC., SOBEL, N.V., and GIANT FOOD STORES, LLC, d/b/a GIANT PHARMACY, Defendants iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5264 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED DEFENDANT GIANT FOOD STORES, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant Giant Food Stores, LLC, d~b/a Giant Pharmacyby and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and Answers Plaintiff' s Complaint as follows: 1. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demand at time of trial. 2. The averments of this paragraph are directed to a party other than Answering Defendant. 3. Defendant. 4. The averments of this paragraph are directed to a party other than Answering Admitted in part and denied in part. It is admitted that Defendant Giant is a foreign corporation with its principal place of business located in Carlisle, Pennsylvania. Answering Defendant lacks information sufficient to admit or deny the remaining allegations of this paragraph and strict proof thereof is demanded at time of trial. 5-7. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demanded at time of trial. 8. The averments of this paragraph are directed to a party other than Answering Defendant. 9-16. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demanded at time of trial. 17. The averments of paragraph 17 are directed to a party other than Answering Defendant. 18. It is unclear whether the averments contained in this paragraph are directed to Answering Defendant and therefore no response is required. To the extent that the court deems a response necessary, all averments specific to Answering Defendant are denied. Answering Defendant is without information sufficient to admit or deny the remaining averments of this paragraph and therefore denies same. 19. The averments of paragraph 19 are directed to a party other than Answering Defendant. 20-21. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demanded at time of trial. 22. Admitted. 23. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demanded at time of trial. 24-83. The averments contained in these paragraphs are directed to a party other than Answering Defendant. 84. Answering Defendant incorporates by reference its answers to paragraphs 1 through 83 of Plaintiff's Complaint as though fully set forth herein. 85. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demanded at time of trial. 86. The averments of paragraph 86 are conclusions of law to which no responsive pleading is required. 87. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demanded at time of trial. 88-89. The averments contained in these paragraphs are directed to a party other than Answering Defendant. 90-91. The averments ofparagraphs 90 and 91 areconclusionsoflawtowhichnoresponsive pleading is required. 92. Answering Defendant incorporates by reference its answers to paragraphs 1 through 91 of Plaintiffs' Complaint as though fully set forth herein. 93-95. Answering Defendant is without information sufficient to admit or deny the averments of this paragraph and strict proof thereof is demanded at time of trial. NEW MATTER At the time of the preparation of this Answer, answering Defendant is unaware of all facts and circumstances giving rise to the claims set forth in the Complaint. The following New Matter is raised so as not to be waived as a matter of law. 96. Plaintiffs' cause of action may be barred by the applicable statute of limitations. 97. Plaintiffs' Complaint fails to state a claim upon which relief can be granted against Answering Defendant. NEW MATTER CROSSCLAIM PURSUANT TO Pa. 1LC.P. 2252(d) Giant v. Sidmak Laboratories, Inc. 98. Answering Defendant incorporates by reference its answers to paragraphs 1 through 97 of Plaintiffs' Complaint as though fully set forth herein. 99. If Plaintiffs are entitled to recover any damages, then Defendant Sidmak is solely liable to Plaintiffs. 100. If it is determined that Plaintiffs are entitled to recover any damages from Answering Defendant, which potential finding of liability is expressly denied, then Defendant Sidmak is jointly and severally liable with Answering Defendant, liable over Answering Defendant or liable to Answering Defendant for contribution and/or indemnification. NEW MATTER CROSSCLAIM PURSUANT TO Pa. R.C.P. 2252(d) Giant v. Sobel N.V. 101. Answering Defendant incorporates by reference its answers to paragraphs 1 through 100 of Plaintiffs' Complaint as though fully set forth herein. 102. If Plaintiffs are entitled to recover any damages, then Defendant Sobel is solely liable to Plaintiffs. 103. If it is determined that Plaintiffs are entitled to recover any damages from Answering Defendant, which potential finding of liability is expressly denied, then Defendant Sobel is jointly and severally liable with Answering Defendant, liable over Answering Defendant or liable to Answering Defendant for contribution and/or indemnification. Dated: July 16, 2003 MARTSON DEARDORFF WILLIAMS 8,: OTTO By ~"'7'- {~Z~' Anthony T. Lucido, Esquire I.D. No. 76583 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Giant Food Stores, LLC d/b/a Giant Pharmacy CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Defendant Giant Food Stores, LLC's Answer to Plaintiff's Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: James D. Schultz, Esquire WHITE AND WILLIAMS, LLP 1800 One Liberty Place Philadelphia, PA 19103 Warren E. Voter, Esquire SWEENEY & SHEEHAN 19th Floor 1515 Market Street Philadelphia, PA 19102 Sobel N.V. NCB Weg 10 5681 RH BEST Netherlands MARTSON DEARDORFF WiLLIAMS & OTTO Ami J. :l'~na ' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 16, 2003 SWEENEY & SHEEHAN By: Warren E. Voter Identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney for: Defendant, Sidmak Laboratories, Inc. LISA M. GAFFNEY and DAVID A. GAFFNEY, h/w SIDMAK LABORATORIES, INC.; SOBEL N.V. and GIANT FOOD STORES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION JURY TRIAL DEMANDED NO. 02-5;264 DEFENDANT, SIDMAK LABORATORIES, INC.'S REPLY TO THE NEW MATTER/CROSSCLAIM OF DEFENDANT, GIANT FOOD STORES, LLC 96. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as co:aclusions of law. 97. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments comained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff', together with all reasonable interest, expenses, counsel fees and costs. 98. This is not a proper averment and no answer is required. To the extent that an answer is required, Answering Defendant incorporates its answer to Plaintiff's Complaint as if more fully set forth at length. 99. This averment constitutes a conclusion of law requiring no answer. 100. This averment constitutes a conclusion of law requiring no answer. WHEREFORE, Answering Defendant, Sidmak Laboratories, Inc., demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. SWEENE~;/~//HEEHAN Warren E. Voter Attorney for Defendant, Sidmak Laboratories, Inc. yERIFIC___ATION Warren E. Voter, states that he is an attorney in the Law Firm of Sweeney & Sheehan, that he is authorized to make this Verification; and, that the facts set forth in the foregoing DEFENDANT, SIDMAK LABORATORIES, INC.'S REPLY TO TItE NEW MATTER/CROSSCLAIM OF DEFENDANT, GIANT FOOD STORES, LLC are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 C.S.A. §4904 relating to unswom falsification to authorities. Ygarren E. Voter Date: July 25, 2003 SWEENEY & SHEEHAN By: Warren E. Voter Identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney for: Defendant, Sidmak Laboratories, Inc. LISA M. GAFFNEY and DAVID A. GAFFNEY, h/w SIDMAK LABORATORIES, INC.; SOBEL N.V. and GIANT FOOD STORES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION JURY TRIAL DEMANDED NO. 02-5264 CERTIFICATION OF SERVICE I, Warren E. Voter, Esquire, do hereby certify that a tree and correct copy of DEFENDANT, SIDMAK LABORATORIES, INC. 