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Home My WebLink About94-02915 . I ~I .-, II - d, L-I '-1 E:, JI , I , I . i 7'! , , I , i I g ?i 7- ~ J J ~! -' 0-1 <0 ",. I i SHELLER. LUDWIG & BADEV John P. Kopesky/Jamie 30112/55722 L. Sheller 8Y: IDENTIFICATION NO, 1628 WALNUT STREET 3RD FLOOR PHILADELPHIA, PENNSYLVANIA 19102 12161548.6610 A HORNEY FOR JOSEPHINE M. YEYNA 163 S. Franklin street Red Lion, PA 17356 v. ADMIRAL MATERIALS CORPORATION n/k/a Mentor polymer Tech. c/o Gary Mistlin - Mentor Corp. 5425 Hollister Avenue Santa Barbara, CA 93111 Plaintiffs COURT OF COMMON PLEAS DIVISION q 1/., ..:Xc, {,J- (}.N-~,LJ~ No, (SEE ATTACHED LIST OF ADDITIONAL DEFENDANTS) BREAST IMPLANT - 2100 I II 11 I' ,I il ,I I' II NOTICE You hive been aued In court. If you wish to defend agalns. the cl.lm. "' forth In thl following p.g.., you mu.1 'Ike action within twenty 120) dlya ,ft,t thi, complaint end notlcl .,. nNed. by In'I,lng I wllnen appelrancl ptllonally Of by .nomey and filing In writing with the coun your d,fen... Of objectlonl to the claim. lei forth Iglinl' you. You .t, warned that It you f,il to do 10 the ell. may proceed without you end . Judgment may be entered .g.lnll you by the court without furthe, nollee for any money claimed in the complaint or for any other claim or relief reQue.ted by the plaintiff. You may lOll money or property or other rtghtl important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER DR CANNOT AFFORD ONE, GO TO DR TELEPHONE THE OFFICE SET FORTH 8ELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, COurt Administrator Cumherland County Courthouse, 4th lh>r Carlise, P ^ 17ll \J (717) 24ll.(,2ll0 AVISO Le h.n dem.nd.do . ulted en II corte. SI ulted quit,. delender.. de IIta' demand.. "PUllt.. en I.. pigin'l ligulent... ulted tiene velnte 1201 dial de pilla al p.rtir de la fech. de I. dem.nd. V I, notific.clon. H.ce falta ..entlr un. comp.resenel. elcrlta 0 en perlon. 0 con un _bog,dO V entregar a I. corte en lorm. elclit. IUI delen"l 0 IUI objecione. . I.. dem.nd.. en contra de IU perlona. SOl avi..do Que II ulted no II deliende. I. corte lom.,i medid.. V puede continu.' I. d.mend. en cant'. IUY' Iln previa .vilo a nolllicecion. Ad.mil. la cortO puedo decidi, e I.vor del demandante V ,eQulere Que ulted cumpl. con tod.. I.. provi.lon.. de uta demand.. Ulted pUlde perd.. dlnero 0 IUI propied.des u otros derocho. import.ntll para ullld. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE A90GADO 0 SI NO T1ENE EL DINERD SUFICIENTE DE PAGAR TAL SERVICID. VAYA EN PERSONA 0 lLAME POR TELtFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL ASOCIACION DE LlCENCIAOOS DE FILADELFIA SERVICIO DE REFERENCIA E INFORMACION LEGAL and AESTHETECH CORPORATION 2317 Eaton Lane Racine, WI 53404-1725 and 714 APPLIED SILICONE CORPORATION 320 West Stanley Avenue Ventura, CA 93001 and BAXTER HEALTH CARE CORPORATION successor in interest of Heyer- schulte, American Hospital supply corp., American Heyer Schulte Corporation, Travenol Labs, Inc. 17201 Redhill Avenue Irvine, CA 92714-5627 and 710 AMERICAN HEYER-SCHULTE (See Baxter Healthcare Corp.) 707 and AMERICAN HOSPITAL SUPPLY (See Baxter Healthcare Corp.) and 708 BAXTER INTERNATIONAL, INC. One Baxter Parkway Deerfield, IL 60015 and 709 BRISTOL-MEYERS SQUIBB CO. f/k/a Bristol-Meyers Co. 345 Park Avenue New York, NY 10154 and 704 2 LAW OFFICES SHELLER, LUDWIG & BADEV COOPER SURGICAL, INC., a wholly owned subsidiary of The cooper Companies, Inc. 17701 Cowen Avenue P.O. Box 19587 Irvine, CA 92713 711 and THE COOPER COMPANIES, INC. individually and as successors in interest to Natural Y surgical Specialties, Inc. and Aesthetech Formerly known as Coopervision, Inc. 250 Park Avenue New York, NY 10177 712 and COX-UPHOFF INTERNATIONAL a/k/a CUI corporation 1160 Mark Avenue carpinteria, CA 93013 and 739 (CUI CORPORATION) See Cox-Uphoff International 716 and DOW CORNING CORPORATION 2200 West Salzburg Street Auburn, MI 48686 700 and DOW CORNING WRIGHT 5677 Airline Road P.O. Box 100 Arlington, TN 38002 701 and GENERAL ELECTRIC COMPANY 3235 Easton Turnpike Fairfield, CT 06431 and 3 LAW OFFICES SHELLER. LUDWIG' BADEY INAMED CORPORATION 1035 cindy Lane caprinteria, CA 93013 728 and McGHAN MEDICAL CORPORATION (a California Corporation and McGHAN MEDICAL CORPORATION (a Delaware Corporation) 1035 Cindy Lane Caprinteria, CA 93013 and 736 McGHAN NUSIL CORPORATION a/k/a Nusi1 Technologies 1055-B Cindy Lane Caprinteria, CA 93013 and 737 MEDICAL ENGINEERING CORPORATION d/b/a Surgitek, a wholly owned subsidiary of Bristol Meyers Squibb 3037 Mount Pleasant Street Racine, WI 53404 706 and SURGITEK, INC. (See Medical Engineering Corp.) 705 and MINNESOTA MINING AND MANUFACTURING 732 COMPANY, INC., individually and as a successor in interest to McGhan Medical Corporation (a California corporation) a/k/a 3M and McGhan Medical Corporation 3M Center st. Paul, Minnesota 55144-1000 and NATURAL Y SURGICAL SPECIALTIES, INC. 488 S. San Vincent Boulevard Los Angeles, CA 90048 and 715 4 LAW OFFICES SHELLER. LUDWIG. BADEY HULS AMERICA, INC., f/k/a PETRARCH SYSTEMS, INC. 80 centennial Avenue Piscataway, NJ 08855-0456 733 and SCOTT PAPER COMPANY Scott Plaza Industrial Highway and Tinicum Road Philadelphia, PA 19113 719 and SIROD CORPORATION 2300 E. Walnut Avenue Fullerton, CA 92631 734 and UNION CARBIDE CORPORATION 39 Old Ridge Bury Road Danbury, CT 06817-0001 721 and UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC. 39 Old Ridge Bury Road Danbury, CT 06817-0001 722 and 21 INTERNATIONAL HOLDINGS, INC. f/k/a Knoll International Holdings, Inc. (f/k/a Foamex Products, Inc. f/k/a Scotfoam corporation f/k/a General Felt Industries, Inc. f/k/a Eddy Acquisitions now operating under the fictitious name of Foamex, a Division of KIHI 1500 E. Second Street Eddystone, PA 19022 717 and FOAMEX PRODUCTS, INC. (See 21 International Holdings, Inc.) 726 and 5 LAW OFFICES SHELLER. LUDWIG' BADEY YORK HOSPITAL 1001 S. George street York, PA 17405 and JOHN/JANE DOE Additional Defendants. 7 LAW OFFICES SHELLER. LUDWIG' BADEY COURT APPROVED SHORT FORM COMPLAINT 1. plaintiff is JOSEPHINE M. YEYNA, an adult woman who resides at the following address: 163 S. Franklin Street Red Lion, PA 17356 I. DEFENDANT MANUFACTURERS, DISTRIBUTORS, COMPONENT PARTS SUPPLIERS AND RELATED COMPANIES The following entities, identified in Plaintiffs' Fourth Amended Master Complaint, are named as defendants herein, and the allegations with regard to these entities as set forth in Paragraph Nos. 2 through 68 of said Fourth Amended Master Complaint are hereby adopted and incorporated by reference as if fully set forth herein: Defendant Manufacturers 1. Admiral Materials corporation 2. Aesthetech Corporation 3. Applied Silicone Corporation 4. Baxter Healthcare Corporation 5. Baxter International, Inc. 6. Bristol-Myers Squibb and Co. f/k/a Bristol-Myers Co. 7. The Cooper Companies, Inc. 8. Cooper Surgical, Inc. 9. Cox-UpHOff, a/k/a CUI Corporation LAW OFFICES SHEllEQ. lUDWIG 8. DAOEY 10. Dow Corning corporation 11. Dow corning Wright Corporation 12. General electric Co. 13. Huls America, Inc., f/k/a petrarch Systems, Inc. 14. INAMED corporation 15. 21 International Holdings, Inc. 16. McGhan Medical Corporation (A Delaware and california Corporation) 17. McGhan Nusil corporation a/k/a Nusil Technologies 18. Medical Engineering Corporation d/b/a surgitek 19. Minnesota Mining & Manufacturing Co., Inc. (3M) 20. Natural Y surgical Specialties, Inc. 21. Scott Paper company 22. Sirod Corporation 23. Union Carbide Chemicals and Plastics Company, Inc. 24. union Carbide Corporation 25. Wilshire Technologies, Inc. f/k/a Wilshire Foam Products, Inc. Other 1. John/Jane Doe II. DEFENDANT HEALTH CARE PROVIDERS The following health care providers are named as defendants herein: 2 LAW OFFICES SHELLER. LUDWIG 8. BACEY 1. James A. Yates, M.D., Grandview Corporate Place, 205 Grandview Ave., Camp Hill, PA 17011, (hereinafter referred to as "Defendant Doctor"). 2. Plastic Surgery Center, Ltd., Grandview corporate Place, 205 Grandview Ave., Camp Hill, PA 17011, (hereinafter referred to as "Defendant Doctor's Group" ) . 3. Richard Dabb, M.D., 50 17403, (hereinafter Doctor" ) . Wyntrebrook Drive, York, PA referred to as "Defendant 4. York Plastic Surgery Associates, 50 Wyntrebrook Drive, York, PA 17403, (hereinafter referred to as "Defendant Doctor's Group"). 5. Holy spirit Hospital, 503 N. 21st Street, Camp Hill, PA 17011, (hereinafter referred to as "Defendant Hospital"). 6. York Hospital, 1001 17405, (hereinafter Hospital"). s. George Street, York, PA referred to as "Defendant III. CASE SPECIFIC INFORMATION 1. The specific implant products used in Plaintiff's medical treatment, including the name of the manufacturers, brand numbers, lot numbers and catalogue numbers, to the best of Plaintiff's knowledge, were: a. Becker/Expander, Gel-Saline, Catalog Numbers 350-0300, Lot Numbers 25721, (hereinafter referred to as the "First Implants"). b. surgitek, 220 cc., Catalog Numbers 156405, Lot Numbers 26583-86-B, ((hereinafter referred to as the "Second Implants"). 3 LAW OFFICES SHELLER. LUDWIG' BADEY 2. For each procedure in which an implant was either inserted or removed, the date of plaintiff's surgery, the name and address of Plaintiff's surgeon, and the name and address of the hospital/clinic where Plaintiff's surgery was performed, to the extent reasonably known to Plaintiff, is as follows: a. The Implants were inserted on or about 1986, by Richard Dabb, M.D., 50 wyntrebrook Drive, York, PA 17403, of York plastic surgery Associates, 50 Wyntrebrook Drive, York, PA 17403, at York Hospital, 1001 S. George street, York, PA 17405. b. The First Implants were inserted on September 7, 1988, by James A. Yates, M.D., Grandview Corporate Place, 205 Grandview Ave., Camp Hill, PA 17011, of Plastic surgery Center, Ltd., Grandview Corporate Place, 205 Grandview Ave., Camp Hill, PA 17011, at Holy Spirit Hospital, 503 N. 21st Street, Camp Hill, PA 17011. c. The Second Implants were inserted on February 1, 1990, by James A. Yates, M.D., Grandview corporate Place, 205 Grandview Ave., Camp Hill, PA 17011, of Plastic Surgery center, Ltd., Grandview Corporate Place, 205 Grandview Ave., Camp Hill, PA 17011, at Holy Spirit Hospital, 503 N. 21st street, Camp Hill, PA 17011. 3. At all times pertinent hereto, defendants, York Plastic Surgery Associates and Plastic Surgery Center, Ltd., acted by and through its agents, servants, workers, and/or employees, acting then and there in the course and scope of their duties to 4 LAW OFFICES SHELLER. LUDWIG. BADEY aid Plaintiff, including but not limited to Rjchard Dabb, M.D. and James A. Yates, M.D. 4. At all times pertinent hereto, defendants, York Hospital and Holy spirit Hospital, acted by and through its agents, servants, workers, and/or employees, acting then and there in the course and scope of their duties to aid Plaintiff, including but not limited to Richard Dabb, M.D. and James A. Yates, M.D. IV. INJURIES 1. X Yes No Have the Implants been removed or ruptured? 2. X Yes No Is the Plaintiff raising claims for damages from a disabling disease (as defined in Paragraph No. 3 of Case Management Order NO.7) caused by the use of a silicone breast implant? 3. The disabling diseases from which Plaintiff suffers (as defined in Paragraph No.3 of Case Management Order No.7), include, but are not limited to: (a) Scleroderma-like syndrome; (b) Neuromuscular-like junction disease; (c) Mixed connective tissue-like disease; (d) Inflammatory muscle-like disease; (e) Rheumatoid arthritis; (f) Rheumatoid-like arthritis; (g) (i) Dermatomyositis-like disease; (h) sjogren's syndrome; sjogren'3-1ike syndrome; (j) Nonspecific auto-immune condition; (k) polyarthritis; (1) Polyarthritis-like disease; (m) Mya1gias; (n) Myalgias-like disease; (0) Serologic Abnormalities; (p) 5 LAW OFFICES SHELLER. LUDWIG 8. BADEY Lymphadenopathy; (q) Chronic fatigue; (r) Sleep disturbances; (s) Dizziness; (t) Night sweats; (u) Chronic inflammatory response; (v) Breast infections; (w) Disfigurement; (x) Impairment of the immune system; (y) Complex surgical procedures; (z) Scar tissue capsulation; (aa) Auto-immune disease; (bb) Auto-immune-1ike disease; (cc) Memory loss; (dd) Skin discoloration; (ee) cramping, tingling and/or burning; (ff) Human adjuvant disease; (gg) Anxiety; (hh) Loss of sleep; (ii) Depression; (jj) Psychological and physiological sequelae; (kk) Silicone toxicity syndrome; and (11) Silicone implant disease. V. CAUSE OF ACTION On the basis of the allegations contained in the Fourth Amended Master Complaint, Plaintiff herein raises the following l claims: X Count I - Negligence Against Defendant Yes No Manufacturers X Count III - strict Product Liability Yes No Against Defendant Manufacturers X Count IV - Breach of Implied Warranty Yes No Against Defendant Manufacturers X Count V - Fraud, Deceit and Yes No Misrepresentation Against Defendant Manufacturers X Count VIII - Medical Negligence and Yes No Negligent Use of Defective Product Against Defendant Health Care Providers X Count IX - Fraud, Deceit and Yes No Misrepresentation Against 6 LAW OFFICES SHELLER. LUDWIG' BADEY X Yes X Yes Yes X Yes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Count IX - Fraud, Deceit and Misrepresentation Against Defendant Hea1thcare Providers No Count X - Lack of Informed Consent Against Defendant Hea1thcare providers No X No Count XII - Loss of Consortium Against All Defendants Count XIII - outrageous Conduct Against the Following Defendants: No Admiral Materials Corporation Aesthetech corporation Applied Silicone corporation Baxter Hea1thcare Corporation Baxter International, Inc. Bristol-Myers Squibb and Co. f/k/a Bristol-Myers Co. The Cooper Companies, Inc. Cooper Surgical, Inc. Cox-UpHoff, a/k/a CUI corporation Dow corning Corporation Dow Corning Wright Corporation General electric Co. Hu1s America, Inc., f/k/a petrarch Systems, Inc. INAMED Corporation 21 International Holdings, Inc. McGhan Medical corporation (A Delaware and California Corporation) 17. McGhan Nusil Corporation 7 LAW OFFICES SHELLER. LUDWIG' BADEY 17. McGhan Nusil Corporation a/k/a Nusil Technologies 18. Medical Engineering Corporation d/b/a Surgitek 19. Minnesota Mining & Manufacturing Co., Inc. (3M) 20. Natural Y Surgical Specialties, Inc. 21. Scott Paper company 22. Sirod Corporation 23. union Carbide Chemicals and Plastics Company, Inc. 24. Union Carbide corporation 25. Wilshire Technologies, Inc. f/k/a Wilshire Foam Products, Inc. 26. John/Jane Doe 27. James A. Yates, M.D. 28. Plastic Surgery Center, Ltd. 29. Richard Dabb, M.D. 30. York Plastic surgery Associates 31. Holy Spirit Hospital 32. York Hospital X Yes Violation of state Unfair Trade Practices and Consumer Protection Law Against Defendant Manufacturers Count XIX - No VI. CLAIMS AGAINST RELATED COMPANIES As to those manufacturers, distributors, component parts suppliers and related companies that Plaintiffs have named as 8 LAW OFFICES SHELLER. LUDWIG' BADEY VERIFICATION Jamie L. Sheller, Esquire, verifies that she is an attorney for the Plaintiff in the foregoing action and that the facts set forth in the foregoing pleading are true and correct to the best of her knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. H904 relating to unsworn falsification to authorities. ~Jn1"W ? >R:L jAMIE L. SHELLER , 1J 1.f Dated: ~ ~.'" / - LAW OFFICES SHELLER. LUDWIG' BADEY ,~~~l~~~:::..- .(jd r" HAY 31 2 50 PH t9~ Of ri;il::.:.OFflCE CllHlE~L'K~~OHOTAfIY PEHHSYlVZ,W.{"TY (i~ 4.d.5U J~ !f551] CAL /rod.-1 ffeO"'( ',' 1f .... r ..".."..."'- :, ~ ~~Iifiiii~~~ .."': " ,)<rrn~'rn .,' ,~ ~ . ~t;. ,(', '.rn UII." II ..~nl, l' " f: , ,.~..", , I ~. i }i!~:'~X~"f:;:;': . /... , '" -f':... ~: -II. ., .'_.... .'~ ". -' J .. '~,oI '::--- .. " . 200-0137 HECKER BROWN SHERRY AND JOHNSON BY: Madeline M. Sherry *31549 Lauren A. Stevens *41176 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Baxter Healthcare Corporation DBFEHDABT, BAXTBR HEALTHCARB CORPORATION'S, ANSnR TO PLAINTIFF'S SHORT FORM COMPLAINT WITH HEW MATTER Pursuant to Case Management Order No. 8 entered by the Coordinating Court for Silicone Implant Litigation, specifically SII(4)(a) and (b), all factual allegations in plaintiff's Short Form Complaint are deemed denied and answering defendant need only respond to averments of fact in plaintiff's Short Form Complaint relating to the identity of the person by whom a material act was committed, the agency or employment of such person and the ownership, possession, property or the control of or instrumentality involved. HEeKE" ."OWN SHERRY AHDJOHNION. 1700 TWO LOGAN IQUARE. tlTH AND ARCH 'TRIE'I. PHILADELPHIA. ...... UI03 DEFENDANT MANUFACTURERS AND RELATED COMPANIES Denied. The allegations contained in paragraphs 20 through 23 of plaintiffs' Fourth Amended Master Complaint are specifically denied. To the contrary, the correct corporate history is stated as follows: Heyer-Schulte corporation, a California corporation (H-S) manufactured and sold breast implants. On August 20, 1974, American Hospital supply Corporation (AHSC), a publicly held company incorporated in Illinois, acquired substantially all of the properties, assets, liabilities, business and goodwill of H-S. H-S dissolved, but its business was continued as a who11y- owned SUbsidiary of AHSC under the name of Heyer-SChulte Corporation, a Delaware corporation. On June 23, 1980, the name of the company was changed to American Heyer-SchUlte Corporation and on December 16, 1982, it became an unincorporated division of AHSC and ceased its separate corporate existence. Thereafter, it was known as American Heyer-SchUlte, an unincorporated division of AHSC. On March 30, 1984, most of the assets of the American Heyer- Schulte division, including all of the breast implant product lines, were sold by AHSC to Mentor Corporation. On November 25, 1985, AHSC merged into Baxter Traveno1 Laboratories, Inc. (BTLI). Simultaneously, the liabilities associated with the manufacture and sale of breast implants (among other liabilities as well as assets) of AHSC were transferred to Baxter Acquisition Sub., Inc., an Illinois corporation, which simultaneously changed its name to American Hospital Supply corporation (AHSC II). On December 31, 1986, AHSC II merged into Traveno1 Laboratories, Inc. Traveno1 Laboratories, Inc. was a wholly-owned subsidiary of BTLI. On HI:CKIER BROWN IHERAY ANOJOHNIOH. 