'S REPLY TO THE NEW MATTER/CROSSCLAIM OF DEFENDANT, GIANT FOOD STORES, LLC was provided to all interested counsel/parties by United States First Class Mail, postage prepaid on the date listed below. SWEENEY & SItEEHAN Attorney for Defendant, Sidmak Laboratories, Inc. Date: July 25, 2003 1N THE COURT OF COMMON PLEAS OF CUMBERLAND cOUNTY, PENNSYLVANIA LISA M. GAFFNEY and DAVID A. GAFFNEY, H/W SIDMAK LABORATORIES, INC. SOBEL N.V. and GIANT FOOD STORES, LLC CIVIL ACTION NO. 02-5264 PLAINTIFI~S' REPLY TO NEW MATTER OF DEFENDANT~ GIANT FOOD STORES~ LLC Plaintiffs, by and through its undersigned counsel, hereby respond to the New Matter of defendant, Giant Food Stores, LLC, as follows: 96. Objection. Defendant's averment sets forth conclusions of law to which no responsive pleading is necessary. By way of further response, without waiving said objection, plaintiffs deny that this action is barred by the applicable Statute of Limitations. 97. Objection. The averment contained in this paragraph is a conclusion of law to which no responsive pleading is necessary. By way of further objection, defendant does not state any reasons for the averment that plaintiffs' Complaint fails to state a claim upon which relief can be granted. By way of further response, without waiving the aforesaid objections, plaintiffs state that they have stated claims upon which relief can be granted. DOCS_PH 1457198vl CERTIFICATE OF SERVICE I, James D. Schultz, Esquire, hereby certify that I served a tree and correct copy of the foregoing Plaintiffs' Answer to New Matter of Defendant, Giant Food Stores, LLC on the 30th day of July, 2003, via First Class Mail upon the following: George B. Failer, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Warren E. Voter, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102 S LLP -"Atto ~/fflr Plainti~ DOCS_PH 1425205vl -3- SWEENEY & SHEEHAN By: Warren E. Voter Identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney for: Defendant, Sobel, NV LISA M. GAFFNEY and DAVID A. GAFFNEY, h/w SIDMAK LABORATORIES, INC., SOBEL, NV and GIANT FOOD STORES, : LLC : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION JURY TRIAL DEMANDED NO. 02-5264 DEFENDANT, SOBEL, NV'S ANSWER TO PLAINTIFFS' COMPLAINT 1. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is dernandcd at time of triai. 2. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent thc averments; contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 3. Admitted in part, denied in part. Sobel, NV admits that it is a Dutch corporation formed with its principal place of business at thc address staled. Sobel, NV lacks sufficient information to admit or deny the remaining allegations contained herein and therefore denies same. Moreover, thc averments contained in this paragraph constitute conclusions of law requiring no answer. Finally, the averments contained in this paragraph relate to defendants other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied. 4. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 5. Admitted. 6. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. 7. This paragraph does not contain any averments and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the averments contained therein and therefore denies same. 8. Denied. Moreover, this averment constitutes a conclusion of law requiring no answer. 9. This paragraph does not contain any averments and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the averments contained therein and therefore denies same. 10. This paragraph does not contain any averments and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the averments contained therein amd therefore denies same. 11. This paragraph does not contain any averments and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the averments contained therein and therefore denies same. 12. This paragraph does not contain any averments and therefore does not require an answer. To the extent the Court deems an answer necessaE.~, Answering Defendant is without information sufficient to affirm or deny the averments contained therein and therefore denies same. 13. This paragraph does not contain any averments and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the averments contained therein and therefore denies same. 14. This paragraph does not contain any averments and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the averments contained therein and therefore denies same. 15. This paragraph does not contain any averments amd therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the averments contained therein and therefore denies same. 16. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. 17. Denied. Answering Defendant denies that its products were unreasonably dangerous. Answering Defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 18. It is unclear whether the averments contained in this paragraph are made against Answering Defendant and therefore do not require an answer. To the extent the Court deems an answer necessary, all averments specific to Answering Defendant are denied. Answering Defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 19. Answering Defendant denies that it was negligent. Moreover, this averment constitutes a conclusion of law requiring no answer. Answering Defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 20. This paragraph contains no averments against Answering Defendant and therefore does not require an answer. To the extent the Court deems an answer necessary, Answering Defendant is without information sufficient to affirm or deny the remaining averments and therefore denies same. 21. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. 22. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. 23. Answering Defendant denies that plaintiff sustained any injuries as a result of products manufactured by Answering Defendant. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the remaining averments of this paragraph and strict proof is demanded at time of trial. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT I - NEGLIGENCE 24. Answering Defendant, Sobel NV, incorporates its answers to paragraphs one through twenty-three of Plaintiffs' Complaint as if the same were set forth herein at length. 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 26. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of lmv. 27 (a)-(b). The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 28. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 29. The averments contained in this paragraph relate lo a defendant other than Answering Defendant and no answer is required. To the extent the avermems contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 30. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averment:s contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 31. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 32. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 33. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT II - BREACH OF WARRANTY 34. Answering Defendant, Sobel NV, incorporates its answers to paragraphs one through thirty-three of Plaintiffs' Complaint as if the same were set forth herein at length. 35. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 36. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 37. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 38. The averments contained in this paragraph relate tea defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 39. The averments contained in this paragraph relate to a defendant other than Answering De£endant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 40. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of lmv. 4 I. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with ail reasonable interest, expenses, counsel fees and costs. COUNT III - STRICT LIABILITY 42. Answering Defendant, Sobel NV, incorporates its. answers to paragraphs one through forty-one of Plaintiffs' Complaint as if the same were set forth herein at length. 43 (a)-(c). 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 44. 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 45. 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 46. 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 47. 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 48. 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 49. 25. The averments contained in this paragraph relate to a defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT IV - LOSS OF CONSORTIUM 50. Answering Defendant, Sobel NV, incorporates its answers to paragraphs one through forty-nine of Plaintiffs' Complaint as if the same were set forth herein at length. 51. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. 52. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute a conclusion of law requiring no response. 53. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute a conclusion of law requiring no response. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT V - NEGLIGENCE 54. Answering Defendant, Sobel NV, incorporates its answers to paragraphs one through fifty-three of Plaintiffs' Complaint as if the same were set forth herein at length. 55. This averment constitutes a conclusion of law requiring no answer. 56. This averment constitutes a conclusion of law requiring no answer. 57. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 58. This averment constitutes a conclusion of law requiring no answer. 59. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 60. This averment constitutes a conclusion of law requiring no answer. 61. This averment constitutes a conclusion of law requiring no answer. 62. This averment constitutes a conclusion of law requiring no answer. 63. This averments constitutes a conclusion of requiring no answer. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. 64. COUNT VI - BREACH OF WARRANTY Answering Defendant, Sobel NV, incorporates its answers to paragraphs one through sixty-three of Plaintiffs' Complaint as if the same were set forth herein at length. 65. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 66. This averment constitutes a conclusion of law requiring no response. 67 (a)-(c). This averment constitutes a conclusion of law requiring no response. 68. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 69. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proefis demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 70. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 71. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. 72. _COUNT VII - STRICT LIABILITY Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. 73. (a)-(c). This averment constitutes a conclusion .of law requiring no response. 74. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 75. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict pronfis demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 76. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 77. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 78. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 79. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT VIII - LOSS OF CONSORTIUM 80. Answering Defendant, Sobel NV, incorporates ks answers to paragraphs one through seventy-nine of Plaintiffs' Complaint as if the same were set fi)rth herein at length. 81. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. 82. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 83. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT IX - STRICT LIABILITY 84. Answering Defendant, Sobel NV, incorporates its answers to paragraphs one through eighty-three of Plaintiff's Complaint as if the same were set forth fully at length herein. 85. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 86. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 87. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 88. The averments contained in this paragraph relate 'to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 89. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 90. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 91. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. COUNT X - LOSS OF CONSORTIUM 92. Answering Defendant, Sobel NV, incorporates its answers to paragraphs one through ninety-one of Plaintiffs' Complaint as if the same were set forth herein at length. 93. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 94. The averments contained in this paragraph relate ]Io a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 95. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant, Sobel NV, demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. NEW MATTER At the time of the preparation of this Answer, Answering Defendant is unaware of all the facts and circumstances giving rise to the claims set forth in the Complaint. The following New Matter are raised so as not to be waived as a matter of law. The New Matter will be relied upon to the extent the facts developed show that they apply. 96. The Complaint fails to state a claim upon which relief may be granted. 97. The alleged injuries to Plaintiff were not caused by any act or omission on the part of Answering Defendant, nor were they caused by anything for which Answering Defendant is responsible. In the alternative, Answering Defendant avers that Plaintiff's injuries were caused solely by, or in the alternative, proximately, by acts, wrongs, omissions and/or negligence of other parties for whose acts or omissions Answering Defendant is not liable or responsible. 98. The alleged injuries to Plaintiffresulted from new and independent, unforeseeable, superseding and/or intervening causes unrelated to any conduct of, or product placed in the stream of commerce by Answering Defendant. 99. The alleged injuries to Plaintiffwere caused by products manufactured or distributed by other parties. 100. To the extent Plaintiff can establish that he/she ingested Answering Defendant's products, the alleged injuries to Plaintiffwere caused in whole or in part by Plaintiffs own acts and omissions, including, but not limited to, misuse, unintended use, abuse, alteration, and/or failure to properly utilize, maintain, or care for Answering Defendant's products. As such, Plaintiff's negligence may be the sole or substantial factor in causing or contributing to his/her alleged injuries or damages. 101. Plaintiff was aware of any dangers that he/she encountered and assumed the risk of injury. 102. The alleged injuries to Plaintiff were caused by other noxious or toxic products for which Answering Defendant has no liability. 103. Answering Defendant made no warranties of any kind, express or implied, or any representations of any nature whatsoever to Plaintiff. If any such warranties were made, which Answering Defendant specifically denies, then Plaintiff failed to give timely notice of any breach thereof. 104. The alleged injuries to Plaintiff were directly, proximately and legally caused and contributed to by the actions of other persons, who caused changes and alterations to be made to Answering Defendant's products and said changes and alterations proximately and legally caused or contributed to the injuries alleged by Plaintiff, thereby voiding any and all alleged warranties, express and/or implied. 105. Answering Defendant's product, which plaintiff alleges in the Complaint to be defective, is a medical product that met standards of the state of the art and the state of medical and scientific knowledge at the time of its design, manufacture and distribution to the extent of the knowledge then available to the medical community. 106. Answering Defendant denies, to the extent the actions alleged may have occurred, that any entity engaging in the activities alleged was acting as the agent or servant of Answering Defendant, or at the instruction or subject to the control of Answering Defendant with regard to any of the actions described in the Complaint; thus, Answering Defendant is not liable for any acts or omissions of such third parties as a matter of law. 107. Plaintiff's claims are barred, in whole or in part, because plaintiff has not sustained injury or damage as a result of the matters alleged in the Complaint. Alternatively, plaintiff' s claims are premature as a matter of law. 108. The conduct of Answering Defendant and the subject products at all times conformed with the Federal Food, Drug and Cosmetic Act, and other pertinent federal statutes and regulations. Accordingly, plaintiff's claims are barred, in whole or in part, under the doctrine of federal preemption, and granting the relief requested would impermissibly infringe upon and conflict with federal laws, regulations and policies in violation of the Supremacy Clause of the United States Constitution. 