1700 TWO LOGAN SQUARE" 18TH ....NO ARCH ITRIEI:TI. PHILADI:LPHI.... PA._ 1910J July 21, 1987, Traveno1 Laboratories, Inc. changed its name to Baxter Hea1thcare corporation. On May 18, 1988 BTLI changed its name to Baxter International Inc. (BII). Neither Heyer-Schulte Corporation, American Heyer-Schulte corporation or American Hospital Supply corporation exists today. It is specificallY denied that defendant, Baxter Hea1thcare corporation, is incorporated in the State of California. To the contrary, Baxter Hea1thcare corporation is incorporated in the state of Delaware. By way of further answer, it is specifically denied that defendant, Baxter Hea1thcare corporation, was the agent, servant, subject to the control or right of control of defendant, Baxter International Inc. with regard to the design, manufacture, sale and distribution of breast implants. To the contrary, defendant, Baxter Healthcare corporation, at no time pertinent hereto, was the agent, servant, controlled or subject to the right of control by defendant, Baxter International Inc. with regard to the design, manufacture, sale and distribution implants. of breast Furthermore, said allegations are denied as conclusions of law. CASE SPECIFIC INFORMATION Denied. It is specifically denied that defendant, Baxter Hea1thcare Corporation, manufactured the Becker/Expander, Ge1- silicone, Catalog Numbers 350-0300, Lto Numbers 25721 or the surgitek, 220 cc., catalog Numbers 156404, Lot Numbers 26583-86-B, breast implants identified by plaintiff as having been used in her II medical treatment. II II Ii " HICKER .ROWN IHIAAY AND JOHNSON. 1700 TWO LOCA.N SQUARE" ,aTH AND ARCH ITREITI. ~HILADIL~HIA. ~A, ,el03 CAUSE OF ACTION Denied. The allegations contained in this section of plaintiff's Short Form Complaint consist entirely of conclusions of law or ultimate fact to which no responsive pleading is required. By way of further answer, each and every claim set forth in this paragraph is denied. CLAIMS AGAINST RELATED COMPANIES Defendant, Baxter Hea1thcare Corporation, hereby incorporates its Preliminary Objection to Plaintiffs' Second Amended Master Complaint re: Successor Liability by reference thereto. WHEREFORE, defendant, Baxter Healthcare Corporation, respectfully requests judgment in its favor and against plaintiff, Josephine M. Yeyna. NEW MATTER Ii II iI " :i 1. Plaintiff's Short Form Complaint and each and every purported cause of action contained therein fails to state a claim upon which relief can be granted. 2. The injuries to plaintiff, if any, were not proximately caused by any acts or omissions of Baxter Hea1thcare Corporation. 3. The injuries to plaintiff, if any, were proximately caused by the superseding and intervening acts of third parties other than Baxter Hea1thcare Corporation. 4. The injuries to plaintiff, if any, were directly and proximately caused and contributed to by the action of persons other than Baxter Hea1thcare Corporation. Plaintiff is therefore HI:C~ER BROWN IHI[RRY ANDJOHNION' 1700 TWO l.OGAN SQUARE' 18TH AND ARCH STRItETS. PHILA,OIEL.PH'A. po,,_ 1.'Ol barred from recovery against Baxter Healthcare Corporation or, in the alternative, the damages, if any, recoverable by plaintiff herein must be diminished in proportion to the fault ~ttributab1e to said persons. 5. The injuries to plaintiff, if any, were proximately caused by the misuse, abuse, alteration and/or failure to properly maintain or care for the subject product by persons other than Baxter Hea1thcare corporation. Plaintiff is therefore barred from recovery against Baxter Healthcare Corporation or, in the alternative, the damages, if any, recoverable by plaintiff herein must be diminished in proportion to the amount of fault attributable to plaintiff and/or said persons. 6. The injuries to plaintiff, if any, were directly and proximately caused and contributed to by the actions of plaintiff and/or other persons, who caused changes and alterations to be made to the products and said changes and alterations proximately caused or contributed to the injuries, if any, alleged by plaintiff, and voided any and all alleged warranties, express and/or implied. 7. Baxter Hea1thcare Corporation made no warranties of any kind, express or implied, or any representations of any nature whatsoever to plaintiff herein. If any such warranties were made, whether express or implied, which Baxter Hea1thcare Corporation specifically denies, then plaintiff failed to give timely notice of any breach thereof. 8. Adequate warnings were provided to the prescribing physicians regarding the use of the subject product. Therefore, Baxter Hea1thcare Corporation pleads the doctrine of the Learned HECKIR BROWN SHERRV AND JOHNSON' 1700 TWO LOCA.N SQUARE' lllTH AND ARC" ITRIETS' "HILADEL~HI"'. ,.... 'DIOJ Intermediary Doctrine as an affirmative defense. 9. The product plaintiff alleges in plaintiff's Short Form Complaint to be defective is a medical device which met the standards of the state of the art and the state of medical and scientific knowledge at the time of its manufacture to the extent of the knowledge then available in the medical community. 10. A manufacturer of a prescription medical device is exempt from strict liability for design defect. Baxter Hea1thcare Corporation pleads the Restatement (Second) of Torts S 402A Comment t, ~s an affirmative defense. 11. Plaintiff's recovery must be offset by amounts recovered from other sources. 12. The manufacturer complied with all laws and federal regulations in effect at the time of manufacture of the mammary prostheses. 13. Plaintiff's Short Form Complaint fails to state a claim for punitive damages against Baxter Hea1thcare corporation. 14. Plaintiff, at all relevant times, failed to take reasonable action to mitigate the injuries and damages alleged in plaintiff's Short Form Complaint. 15. The product in question was so modified and altered after it left the custody and control of its manufacturer, and without the manufacturer's knowledge or consent, that when plaintiff was exposed to such product it was a substantially changed product such that it did not reach the user in substantially the same condition as when it left the manufacturer's control. By reason thereof, Baxter Hea1thcare Corporation is not liable for the injuries and HICKIA BROWN IHtrUtY AND JOHNSON. 1100 TWO LOGA,.. IQUo\"( I leTH AND A"CH ITAIEITI I ~HIL"D[L~HI", PO". 1110J damages alleged in plaintiff's Short Form Complaint. 16. The causes of action alleged in plaintiff's Short Form Complaint are barred under the doctrine of federal preemption because granting the relief prayed for in plaintiff's Short Form Complaint would impermissibly infringe upon and conflict with federal laws, regulations and policies in violation of the supremacy Clause of the United states constitution. 17. Plaintiffs' purported claim for punitive damages is barred against answering defendant, Baxter Healthcare Corporation, due to their status as a "successor corporation". 18. Plaintiff has sustained no damages for which she is entitled to be compensated and plaintiff, therefore, cannot recover punitive damages. 19. Plaintiff's Short Form Complaint and its purported claim for punitive damages violates this answering defendant, Baxter Hea1thcare Corporation's rights under the Fifth and Fourteenth Amendments to the United states constitution and therefore fails to state a claim upon which punitive damages can be awarded. 20. Any injuries alleged by plaintiff were not caused by breast implants. WHEREFORE, answering defendant, Baxter Hea1thcare Corporation, prays for judgment against plaintiff, as follows: 1. That judgment be entered in favor of Baxter Hea1thcare Corporation and against plaintiff and that plaintiff's Short Form Complaint be dismissed with prejudice: HleMIIlI ."OWN IHI""" ANOJOHNION. '700 TWO LOGAN tQUAIt," t.T" AND "'''CH l'ltIITI. ~HIL"OIL"HIA. PA. I'IOJ 2. That Baxter Hea1thcare Corporation be awarded its costs of suit incurred herein, 3. That Baxter Hea1thcare Corporation be awarded its reasonable attorneys' fees as may be determined by the Court: and 4. For such other and further relief as this Court may deem just and proper. HECKER BROWN SHERRY AND JOHNSON By: ~~(a;-..a. ~.~ Madeline M. $herry, Esqu re Lauren A. Stevens, Esquire Attorneys for Defendant, Baxter Hea1thcare Corporation Dated:_(O -9 -9<1 HEeMIR ."OWN IHEARY ANDJOHNIO,... 1700 TWO LOGAN IQUARE. 18TH AND ARCH STREItTI. "HILADEL"HIA, PA. 18101 V E R I F I CAT ION LAUREN A. STEVENS states that she is an attorney with the firm of HECKER BROWN SHERRY AND JOHNSON, attorneys for the within- named defendant: that she is authorized to take this Verification on its behalf and that the statements in the foregoing are true and correct to the best of her knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S.A. !i4904 relating to unsworn falsification to authorities. HECKER BROWN SHERRY AND JOHNSON BY: m/ld,v....d. {);{7A'~ Jo-'n.-- uren A. St$'l1'ens DATED: u.q.'1Y HICKIR ."OWN SHERRV AND JOHNSON' 1700 TWO LOGA,.. ,QUARI' '8'H AND ARCH &'RIITI' ~HILADII:L"HIA. ,.". 'I'OJ HECKER BROWN SHERRY AND JOHNSON BY: Madeline M. Sherry '31549 Lauren A. Stevens '41176 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Baxter Hea1thcare Corporation JOSEPHINE M. YEYNA, . . COURT OF COMMON PLEAS CUMBERLAND COUNTY . . Plaintiff, . . v. . . : BAXTER HEALTHCARE CORPORATION, et a1., Defendants. . . : NO. 94-2915 . . CBRTIPICATB OP SBRVICB I, Lauren A. Stevens, Esquire, hereby certify that a true and correct copy of the foregoing Defendant, Baxter Hea1thcare Corporation's, Answer to Plaintiff's Short Form Complaint with New Matter, has been served on the following parties by first-class mail, postage pre-paid on this ~ day of ~~~ SEE ATTACHED LIST , 1994: HECKER BROWN SHERRY AND JOHNSON ~u!/l--t(, j!;tz</,-e:n:v Madeline Hi Sherry '31549 Lauren A. Stevens '41176 Attorneys for Defendant, Baxter Hea1thcare Corporation HECKER BROWN SHERRY AND JOHNSON 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 HICKE.. ."OWN 'HIARY AND JOHNSON' 1700 TWO LOGA.'" IQUAAI' 11TH "NO ARCH .TAIITI' "HILAOIL"HIA, ..". 1.103 stephen A. Sheller, Esquire Leonard V. Fodera, Esquire Sheller, Ludwig & Badey Third Floor 1528 Walnut Street Philadelphia, PA 19102 ,I II I " 'I i: Angelo L. Scaricamazza, Jr., Esquire Nau1ty, Scaricamazza & McDevitt suite 1600 One Penn Center 1617 JFK Boulevard Philadelphia, PA 19103 E. Michael Keating, III, Esquire Clark Ladner Fortenbaugh & Young One Commerce Square 2005 Market street Philadelphia, PA 19103 Robert M. Britton, Esquire Post & Schell, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Jeremy Mishkin, Esquire Bruce Biken, Esquire Montgomery, McCracken, Walker & Rhoads Three Parkway Philadelphia, PA 19102 Joseph P. Hafer, Esquire Peter J. Curry, Esquire Thomas, Thomas & Hafer 305 North Front Street PO Box 999 Harrisburg, PA 17108-0999 coopersurgica1, Inc. sixth Floor One Bridge Plaza North Fort Lee, NJ 07024-7502 Admiral Materials corporation c/o Mentor Corporation 600 Pine Avenue Goleta, CA 93117 petrarch systems, Inc. and Hu1s America, Inc. 80 centennial Avenue piscataway, NJ 08855-0546 S. Gordon, Elkins, Esquire Donna M. Dever, Esquire Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103-7098 Robert S. Forster, Jr., Esquire Krusen Evans & Byrne suite 1100 Curtis Center Independence Square West Sixth and Walnut Street Philadelphia, PA 19106 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire Thorp, Reed & Armstrong One Riverfront Center Pittsburgh, PA 15222 Gilda L. Kramer, Esquire suite 1100 1500 Walnut Street Philadelphia, PA 19102 Arthur J. Murphy, Jr., Esquire Stephen W. Trout, Esquire Murphy, Taylor & Trout suite 1100 1616 Walnut Street Philadelphia, PA 19103 Allan H. Starr, Esquire White and Williams suite 1800 One Liberty Place 1650 Market Street Philadelphia, PA 19103 Cox-Uphoff International 1035 cindy Lane Carpinteria, CA 93013 Admiral Materials corporation n/k/a Mentor Polymer Tech. 5425 Hollister Avenue Santa Barbara, CA 39111 James A. Yates, M.D. Grandview Corporate Place 205 Grandview Avenue Camp Hill, PA 17011 M[CK(A BROWN .HtRAY AND JOHNSON' t700 TWO LOGA,,.. SQUARE' IIITH "'NO "ReM STREETS. PH1LA.DJ:LPHIA. PA_ I'IIOJ Richard Dabb, M.D. 50 Wyntrebrook Drive York, PA 17403 York Hospital 1001 South George street York, PA 17405 York Plastic Surgery Associates 50 Wyntrebrook Drive York, PA 17403 HlECKlER _"OWN SH"RRY AND JOHNSON. 1700 TWO LOGAN SQUARC- 11TH AND ARCH ITREITI. "HILADIL"HIA, ,.". '8'01 _;';"~~:l !lilf{~'r- ~.~ - ..~. ",..-oo..!;.llllill'l:i1U. .1__" >>',' ,..'.".','.,'.",'"" .- "" ~-,' " ," ",', , ... .....~..,' ,."0 .,".,',' I fir n. ..1lY11..lll!i~'itJJ,.:..~ . . J\lll \'3" Z os r" t9~ .','.,;' 'JrflcE (if ',:,C ' ,'1\\QH'Ji t.{,'t C\i,.j;..,~"lID C~UKn I'tl;'ii,il.\,~lI\~ ",,."'-, =-~~-~- .-.-~"... , f 1tJ.'!::. .)~ ~ . ,.,~:: ....., .. 'r'C' .. . .::t'- ~ l ~.. I' , " .' . '" . .' . ". I' .. -. -~:-- 200-0137 HECKER BROWN SHERRY AND JOHNSON BY: Madeline M. Sherry '31549 Lauren A. stevens '41176 1700 Two Logan square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Baxter Hea1thcare corporation JOSEPHINE M. YEYNA, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. BAXTER HEALTHCARE CORPORATION, et a1., NO. 94-24115 Defendants. DBMAND POR JURY TRIAL TO THE PROTHONOTARY: Defendant, Baxter Hea1thcare Corporation, by and through their undersigned counsel, demands a trial by a jury of twelve (12) in the above-captioned matter. HECKER BROWN SHERRY AND JOHNSON By ()f;uc t.?''- (/. ;2a"H~ Madeline M."Sherry, Esquire Lauren A. Stevens, Esquire Attorneys for Defendant, Baxter Hea1thcare corporation Dated: it - 9 -9</ HICKUI ."OWN IHEAAY AND JOHNSON' 1700 TWO l.OaAN SQUARE' 18TH AND "ReH anflUI' ~HILADILPHIA. ,.". IltOJ "0'1 f'> "II 1 ,~t,;;j"~t;~~b;~~;'l~~~;:~i:b~i~~~;:'~~~:~;,;~~~ ~ " JUH 13 2 05 fK t9~ , 'JfflCE nf ,>;l "."TIIOI1~l^fty CUl'b:;IL1>.110 COunTY PElIHsn'i,\!liA . 1." 'I ~~ - ..t'''::'~''--;;:--'':r'~' ~_"i;:::>-._ ;~; , !' -~ .-. " . ~.. . J~ '" . . iI . ,J " .. -. . 1 .'" - :-.-.-- " CLARK. LADNER. FORTENBAUGH lk YOUNG BY:E. Michael Keatinq, III IDENTIFICATION NO, 19350 ATTORNEY FOR Defendant General Electric Company ONE COMMERCE SQUARE 2005 MARKET STREET PHILADELPHIA, PA 19103 (215)241-1800 JOSEPHINE M. YEYNA CUMBERLAND COUNTY COURT OF COMMON PLEAS DIVISION P1aintiff(s), v. TERM. GENERAL ELECTRIC COMPANY, et a1. Defendants. NO'94-2915 CIVIL 1\ II ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant, General Electric company, in the above-entitled action. Ii !! CLARK, LADNER, FORTENBAUGH & YOUNG One Commerce Square, 22nd Floor 2005 Market Street Philadelphia, PA 19103 ~ By: --<- c ae1 Keat ng, III Attorneys for Defendant General Electric company Dated: " /'yvi , 177565.1 '. " ~^" '-'. "~,-'-~! . .-. .~ ~, . I . I JU" 16 II olAH t9~ .. 'h r t!;l v' ..<}.'i' ~hl cu:;':: '_'it-:;:} :~~ ,:::>,/1 r y --_,I ';i' 'f.-< """'~"_""",,,~A'- t . . tII . " I'. ^, . .. -. -.- KRUSEN EVANS & BYRNE By: Robert S. Forster. Esquire Identification No.: 17899 Suite 1100, The Curtis Center Sixth and Walnut Streets Independence Square West Philadelphia, PA 19106 (215) 923-4400 Attorneys for Defendants, Dow Corning Corporation and Dow Corning Wright Corporation Josephine M. Yeyna Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. Dow Corning Corporation, Dow Corning Wright Corp., et a1. No. 94-2915 Defendants Jurv Trial DAm-uded ENTRY OP APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the defendants, Dow Corning Corporation and Dow Corning Wright Corp., in the above captioned matter. Dated: Q1'/-/(/4-.1t14/ , I' KRUSEN EVANS and BYRNE BY, flJI /f2~~ Ro ert S. Forster, Jr. '~r;A1~' < ~........'..... JUN ZO 2 sa PH '911 ,;dl~F. (;f I: :HON l:\1tV GUlii.i.;., ,~~jft ~( ,illY PE~Ht~.YI',...N .\ , ~'Vf , . f - . , '''.' , . ',' t " ; 'I)' :\ {' 1 I" " . . " " . . , .. ". -- . ,< 00200-0137 HECKER BROWN SHERRY AND JOHNSON BY: Madeline M. Sherry #31549 Lauren A. stevens #41176 1700 Two Logan Square 18th and Arch streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Baxter International Inc. JOSEPHINE M. YEYNA, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, . . v. BAXTER INTERNATIONAL INC., et a1., : NO. 94-2915 Defendants. DEFENDANT, BAXTER INTERNATIONAL INC.'S, ANSWER TO PLAINTIFF'S SHORT FORM COMPLAINT WITH NEW MATTER ANDPRELIMINARY OBJECTIONS IN THE NATURE OF A MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Pursuant to Case Management Order No. 8 entered by the Coordinating Court for Silicone Implant Litigation, specifically ~II(4) (a) and (b), all factual allegations in plaintiff's Short Form Complaint are deemed denied and answering defendant need only respond to averments of fact in plaintiff's Short Form Complaint relating to the identity of the person by whom a material act was committed, the agency or employment of such person and the ownership, possession, control of the property or or instrumentality involved. HECKE,. ."OWN IHEIU'" AND JOHNSON. 1700 TWO LOCAN 'QUAIItE" 11TH AND ARCH ITA liT. . "HILADIL"H1A. P". 