109. To the extent plaintiff' s alleged injuries occurred and/or causes of action arose prior to the applicable prescriptive or statutory period, plaintiff's claims are barred, in whole or in part, by the applicable statute of limitations and/or the statute of repose. 110. Answering Defendant avers that it did not participate in, authorize, ratify, or benefit from the alleged wrongful acts that are asserted in the Complaint. 111. Answering Defendant denies that it has been guilty of any conduct that warrants the imposition of exemplary or punitive damages. 112. Any award of exemplary or punitive damages to plaintiff in this case would be in violation of the constitutional safeguards provided to Answering Defendant under the Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania, or would be in violation of other applicable law. This includes, but is not limited to, the following constitutional provisions: the Commerce Clause of Article I, Section 8 of the United States Constitution; the prohibition against ex post facto laws embodied in Article I, Section 10 of the United States Constitution; the Free Speech Clause of the First Amendment of the United States Constitution; the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution; the Takings Clause of the Fifth Amendment of the United States Constitution; the Right to Counsel of the Sixth Amendment of the United States Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; the Right to Trial by Jury contained in the Seventh Amendment of the United States Constitution; and the Equal ]?rotection Clause of the Fourteenth Amendment of the United States Constitution. 113. Plaintiff failed to take reasonable steps to mitigate its alleged damages. Accordingly, plaintiff's claims are barred by law. Alternatively, plaintiff's damages should be reduced in kind. 114. PlaintifFs claims and causes of action are barred in whole or in part by the doctrine of laches, waiver and estoppel. 115. The injuries allegedly sustained by Plaintiff occurred as a result of pre-existing or subsequent medical conditions, causes or injuries, which are completely unrelated to any conduct of or product placed into the stream of commeme by Answering Defendant, and the existence of these pre-existing or subsequent medical conditions, causes or injuries is a bar to and/or mitigation of any recovery sought herein by plaintiff. 116. PlainfiW s alleged damages were the result of an idiosyncratic reaction that Answering Defendant could not reasonably foresee, and for which Answering Defendant has no responsibility. 117. Plaintiff's causes of action for breach of express and/or implied warranties are barred by reason of the absence of pfivity of contract between plaintiff and Answering Defendant. 118. Any express or implied warranties alleged lo have been made by Answering Defendant were disclaimed. 119. In the further alternative, and only in the event that it is determined that plaintiff is entitled to recover against Answering Defendant, the recover3' should be reduced in proportion to the degree or percentage of negligence, fault or exposure to products attributable to plaintiff, any other defendants, third party defendants, or other persons, including any party immune because bankruptcy renders them immune from further litigation, as well as any part, co-defendant or non- parties with whom plaintiff has settled or may settle in the future. 120. In the further alternative, Answering Defendant avers that its liability, if any, which is specifically denied, is purely passive and/or technical, while the liability of other parties herein is actual and active, thus entitling Answering Defendant to full indemnification from those parties that are actively negligent or at fault. 121. Plaintiff is not entitled to exemplary or punitiw: damages as a matter of law. 122. Plaintiff is not entitled to attorneys' fees as a matter of law. 123. To the extent plaintiffexerts a demand for punitive damages, Answering Defendant specifically incorporates by reference any and all standards and limitations regarding the determination and/or enforceability of punitive damage awards that arose in the decision of BMW of No. America v. Gore, 517 U.S. 559 (1996) and Cooper Indust~'ies, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001). 124. Answering Defendant is entitled to the benefit of all defenses and presumptions provided by the laws of the Commonwealth of Pennsylvania. 125. Plaintiff's claims are barred under the Restatement (second) of Torts: Products Liability §402A and comments thereto and/or Restatement (third) of Torts: Products Liability and comments thereto. 126. Plaintiff's causes of action are barred in whole or in part by the economic loss rule. 127. The conduct of Answering Defendant and all activities with respect to the subject products have been and are under the supervision of the United States Food & Drug Administration. Accordingly, this action, including the claim for monetary and injunctive relief, is barred by the doctrine of primary jurisdiction. 128. Answering Defendant's advertisements and labeling with respect to the subject products constitute protected commercial speech under the applicable provisions of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania. 129. Plaintiff has failed to plead the circumstances constituting the alleged misrepresentations with sufficient particularity to support a cause of action thereon. 130. Answering Defendant was bound by law to use labeling created by others, including other entities over whom Answering Defendant had no control nor responsibility and for whose actions Answering Defendant had no legal liability. SWEENEY & SHEEItAN Warren E. Voter Attorney for Defendant, Sobel, NV VERIFICATION Warren E. Voter, states that he is an attorney in the Law Firm of Sweeney & Sheehan, that he is authorized to make this Verification; and, that the facts set forth in the foregoing DEFENDANT, SOBEL NV'S ANSWER TO PLAINTIFFS' COMPLAINT are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 C.S.A. §4904 relating to unsworn falsification to authorities. Date: November 17, 2003 SWEENEY & SItEEHAN By: Warren E. Voter identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney for: Defendant, Sobel, NV LISA M. GAFFNEY and DAVID A. GAFFNEY, h/w SIDMAK LABORATORIES, INC., SOBEL, NV and GIANT FOOD STORES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO. 02-5.~64 ENTRY OF APP_EARANCE AND DEMAND F_FOR JURY TRIAL_ TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Sobel, NV, in the above captioned matter. Defendant requests a Jury at the time of trial in this matter. SWEENEY & SIIEEHAN Warren E. Voter DATE: November 17, 2003 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LISA M. GAFFNEY and DAVID A. GAFFNEY, H/W SIDMAK LABORATORIES, 1NC. SOBEL N.V. and GIANT FOOD STORES, LLC CWIL ACTION NO. 02-5264 96. granted. 97. PLAINTIFFS LISA M. GAFFNEY AND DAVID A. GAFFNEY'S REPLY TO NEW MATTER OF DEFENDANT SOBEL N.V. Denied. Plaintiffs' Complaint clearly states a claim upon which relief may be Denied. Plaintiffs specifically aver that their injuries were caused by an act or omission on part of answering defendant. 98. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objection, plaintiffs were specifically harmed by the product being placed in the stream of commerce by the answering defendant. 99. Denied. The alleged injuries to plaintiffs were caused by products manufactured and/or distributed by the parties to this lawsuit. 100. Denied. Plaintiff used the subject product in accordance with her prescription and for the use in which the product was intended. Plaintiff was in no way negligent in using the subject product. 101. Objection. Plaintiffs object to this averment as it is a conclusion of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objection, plaintiffs specifically deny that they assumed the risk of their injuries. DOCS_PH 151968~vl 102. Denied. Plaintiffs specifically deny that their injuries were caused by other noxious or toxic products other than the product that was manufactured or otherwise distributed to the plaintiff by the answering defendant. 103. Denied. Plaintiffs properly pled and averred the express and implied warranties of all defendants. 104. Objection. Plaintiffs object to this averment as it is a conclusion of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objection, plaintiffs deny that any alterations were made to the :~aid product which contributed to their injuries. 105. Denied. Defendant's product did not meet the standards of the medical and scientific knowledge at the time of design, manufacture and distribution of the product. 106. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. 107. Denied. Plaintiffs have sustained significant injuries and damages as a result of the matters alleged in the Complaint. Plaintiffs' claims, therefbre, are not premature as a matter of law. Plaintiff further objects to this averment as a conclusion of law to which no response pleading is necessary. 108. Denied. Defendant's product did not conform with all pertinent federal statutes and regulations relative to the subject product. Therefore, plaintiffs' claims are not barred by the doctrine of federal preemption. 109. Denied. Plaintiffs' claims are not barred by the applicable statute of limitations. 110. Denied. Upon information and belief, plaintiffs aver that defendant did participate in, authorize, ratify or benefit from the alleged wrongful acts that are asserted in the Complaint. DOCS_PH 1519681vl 111. Objection. Plaintiffs object to this averment as it is a conclusion of law to which no responsive pleading is necessary. By way of further response, without waiving the foregoing objection, plaintiffs specifically aver that they are entitled to exemplary and/or punitive damages. 112. Objection. Plaintiffs object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, plaintiffs claims are constitutionally broad. 113. Denied. Plaintiffs' damages should not be reduced in kind, as they did take steps to mitigate their damages by seeking medical assistance. 114. Objection. Plaintiffs object to this averment as it is a conclusion of law to which no responsive pleading is necessary. 115. Denied. Plaintiffs' injuries did not occur as a result of a preexisting or subsequent medical conditions, causes or injuries unrelated to the use of the product. 116. Denied. Plaintiffs' injuries were reasonably foreseeable and therefore answering defendant is liable. Plaintiff objects to this averment as a conclusion of law to which no responsive pleading is necessary. 117. Objection. Plaintiffs object to this averment as it is a conclusion of law to which no responsive pleading is necessary. 118. Objection. Plaintiffs object to this averment as it is a conclusion of law to which no responsive pleading is necessary. Denied. Plaintiffs have no information relative to the solvency of the answering 119. defendant. 120. Plaintiffs do not respond to this averment, as it appears to apply to the other parties to this litigation. To the extent that this averment is intended for the plaintiffs, plaintiffs specifically deny such averment. DOCS_PH 1519681vl 121. Objection. Plaintiffs specifically object to this averment as being duplicative and a conclusion of law to which no responsive pleading is necessary. 122. Objection. Plaintiffs specifically object to this averment as a conclusion of law to which no responsive pleading is necessary. By way of further response, plaintiflYs aver they are entitled to attorney's fees. 123. Objection. Plaintiffs specifically object to this averment as a conclusion of law to which no responsive pleading is necessary. 124. Objection. Plaintiffs object to this averment as being vague, overly broad and a conclusion of law to which no responsive pleading is necessary. 125. Objection. Plaintiffs specifically object to this averment as it is a conclusion of law to which no responsive pleading is necessary. 126. Objection. Plaintiffs specifically object to this averment as it is a conclusion of law to which no responsive pleading is necessary. 127. Objection. Plaintiffs specifically object to this averment as it is a conclusion of law to which no responsive pleading is necessary. 128. Objection. Plaintiffs specifically object to this averment as it is a conclusion of law to which no responsive pleading is necessary. 129. Denied. Plaintiffs have sufficiently pled their cause of action in accordance with the Pennsylvania Rules of Civil Procedure. -4- DOCS_PH 1519681vl 130. Denied. Upon information and belief, defendant is liable for damages more particularly described in plaintiffs' Complaint. By:" /] (.2.! 5 )/8647._02,1. ..... Atto'r~ey I.D.//83417 Dated: December 18, 2003 Attorney for Plaintiffs -5- DOCS_PH 1519681vl VERIFICATION I, James D. Schultz, Esquire, hereby state that I am the attorney representing plaintiffs in this action. I verify that the foregoing Plaintiffs' Reply to New Matter of Defendant Sobel N.V. is tree and correct to the best of my knowledge, information, and belief and make these authorities. Dated: December 18, 2003 statements subject to the penalties of 18 Pa. C.S.A. §§4904 relating to un-sworn falsification to xX)'am~c}rt~ltz, Esr] Att o~e~ fc~t Plainti frs -6- DOCS_PH 1519681vl CERTIFICATE OF SERVICE I, James D. Schultz, Esquire, hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Reply to New Matter of Defendant Sobel N.V. on the 18th day of December, 2003, via First Class Mail upon the following: George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Warren E. Voter, Esquire Sweeney & Sheehan 1515 Market Street, 19th Floor Philadelphia, PA 19102 By: Attome(~71aintiffs ~ -7- DOCS_PH 1519681vl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LISA M. GAFP-~EY and DAVID A. GAFFNEY, bJw Plaintiffs, SIDMAK LABORATORIES, INC., et al., Defendants. CIVIL ACTION NO. 02-5264 JURY TRIAL DEMANDED E._NTRY OF APPEARANCE. TO THE PROTHONOTARY: Kindly enter the appearance of Sharon L. Caffrey, Esquire and Duane Morris LLP on behalf of the defendants, Sidmak Laboratories, Inc. and Sobel N.V. in the above-captioned action. BY: DUANE MORRIS LLP Attorneys for Pliva, Inc. ff~a Sidmak Laboratories, Inc. and Sobel N.V. plq2\$08738.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lisa M. Gaff~ey and, David A. Gaffney, h/w Plaintiffs, Sidmak Laboratories, Inc., et. al. Defendants. Civil Action No. 02-5264 STIPULATION TO AMEND ANSWER It is hereby stipulated between counsel for the above-captioned plaintiffs, and counsel for Defendants, Sidmak Laboratories, Inc. and Sobel N.V., that Sobel N'.V. may file an amended Answer with New Matter, and such pleading shall relate back and supercede this party's initial Answer with New Matter filed in the above-captioned matter. BY: WHITE & WILLIAMS LLP Karo/n L. M~u-t~n, Esquire Attorneys for Plaintiffs DIJANE MORRIS LLP BY: ~ys for Pliva, Inc. I/k/a siam Laboratories, Inc. and Sobel N.V. pH2\808701.1 IN TIIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lisa M. Gaffney and David A. Gaffney h/w Plaintiffs, CIVIL ACTION NO. 02-5264 SIDMAK LABORATORIES, INC. and SOBEL N.V. and GIANT FOOD STORES JURY TRIAL DEMANDED Defendants. SOBEL N.V.'S AMENDED ANSWER WITH NEW MATTER Defendant, Sobel N.V., by and through its counsel, Duane Morris LLP Answer's Plaintiff's Complaint as follows: 1. Denied. After reasonable investigation, Sobel N~V. is without sufficient information to admit or deny, and such allegations are deemed denied. 2. Denied as stated. It is admitted only that at all times relevant to this Complaint, Sidmak Laboratories ("Sidmak") was a New Jersey Corporation with a principal place of business at 17 West Street, East Hanover, NJ 07936. All other allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). 3. Denied as stated. It is admitted only that Sobel N.V. is a Dutch Corporation. It is specifically denied that at any time relevant to this Complaint, Sobel N.V. did business in East Hanover, New Jersey, or any other location within the United States. It is further specifically denied that at any time relevant to this Complaint Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA, including, without limitation, the product known as guaifenesin/phenylpropanolamine, through interstate commerce and in the Commonwealth of Pennsylvania, including, but not limited to, Camberland County. 