1110] .. DEFENDANT MANUFACTURERS AND RELATED COMPANIES Denied. The allegations contained in paragraphs 20 through 23 of plaintiffs' Fourth Amended Master Complaint are specifically denied. To the contrary, the correct corporate history is stated as follows: Heyer-Schulte corporation, a California corporation (H-S) manufactured and sold breast implants. On August 20, 1974, American Hospital Supply Corporation (AHSC), a publicly held company incorporated in Illinois, acquired substantially all of the properties, assets, liabilities, business and goodwill of H-S. H-S dissolved, but its business was continued as a who11y- owned subsidiary of AHSC under the name of Heyer-Schulte Corporation, a Delaware corporation. On June 23, 1980, the name of the company was changed to American Heyer-Schulte Corporation and on December 16, 1982, it became an unincorporated division of AHSC and ceased its separate corporate existence. Thereafter, it was known as American Heyer-Schulte, an unincorporated division of AHSC. On March 30, 1984, most of the assets of the American Heyer- Schulte division, including all of the breast implant product lines, were sold by AHSC to Mentor Corporation. On November 25, 1985, AHSC merged into Baxter Travenol Laboratories, Inc. (BTLI). simultaneously, the liabilities associated with the manufacture and sale of breast implants (among other liabilities as well as assets) of AHSC were transferred to Baxter Acquisition Sub., Inc., an Illinois corporation, which simultaneously changed its name to American Hospital Supply Corporation (AHSC II). On December 31, 1986, AHSC II merged into Traveno1 Laboratories, Inc. Traveno1 Laboratories, Inc. was a wholly-owned subsidiary of BTLI. On HECKER .ROW'" IHERRV ANDJOHNION. 1700 TWO LOGAN SQUAAE. 'ITH AND ARCH ITArll.. ~HILAD(L"HIA. ...\.. 1910J " ( , July 21, 1987, Travenol Laboratories, Inc. changed its name to Baxter Healthcare Corporation. On May 18, 1988 BTLI changed its name to Baxter International Inc. (BII). Neither Heyer-Schulte Corporation, American Heyer-Schulte corporation or American Hospital Supply Corporation exists today. It is specifically denied that defendant. Baxter Hea1thcare Corporation, is incorporated in the State of California. To the contrary, Baxter Heal thcare Corporation is incorporated in the state of Delaware. By way of further answer, it is specifically denied that defendant, Baxter Hea1thcare Corporation, was the agent, servant, subject to the control or right of control of defendant, Baxter International Inc. with regard to the design. manufacture, sale and distribution of breast implants. To the contrary, defendant, Baxter Hea1thcare Corporation, at no time pertinent hereto, was the agent, servant, controlled or subject to the right of control by defendant, Baxter International Inc. with regard to the design, manufacture, sale and distribution of breast implants. Furthermore, said allegations are denied as conclusions of law. CASE SPECIFIC INFORMATION Denied. It is specifically denied that defendant, Baxter Hea1thcare corporation, manufactured the Becker/Expander, Ge1- Silicone, Catalog Numbers 350-0300, Lto Numbers 25721 or the Surgitek, 220 cc., Catalog Numbers 156404, Lot Numbers 26583-86-B, breast implants identified by plaintiff as having been used in her medical treatment. HEClCER ."OWN SHEART 4NDJOHNION. 1100 TWO LOG...,.. IQU"'''E. leTH AND ARCH ITAIITI. ~HILAD[L~HIA. ~A, 18103 CAUSE OF ACTION Denied. The allegations contained in this section of plaintiff's Short Form Complaint consist entirely of conclusions of law or ultimate fact to which no responsive pleading is required. By way of further answer, each and every claim set forth in this paragraph is denied. CLAIMS AGAINST RELATED COMPANIES Defendant, Baxter International Inc., hereby incorporates its preliminary Objection to Plaintiffs' second Amended Master Complaint re: Successor Liability by reference thereto. OTHER CLAIMS EXPRESS WARRANTY CLAIMS Denied. It is specifically denied that plaintiff has properly raised an express warranty claim. To the contrary, the Court has required that if an express warranty is in writing. the writing shall be attached to the Complaint or if the express warranty claim is based on an oral warranty, plaintiff shall describe the date on which the warranty was made, the person who made the warranty and the express terms of the warranty in order to properly raise this claim. There being no express warranty attached to plaintiff's Short Form Complaint and no description of an oral warranty in the body of plaintiff's Short Form Complaint, it is specifically denied that plaintiff has adequately and properly raised an express warranty claim. HECKER ."OWN II1E""'" AND JOHNION' 1700 TWO LOGAN IQUA"!' 18TH AND ""eM I'RII:TI' .."ILADIL..H..... ..... fila) , ~ ALTERNATIVE LIABILITY CLAIMS Denied. It is specifically denied that plaintiff has properly raised an alternative liability claim in the Short Form Complaint. To the contrary, the Court has only permitted plaintiff to raise an alternative liability claim if specific facts are presented in the Short Form Complaint that bring the case within the narrow exceptions to the general rule that a plaintiff cannot recover in a product liability action without identifying the manufacturer or supplier of the defective product. In the within action, plaintiff has identified the manufacturer of the breast implants and has not pled specific facts which would bring her case within the narrow exceptions to the general rule barring alternative liability claims in these cases. Accordingly, plaintiff has not properly raised an alternative liability claim in her Short Form Complaint. WHEREFORE, defendant, Baxter International Inc., respectfully requests judgment in its favor and against plaintiff, Josephine M. Yeyna. NEW MATTER 1. Plaintiff I s Short Form complaint and each and every purported cause of action contained therein fails to state a claim upon which relief can be granted. 2. The injuries to plaintiff, if any. were not proximately caused by any acts or omissions of Baxter International Inc.. 3. The injuries to plaintiff, if any, were proximately caused by the superseding and intervening acts of third parties other than Baxter International Inc.. HECKER .ROWN IHIERRY A.ND JOHNION' 1700 TWO LOC4N IQUARE I 18TH AND ARCH ITAIlETI' ~HIL.ADEI."HIA. ..... '.103 I ~ 4. The injuries to plaintiff, if any, were directly and proximately caused and contributed to by the action of persons other than Baxter International Inc.. Plaintiff is therefore barred from recovery against Baxter International Inc. or, in the alternative, the damages, if any, recoverable by plaintiff herein must be diminished in proportion to the fault attributable to said persons. 5. The injuries to plaintiff, if any, were proximately caused by the misuse, abuse, alteration and/or failure to properly maintain or care for the subject product by persons other than Baxter International Inc.. plaintiff is therefore barred from recovery against Baxter International Inc. or, in the alternative, the damages, if any. recoverable by plaintiff herein must be diminished in proportion to the amount of fault attributable to plaintiff and/or said persons. 6. The injuries to plaintiff, if any, were directly and proximately caused and contributed to by the actions of plaintiff and/or other persons, who caused changes and alterations to be made to the products and said changes and alterations proximately caused or contributed to the injuries, if any, alleged by plaintiff, and voided any and all alleged warranties, express and/or implied. 7. Baxter International Inc. made no warranties of any kind, express or implied, or any representations of any nature whatsoever to plaintiff herein. If any such warranties were made, whether express or implied, which Baxter International Inc. specifically denies, then plaintiff failed to give timely notice of any breach thereof. HICtCl" ."OWN 'HIl"RY "NO JOHNSON' 1700 TWO l.OG"'" SQUA."E' t8TH AND ARCH 'TAIlEn" ~HIL.ADItl-~HIA. flA. 1'101 J 8. Adequate warnings were provided to the prescribing physicians regarding the use of the subject product. Therefore, Baxter International Inc. pleads the doctrine of the Learned Intermediary Doctrine as an affirmative defense. 9. The product plaintiff alleges in plaintiff's Short Form complaint to be defective is a medical device which met the standards of the state of the art and the state of medical and scientific knowledge at the time of its manufacture to the extent of the knowledge then available in the medical community. 10. A manufacturer of a prescription medical device is exempt from strict liability for design defect. Baxter International Inc. pleads the Restatement (Second) of Torts ~ 402A Comment k, as an affirmative defense. 11. Plaintiff's recovery must be offset by amounts recovered from other sources. 12. The manufacturer comp1 ied with all laws and federal regulations in effect at the time of manufacture of the mammary prostheses. 13. Plaintiff's Short Form Complaint fails to state a claim for punitive damages against Baxter International Inc.. 14. Plaintiff, at all relevant times, failed to take reasonable action to mitigate the injuries and damages alleged in plaintiff's Short Form Complaint. 15. The product in question was so modified and altered after it left the custody and control of its manufacturer, and without the manufacturer's knowledge or consent, that when plaintiff was exposed to such product it was a substantially changed product such HICt\:(ft _"OWN IHI""" AND JOHNION' 1700 TWO l.OGAN .QU.....E. 'ITH AND ARCH ITRllTl. ..HILADI.L..HI.... ..,t,. 11101 , that it did not reach the user in substantially the same condition as when it left the manufacturer's control. By reason thereof, Baxter International Inc. is not liable for the injuries and damages alleged in plaintiff's Short Form Complaint. 16. The causes of action alleged in plaintiff's Short Form Complaint are barred under the doctrine of federal preemption because granting the relief prayed for in plaintiff's short Form Complaint would impermissibly infringe upon and conflict with federal laws, regulations and policies in violation of the Supremacy Clause of the United States Constitution. 17. Baxter International Inc. denies it is a successor corporation to American Hospital Supply Corporation. To the extent it is found to be a successor corporation, punitive damages are barred against Baxter International Inc. as a matter of law. 18. Plaintiff has sustaine.d no damages for which she is entitled to be compensated and plaintiff, therefore, cannot recover punitive damages. 19. Plaintiff's Short Form Complaint and its purported claim for punitive damages violates this answering defendant, Baxter International Inc.'s rights under the Fifth and Fourteenth Amendments to the United States Constitution and therefore fails to state a claim upon which punitive damages can be awarded. 20. Any injuries alleged by plaintiff were not caused by breast implants. 21. Plaintiffs' claims are barred due to the fact that this Court lacks both general and specific jurisdiction over defendant, Baxter International Inc. HICKER .ROWN IMERIIIY "NO JOHNSON. 1100 TWO LOGA'" SQUAR.' 11TH AND "RCH Intl:ET.' ,.HILADELltHIA.. ..". 1010) WHEREFORE, answering defendant, Baxter International Inc., prays for judgment against plaintiff, as follows: 1. That judgment be entered in favor of Baxter International Inc. and against plaintiff and that plaintiff's Short Form Complaint be dismissed with prejudice; 2. That Baxter International Inc. be awarded its costs of suit incurred herein; 3. That Baxter International Inc. be awarded its reasonable attorneys' fees as may be determined by the Court; and 4. For such other and further relief as this Court may deem just and proper. HECKER BROWN SHERRY AND JOHNSON By:tc Madeline M. herry, Esquire Lauren A. stevens, Esquire Attorneys for Defendant, Baxter Hea1thcare Corporation Dated: U -/7-9'1 HECKIR ."OWN IHIRRV ANDJOHNION I 1700 TWO LOGAN IQUA.RE" lBTH AND ARCH ITREIETI' ~HIL.ADrLPHIA. PA, 11103 HECKER BROWN SHERRY AND JOHNSON BY: Madeline M. Sherry #31549 Lauren A. stevens #41176 1700 Two Logan square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Baxter International Inc. JOSEPHINE M. YEYNA, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. BAXTER INTERNATIONAL INC.. et a1.. NO. 94-2915 Defendants. DEFENDANT, BAXTER INTERNATIONAL INC.'S, PRELIMINARY OBJECTION TO PLAINTIFF'S SHORT FORM COMPLAINT IN THE NATURE OF A MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Defendant, Baxter International Inc. ("BII"), by and through its attorneys, Hecker Brown Sherry and Johnson, hereby preliminarily objects to Plaintiff's Short Form Complaint and, in support thereof, avers the following: 1. Plaintiff's Short Form Complaint filed in Pennsylvania's consolidated silicone breast implant litigation names Baxter International Inc. as a defendant, along with other defendants, who allegedly designed, manufactured, distributed and/or sold breast implants and/or their component parts, which plaintiff alleges was defective and caused their injury. 2. The complete corporate history of BII is set forth in the Affidavit of Assistant Secretary of BII, A. Gerard SieCk, attached hereto as Exhibit A. HICM:IA B"OWN SHIAA't' AND JOHNSON' 1700 TWO LOGAN SQUARE' 'ITH AND ARCH STAllET.' ~HILADIL~HIA, ~A. 11101 3. As established by the Affidavit of A. Gerard Sieck, this Court lacks both specific and general jurisdiction over BII. 4. BII was never involved, to any degree or in any capacity, in the design, development, testing, manufacture, marketing, distribution, or sale of any breast implant nor any component part of any other product. Accordingly, no product related injury to any plaintiff can possibly arise out of any Pennsylvania related activity of BII. 5. BII is a Delaware corporation, with its principal place of business in Deerfie1d, Illinois. 6. BII is a separate and distinct legal entity from its wholly-owned sUbsidiary, Baxter Hea1thcare Corporation. 7. BII has no principal place of business in Pennsylvania, it is not qualified to do business in pennsylvania, does not engage in or carryon any business in Pennsylvania and does not maintain an agent for service of process in Pennsylvania. 8. BII does not have an office or agency in Pennsylvania, own real property, pay taxes or place products into the stream of commerce in Pennsylvania. 9. BII has no employees, servants, representatives, salesmen, distributors, officers, directors or real or personal property in Pennsylvania. 10. BII does not have sufficient "minimum contacts" with Pennsylvania to satisfy the constitutional standard or to satisfy the statutory requirements for specific jurisdiction. 11. As noted, BII carries on no business within the Commonwealth of Pennsylvania and, therefore, the "continuous and "leMEIt ."OWN IHIIHn "NO JOt1NION. 1700 TWO LOOA,.. IQU"AI' II'H AND ARCH ITltI.ITI' "MU"AOILPHIA, P'" '8'03 HECKER BROWN SHERRY AND JOHNSON BY: Madeline M. sherry #31549 Lauren A. Stevens #41176 1700 Two Logan Square 18th and Arch streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Baxter International Inc. JOSEPHINE M. YEYNA, . . COURT OF COMMON PLEAS CUMBERLAND COUNTY plaintiff, v. BAXTER INTERNATIONAL INC., et a1., NO. 94-2915 Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT, BAXTER INTERNATIONAL INC.'S, PRELIMINARY OBJECTION TO PLAINTIFF'S SHORT FORM COMPLAINT IN THE NATURE OF A MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Plaintiff's Short Form Complaint filed in Pennsylvania's consolidated silicone breast implant litigation, names Baxter International Inc. ("BII") as a defendant, along with other defendants, who allegedly designed, manufactured, distributed and/or sold breast implants and/or their component parts which plaintiff alleges was defective and caused their injury. Because this Court lacks personal jurisdiction over BII, it should be stricken from joinder in Plaintiff's Short Form Complaint and all of plaintiff's claims against it should be dismissed with prejudice. 13 HECKER BROWN IHERRY Ah:l JOHN ION . 1700 TWO LOGA'" SQUARE' '8TH AHD ARCH ITRIIETS' "HILADEL"HI". II". 11103 ARGUMENT Under Pennsylvania law, jurisdiction over a nonresident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action ["specific jurisdiction"], or upon the defendant's general activity ["general jurisdiction") within the forum state. Skinner v. Flvmo. Inc., 351 Pa. super. 234, 239, 505 A.2d 616, 619 (1986) (citing) Buraer Kina Corn. v. RUdzewicz, 471 U.S. 462, 473 n.15 (1985)). ~ ~ Derman v. Wi1air Services. Inc., 404 Pa. super. 