4. The allegations of this paragraph are directed towards Defendants other than Sobel N.V., and therefore, non responsive pleading is required. GENERAL ALLEGATIONS 5. Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). 6. Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). 7. Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). 8. Denied and deemed at issue pursuant to Pa.R.C.P'. 1029(e). It is further specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 9. Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). 10. 11. 12. 13. 14. 15. 16. 17. Denied and deemed at Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). issue pursuant to Pa.R.C.]?. 1029(e). Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). Denied and deemed at issue pursuant to Pa.R.C.iP. 1029(e). Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). Denied and deemed at ~ssue pursuant to Pa.R.C.P. 1029(e). Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). To the extent that this paragraph contains conclusions of law, no responsive pleading is required. All factual allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is further specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 18. To the extent that this paragraph contains conclusi[ons of law, no responsive pleading is required. All factual allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). 19. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. All factual allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is further specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 20. Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). 21. Denied. After reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. 22. Denied. After reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. 23. Denied. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, aRer reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. COUNT-I-NEGLIGENCE PLAINTIFF LISA M. GAFFNEY V. DEFENDANT SIDMAK LABORATORIES~ INC. 24. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-23, as if set forth more fully herein at length. 25. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 26. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 27. (a-b) The allegations of this paragraph and subparagraphs are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 28. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 29. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 30. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 31. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 32. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 33. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. WHEREFORE, Sobel N.V. respectfully requests that tlfis Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT II- BREACH OF WARRANTY PLAINTIFF, LISA M. GAFFNEY V. DEFENDANT~ SIDMAK LABORATORIES, INC. 34. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-33, as if set forth more fully herein at length. 35. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 36. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 37. (a-c). The allegations of this paragraph and subparagraphs are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 38. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 39. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 40. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 41. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT III- STRICT LIABILITY PLAINTIFF~ LISA M. GAFFNEY V. DEFENDANT~ SIDMAK LABORATORIES~ INC. 42. Defendant Sobel N.V. incorporates by reference ils responses to paragraphs 1-41, as if set forth more fully herein at length. 43. (a-c). The allegations of this paragraph and subp,xagraphs are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 44. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 45. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 46. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 47. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 48. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 49. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT IV- LOSS OF CONSORTIUM PLAINTIFF~ DAVID A. GAFFNEY V. DEFENDANT~ SIDMAK LABORATORIES~ INC. 50. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-49, as if set forth more fully herein at length. 51. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 52. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 53. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. WHEREFORE, Sobel N.V. respectfully requests that thi..~ Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT V- NEGLIGENCE PLAINTIFF~ LISA M. GAFFNEY V. DEFENDANT~ SOBEL N.V. 54. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-53, as if set forth more fully herein at length. 55. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 56. To the extent that this paragraph contains conchisions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter a,!ia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 57. (a-b). To the extent that this paragraph and subparagraphs contain conclusions of law, no responsive pleading is required. To the extent that this paragraph and subparagraphs contain factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 58. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 59. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations regarding Plaintifffs alleged damages, after reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. 60. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter ai!ia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 61. Denied. These allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 62. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 63. To the extent that this paragraph contains conclu~dons of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is further denied that Plaintiffhas set forth a prima facie case for punitive and/or exemplary damages against Sobel N.V. WHEREFORE, Sobel N.V. respectfully requests that tl~fis Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT VI- BREACH OF WARRANTY PLAINTIFF~ LISA M. GAFFNEY V. DEFENDANT~ SOBEL N.V. 64. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-63, as if set forth more fully herein at length. 65. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is specifically denied that Sobel N.V. made any implied warranties relating to PPA products sold in the United States. 66. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is specifically denied that Sobel N.V. made any implied warranties relating to PPA products sold in the United States. 67. (a-c). To the extent that this paragraph or subparagraphs contain conclusions of law, no responsive pleading is required. To the extent that this paragraph or subparagraphs contain factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profil prescription pharmaceutical products containing the active ingredient PPA in the United States. It is specifically denied that Sobel N.V. made any implied warranties relating to PPA prodncts sold in the United States. 68. To the extent that this paragraph or subparagraphs contain conclusions of law, no responsive pleading is required. To the extent that this paragraph or subparagraphs contain factual allegations relating to Plaintiff's alleged injuries or damages, after reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. It is specifically denied that Sobel N.V. made any implied warranties relating to PPA products sold in the United States. 69. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains f~tctuai allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is specifically denied tha~t Sobel N.V. made any implied warranties relating to PPA products sold in the United States. 70. Denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 71. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specificaily denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription phannacentical products containing the active ingredient PPA in the United States. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT VII- STRICT LIABILITY PLAINTIFF~ LISA M. GAFFNEY V. DEFENDANT~ SOBEL N.V. 72. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-71, as if set forth more fully herein at length. 73. (a-c). To the extent that this paragraph or subparagraphs contain conclusions of law, no responsive pleading is required. To the extent that this paragraph or subparagraphs contain factual allegations, such allegations are denied and deemed at issue pursuant to Pa.P,.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for prot'~t prescripfion pharmaceutical products containing the active ingredient PPA in the United States. 74. To the extent that this paragraph or subparagrapl~ts contain conclusions of law, no responsive pleading is required. To the extent that this paragraph or subparagraphs contain factual allegations relating to Plaintiff's alleged injuries or damages, after reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufactufng, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 75. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph or subparagraphs contain factual allegations relating to Plaintiff's alleged injuries or damages, ~fter reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. 76. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains t~ctual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is specifically denied that Sobel N.V. made any implied warranties relating to PPA products sold in the United States. 77. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is specifically denied that Sobel N.V. made any implied warranties relating to PPA products sold in the United States. 78. To the extent that this paragraph contains conchasions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is specifically denied that Sobel N.V. made any implied warranties relating to PPA products sold in the United States. 79. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa.R.C.P. 1029(e). It is specifically denied that Sobel N.V. was engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA in the United States. It is further denied that PlaiLntiff has set forth a prima facie case for punitive and/or exemplary damages against Sobel N.V. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT VII- STRICT LIABILITY PLAINTIFF~ DAVID A. GAFFNEY V. DEFENDANT~ SOBEL N.V. 80. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-79, as if set forth more fully herein at length. 81. Denied. After reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. 82. Denied. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations relating to Plaintiff s alleged damages, after reasonable investigation, Sobel N.V. is without sufftcient information to admit or deny, and such allegations are deemed denied. 83. Denied. To the extent that this paragraph contains conclusions of law, no responsive pleading is required. To the extent that this paragraph contains factual allegations relating to Plaintiffs alleged damages, after reasonable investigation, Sobel N.V. is without sufficient information to admit or deny, and such allegations are deemed denied. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT IX- STRICT LIABILITY PLAINTIFF~ LISA M. GAFFNEY V. DEFENDANT~ GIANT FOOD STORES~ LLC DfB/A GIANT PHARMAC:~__Y 84. Defendant Sobel N.V. incorporates by reference its responses to paragraphs 1-83, as if set forth more fully herein at length. 85. (a-c). Thc allegations of this paragraph and subparagraphs are directed towards a Defendant other than Sobcl N.V., and therefore no responsive pleading is required. 86. The allegations of this paragraph are directed towards a Defendant other than Sobcl N.V., and therefore no responsive pleading is required. 87. The allegations of this paragraph are directed towards a Defendant other than Sobcl N.V., and therefore no responsive pleading is required. 88. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 89. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 90. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 91. The allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. COUNT X- LOSS OF CONSORTIUM PLAINTIFF~ DAVID A. GAFFNEY V. DEFENDANT~ GIANT FOOD STORES~ LLC DfB/A GIANT PHARMACY 92. Defendant Sob¢1N.V. incorporates by reference its responses to paragraphs 1-91, as if set forth more fully herein at length. 93. The allegations of this paragraph arc directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 94. Thc allegations of this paragraph are directed towards a Defendant other than Sobel N.V., and therefore no responsive pleading is required. 95. The allegations of this paragraph are directed towards a Defendant other than Sob¢l N.V., and therefore no responsive pleading is required. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. NEW MATTER 1. Sobel N.V. is improperly named in this matter, as this Defendant was not engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing thc active ingredient PPA in the United States. 2. Personal Jurisdiction over Sobel N.V. is improper in this matter. 3. Subject Matter Jurisdiction is improper in this matter. 4. Venue in this matter is improper. 5. Service of this Complaint was improperly effectuated and/or legally insufficient. 6. Plaintiffs' Complaint fails to state a claim upon which relief may be granted. 7. Plaintiffs' claims are or may be barred by the applicable statute of limitations. 8. All claims raised by the Complaint are barred by the doctrine of laches. 9. Sobel N.V.'s conduct was at all times proper; 10. Plaintiffs' claims are or may be barred by the doctrine of assumption of the risk. 11. Plaintiffs' injuries and damages, if any, may haw~ occurred due to the intervening and superseding negligent acts of others, named and unnamed, over whom Sobel N.V. had neither control nor the ability to control. Plaintiffs' causes of action are or may be barred or limited by their contributory 12. negligence 13. The provisions of the Pennsylvania Comparative Negligence Act, 42 P^. CoNs. STAT. ANN. § 7102, et seq. do or may apply to this case and lim!it or bar Plaintiffs ' causes of action. 14. Plaintiffs' injuries and/or the decedent's injuries or damages, if any, were caused by the negligence and/or liability producing acts or omissions of parties or other entities, named and unnamed, over whom Sobel N.V. neither had control nor the ability to control. 15. Plaintiffs have failed to set forth a prima facie case for exemplary or punitive damages, and therefore all such claims should be dismissed. 16. Sobel N.V. made no express or implied warranties with respect to any PPA containing product sold in the United States. 17. All claims by Plaintiffs based upon alleged warranties, whether expressed or implied, are barred in that there was no privity of contract between Plaintiffs and Sobel N.V. and no timely notice of any alleged breach of warranty was given to Sobel N.V.. 18. Sobel N.V. was not engaged in the business of, inter alia, manufacturing, promoting, distributing and/or selling for profit prescription pharmaceutical products containing the active ingredient PPA, including, without limitation, the product known as guaifenesin/phenylpropanolamine, through interstate commerce, :in the Commonwealth of Pennsylvania, or in Cumberland County. 19. The incident and injury complained of were caused by the unauthorized, unintended and/or improper use of the product complained of and as a result of the failure to exercise reasonable and ordinary care, caution and diligence. 20. Plaintiffs have failed to join as Defendants various indispensable parties without whom, in equity and in good conscious, this action cannot proceed and the Complaint should therefore be dismissed. 