136, 590 A.2d 317 (1991) . As established by the Affidavit of A. Gerard Sieck, attached to the preliminary Objections as Exhibit A, this Court lacks both specific and general jurisdiction over Baxter International Inc. A. Soecific Jurisdiction Pennsylvania's "Long Arm" statute, 42 Pa. Cons. Stat. !i5322, authorizes the exercise of specific jurisdiction over foreign corporation. In order for the Court to exercise specific jurisdiction, "the cause of action must arise out of the defendant's activities within the Commonwealth." Skinner, 351 Pa. Super. at 239, 505 A.2d at 619 (emphasis in original) (citing 42 Pa. Cons. Stat. !i5322). Accord, Al1eahenv Ludlum Steel v. Pacific Gas & Electric Co., 607 F.Supp. 35, 37 (W.D. Pa. 1984). Additionally, Constitutional principles of due process demand that specific jurisdiction be exercised only over a defendant which has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice. '" International Shoe Co. v. Washinaton, 326 U.S. 310, 316 (1945). The "minimum contacts" must HICKER .ROWN SHEARY AND JOHN'ON. 1700 TWO LO~"'N ,aUARE' 18TH AND ARCH ITAIITI' "HILAOIL"HIA, PO"', 1'101 be based on "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Buraer Kina CorD., 471 U.S. at 475 (1985). See also Asahi Metal Industrv Co. v. SUDerior Court, 480 U.S. 102, 108-109 (1987); Skinner, 351 Pa. Super. at 239-241, 505 A.2d at 619-620. Plaintiff herein cannot satisfy either the statutory requirements for specific jurisdiction, or the constitutional "minimum contacts" test, with respect to BIL First, BII was never involved, to any degree or in any capacity, in the design, development, testing, manufacture, marketing, distribution or sale of any breast implant nor any component part of any other product. Affidavit, !8. Accordingly, no product-related inj ury to any plaintiff can possibly arise out of any Pennsylvania related activity of BII. Second, BII is a Delaware Corporation, with its principal place of business in Deerfie1d, Illinois. Affidavit, !9. It is a separate and distinct legal entity from its wholly-owned subsidiary, Baxter Healthcare Corporation. Affidavit, i10. BII has no principal place of business in Pennsylvania, is not qualified to do business in Pennsylvania, does not engage in or carryon any business in Pennsylvania, and does not maintain an agent for services of process in Pennsylvania. Affidavit, !ill-13. BII does not have an office or agent in Pennsylvania, own real property in Pennsylvania, pay taxes to the Commonwealth of Pennsylvania, or place products into the stream of commerce in Pennsylvania. Affidavit, ~13. It has no employees, servants, representatives, salesmen, distributors, officers, directors, or 15 MECKER B"OWN SHE"RY "NO JOHNSON . 1700 TWO I..OCA.N SQU4AI:' 18TH ....NO A"CH STRIE[TS' PHILA.OELPHIA, P.... tlltOJ real or personal property in Pennsylvania. ~ Obviously, because BII has no contacts whatsoever with Pennsylvania, it does not, and cannot possibly, have sufficient "minimum contacts" to satisfy the Constitutional standard or to satisfy the statutory requirement for specific jurisdiction. B. General Jurisdiction Even if a corporation is not subject to a specific jurisdiction under the "Long Arm" statute, it may be subject to the general jurisdiction of a foreign court if it "carries on a continuous and systematic part of its general business within this commonwealth." 42 Pa. Cons. stat. ~5301(2) (iii). In other words, general jurisdiction may exist "regardless of whether the cause of action is related to the defendant's activities in Pennsylvania, as long as the defendant's [forum-related] activities are 'continuous and substantial. '" Derman, 590 A.2d at 323, citing Boark v. Mills, 458 Pa. 228, 231-32, 329 A.2d 247, 249 (1974), Skinner, 351 Pa. Super at 239, 505 A.2d at 619 (additional citations omitted). As noted, BII carries on no business within the Commonwealth of Pennsylvania. See Affidavit, ~~1l-13. The "continuous and substantial" test cannot possibly be satisfied, and this Court may not exercise general jurisdiction over BII. 16 HICKIR ."OWN .HI.RAY ANOJOHNION' 1700 TWO LOGAN 'QUAR.' '8TH "NO ARCH ITRIITI' ""ILADEL"HI". lit". I'IOJ CONCLUSION Under relevant constitutional, statutory, and common law principles, this Court lacks both specific and general jurisdiction over Baxter International Inc. Accordingly, Baxter International Inc. respectfully requests that it be stricken from the list of defendants named in Plaintiff's Short Form Complaint and that all of plaintiff's claims against it be dismissed with prejudice. Respectfully submitted, HECKER BROWN SHERRY AND JOHNSON By: ~LU/'1_ tJ, Ibtzu-<~ ~M deline M. $herry, Esquire Lauren A. Stevens, Esquire Attorneys for Defendant, Baxter International Inc. Dated: (c-I?-?If 17 HICKER ."OWN SHIRRY AND JOHNSON .1700 TWO LOCAN aQUARI" InH AND ARCH aTREIET.. ~HILADIL~HI"'. ~A. I,'OJ V E R I F I C A T I 0 N LAUREN A. STEVENS states that she is an attorney with the firm of HECKER BROWN SHERRY AND JOHNSON, attorneys for the within- named defendant; that she is authorized to take this Verification on its behalf and that the statements in the foregoing are true and correct to the best of her knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. HECKER BROWN SHERRY AND JOHNSON BY: ;;f-ulUZ,h Q. /J;cz.{r--t~ Lauren A. Stevens DATED: (~-I7-qi , HICKIR a"OWN SHIRRV ANDJOHNION I 1700 TWO l.OGAN IQUARE" 18TH AHD ""eH ITRIII:TI' ~HILADIL"HI". "A. 181031 . . HECKER BROWN SHERRY AND JOHNSON BY: Madeline M. sherry #31549 Lauren A. Stevens #41176 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Baxter International Inc. JOSEPHINE M. YEYNA, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. BAXTER INTERNATIONAL INC., et al., NO. 94-2915 Defendants. CERTIFICATE OF SERVICE I, Lauren A. stevens, Esquire, hereby certify that a true and correct copy of the foregoing Defendant, Baxter International Inc.'s, Amended Answer to Plaintiff's Complaint with New Matter and Preliminary Objection to Plaintiff's Short Form Complaint in the Nature of a Motion to Dismiss for Lack of Personal Jurisdiction and Memorandum of Law in Support thereof, has been served on the following parties by first-class mail, postage pre-paid on this tf1 day of [fYVOoL , 1994: SEE ATTACHED LIST HECKER BROWN SHERRY AND ';OHNSON ,'/6..u..u.......{J . llz(Ct'-t~~, Madeline M. Sherry #31549 Lauren A. Stevens #41176 Attorneys for Defendant, Baxter International Inc. HECKER BROWN SHERRY AND JOHNSON 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 18 HICKI" .ROWN IHERRY ANDJOHN'ON. 1700 TWO LOGAN IQUA"1 . '8TH AND ARCH 'TAlurl' Pt'lILADII.PHIA. PA. 1010J . . stephen A. Sheller, Esquire Leonard V. Fodera, Esquire Sheller, Ludwig & Badey Third Floor 1528 Walnut street Philadelphia, PA 19102 Angelo L. Scaricamazza, Jr., Esquire Nau1 ty, scaricamazza & McDevitt suite 1600 One Penn Center 1617 JFK Boulevard Philadelphia, PA 19103 E. Michael Keating, III, Esquire Clark Ladner Fortenbaugh & Young One Commerce square 2005 Market Street Philadelphia, PA 19103 Robert M. Britton, Esquire Post & Schell, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Jeremy Mishkin, Esquire Bruce Biken, Esquire Montgomery, McCracken, Walker & Rhoads Three Parkway Philadelphia, PA 19102 Joseph P. Hafer, Esquire Peter J. Curry, Esquire Thomas, Thomas & Hafer 305 North Front Street PO Box 999 Harrisburg, PA 17108-0999 Coopersurgica1, Inc. sixth Floor One Bridge Plaza North Fort Lee, NJ 07024-7502 Admiral Materials Corporation c/o Mentor Corporation 600 pine Avenue Goleta, CA 93117 petrarch Systems, Inc. and Hu1s America, Inc. 80 Centennial Avenue piscataway, NJ 08855-0546 S. Gordon, Elkins, Esquire Donna M. Dever, Esquire stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103-7098 Robert S. Forster, Jr., Esquire Krusen Evans & Byrne suite 1100 curtis Center Independence square West sixth and Walnut street Philadelphia, PA 19106 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire Thorp, Reed & Armstrong One Riverfront Center Pittsburgh, PA 15222 Gilda L. Kramer, Esquire suite 1100 1500 Walnut street Philadelphia, PA 19102 Arthur J. Murphy, Jr., Esquire Stephen W. Trout, Esquire Murphy, Taylor & Trout suite 1100 1616 Walnut street Philadelphia, PA 19103 Allan H. Starr, Esquire White and Williams suite 1800 One Liberty Place 1650 Market street Philadelphia, PA 19103 Cox-Uphoff International 1035 Cindy Lane Carpinteria, CA 93013 Admiral Materials Corporation n/k/a Mentor Polymer Tech. 5425 Hollister Avenue Santa Barbara, CA 39111 James A. Yates, M.D. Grandview Corporate Place 205 Grandview Avenue Camp Hill, PA 17011 HECKlER BROWN .HI:RR... AND JOHNSON' 1700 TWO LOGAN IQUA-Rle lllTH AND ARCM ITRIITI' ~HIL"DI[L~HI". PA. 18'01 . . Richard Dabb, M.D. 50 Wyntrebrook Drive York, PA 17403 York Hospital 1001 South George Street York, PA 17405 York Plastic Surgery Associates 50 Wyntrebrook Drive York, PA 17403 20 HICKIR ."OWN IHIRAY AND JOHNION' 1700 TWO LOCAN IQUARI' 11TH AND A"CH 'TRIIT" P'HILACILP'HIA, ,..... ItlOJ i .... ..;,...'.l-"':1~ ,'\!l~:11;~~jJl c'i~~:~i(-...'j~~tl.\:;'" ri,;:ii.,- ~f~:' .... "-- ,. ;;~;~?'~; h\;..':'- .;,:...1-;_~;:,' . '''''''\.,:~''A:'-:'.'>I'',t'...<",~. '..,~.:h_~~:fI~~~~~-t~'~~~-"~"".~;~'~:'l;''':'f~~''''f.'--;''''.'''':;' ""}" ,,"' t~ ,;r .. ."1.' JUH 2\ 3 03 rM 'M ".- ~t flCf. ,',t ,'.' ',/~ldotr~:~"Y v(;~...:.:., : !.:H! Cf;',ll,t1"'t ?C.l\t,~'JL...t.h'''' ~':':1f.5J i.''c',:' '~,._-- -'1i11l:Willr' [)1l:'.. ,~ . . v' -. ~rAr -.~,..,...- ~ 1 ~i"~i"t',....~... r . I'", #: .' fI . " . ~ .. .. " '-- .j ':J';,j- ~i ._~ . "_.:f~~t~~i<-', '<.-~'-""" ".~' .!,<"", ,.--' "'-':""'- ";." .~. ~"""~-r , ~.>, '-r-J' >--. ";\"'", ..' JUl " J 3 16 PH '.9~ '. ..:i "' :r: 7...- , .. ~ ' ',':-ftC[ or 1,,0:1', -!H (;\1 .;G .\,'';~: Cl/ll!f IY I'f.jl~ ~J~ '.'. :~','~ \ . , , . ..~ .J ~\ . .' I " ,,' l~; "I .if _'if"....... 1 - 'M".,a." .. ,.. i ~. " ':j . , .' ~~ .... . tI . " .. -. , -- MURPHY, TAYLOR &: TROUT, P.C. BY: ARTHUR J. MURPHY, JR., ESQUIRE ID NO.: 16412 BY: STEPHEN W. TROUT, ESQUIRE ID NO.: 37517 1616 Walnut Street, Suite 1100 Philadelphia, PA 19103 (215) 735-2869 JOSEPHINE M. YFYNA Attorneys for Defendants Wilshire Foam Products, Inc. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 94-2915 ADMIRAL MATERIALS CORPORATION n/k/a MENTOR POLYMER TECH., ET.AL. BREAST IMPLANTS - 2100 Defendants ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL Kindly enter my Appearance on behalf of the Defendant, WILSHIRE TECHNOLOGIES, INC., f/k/a WILSHIRE FOAM PRODUCTS, INC., only. The defendant demands a jury of twelve (12) with alternates. MURPHY, TAYLOR &: TROUT, P.C. DATE: to -;2..2- Cf i Esquire f ',}:k \~~,;{:.'::~:~x'b~\~~::)~, ' / ,-:--, ,: , .'~i,~(["t~'~~(~l~~A..~~,~};t'-:l--- "":*f'.."~,~,, -"'if.."'~t?(;'h';t:~\'i:",,~;~~-,~hJ'-r:~;.;,"':";"'~;'rH~', "" '-"" JUliN \ 5~r~ '9~ :,"(ltf'O~ Of l\ii. 1,.",.Ii\H)Il.)Hkl CUMilEI,'_~\l(' M1.lkll !'[tlli~!L..:,N~~ ," . " i' .' .,,: ~i -~:1~cs~~~;:,{::~ f-r-\f!'~! ,~.. ,~'" " > ' . '. ,,,:>;f,t:';"'<'~">"-_'''''I,:qt J:.~:.j:~~'::'-'l ~'#f ,,':.ll"-S,:;: - ,_ -"f,'_;-" '..'.c. ~ -'~ ] ,T.rIU >~-'- ) "f' . ',~ '-" '''-,' ----'f.' , , '.' 'f,~,/-,., ~ _','r . I'", ., ,. fl' .: , , 'p' . I, , , i .. " \ " "'," .. -' ,"' . '. -' ';" ~ _.~- ,- 'f KRUSEN EVANS & BYRNE Robert S. Forster, Jr., Esquire Yolanda Konopacka DeSipio, Esquire Attorney I.D. No.: 17899/62170 The Curtis Center 601 Walnut Street, Suite 1100 Philadelphia, PA 19106-3393 (215) 923-4400 JOSEPHINE M. YEYNA V. ADMIRAL MATERIALS CORPORATION a/k/a Mentor Polymer Tech. and AESTHETECH CORPORATION and APPLIED SILICONE CORPORATION and BAXTER HEALTH CARE CORPORATION successor in interest of Heyer- Schulte, American Hospital Supply Corp., American Heyer Schulte Corporation, Traveno1 Labs, Inc. and AMERICAN HEYER-SCHULTE and AMERICAN HOSPITAL SUPPLY and BAXTER INTERNATIONAL, INC. and BRISTOL-MEYERS SQUIBB CO. f/k/a Bristol-Meyers Co. and COOPER SURGICAL, INC., a wholly owned subsidiary of The Cooper Companies, Inc. and THE COOPER COMPANIES, INC. individually and as successors in interest to Natural Y Surgical Specialties, Inc. and Aesthetech Formerly known as Coopervision, Inc. and COX-UPHOFF INTERNATIONAL a/k/a CUI CORPORATION and CUI CORPORATION and DOW CORNING CORPORATION and Attorneys for Defendants, Dow Corning Corporation and Dow Corning Wright Corporation CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 94-2915 : : : : : : : : . . : : : : : and FOAMEX, L. P. and SCOTFOAM and WILSHIRE TECHNOLOGIES, INC., f/k/a WILSHIRE FOAM PRODUCTS INC. and JAMES A. YATES, M.D. and PLASTIC SURGERY CENTR, LTD. and RICHARD DABB, M.D. and YORK PLASTIC SURGERY ASSOCIATES and HOLY SPIRIT HOSPITAL and YORK HOSPITAL and JOHN/JANE DOE DEFENDANTS DOW CORNING CORPORATION AND DOW CORNING WRIGHT CORPORATION'S SHORT FORM ANSWER AND NEW MATTER TO PLAINTIFF' S SHORT FORM COMPLAINT Defendants, Dow Corning Corporation and Dow Corning Wright Corporation (collectively referred to as "Answering Defendants") by their attorneys Krusen Evans & Byrne respond to Plaintiff's Court Approved Short Form Complaint as follows: GENERAL DENIAL Pursuant to Case Management Order No.8, paragraph 4(a), answering defendants deny all the factual allegations in plaintiff's Complaint. SPECIFIC DENIALS Pursuant to Case Management Order No.8, paragraph 4(b), answering defendants respond: 1. Whether Dow Corning Wright Corporation is a 3 partner, agent or servant of Dow Corning Corporation or is or may be subject to Dow Corning Corporation's control, is a question of law to which answering defendants need not respond. For the purposes of this pleading, answering defendants deny those claims as stated in the Fourth Amended Master Complaint. 2. Dow Corning Corporation admits that it designed, manufactured and sold silicone gel breast implants from 1964 until 1992. Following reasonable investigation, Dow Corning Corporation lacks knowledge or information sufficient to form a belief whether it designed, manufactured, sold, possessed or controlled the implants used in the plaintiff'S care. Dow Corning Corporation therefore denies those allegations and demands strict proof thereof at the time of trial. 3. Dow Corning Wright Corporation admits that it designed, manufactured and sold silicone gel breast implants from 1978 until 1992. Following reasonable investigation, Dow Corning Wright Corporation lacks knowledge or information sufficient to form a belief whether it designed, manufactured, sold, possessed or controlled the implants used in the plaintiff'S care. Dow Corning Wright Corporation therefore denies those allegations and demands strict proof thereof at the time of trial. 4. Dow Corning Corporation admits that from time-to- time, it manufactured and/or sold raw materials to medical device manufacturers that may have been used by those entities to manufacture breast implants. After reasonable investigation, Dow Corning Corporation is without knowledge or information 4 sufficient to form a belief as to whether any of its raw materials were used in the silicone breast implants allegedly used in plaintiff's medical care. 5. Dow Corning Wright Corporation denies that it manufactured and/or sold raw materials to other entities. On the contrary, Dow Corning Wright Corporation never sold raw materials to any other entity for use in manufacturing silicone breast implants or. for any other purpose. 6. Answering defendants further deny that any of the other parties to this action were their partner, agent or servant or subject to answer defendants' control or right to control. On the contrary, all other parties were entirely independent of answering defendants. 7. To the extent that the Fourth Amended Master Complaint contains allegations that person(s) acting as agents, servants or employees of answering defendants made or failed to make any statements or representations or withheld information for or on behalf of answering defendants or either of them, following reasonable investigation, answering defendants lack knowledge or information sufficient to identify the person(s) alleged or the act(s) or omission(s) attributable to them. Answering defendants therefore deny the identities of those individuals and the acts or omissions attributable to them and demand strict proof thereof at the time of trial. Answering defendants further deny that those unidentified persons were agents, servants or employees of answering defendants as alleged. 5 NEW MATTER B. The Complaint fails to state a cause of action upon which relief may be granted. 9. Allor part of the injuries, damages, and/or losses (if any) sustained by the plaintiff were a direct, proximate, and sole result of such plaintiff's physical and bodily condition on, prior to, and subsequent to events alleged in the Complaint, and such plaintiff is thus barred from any recovery in this action under the Doctrine of No Liability for an idiosyncratic reaction. 10. Allor part of the damages and injuries, and/or losses alleged by plaintiff were caused by the abuse and misuse by others of the implant product, which was not reasonably foreseeable, thereby barring plaintiff from any recovery from any defendant. 11. Allor part of the damages, injuries and/or losses alleged by plaintiff were caused by acts and conduct of other persons, which intervened between acts and conduct of defendants, and plaintiff's alleged damages, injuries, and/or losses (if any) thereby barring any recovery from any defendant. In the alterna- tive, any damages which plaintiff might be entitled to recover against any defendant must be reduced to the extent that such damages are attributable to the intervening acts and/or omissions of persons other than defendants. 12. There exists no proximate causation between any alleged act, omission, breach of duty, or breach of warranty by 6 defendants and plaintiff's alleged damages and injuries, and/or losses, and all of plaintiff's alleged damages, injuries and/or losses (if any) were the result of conduct of persons other than answering defendants. 13. All acts performed by defendants in the design, manufacture, and marketing of the silicone gel products were in conformity with the "state of the art" existing at the time of such design, manufacture, and marketing, and the result of or reliance upon substantial medical testing in the course of their. development of their product and prior to placing the product on the market, and public policy should hold that liability not be imposed upon defendants pursuant to some or all of the causes of action pleaded herein for untold risks not known at the time of such design, manufacture, and marketing. 