21. Sobel N.V. incorporates here by reference all affirmative defenses identified in Rule 1030(b) of the Pennsylvania Rules of Civil Procedure as if set furth fully at length. WHEREFORE, Sobel N.V. respectfully requests that this Court enter judgment in its favor and against all other parties, and dismiss the complaint with prejudice. Respectfully Submitted, DUANE MORRIS LLP ~aron L. Caffiey, Esquire Attorneys for Defend~ts Si~ Laboratories, ~c. ~d Sobel N.V. CERTIFICATE OF SERVICE I, Helena I. Poch Ciechanowski, hereby state that a true ancl correct copy of the foregoing Sobel N.V.'s Amended Answer with New Matter was mailed via first-class mail, postage prepaid to the following counsel of record this 20th day of July, 2004: Karon L. Martin, Esquire White and Williams LLP 1800 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7395 Hel[m{ I Poch Ciechanowski PAUL, MARDINLY, DURHAM, JAMES, FLANDREAU & RODGER By: EDWARD R. PAUL, ESQUIRE 320 West Front Street. Box D Attorney for Defendant for Media, Pennsylvania 19063 Sidmak Laboratories Inc., Sobel N.V. Attorney I.D. No. 17426 LISA M. GAFFNEY & DAVID A. GAFFNEY, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW VS. SIDMAK LABORATORIES, et al : NO. 02-526,4 Defendants : JURY TRIAL DEMANDED ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL Kindly enter my appearance on behalf of Defendant, Sidmak Laboratories, Inc. and Sobel, N.V., in the above captioned matter. Defendant requests a Jury at the time of trial in this matter. PAU~~--~'~IY~AM, JAMES, By.~'~---~ / ~ ~DWARD R. PAUL, ESQUIRE Attorney for Defendant SWEENEY & SHEEHAN By: Warren E. Voter Identification No. 38410 Nineteenth Floor 1515 Market Street Philadelphia, PA 19102 (215) 563-9811 Attorney for: Defendants, Sidmak Laboratories, Inc. and Sobel, N.V. LISA M. GAFFNEY and DAVID A. GAFFNEY, h/w Vo SIDMAK LABORATORIES, INC.; SOBEL, N.V. and GIANT FOOD STORES, LLC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACI'ION JURY TRIAL DEMANDED NO. 02-:5264 WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Defendants, Sidmak Laboratories, Inc. and Sobel, N.V., in the above-captioned matter. SWEENEY & SHEEHAN Watfr[n-E~ Vot~t~ DATE: November 18, 2004 Anthony T. Lucido, Esquire MARTSON DEARDORFF WILLIAMS & OTTO LD. 76583 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Defendant Giant Food Stores, LLC LISA M. GAFFNEY AND DAVID A. GAFFNEY, h1w, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02-5264 CIVIL ACTION-LAW SIDMAK LABORATORIES, INC, SOBEL, NY, and GIANT FOOD STORES, LLC, d/b/a GIANT PHARMACY, : Defendants JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this _ day of , 2005, Defendant Giant Food Stores, LLC's Motion for Judgment on the Pleadings is granted. Plaintiffs' claims against Giant are hereby dismissed with prejudice. By the Court, 1. FIFILES\DA TAFILEIMAC9500ICurremI278.mol]!ajt Created, 9120104 0:06PM Revised, 2/25/05 3,38PM 9500.278 Anthony T. Lucido, Esquire MARTS ON DEARDORFF WILLIAMS & OTTO ID. 76583 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Defendant Giant Food Stores, LLC LISA M. GAFFNEY AND DAVID A GAFFNEY, h/w, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA v. NO. 02-5264 CNIL ACTION-LAW SIDMAK LABORATORIES, INC., SOBEL, N.V., and GIANT FOOD STORES, LLC, d/b/a GIANT PHARMACY, : Defendants JURY TRIAL OF TWELVE DEMANDED DEFENDANT GIANT FOOD STORES. LLC'S MOTION FOR JUDGMENT ON THE PLEADINGS L In the present case, Plaintiffs Lisa M. Gaffuey and David A Gaffuey ["Plaintiffs"], have sued Defendant Sidmak Laboratories, Inc. ["Sidmak"], Sobel, N.V. ["Sobel"] and Giant Food Stores, LLC ["Giant"] for manufacturing, marketing and distributing an allegedly defective prescription drug containing the active ingredient Phenylpropanolamine ["PP A"]. 2. The Complaint alleges that Sidmak and Sobel were in the business of manufacturing and selling prescription pharmaceuticals. 3. The Complaint further alleges that Sidmak and Sobel, as long standing members of the pharmaceutical industry, were aware that PP A had been known to cause strokes and other dangerous side effects. 4. The Complaint alleges that on October 19, 2000, a medical advisory panel told the Food and Drug Administration ["FDA"] that PP A should be banned due to the increased risk of stroke among users of the drug. 5. The Complaint alleges that on November 6, 2000, pharmaceutical companies, including Defendant Sidmak issued a press release announcing that it would cease shipment of all products containing PPA. See Complaint, paragraph 16. 6. The Complaint alleges that the Defendants Sidmak and Sobel had actual knowledge, prior to November of 2000, that PP A made their pharmaceutical products unreasonably dangerous 7. The Complaint contains no allegation that Def,endant Giant is in the business of manufacturing prescription drugs. 8. The Complaint contains no additional allegation that Defendant Giant had either actual or constructive knowledge that the prescription drug PP A was unreasonably dangerous due to side effects that increased the risk of stroke in certain users. 9. The Complaint alleges that on January 5, 1998, Dr. David Wenner issued a prescription for a drug containing PP A to Plaintiff Lisa M. Gaffney. 10. The Complaint alleges that on the same day, January 5, 1998, Plaintiff Lisa Gaffney filled the prescription and purchased PP A from a Giant Pharmacy. See Complaint, paragraph 22. 1 L The only factual allegation supporting Plaintiffs' claims against Giant is that Lisa Gaffney purchased a prescription drug containing PP A from one of Giant's in-store pharmacies. 12. The Complaint alleges that on January 8, 1998, three days after she filled the prescription, Plaintiff Lisa Gaffney suffered a cerebral event, which caused her speech to slur and cause numbness throughout her body. Plaintiff claims that her se:rious medical problems were the direct result of taking a drug containing PP A. 13. The Plaintiffs have sued Giant under a theory of strict liability alleging that the product containing the drug PP A was defective and unreasonably dangerous and was sold without adequate warnings. See Complaint, paragraph 85. 14. Plaintiffs' strict liability claim against Giant rests exclusively on the fact that Giant, through its in-house pharmacy, filled a prescription for an allegedl.y defective and dangerous drug. Under Pennsylvania Law, this allegation is legally insufficient to impose liability under 9402 A of the Restatement 2d of Torts. 15. The Pennsylvania Supreme Court has refused to extend the rule of strict supplier liability to pharmacists. Coyle v. Richardson-Merrell. Inc., 256 Pa. 208, 584 A.2d 1383 (1991); See also. Makripodis v. Merrell Dow Pharmaceuticals, Inc., 361 Pa. Super. 589, 523 A.2d 374 (1987). 16. Based on the Pennsylvania Supreme Court's holding in Covle, Plaintiffs cannot maintain a cause of action in strict liability against Giant. Accordingly, Plaintiffs' Complaint must be dismissed. WHEREFORE, Defendant Giant Food Stores, LLC, respectfully requests the Court to dismiss Plaintiffs' Complaint, with prejudice. PLAINTIFFS' CLAIMS ARE BARRED BY THE APPLICABLE TWO-YEAR STATUTE OF LIMITATIONS 17. In Pennsylvania, strict liability claims are subject to the two-year statute of limitations. 18. In the present case, Plaintiffs' allege that Plaintiff Lisa Gaffney filled a prescription containing PPA on January 5, 1998, and subsequently suffered injuries caused by that drug on January 8, 1998. 19. Plaintiffs' Complaint was filed nearly five years later on January 30, 2003. 20. Accordingly, Plaintiffs' Complaint is barred by the statute of limitations. WHEREFORE, Defendant Giant Food Stores, LLC, respectfully requests the Court to dismiss Plaintiffs' Complaint with prejudice. Respectfully Submitted, MARTSON DEARDORFF WILLIAMS & OTTO ~C-~ By Anthony T. Lucido, Esquire LD. No. 76583 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 25, 2005 Attorneys for Defendant Giant Food Stores, LLC d/b/a Giant Pharmacy CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Defendant Giant Food Stores, LLC's Motion to Dismiss Plaintiffs' Complaint was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Karon L. Martin, Esquire WHITE AND WILLIAMS, LLP 1800 One Liberty Place Philadelphia, PA 19103 Counsel for Plaintiffs Edward R. Paul, Esquire PAUL, MARDINL Y, DURHAM, JAMES, FLANDREAU & RODGER 320 West Front Street, Box D Media, P A 19063 Counsel for Defendants Sidmak and Sobel MARTSON DEARDORFF WILLIAMS & OTTO .f\ By Ami J. Th Ten East Hi Street Carlisle, PA 17013 (717) 243-3341 Dated: February 25, 2005 o ?.... 7ti :>;-r,;;' ~ ,-r- -:::n - . "" <,. >- ~ -"\ ~ ~ ~ <S> .-- .J - ---