14. Upon information and belief, plaintiff failed to comply with the applicable provisions of State commercial law, failed to give reasonable notice to defendants of alleged breach or breaches of warranty, and therefore such plaintiff is barred from any recovery in this action. 15. Part of the damages claimed by plaintiff arising out of her alleged injuries are due to plaintiff's failure to mitigate damages, and therefore may not be recovered by plaintiff in this action. 16. The complaint fails to state facts sufficient to constitute a cause of action against defendants, which would justify the imposition of punitive or exemplary damages under any 7 applicable law. 17. The imposition of punitive or exemplary damages against defendants would violate defendants' constitutional rights under the Due Process clauses in the Fifth and Fourteenth Amendments to the Constitution of the United States, the Exces- sive Fines clause in the Eighth Amendment of the Constitution of the United States, the Double Jeopardy clause in the Fifth Amendment to the Constitution of the United States, similar provisions in applicable State Constitutions, and/or the common law and public policies of pertinent states, and/or applicable statutes and court rules, in the circumstances of this 1itiga- tion, including but not limited to: (a) imposition of such punitive damages by a jury which (1) is not provided standards of sufficient clarity for determining the appropriateness, and the appropriate size, of such a punitive damages aware, (2) is not adequately and clearly instructed on the limits on punitive damages imposed by the principles of deterrence and punishment, (3) is not expressly prohibited from awarding punitive damages, or determining the amount of an award thereof, in whole or in part, on the basis of invidiously discriminatory characteristics, including the corporate status, wealth, or state of residence of defendants, (4) is permitted to award punitive damages under a standard for determining liability for such damages which is vague and arbitrary and does not define with sufficient clarity the conduct or mental state which makes punitive damages permissible, and (5) is not subject to trial court and appellate judicial review for reasonableness and the furtherance of legitimate purposes on the basis of objective standards; b. imposition of such punitive damages, and deter- mination of the amount of an award thereof, where applicable state law is impermissible vague, imprecise, or inconsistent; 8 c. imposition of such punitive damages, and deter- mination of the amount of an award thereof, employing a burden of proof less than clear and convincing evidence; d. imposition of such punitive damages, and deter- mination of the amount of an award thereof, without bifurcating the trial and trying all punitive damages issues only if and after the liability of defendants has been found on the merits; e. imposition of such punitive damages, and deter- mination of the amount of an award thereof, under any state's law subject to no predetermined limit, such as a maximum multiple of compensatory damages or a maximum amount; and/or f. imposition of such punitive damages, and deter- mination of the amount of an award thereof, based on anything other than defendants' conduct in connection with the sale of the products alleged in this litigation, or in any other way subjecting defendants to impermissible multiple punishment for the same alleged wrong. 18. The product referred to in plaintiff's Complaint is a medical device and the Federal Government has totally or partially preempted the field of law applicable to such products, and said products were in compliance with applicable federal law. Therefore, plaintiff's causes of action fail to state a claim upon which relief can be granted in that, inter alia, such claims for relief, if granted, would impede, impair, frustrate or burden the effectiveness of law regulating the field of such products and would violate the Supremacy Clause (Art. VI, ~ 2) of the United States Constitution. 19. Defendants hereby gives notice to the extent comment k of Section 402A of the Restatement (Second) of Torts is applicable to any of the allegations in plaintiff'S Complaint, 9 Defendants intend to rely upon same in defense of this action. 20. Upon information and belief, plaintiff had notice of the facts and circumstances alleged in the complaint prior to the filing of the complaint, but nevertheless refrained from commencing an action against Defendants, and such delay caused prejudice to Defendants and therefore such plaintiff is barred from relief under the equitable doctrine of laches, waiver and/or estoppel. 21. In the event that plaintiff alleges that answering defendants failed to warn of known or unknown risks inherent in the use of the product, these claims are governed by the "Learned Intermediary" rule or doctrine. 22. If plaintiff sustained any injuries or incurred any damages, the same were caused in whole or in part by the acts or omissions of persons other than Dow Corning Corporation or Dow Corning Wright Corporation, over whom these defendants had and have no control, or by the superseding interventions of causes outside of control of these defendants. 23. These defendants had no duty to warn about possible dangers (if any) in using their products which were not known at the time of manufacture and sale of the products. 24. After any alleged product left the possession and control of defendants, and without defendants' knowledge or approval, it was redesigned, modified, altered, incorporated into a finished product, or subjected to treatment which substantially changed its character. The defect in any alleged product, as 10 alleged in the complaint, resulted, if at all, from the redesign, modification, alteration, treatment or other change of the product after defendants relinquished possession and control over the product and not from any act or omission of defendants. 25. The incident or incidents of which plaintiff complains, and plaintiff's injuries and damages, if any, were the result of an unavoidable accident as that term is defined and recognized by law. 26. The injuries or damages sustained by plaintiff, if any, can be attributed to several causes and accordingly should be apportioned among the various causes according to the respective contribution of each such cause to the harm sustained, if any. 27. Plaintiff does not suffer from any disabling disease(s) . 28. The injuries or damages sustained by plaintiff, as alleged in the Complaint, involve the removal of and/or the rupture of the imp1ant(s) only, and therefore plaintiff is not entitled to future damages for a disabling disease pursuant to Case Management Order No.7. 29. The Complaint fails to allege that plaintiff suffered any injuries due to the explanation or the rupture of the imp1ant(s) or that plaintiff suffers from any disabling diseases, and therefore plaintiff has no cause of action against answering defendant. 30. Plaintiff's claim of breach of express warranty 11 must fail because plaintiff failed to attach a copy of the written express warranty to the Complaint or plaintiff failed to plead the specifics of any oral warranty such as the name of the person who extended the warranty, the date it was extended and/or the specific terms of the warranty. 31. If answering defendant provided raw materials to a manufacturer of implants, then answering defendant cannot be liable to the plaintiff pursuant to strict liability concepts set forth in Restatement (Second) Torts ~402A because those silicone materials were changed or modified by others before they were used in the plaintiff's medical care. 32. If answering defendant provided raw materials to a manufacturer of implants, then answering defendant was not in privity with the plaintiff and extended no warranties either express or implied, to her regarding its silicone materials. 33. If answering defendant supplied the raw materials which have allegedly caused injury to the plaintiff (which causal connection the defendant has denied and continues to deny), that silicone was supplied, if at all, to a sophisticated user and therefore, the defendant cannot be held legally responsible for any lack of information or misinformation provided to plaintiff by others. 34. The raw materials which have allegedly caused injury to the plaintiff (which causal connection the defendant has denied and continues to deny), were supplied, if at all, by a bulk supplier, and, therefore, the defendant cannot be held 12 legally responsible for any lack of information or misinformation provided to plaintiff by others. 35. Plaintiff fails to state a private cause of action for violation of the Consumer Protection Act because plaintiff is not a purchaser of silicone gel-filled breast implants as defined under the Act. 36. Defendants reserve the right, upon completion of their discovery and investigation, to file such additional defenses as may be appropriate. WHEREFORE, having fully answered, defendants Dow Corning Corporation and Dow Corning Wright Corporation pray that the Complaint against them be dismissed with prejudice at the cost of p1aintiff(sl, for their costs expended herein, and for any other relief to which defendants may be entitled. KRUSEN EVANS & BYRNE ~ obert S. Forst ,Jr., Attorney for Defendants Dow Corning Corporation Dow Corning Wright Corporation The Curtis Center, Suite 1100 601 Walnut Street Philadelphia, PA 19106-3393 , , Dated: June 20, 1994 13 v g R I FtC ^ T r 0 N EUgene Jakubczak, he~eby states ~ha~ he is the ~~nager of profeseional Relations for Dow Corning Corporation and Dow corning wrighc CorparaciulI .:lnd 1.~ lIuthorizp.d to sign this veriricacion. and verifies that he has read thp. :oregoing pleading; that ~he answers are no~ completely based ~pon his own knowledge. but '...era prepared wi ch che a:;>sistance cillU acv1ce ot ochors> and :nay be Dubject to inadvecLcuc error or oversight, which he will correct should he learn of any arror 0:: o:r.~sGicn, that subject to the limicaci.on!l set furth hC!rein vcrific:l that the anEllo/ers are true and correct to the besc of his icr1owledge, infoonation ~nd be1iof; and he understdnds chat che scacemQnto in :laid a."1swers ace made subject co che pellaltie!'l or 18 Pa. C.S.A. 4904 relating to unsworn falsification to auchorities, Sx:::C~~k~ Manager of Professional Relations Dow Corning corooracion and Dow r.nrnina Wright Corpora cion Dated: February 10, 1994 - . VERIFICATION Robert S. Forster, Jr., Esquire, states that he is counsel for Dow Corning Corporation and Dow Corning Wright Corporation and that he is authorized to make this Verification, and verifies that the attached Verification is a true and correct copy of the Verification which was filed in the Short Form Answer in Toledo v. Dow Corninq Corporation and Dow Corninq Wriqht Corporation, in the Philadelphia Court of Common Pleas, April Term, 1992, Civil Action No. 136, that the person who signed the Verification in Toledo v. Dow Corninq Corporation and Dow Corninq Wriqht Corporation is authorized to make the Verification on behalf of the above-named parties, that the person who signed the Verification in Toledo v. Dow Corninq Corporation and Dow Corninq Wriqht Corporation would also sign a Verification in this case, and that if an original Verification was filed it would be identical to the attached Verification. The undersigned understands that the statements in said Verification are made subject to the penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. ~.. ~~L. M~;o" obert S. 'r'orst , Jr., Esq. Yolanda Konopacka DeSipio, Esq. Attorney for Defendants, Dow Corning Corporation Dow Corning Wright Corporation Date: June 17, 1994 14 CERTIFICATE OF SERVICE The undersigned hereby certifies that he has, on this data, caused a true and correct copy of Defendants Dow Corning Corporation and Dow Corning Wright Corporation's Short Form Answer and New Matter to be served upon all parties of record or their counsel as shown below by first-class mail, postage pre- paid. Stephen A. Sheller, Esquire Jamie L. Sheller, Esquire SHELLER, LUDWIG & BADEY 1528 Walnut Street 3rd Floor Philadelphia, PA 19102 Gordon S. Elkins, Esquire Donna M. Dever, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7098 Rachel B. Eisner, Esquire Susan L. Oppenheimer, Esquire DECHERT, PRICE & RHOADS 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103-2793 E. Michael Keating, III, Esq. CLARK, LADNER, FORTENBAUGH & YOUNG 2005 Market Street 21 Floor Philadelphia, PA 19103 Buls America, Inc. f/k/a Petrarach Systems, Inc. 80 Centennial Avenue Piscataway, NJ 08855-0456 Admiral Materials Corp. n/k/a Mentor Polymer Tech. c/o - Mentor Corp. c/o Gary Mist1in - Mentor Corp. 5425 Hollister Avenue Santa Barbara, CA 93111 Applied Silicone Corporation c/o R. Alastair Winn 320 West Stanley Avenue Ventura, CA 93001 Joseph M. Price, Esquire FAEGRE & BENSON 2200 Norwest Center 90 South Seventh Street Minneapolis, Minnesota 55402 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORPE, REID & ARMSTRONG One Riverfront Center Pittsburgh, PA 15222 Robert M. Britton, Esquire POST & SCHELL, P.C. 19th Floor, 1800 JFK Blvd. Philadelphia, PA 19103 15 John L. McGoldrick, Esquire McCarter & English Four Gateway Center 100 Mulberry Street P.O. Box 652 Newark, NJ 07101-0652 Jeremy D. Mishkin, Esquire MONTGOMERY, McCRACKEN, WALKER & RHOADS Three Parkway 20th Floor Philadelphia, PA 19103 Arthur Murphy, Jr., Esquire Stephen W. Trout, Esquire MURPHY, TAYLOR & TROUT, P.C. Suite 1100 1616 Walnut Street Philadelphia, PA 19103 Dean Murtagh, Esquire Linda porr Sweeney, Esquire Marta Sierra-Epperson, Esquire GERMAN, GALLAGHER & MURTAGH The Be11evue - 5th Floor 200 South Broad Street Philadelphia, PA 19102 Craig A. Stone, Esquire Michael D. Pipa, Esquire METTE, EVANS & WOODSIDE P.O. Box 729 Harrisburg, PA 17108-0729 Peter J. Hoffman, Esquire Debra Schwaderer Dunne, Esquire McKISSOCK & HOFFMAN, P.C. 1700 Market Street, Suite 3000 Philadelphia, PA 19103 KRUSEN EVANS & BYRNE obert S. For er, Jr., quire Yolanda Konopacka DeSipio, Esq. Attorneys for Defendants, Dow Corning Corporation and Dow Corning Wright Corporation Date: June 20, 1994 16 , . CLARK. LADNER. FORTENBAUGH ec YOUNG BY: E. Michael Keating, III IDENTIFICATION NO, 19350 ATTORNEY FOR Defendant, General Electric company ONE COMMERCE SQUARE 2005 MARKET STREET PHILADELPHIA. PA 19103 (215) 241-1800 JOSEPHINE M. YEYNA plaintiff, CUMBERLAND COUNTY COURT OF COMMON PLEAS DIVISION v. TERM. GENERAL ELECTRIC COMPANY, et a1. No. 94-2915 CIVIL JURY TRIAL DEMANDED ANSWER, NEW MATTER AND PRELIMINARY OBJECTIONS OF GENERAL ELECTRIC COMPANY TO PLAINTIFF'S SHORT-FORM COMPLAINT I I Ii ANSWER Defendant, General Electric company (hereinafter "General Electric") hereby responds to Plaintiff's Complaint as follows: 1. General Electric denies generally and specifically each and every allegation contained in plaintiff's Complaint and denies II I' I I !! that plaintiff sustained an injury and disabling disease as the result of any act, breach, or omission by General Electric, or by any agent, servant or employee of General Electric. General Electric denies that plaintiff has incurred or will incur damages as the result of any act, breach, or omission by General Electric or by any agent, servant or employee of General Electric. Therefore, General Electric denies that plaintiff is entitled to any relief whatsoever against General Electric. 2. General Electric denies that it manufactured, sold or distributed the implant products alleged to have been implanted in plaintiff, Josephine Yeyna. After reasonable investigation General Electric is without information or knowledge sufficient to form a belief as to the truth or falsity of the identity of the alleged implants, the dates of implantation, or whether any silicone raw materials manufactured by General Electric were used in the alleged implants. WHEREFORE, General Electric requests that this Honorable Court enter judgment in its favor as follows: 1. That all plaintiff's causes of action against General Electric are dismissed; 2. That crossc1aims against General Electric are dismissed; 3. That General Electric be awarded its costs and attorneys' fees incurred in defense of this action; and 4. Such other relief as this Court deems just and proper. 2 CLARK, LADNER, FORTENBAUGH & YOUNG. ATTORNEYS AT LAW ONE COMMERCE SQUARE, 2005 MARKET STREET. PHILADELPHIA, PA. 19103 NEW MATTER PURSUANT TO PENNSYLVANIA RULE OP CIVIL PROCEDURE 1030 3. General Electric incorporates by reference its response to plaintiff's short-form complaint as though fully set forth herein. 4. General Electric incorporates by reference the affirmative defenses set forth in paragraph (5) of Section II of Case Management Order No.8 dated November 17, 1993. 5. The plaintiff has failed to state a cause of action in either the short-form complaint or the Fourth Amended Master Complaint. 6. The causes of action alleged by plaintiff against General Electric are barred in whole or in part by the doctrine of laches. 7. The causes of action alleged by plaintiff against General Electric are barred in whole or in part by the doctrine of waiver and/or estoppel. 8. The strict product liability causes of action alleged by plaintiff against General Electric are barred because any silicone raw materials produced by General Electric were not defective when they left the possession of General Electric or at any other relevant time. 9. Each cause of action and crossc1aim is barred because persons or entities other than General Electric altered or materially modified silicone raw materials produced by General Electric after they left the possession of General Electric. The silicone raw materials produced by General Electric were 3 CLARK, LADNER, FORTENBAUGH & YOUNG' ATTORNEYS AT LAW ONE COMMERCE SQUARE. 2005 MARKET STREET' PHILADELPHIA, PA. 19103 substantially modified by the breast implant manufacturers who used said raw materials to manufacture finished goods. 10. Each cause of action and crossc1aim is barred because General Electric lacked any control over the use of its silicone raw materials in the final products or finished goods manufactured by persons or entities other than General Electric. 11. Each cause of action and crossclaim is barred because the silicone raw materials produced by General Electric were not unreasonably dangerous, were suitable for the purposes for which they were intended, and were distributed with adequate and sufficient warnings. 12. Any General Electric silicone raw materials alleged to have caused injury were distributed with adequate and sufficient warnings. 13. Each cause of action and crossc1aim is barred because General Electric silicone raw materials were subjected to substantial change in the condition they were in when they left the control of General Electric by way of handling, abnormal use or other causes beyond the control of General Electric. 14. General Electric was a bulk supplier of silicone raw materials that may have been used by others in manufacturing or formulating the breast imp1ant(s) that allegedly caused injury. General Electric could not foresee every conceivable downstream use of its silicone raw materials. General Electric could not control the subsequent design, testing, manufacture, packaging, labeling, use, application, insertion and/or removal of the breast 4 CLARK, LADNER, FORTENBAUGH & YOUNG. ATTORNEYS AT LAW ONE COMMERCE SQUARE. 2005 MARKET STREET. PHILADELPHIA, PI., 19103 imp1ant(s). General Electric could not control the means to communicate warnings to ultimate users of the breast imp1ant(s). General Electric did not know the identities of the ultimate users of the breast implants and did not have the ability to communicate with them directly. General Electric satisfied its duty to warn, if any, when it supplied the silicone raw materials with adequate warnings to persons or entities that used the materials in manufacturing or formulating the breast imp1ant(s) that allegedly caused injury. 15. As the bulk supplier of silicone raw materials, General Electric had no duty to warn breast implant recipients about the potential dangers, if any, of breast implants. 16. Each strict product liability cause of action and crossc1aim is barred because trained, knowledgeable physicians, surgeons, implant manufacturers, and others acted as learned intermediaries between General Electric and the breast implant recipients. General Electric had no duty to directly warn any breast implant recipient. The silicone raw materials produced by General Electric were distributed with adequate and sufficient warnings. 17. Persons and/or entities other than General Electric, by reason of the warnings and information given to them and their own experience and expertise, were sophisticated users of silicone raw materials supplied to them by General Electric, and therefore had a separate and affirmative duty to warn of any alleged potential harmful effects from the use of breast implants made out of 5 CLARK, LADNER, FORTENBAUGH & YOUNG. A TTORNEYS AT LAW ONE COMMERCE SQUARE, 2005 MARKET STREET. PHILADELPHIA, PA. 19103 silicone raw materials. The failure by each person and/or entity other than General Electric to discharge said duty to warn directly and proximately caused any and all alleged damages and injuries. 18. Each breach of implied and express warranty cause of action is barred by failure to notify General Electric of any alleged breach of implied or express warranty. 19. Each breach of implied warranty or express warranty cause of action is barred by lack of privity with General Electric. 20. Any alleged implied or express warranties were properly disclaimed, excluded or modified. 21. Each cause of action or crossc1aim is barred because the silicone raw materials produced by General Electric were not the proximate cause of plaintiff's alleged injuries. 22. The damages alleged, if any, were proximately caused by an unforeseeable independent, intervening, and/or superseding event beyond the control and unrelated to any actions or conduct of General Electric. The actions and conduct of General Electric, if any, were superseded by the negligence and wrongful conduct of others. 23. plaintiff's injuries and damages, if any, were caused in whole or in part by pre-existing and/or unrelated conditions, sensitivities, reactions. illnesses, allergies or other idiosyncratic 24. Each cause of action or crossc1aim is barred, in whole or in part, because of failure to mitigate damages. 6 CLARK, LADNER, FORTENBAUGH & YOUNG. ATTORNEYS AT LAW ONE COMMERCE SQUARE. 2005 MARKET STREET' PHILADELPHIA, PA, 18103 25. General Electric denies that it is liable for any punitive and/or exemplar}' damages. General Electric avers that any award of punitive damages against it would violate the constitutional safeguards provided under Article I, Section 1 of the constitution of the United states of America and under the Constitution of the Commonwealth of Pennsylvania in that such damages violate the due process and equal protection guarantees, place an undue burden on interstate commerce, violate the right to assembly and petition the government and violate the proscription against excessive fines. Furthermore, General Electric avers that any award of punitive damages in this litigation is arbitrary, unreasonable, excessive and in violation of the due process rights of General Electric and equal protection rights of General Electric under Article 1 of the Constitution of the Commonwealth of Pennsylvania and under the Fifth, Eighth and Fourteenth Amendments to the Constitution of the united states in that punitive damages are vague and not rationally related to legitimate government interests. Furthermore, an award of punitive damages would be violative of the procedural safeguards provided to General Electric under Article 1 of the Constitution of the Commonwealth of Pennsylvania and under the sixth Amendment to the Constitution of the united states in that punitive damages are penal in nature and consequently, General Electric is entitled to the same procedural safeguards as accorded to criminal defendants. 7 CLARK, LADNER, FORTENBAUGH & YOUNG. ATTORNEYS AT LAW ONE COMMERCE SQUARE, 2005 MARKET STREET. PHILADELPHIA, PA, 19103 Furthermore, it would be violative of rights guaranteed to General Electric by the Constitution of the United states and the Constitution of the Commonwealth of Pennsylvania to impose punitive damages against it as such damages are penal in nature by requiring a burden of proof which is less than "beyond a reasonable doubt" burden of proof required in criminal cases or, in the alternative, should be proved by a clear and convincing standard of proof. Punitive damages would also be in violation of Article 1, Section 10 of the Constitution of the United States in that it would be a retrospective imposition of punitive damages under a new cause of action. 26. The products referred to in the Complaint are medical devices and the Federal Government has totally or partially preempted the field of law applicable to such products, and said products were in compliance with applicable federal law. Therefore, plaintiff's causes of action fail to state a claim upon which relief can be granted in that, inter slia, such claims for relief, if granted, would impede, impair, frustrate or burden the effectiveness of federal law regulating the field of such products and would violate the Supremacy Clause (Art. VI, S 2) of the United States Constitution. 27. General Electric hereby gives notice that to the extent comment k of Section 402A of the Restatement (Second) of Torts is applicable to any of the allegations in plaintiff's complaint, it intends to rely upon same in defense of this action. 8 CLARK, LADNER, FORTENBAUGH . YOUNG. A TTORNEYS A T LAW ONE COMMERCE SQUARE, 2005 MARKET STREET. PHILADELPHIA, PA. 19103 28. Plaintiff's alleged injuries and/or damages, if any, were not the result of any act or omission on the part of General Electric but exist by reason of operation of nature or idiosyncratic reaction, over which General Electric had and has no control. 29. Any and all acts performed by, and silicone raw materials produced and/or distributed by, General Electric were at all times relevant hereto in conformity with the state of the art for the production and design of such or similar materials. 30. General Electric had no duty to warn about possible dangers, if any, in using its silicone raw materials which were not known at the time of production and sale of the materials. 31. After any alleged silicone raw materials left the possession and control of General Electric, and without its knowledge or approval, such materials were redesigned, modified, altered, incorporated into a finished product, and subjected to treatment which substantially changed their character. The defect in any alleged silicone raw materials, as alleged in the complaint, resulted, if at all, from the redesign, modification, alteration, treatment or other change of the materials after General Electric relinquished ,possession and control and not from any act or omission of General Electric. 32. Pennsylvania Rule of Civil Procedure 238, on its face and as applied, is violative of the due process and equal protection clauses of the Fourteenth Amendment of the united states Constitution; 46 U.S.C. S 1983 of the civil Rights Act; Article 1, 9 CLARK, LADNER, FORTENBAUGH & YOUNG o ATTORNEYS AT LAW ONE COMMERCE SQUARE, 2005 MARKET STREET 0 PHILADELPHIA, PA, 19103 6, 11, 26 and Article 5 S 10(c) of the Constitution of the Commonwealth of Pennsylvania; and it imposes an inhibiting factor on the defendant's exercise of its constitutional rights. If there is a judicial determination that Rule 238 is constitutional, then liability for any interest imposed by the Rule should be suspended during the period of time that the plaintiff failed to convey to defendant a settlement demand, delayed in responding to interrogatories, delayed in responding to a request to produce, delayed in producing plaintiffs for deposition, delayed in producing the plaintiff for physical examination, delayed in any other discovery request made by defendant delayed the trial of this matter. As a result of any delay, the plaintiff should be estopped from obtaining interest because of any violation of the discovery rules. WHEREFORE, General Electric requests that this Honorable Court enter judgment in its favor as follows: 1. That all plaintiff's causes of action against General Electric are dismissed; 2. That crossc1aims against General Electric are dismissed; 3. That General Electric be awarded its costs and attorneys' fees incurred in defense of this action; and 4. Such other relief as this Court deems just and proper. PRELIMINARY OBJECTIONS A. Preliminary Objection - Motion To strike Request For Punitive Damaoes and Attornevs' Fees 10 CLARK, LADNER, FORTENBAUGH . YOUNG. A TTORNEYS A T LAW ONE COMMERCE SQUARE. 2005 MARKET STREET. PHILADELPHIA, PA. 19103 33. Plaintiff has failed to allege any facts whatsoever against General Electric, a non-manufacturer of breast implants, that would support recovery for punitive damages or attorneys' fees. WHEREFORE, General Electric requests this Honorable Court strike all requests for punitive damages and attorneys' fees against General Electric. B. Preliminary Objection In The Nature Of A General Demurrer To Plaintiff's Causes of Action For Fraud, Deceit & Misrepresentation, Outrageous Conduct, and Violation of the Unfair Trade Practices and Consumer Protection Law 34. Plaintiff has failed to allege any facts whatsoever against General Electric, a non-manufacturer of breast implants, that would support a cause of action for fraud, deceit and misrepresentation, outrageous conduct, or violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. WHEREFORE, General Electric requests this Honorable Court sustain this demurrer and dismiss plaintiff's causes of action for fraud, deceit and misrepresentation, outrageous conduct and violation of the Unfair Trade Practices and Consumer Protection Law against General Electric. Respectfully submitted, CLARK, LADNER, FORTENBAUGH & YOUNG 'I:- By. E. M chae1 Keating, III Attorneys for Defendant, General Electric Company 11 CLARK, LADNER, FORTENBAUGH & YOUNG -ATTORNEYSATLAW ONE COMMERCE SQUARE, 2005 MARKET STREET. PHILADELPHIA PA, 19103 181183,1 ' VERIFICATION I, Kenneth P. slaby, Manager of Finance for General Electric Silicones hereby certify that I am authorized to make this verification on behalf of General Electric. I verify that upon information and belief the averments or denials of fact contained in the foregoing document are true and correct. I understand this verification is made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. ') I~I 181117.' CERTIPICATE OP SERVICE I, Gwyn M. simmons, do hereby certify that I have served a true and correct copy of the Answer, New Matter and Preliminary Objections of General Electric Company to Plaintiff's Short-Form Complaint upon counsel and parties on the attached Service List, and placed in the u.s. Mail, first-class postage prepaid on July S , 1994. stephen A. Sheller, Esquire Leonard V. Fodera, Esquire Sheller, Ludwig & Badey Third Floor 1528 Walnut street philadelphia, PA 19102 Angelo L. Scaricamazza, Jr., Esquire Nau1ty, scaricamazza & McDevitt suite 1600 One Penn Center 1617 JFK Boulevard Philadelphia, PA 19103 Madeline M. Sherry, Esquire Lauren A. stevens, Esquire Hecker Brown Sherry & Johnson 1700 Two Logan Square 18th and Arch streets Philadelphia, PA 19103 Robert M. Britton, Esquire Post & Schell, P.C. 19th Floor 1800 JFK Boulevard philadelphia, PA 19103 Jeremy Mishkin, Esquire Bruce Biden, Esquire Montgomery, McCracken, Walker & Rhoads Three Parkway philadelphia, PA 19102 Joseph P. Hafer, Esquire Peter J. Curry, Esquire Thomas, Thomas & Hafer 305 North Front Street P.O. Box 999 Harrisburgh, PA 17108-0999 Coopersurgica1, Inc. sixth Floor One Bridge Plaza North Fort Lee, NJ 07024-7502 Admiral Materials corporation c/o Mentor Corporation 600 Pine Avenue Goleta, CA 93117 petrarch systems, Inc. and Hu1s America, Inc. 80 Centennial Avenue piscataway, NJ 08855-0546 s. Gordon Elkins, Esquire Donna M. Dever, Esquire Stradley, Ronon, Stevens & Young 2600 One Commerce Square 2005 Market Street philadelphia, PA 19103-7098 Robert S. Forster, Jr., Esquire Krusen Evans & Byrne suite 1100 curtis Center Independence square West sixth and Walnut Streets Philadelphia, PA 19106 Gilda L. Kramer, Esquire suite 1100 1500 Walnut Street Philadelphia, PA 19102 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire Thorp, Reed & Armstrong One Riverfront Center Pittsburgh, PA 15222 Arthur J. Murphy, Jr., Esquire Stephen W. Trout, Esquire Murphy, Taylor & Trout Suite 1100 1616 Walnut Street Philadelphia, PA 19103 . ;.;:..,,,... ...." .......-.. .~...!' I ~... '-.:.. . , :;."'\..~.,..,.......\~;ti:"'~,'f'~"f-<~~.,...~"..c:"~"J.rt.;~::i~:\"(.;'::?"f";,,,~~l\.l',iP''''~~P!'>'.I'~t;~~'i'.~?'':'t,"M~~~.'''i~~r!~.~..~~ ~ .. """ ...:'f.i. ".\""-" , ,:":lJ.;t~': :{"'V'~'J.~.t ~?; ~:.. .. __ ,':1 ~'. :~. jtif~,~i.~..~~~1~~';~:5'~~ii;t'~~Wt~~~t:: . . '~''''.'., .....,. . . .,'~ c" " :", JUl () 9 19 AH'9~ " ~: f t::t;'- :c1iOI' 'i",hi~l~rAr,y , 1.'j'H}(;O.I.i1Y I(.,;:..'! ,.'U.:t!i\ ',"';'I~'1"~""" , ':'h:.~, :..., , -- ~~. , ; " - . . I "", -' :: ~-- ,.", ',-' ",;.." . , . tI , ; " .. , -,- , , -::r en ,. ~ = r...._ C'l <::> N r~'- "" '" <-: '" -, ~ ~~ ... ~~~m~ ts "'; ~ g; l Ei .. ~ " ci ~ ~a.. g ~ \.oJ ~ ~ ~ ~ ~ ~ ~ ~ ~ " ~ ~ , , THOMAS. THOMAS & HAFER BY: Peter J, Curry, Esquire IDENTIFICATION NO.: 18022 Sarah W. Arosell, Esquire IDENTIFICATION NO.: 58797 305 North Front Strell P.O, Bo. 999 Her.lburg, PA 1710B,0999 17m 255.7e37 JOSEPHINE M. YEYNA, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2915 v. CIVIL ACTION - LAW BAXTER INTERNATIONAL INC., et aI., Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorneys for James A. Yates, M.D. and Plastic Surgery Centerr Ltd. in the above matter. THOMAS, THOMAS , HAFER By: ." / ./ eter J. C 1. D. #1662 Sarah W. Arosel1, Esquire 1.D.#58797 305 North Front street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7637 "" I (\ L/ DATE: Li ,.' ' . 'f Attorneys for Defendant, James A. Yates, M.D. and Plastic Surgery Center, Ltd. , CERTIFICATE OF SERVICE I, Peter J. curry, of the law firm of Thomas, Thomas & Hafer, do hereby certify that on this day I served a true and correct copy of the foregoing PRABCIPB FOR ENTRY OF APPEARANCE on the following by depositing a true and correct copy in the united states Mail, at Harrisburg, Pennsylvania, addressed as follows: Jamie L. Sheller, Esquire SHELLER, LUDWIG , BADDY 1528 Walnut Street, Third Floor Philadelphia, PA 19102 - SEE ATTACHED LIST - THOMAS, _THOMAS ----...- By: DATE: (" -,:" /...1 . q 4 CERTIFICATE OF SERVICE MAILING LIST Angelo L. Scaricamazza, Jr. , Esquire NADLTY, SCARICAllAZZA & MCDEVITT suite 1600, One Penn Center 1617 JFK Boulevard Philadelphia, PA 19103 E. Michael Keating, III, Esquire CLARK, LADNER, FOR'l'ENBADGH & YOUNG One Commerce Square 2005 Market Street Philadelphia, PA 19103 Robert M. Britton, Esquire POST & SCHELL, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Jeremy Mishkin, Esquire Bruce Biken, Esquire MONTGOMERY, MCCRACKEN, WALKER & RHOADS Three Parkway Philadelphia, PA 19102 Coopersurgica1, Inc. sixth Floor One Bridge Plaza North Fort Lee, NJ 07024-7502 petrarch Systems, Inc. and Hu1s America, Inc. 80 Centennial America Piscataway, NJ 08855-0546 S. Gordon Elkins, Esquire Donna M. Dever, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7098 Robert S. Forster, Esquire lCRUSEN, EVANS & BYRNE Suite 1100-The Curtis Center 6th and Walnut Streets Philadelphia, PA 19106 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORP, REED & ARHSTRONG One Riverfront Center pittsburgh, PA 15222 Gilda L. Kramer, Esquire suite 1100 1500 Walnut Street Philadelphia, PA 19102 Arthur J. Murphy, Jr., Esquire Stephen W. Trout, Esquire MURPHY, TAYLOR & TROUT suite 1100 1616 Walnut Street Philadelphia, PA 19103 Allan H. Starr, Esquire WHITE AND WILLIAMS One Liberty Place suite 1800, 1650 Market Street Philadelphia, PA 19103-7301 Cox-Uphoff International 1035 Cindy Lane Carpinteria, CA 93013 Admiral Materials Corporation n/k/a Mentor Polymer Tech. 5425 Hollister Avenue Santa Barbara, CA 39111 Richard Dabb, M.D. 50 Wyntrebrook Drive York, PA 17403 Anne E. D01iner, Esquire BARLEY, SNYDER, SENFT & COHEN 126 East King Street Lancaster, PA 17602-2893 York Plastic Surgery Associates 50 Wyntrebrook Drive York, PA 17403 cheryl-Me Nicolson, Esquire Peter A. Dunn, Esquire DUNN, HAASB, SULLIVAN, MALLON, CHBRNBR " BROAD'l' Hillhurst 216 South Orange Hill Media, PA 19063 Baxter International, Inc. One Baxter Parkway Deerfield, IL 60015-4633 The Cooper companies, Inc. 250 Park Avenue New York, NY 10177 Howard L. Dorfman, Esquire 345 Park Avenue New York, NY 10154-0037 surgitek, Inc. 3037 Mount Pleasant street Racine, WI 53404 Natural Y Surgical Specialties, Inc. 488 S. San Vincent Boulevard Los Angelos, CA 90048 Scott Paper Company Scott Plaza Industrial Highway and Tinicum Road Philadelphia, PA 19113 John L. McGOldrick, Esquire MCCARTBR " ENGLISH Four Gateway Center 100 Mulberry Street Newark, NJ 07102-4096 John Dames, Esquire Kelley, Drye " Warren 303 West Madison Suite 1400 Chicago, IL 60606 Robert M. Britton, Esquire POST " SCHBLL, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Foamex, L.P. 1600 citizens Plaza Louisville, KY 40202 WJlshire Technologies, Inc. 5922 Farnsworth Court Carlsbad, CA 92008 Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011 - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTr, PENNSrLVANIA CIVIL ACTION - LAW JOSEPHINE M. rErNA, I Plaintiff I v. I ADMIRAL MATERIALS CORPORATION; AESTHETECH I CORPORATION; APPLIED SILICONE CORP.; I BAXTER HEALTHCARE CORPORATION; AMERICAN I HEYER-SCHULTE; AMERICAN HOSPITAL SUPPLr; I BAXTER INTERNATIONAL, INC.; BRISTOL- I MErERS SQUIBB CO.; COOPER SURGICAL, INC.; I THE COOPER COMPANIES, INC.; COX-UPHOFF I INTERNATIONAL; CUI CORPORATION; DOW I CORNING CORPORATION; DOW CORNING WRIGHT; I GENERAL ELECTRIC COMPANr; INAMED CORP.; I McGHAN MEDICAL CORPORATION; McGHAN NUSIL I CORPORATION; SURGITEK, INC.; MINNESOTA I MINING AND MANUFACTURING COMPANr, INC.; I NATURAL Y SURGICAL SPECIALTIES, INC.; I HULS AMERICA, INC.; SCOTT PAPER COMPANr; I SIROD CORPORATION; UNION CARBIDE CORP.; I UNION CARBIDE CHEMICALS AND PLASTICS CO., I INC; 21 INTERNATIONAL HOLDINGS, INC.; I FOAMEX PRODUCTS, INC.; FOAHEX, L.P.; SCOTFOAM; WILSHIRE TECHNOLOGIES, INC.; WILSHIRE FOAM PRODUCTS, INC.; JAMES A. YATES, M.D.; PLASTIC SURGERr CENTER, LTD.; RICHARD DABB, M.D.; YORK PLASTIC SURGERr ASSOCIATES; HOLY SPIRIT HOSPITAL I YORK HOSPITAL; AND JOHN/JANE DOE, I Defendants I P RAE C I P E NO. 94-2915 TOI Prothonotary Please enter the appearance of Barley, Snyder, Senft of Defendant York Hospital in the above-captioned matter. 126 East King Street, Lancaster, PA 17602-2B32. I HEREBY CERTIFr that a true and correct copy Appearance has ~/Ma / & Cohen on behalf Serve all papers at been served on all parties of record of this Entry of this 3D-th day of , 1994, by first-class mail, postage prepaid. BARLEr, SNYDER, SENFT & COHEN Date: 0- ':)o<0t./- ;:<.: ( C (. Q-,<~. James W. Saxton Anne E. Doliner Attorneys for Defendant York Hospital 126 East King Street Lancaster, PA 17602-2832 717/299-5201 Court 1.0. No. 36815 Court 1.0. No. 51173 Brl -- . . . , ~ -, ""~- .'. ",'.- ,,-'~,.,: " z~ ! .~ ....... ~ ,:::,::, . ~> ..... "'-:..... u;.'~"""'" '.,~ ..".,.~'"-P .,,,' ". ~'4~:"i"; ,.- ..'}>.,_~, ,,._ _>,r. \. '". .-.~V'~ " JUL I : 2 ~!) rn ',q .' '';., ,',' (. JUICE Df 1.,. i. '11"1(' r,UtJ;~.' -;, - ,: .,~;f'h\> . ,'" '. ^"o r,.:! 'f-' "r,/" -"( .' 'f , I- I' ~ I ... ~,~! ~ t #: , . . , .' . . ..----........~~"'''''''''--.~.'''''''.---..~....- >...._,.., _...---.....~~.~_1Rio:,.~f-. , t . , " " , /.." . .. II' -- . -, " .. .' . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPHINE M. YEYNA NO. 94 2915 Plaintiff, v. . . ADMIRAL MATERIALS CORPORATION : et al., CIVIL ACTION - LAW Defendants. . . . . NUSIL TECHNOLOGY'S ANSWER, NEW MATTER AND PRELIMINARY OBJECTIONS Nusil Technology, formerly McGhan Nusil corporation ("NuSil"), answers plaintiffs' complaint as follows: 1. Nusil admits that it is a California corporation with its principal place of business in California. Nusil denies that it is or was a successor in interest of McGhan Medical corporation, a California corporation, McGhan Medical Corporation, a Delaware corporation, Minnesota Mining and Manufacturing Corporation, or any other defendant in this case. Nusil denies that it does business in the Commonwealth of Pennsylvania and County of Philadelphia. NuSil also denies that it may properly be served at any address for any other defendant in this case. 2. Nusil denies that Inamed is or was a part owner, major controlling stockholder or parent company of Nusil and that Inamed has exercised any direction or control over the 1 , operations, policies, research or other business activities of Nusil. 3. Nusil denies that it ever designed, manufactured, distributed, labeled, tested, warranted, packaged, or sold silicone breast implants, including those involved in this case. 4. Nusil denies that it ever owned, possessed, or controlled the mammary prostheses that are involved in this case. 5. Nusil denies that it has ever owned or transferred the right to manufacture mammary prostheses. 6. Nusil admits that sometime after August 1984, Nusil began to manufacture, market and supply silicone gel intermediates and dispersions which NuSil is informed and believes underwent further alterations and processing by other entities prior to commercial application, including use by manufacturers of breast implants and breast implant component parts. After reasonable investigation, Nusil is without knowledge or information sufficient to form a belief as to the averment that any of its products was used in the breast implant procedure on which plaintiff's claim is based. 7. Nusil denies the remaining factual averments in plaintiff's complaint. 2 (-...".....-..... , NEW MATTER 8. No product manufactured, sold or distributed by Nusi1 was used in commercial application prior to undergoing substantial alteration and/or processing by another entity. 9. The methods, standards and techniques of designing, manufacturing, packaging, labeling, selling and distributing the products referred to in this complaint were determined and applied in conformity with the generally recognized state of the art existing at the time the products were designed, manufac- tured, packaged, labeled, sold and distributed. 10. These products were not unreasonably dangerous, were suitable for the purposes for which they were intended, and were distributed with adequate warnings and/or instructions. 11. NuSi1 is not strictly liable to the plaintiff because Nusi1's products were not defective when they left NuSi1's possession or at any other relevant time. 12. Prior to and at the time of the occurrences of which the plaintiff complains, the products complained of were not in the same condition as they were at the time they left Nusi1's control, said products having been independently and materially changed, altered, and modified by others, over which NuSi1 had no control. 3 13. The doctrine of res ipsa loquitur does not apply to this litigation as parties other than Nusil had independent and intervening control of the products complained of. 14. Each claim is barred because Nusil lacked any control over the use of its products in the final products or finished goods manufactured by persons or entities other than NuSil. 15. Each strict product liability claim is barred because trained, knowledgeable physicians, surgeons, implant manufac- turers and others acted as learned intermediaries between Nusil and the breast implant recipients. NuSil had no duty to warn any breast implant recipient. Furthermore, Nusil's products were distributed with adequate and sufficient warnings. 16. Persons or entities other than NuSil, by reason of the warnings and information given to them and their own experience and expertise, were sophisticated users of products supplied to them in bulk by Nusil, and therefore had a separate and affirmative duty to warn of any alleged potential harmful effect from the use of breast implants made, in part, out of Nusil's products. The failure by each person or entity other than Nusil to discharge said duty to warn directly and proximately caused any and all damages and injuries complained of, if any. 17. Nusil had no duty to warn the plaintiff. NuSil admits to all duties imposed by law but denies that it violated any such duties. 18. The plaintiff's medical condition or injury, if any, was not caused by the negligence or wrongful acts Nusil. 4 19. Nusil did not breach any warranty of fitness for a particular purpose nor any other warranty. 20. Each breach of implied warranty claim is barred by failure to notify Nusil of any alleged breach of warranty. 21. Each breach of implied warranty claim is barred by lack of privity with Nusil. 22. Nusil did not engage in any misrepresentation, deceit or fraudulent activity by concealment or otherwise. Nusil did not expressly or tacitly agree with others or have an under- standing to pursue a common plan to prevent public awareness of the alleged hazards of breast implants. 23. Nusil did not act in an oppressive or outrageous manner or with willful, wanton, or reckless indifference to the safety and welfare of the plaintiff. 24. The complaint fails to state a cause of action against Nusil. 25. Each claim is barred, in whole or in part, because of plaintiff's failure to mitigate damages. 26. NuSil is not liable for punitive or exemplary damages. 27. Insofar as the amount of punitive damages sought is unconstitutionally excessive under the United states Constitution, it violates the Due Process Clause of the Fourteenth Amendment, U.s. Const. Amend XIV, section 1 and similar provisions the Constitution of the Commonwealth of Pennsylvania. 5 28. The plaintiff's alleged damages and injuries, if any, were a result of intervening or superseding acts or omissions to persons or entities other than NuSil. 29. The alleged losses, injuries or damages, if any, of which plaintiff complains were directly, proximately, solely and entirely caused and contributed to by the negligence, culpable fault or conduct of others, whether or not named as parties to this action. 30. If the plaintiff is entitled to recovery from NuSil, which is denied, such recovery should be diminished to the extent that the damages alleged in the plaintiff's complaint were attributable to the negligence, culpable conduct or fault of others. 31. The Court lacks jurisdiction over Nusil. 32. Nusil is improperly joined as a party in this case, in violation of Pennsylvania Rule of Civil Procedure 1033. NuSil purportedly was joined by an amended short form complaint, but such a joinder is not authorized by the Pennsylvania Rules of civil Procedure or any case management order. WHEREFORE, Nusil demands judgment in its favor. PRELIMINARY OBJECTIONS A. Preliminary Objection In The Nature Of A General Demurrer To Plaintiff's Causes of Action For Fraud, Deceit & Misrepresentation, outrageous Conduct, and Violation of the Unfair Trade Practices and Consumer Protection Law 6 33. Plaintiff has failed to allege any facts whatsoever against NuSil, a non-manufacturer of breast implants, that would support a cause of action for fraud, deceit and misrepresentation, outrageous conduct, or violation of the Pennsylvania Unfair Trade Practices and Consumer protection Law. WHEREFORE, Nusil requests that this Court sustain this demurrer and dismiss plaintiff causes of action for fraud, deceit and misrepresentation, outrageous conduct and violation of the Unfair Trade Practices and Consumer Protection Law against Nusil. B. Preliminary Objection-Motion To strike Request For Punitive Damaqes 33. Plaintiff has failed to allege any facts whatsoever against Nusil, a non-manufacturer of breast implants, that would support recovery for punitive damages. WHEREFORE, Nusil requests that this Court strike all requests for punitive damages against NuSil. IrI.dt t ~#77U-. Gi da L. kramer Attorney for Defendant, NuSil Technology July 1, 1994 7 CERTIFICATE OF SERVICE I hereby certify that on July 1, 1994, I served by first-class mail, postage prepaid, copies of Nusil Technology's answer and new matter on the following counsel and parties: stephen A. Sheller, Esquire Leonard V. Fodera Esquire Sheller, Ludwig & Badey Third Floor 1528 Walnut Street Philadelphia, PA 19103 Angelo L.Scaricamazza, Jr Naulty, Scaricamazza & McDevitt One Penn Center 1617 JFK Blvd., Ste. 1600 Philadelphia, PA 19103 Gordon S. Elkins, Esq. Donna M. Dever, Esq. Stradley, Ronon, Stevens & Young 2600 One Commerce Sq. Philadelphia, PA 19103 John L. McGoldrick, Esq. McCarter & English Four Gateway Center 100 Mulberry st. Newark, NJ 07101-0652 Madeline M. Sherry, Esq. Lauren A. Steven, Esq. Hecker, Brown Sherry & Johnson 1700 Two Logan Square 18th & Arch Street Philadelphia, PA 19103 Robert S. Forster, Esquire Krusen Evans & Byrne The curtis Center 601 Walnut st., suite 1100 Philadelphia, PA 19102 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire Thorp, Reid & Armstrong 1 Riverfront Center pittsburgh, PA 15222 Jeremy D. Mishkin, Esquire David MacMain, Esquire Kimberly H. Humes, Esquire Montgomery, McCracken, Walker & Rhoads Three Parkway, 20th Floor Philadelphia, PA 19103 David Griffith, Esquire Howard M. Cyr, III, Esquire Harvey, Pennington, Herting & Renneiser 11 Penn Center Plaza 1835 Market Streets, 29th Fl. Philadelphia, PA 19103 David Richman, Esq. Colleen F. Coonelly, Esq. Pepper, Hamilton &Scheetz 3000 Two Logan Sq. Philadelphia, PA 19103 Robert M. Britton, Esquire Post & Schell, P.C. 19th Flr., 1800 JFK Boulevard Philadelphia, PA 19103-7480 William J. Taylor, Esq. Taylor & Taylor 10 Penn Center Plaza Suite 811 Philadelphia, PA 19103 . Allan H. starr, Esquire white and Williams suite 1800 One Liberty Place 1650 Market street Philadelphia, PA 19103 Arthur Murphy, Jr., Esquire stephen W. Trout, Esquire suite 1100 1616 Walnut st. Philadelphia, PA 1910~ E. Michael Keating, III, Esq. Mary Ann Piper, Esquire Clark, Ladner, Fortenbaugh & Young One Commerce Square 2005 Market Street Philadelphia, PA 19103 Markham Medical International, Inc. 616 Huntley Drive, Ste. 2 West Hollywood, CA 90069 Joseph P. Hafer, Esquire Peter J. curry, Esquire Thomas, Thomas & Hafer 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Peter A. Dunn, Esquire Cheryl M. Nicholson, Esq. Dunn, Haase, Sullivan, Mallon, Cherner & Broadt 21 South 5th st., 10th Fl Philadelphia, PA 19106 Peter J. Hoffman, Esquire Debra Schwaderer Dunne, Esquire McKissock & Hoffman, P.C. 1700 Market Street suite 3000 Philadelphia, PA 19103 York Hospital 1001 South George Street York, PA 17405 York Plastic Surgery Assoc. 50 Wyntrebrook Drive York, PA 17403 Admiral Materials Corporation nlkla Mentor Polymer Tech. 5425 Hollister Avenue Santa Barbara, CA 39111 Huls America, Inc. alkla petrarch 80 Cenntenial Avenue Piscataway, NJ 08855-0456 Admiral Materials Corp. clo Mentor Corporation 600 Pine Avenue Goleta, CA 93117 craig stone, Esquire Michael D. Pipa, Esquire Melte Evans & Woodside P.O. Box 729 Harrisburg, PA 17108-0729 jjkll~ G~lda L. Kramer Attorney for Defendant, Nusil Technology July 1, 1994 d .....,i f>-".'i.i'" '. '11'\l~....t"'Y*,"'$?;y.,..."",~~~,.h~_~~"';,i~\:',~~',,,,~,,,. . JUl U 3 3u I'U '9~ I_,lr C[. JFf let' .. . _ . '"H.)U"'l ~.r.y ":..~lj~" ~,.~tl~_l:'_,rny . ":t" -:-. ~ . ",..." .J, "",-~-,._--,.. --. .-""---.,,,".. ~.,....---..--,~...,,--<.,.~. ~-~.. , , " ~ ~'"'-ltJliGl4IRif'_""b.. . t Tr'l 1-"-'- fl. i , I j ,..'\ " , . , " . .. . \ i . /. ." II' .:-- , . .' " . I . . ... . .,. H"...J~ ~~~l~ "-' i' Jut 1/ /0 56 4H '9~ ",' ~: (iF l,~ r;U,"'tl rl :, I j:~ t <'fl,n' i.~r-iY w,', ,'~. .; i' " f' ,;,-;)' '1,' ~; :". ''-', ';' . ,t '''-I . ..~; II' ,. .'. ._- t.. I: . . . .' , 11147734 MEDICAL ENGINEERING CORPORATION d/b/a surgitek, a wholly owned subsidiary of Bristol Meyers Squibb; SURGITEK, INC. (See Medical Engineering Corp. ) ; MINNESOTA MINING AND MANUFACTURING COMPANY, INC., individually and as a successor in interest to McGhan Medical corporation (a California Corporation) a/k/a 3M and McGhan Medical Corporation; NATURAL Y SURGICAL SPECIALTIES, INC.; HULS AMERICA, INC., f/k/a PETRARCH SYSTEMS, INC.; SCOTT PAPER COMPANY; SIROD CORPORATION; UNION CARBIDE CORPORATION; UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC.; 21 INTERNATIONAL HOLDINGS, INC. f/k/a Knoll International Holdings, Inc. f/k/a Foamex Products, Inc. f/k/a Scot foam Corporation f/k/a General Felt Industries, Inc. f/k/a Eddy ACquisitions now operating under the fictitious name of Foamex, a Division of KIHI; FOAMEX PRODUCTS, INC. (See 21 International Holdings, Inc.); FOAMEX, L.P.; SCOTFOAM (See 21 International Holdings, Inc.); WILSHIRE TECHNOLOGIES, INC., f /k/ a WILSHIRE FOAM PRODUCTS, INC.; JAMES A. YATES, M.D.; PLASTIC SURGERY CENTER, LTD. RICHARD DABB, M.D.; YORK PLASTIC SURGERY ASSOCIATES; HOLY SPIRIT HOSPITAL; YORK HOSPITAL; and JOHN/JANE DOE, Additional Defendants. 1.._, . ' .' 1I147734 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPHINE M. YEYNA, ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION Plaintiff, No.: 94-2915 Civil Term v. JURY TRIAL DEMANDED ADMIRAL MATERIALS CORPORATION, et al., Defendants. ANSWER, NEW MATTER AND PRELIMINARY OBJECTIONS TO PLAINTIFF' S SHORT FORM COMPLAINT Defendants CUI Corporation ("CUI"), f/k/a Cox-Uphoff Corporation, McGhan Medical Corporation ("McGhan"), Minnesota Mining and Manufacturing Company (" 3M"), incorrectly identified as "Minnesota Mining and Manufacturing Co. , Inc. " and INAMED Corporation ("INAMED"), by and through their attorneys, C. James Zeszutek, Kimberly A. Brown and Thorp, Reed & Armstrong, and Joseph M. Price and Faegre & Benson, and in response to Plaintiff's Short Form Complaint, incorporate by reference defendants McGhan, 3M and INAMED's Answer, New Matter and Preliminary Objections filed in Ford v. McGhan Medical COrD.. et aL" No. 135, April Term 1992 (Philadelphia County) (hereinafter referred to as the Ford Answer), and CUI's Answer, New Matter and Preliminary Objections to Plaintiffs' Short Form Complaint filed in Evans v. Medical Enqineerinq. et al., No. 92-25555 (Montgomery .' 11147734 pleading is required. However, to the extent that a responsive pleading is deemed to be required, after reasonabl~ investigation, defendants CUI, McGhan, 3M and INAMED are without knowledge or information sufficient to form a belief as to the truth or falsity of these averments. Accordingly, these averments are denied, and strict proof thereof is demanded at the time of trial. III. CASE SPECIFIC INFORMATION 1. After reasonable investigation, defendants CUI, McGhan, 3M and INAMED are without knowledge or information sufficient to form a belief as to the truth or falsity of Plaintiff's averments regarding the implant products that were allegedly used in Plaintiff's medical treatment. Accordingly, these averments are denied, and strict proof thereof is demanded at the time of trial. 2. After reasonable investigation, defendants CUI, McGhan, 3M and INAMED are without knowledge or information sufficient to form a belief as to the truth or falsity of Plaintiff's averments regarding the alleged insertions of implant products that were performed on Plaintiff. Accordingly, these averments are denied, and strict proof thereof is demanded at the time of trial. 3 .- "-"' .' 1147734 3. The averments in this paragraph are not directed toward defendants CUI, McGhan, 3M and INAMED and, therefore, no responsive pleading is required of these defendants. To the extent that a responsive pleading is required, these averments are denied and strict proof thereof is demanded at the time of trial. 4. The averments in this paragraph are not directed toward defendants CUI, McGhan, 3M and INAMED and, therefore, no responsive pleading is required of these defendants. To the extent that a responsive pleading is required, these averments are denied and strict proof thereof is demanded at the time of trial. IV. INJURIES After reasonable investigation, defendants CUI, McGhan, 3M and INAMED are without knowledge or information sufficient to form a belief as to the truth or falsity of Plaintiff's allegations regarding the removal or rupture of the subject breast implants and of Plaintiff's alleged claims of damages. Accordingly, these averments are denied, and strict proof thereof is demanded at the time of trial. V. CAUSE OF ACTION In response to Plaintiff's allegations, defendants CUI, McGhan, 3M and INAMED incorporate by reference defendants' answers 4 1I147734 to the averments contained in the Master Complaint which are incorporated by reference by Plaintiff; said answers are set forth in the ~ Answer and the Evans Answer. VI. CLAIMS AGAINST RELATED COMPANIES Defendants CUI, McGhan, 3M and INAMED respond as follows to the averments contained in the Master Complaint which are incorporated by reference by Plaintiff: PreliminarY Ob1ection to Plaintiff's Successor Liabilitv Claims A. Preliminary Objection to Count XVII of Plaintiff's Pourth Amended Master Comolaint. In Count XVII of the Fourth Amended Master Complaint, Plaintiff alleges a cause of action for successor corporate liability against unidentified successor defendants. Plaintiff alleges successor corporate liability is proper because certain unidentified defendants either expressly or impliedly agreed to assume any and all obligations of the selling manufacturer or because the purchasing manufacturer acquired all or substantially all of the manufacturing assets of the selling manufacturer and undertook essentially the same manufacturing, selling and/or distributing operations as the selling manufacturer. 5 11147734 Count XVII of the Master Complaint sets forth bare conclusions of law without any factual averments to sustain the allegations contained therein or to identify which manufacturers should be liable under what theory and why the imposition of successor liability is appropriate. WHEREFORE, CUI, McGhan, 3M and INAMED request that this Honorable Court dismiss Count XVII of the Master Complaint in its entirety with prejudice. B. Preliminary Objection in Demurrer Pursuant to Pa. R. to Count XVII. the Nature of a Civ. P. 1028(a) (4) Under Pennsylvania law, a cause of action for successor corporate liability is inappropriate unless a plaintiff'S remedies against a predecessor corporation are destroyed by the purchase of the predecessor by the successor corporation. Certain defendants labeled as successor defendants in the Master Complaint cannot be held liable under the product line exception, because the predecessor corporations are still viable, and Plaintiff has adequate potential remedies against these predecessors. Furthermore, Plaintiff's conclusory allegations in Count XVII are totally devoid of any factual averments that would support 6 ..........~.;...,-;L, 11147734 a cause of action for successor corporate liability under Pennsylvania law as to any of the defendants. Accordingly, Plaintiff cannot state a proper cause of action for succes~or corporate liability against any of the manufacturer defendants. For the reasons stated above, CUI, McGhan, 3M and INAMED's demurrer to Count XVII of Plaintiff's Master Complaint must be sustained. WHEREFORE, CUI, McGhan, 3M and INAMED request that this Honorable Court dismiss Count XVII of the Master Complaint in its entirety with prejudice. C. Preliminary Objection in Motion to Strike Count XVII Civ. P. 1028 (al (21. the Nature of a Pursuant to Pa. R. The averments of subsections A through B are incorporated by reference as though fully set forth herein at length. Count XVII of the Master Complaint should be stricken, because it does not comply with Pa. R. Civ. P. 1019 (aI, which provides that "the material facts on which a cause of action or defense is based shall be stated in concise and sununary form." 7 11147734 Nowhere in Count XVII does plaintiff identify which manufacturer-defendants should be liable or liable under what theory of successor corporate liability or the factual predicate for the imposition of such liability. Count XVII fails to put each defendant on notice of the operative conduct which forms the basis of Plaintiff's claim of liability. As a result, Count XVII does not adequately inform the individual manufacturer-defendants of the operative facts they are required to defend. WHEREFORE, CUI, McGhan, 3M and INAMED request that Count XVII of the Master Complaint be stricken. D. Preliminary Objection in the Nature of a Motion for a More Specific Pleading Pursuant to Pa. R. Civ. P. 1028(a) (3) to Count XVII. The averments of subsections A through C are incorporated by reference as though fully and completely set forth herein. In the alternative, Count XVII of Plaintiff's Master Complaint is so vague and indefinite that an adequate response cannot be made thereto. Furthermore, Count XVII of the Master Complaint is prejudicial to CUI, McGhan, 3M and INAMED in that it 8 1I147734 does not define or inform these defendants of the operative facts underlying the claims being asserted against it. WHEREFORE, CUI, McGhan, 3M and INAMED request, in the alternative, that Plaintiff be directed to file a more specific pleading. NEW MATTER 1. The Complaint fails to state a claim or cause of action against defendants CUI, McGhan, 3M and INAMED upon which relief can be granted. 2. All risks associated with the implantation of the subject breast implants, allegedly manufactured by defendants McGhan, 3M and INAMED, would have and should have been explained to Plaintiff before the surgical procedures described in the Complaint. 3. Defendants CUI, McGhan, 3M and INAMED believe and, therefore, aver that Plaintiff consented to the implantation of the subject breast implants, allegedly manufactured by defendants CUI, McGhan, 3M and INAMED, with full knowledge of any and all risks associated therewith. 4. Plaintiff voluntarily and with full knowledge assumed any and all risks associated with the implantation of the 9 "147734 subject breast implants, allegedly manufactured by CUI, McGhan, 3M and INAMED, and therefore, the cause of action alleged in Plaintiff's Complaint against CUI, McGhan, 3M and INAMED is barred by the applicable rules, laws and regulations related thereto. 5. Any and all injuries sustained by Plaintiff are the result of the conduct of Plaintiff or other parties over whom defendants CUI, McGhan, 3M and INAMED had no control. 6. The damages alleged in Plaintiff's Complaint, if any, are limited by the applicable laws of the Commonwealth of Pennsylvania regarding comparative and/or contributory negligence. 7. Although defendants CUI, McGhan, 3M and INAMED deny the allegations of Plaintiff's Complaint as to the injuries and damages alleged, these injuries and damages, if any, were caused by the unauthorized, unintended or improper use of the product complained of and/or as a result of the failure to exercise reasonable and ordinary care, caution or vigilance over parties over whom CUI, McGhan, 3M and INAMED exercised no control and for which CUI, McGhan, 3M and INAMED are not liable or responsible. 8. Any foreseeable and unreasonable risk to the physical well-being of Plaintiff was a risk which CUI, McGhan, 3M and INAMED did not create and could not reduce or eliminate. 10 8147734 9. CUI, McGhan, 3M and INAMED aver that any product designed, manufactured and/or sold by CUI, McGhan or 3M was not designed, manufactured and/or sold in a defective condition. 10. If it is established at trial that any product manufactured or sold by CUI, McGhan or 3M was implanted in Plaintiff in a defective condition, which is specifically denied, then CUI, McGhan, 3M and INAMED aver, in the alternative, that the product has undergone and has been subjected to a substantial change in the condition it was in when it left the hands of CUI, McGhan or 3M either by way of subsequent handling, abnormal use or other causes outside the control of CUI, McGhan or 3M. 11. If it is determined at trial that Plaintiff was the user of a product in a defective condition manufactured or sold by CUI, McGhan or 3M in substantially the same condition as it was in at the time it left the custody of CUI, McGhan or 3M, all of which has been previously denied herein, CUI, McGhan, 3M and INAMED, alternatively aver that any damages and/or injuries that may be established at trial are not the proximate result of any alleged defective condition of the product of CUI, McGhan or 3M. 12. Any product designed, manufaccured and/or sold by CUI, McGhan or 3M was designed, manufactured and/or sold in 11 11147734 accordance with the prevailing standards and customs of the state of the art in the industry at that time. 13. Any product tested, manufactured and/or sold by CUI, McGhan or 3M was designed, tested, manufactured and/or sold in accordance with and in compliance with all governmental statutes and regulations applicable to medical device manufacturers and applicable to the design, testing, manufacturing and sale of medical devices and particularly with respect to silicone gel breast implants. 14. Plaintiff I s claims are barred by the applicable statute of limitations. 15. Plaintiff'S claims are barred by the doctrines of laches, estoppel and waiver. 16. Liability, which CUI, McGhan, 3M and INAMED have previously denied herein, is precluded on Plaintiff I s alleged causes of action because of the doctrine set forth in the Restatement (Second) of Torts, Section 402A, comment K. 17. The risks and complications attendant to the use of the subject breast implants, if any, were well known by the medical community, and defendants CUI, McGhan, 3M and INAMED are not required to provide warnings or instructions with regard to those 12 . 1I147734 risks and complications. Further, any cause of action based on any alleged failure of defendants CUI, McGhan, 3M or INAMED to provide sufficient warnings to Plaintiff is barred by the learned intermediary doctrine. 18. To the extent that Plaintiff's breast implants may be subject to governmental regulation, they are so regulated by federal laws and statutes and the regulations of federal agencies. 19. Plaintiff I s claims are preempted by the federal governmental statutes, standards, and regulations applicable to medical device manufacturers and applicable to the design, testing, manufacture, assembly, and sale of medical devices, and particularly, to silicone gel breast implants. 20. To the extent that punitive or exemplary damages are sought by Plaintiff, such claim for damages is barred by the Constitution of the Commonwealth of Pennsylvania and the Constitution of the United States. 21. Plaintiff has failed to give CUI, McGhan, 3M and INAMED timely notice of any claimed breaches of warranty or other alleged defects. 13 11147734 22. To the extent that Plaintiff's expenses have been paid by collateral sources, defendants CUI, McGhan, 3M and INAMED may be entitled to a setoff of any damages under applicable laws. 23. Defendants CUI, McGhan, 3M and INAMED reserve the right to object to the venue of this action. 24. The Complaint fails to state with sufficient particularity the circumstances allegedly constituting fraud by defendants CUI, McGhan, 3M and INAMED. 25. INAMED has never designed, manufactured, distributed or sold silicone gel breast implants. PRELIMINARY OBJECTION OF INAMED CORPORATION PURSUANT TO PA. R. CIV. P. 1028 (A) (1) FOR LACK OF PERSONAL JURISDICTION. INAMED Corporation is a corporation organized and existing under the laws of the State of California with its principal place of business located in Las Vegas, Nevada. ~ Verification of Donald K. McGhan, attached hereto as Exhibit A. INAMED does not currently have, and never has had, a place of business or registered office in the Commonwealth of Pennsylvania. ~ 14 11147734 INAMED has never conducted business within the Commonwealth of Pennsylvania. ~ Accordingly, this Court lacks personal jurisdiction over INAMED Corporation. WHEREFORE, INAMED respectfully requests that this Honorable Court dismiss INAMED for lack of personal jurisdiction. JURY DEMAND Defendants CUI, McGhan, 3M and INAMED hereby demand a trial by jury. Respectfully submitted, {. Dated: July L, 1994 THORP, REED & ARMSTRONG One Riverfront Center Pittsburgh, PA 15222 (412) 394-2565 Joseph M. Price, Esquire FAEGRE & BENSON 2200 Norwest Center 90 South Seventh Street Minneapolis, MN 55402 Attorneys for Defendants CUI Corporation, McGhan Medical Corporation, Minnesota Mining and Manufacturing Company and INAMED Corporation 15 11147734 VERIPICATION COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF ALLEGHENY Before me, the undersigned authority, a Notary Public in and for said County and State, personally appeared C. JAMES ZESZUTEK, who being duly sworn according to law, deposes and says that he is attorney of record for CUI Corporation, McGhan Medical Corporation, INAMED Corporation and Minnesota Mining and Manufacturing Company; that officers of CUI Corporation, McGhan Medical Corporation, INAMED Corporation and Minnesota Mining and Manufacturing Company are outside the jurisdiction of this Court; that the verifications of said officers cannot be obtained within the time set for the filing of the Answer, New Matter and Preliminary Objections to Plaintiff's Short Form Complaint; that the facts contained in the foregoing Answer, New Matter and Preliminary Objections, of which he has personal knowledge, are true and correct; and that those of which he has information from others he believes to be true and correct. The verifications of said officers will be filed as soon as the same are available. ~ ~,1-~-JL~ ~ C~~S ZESZUTEK 11147734 CERTIPICATE OP SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing ANSWER, NEW MATTER AND PRELIMINARY OBJECTIONS TO PLAINTIPP'S SHORT PORM COMPLAINT was served by first class, U.S. mail, .postage prepaid, this ,#'\ day of July, 1994, on the following: SEE ATTACHED LIST -$~r~ l, . -yeyna v. Admiral Materials, et ale , SERVICE LIST Sheller, Jamie L., Esq. Sheller, Ludwig & Badey 1528 Walnut Street 3rd Floor Philadelphia, PA 19102 Trotter, Michael J., Esq. Baker, silverberg & Keener 2850 Ocean Park Blvd. suite 300 Santa Monica, CA 90405 Keating, E. Michael, III, Esq. Clark, Ladner, Fortenbaugh & Young One Commerce Square, 22nd Floor 2005 Market Street Philadelphia, PA 19103 Nicolson, Cheryl M., Esq. Dunn, Haase, Sullivan, Mallon, Cherner & Broadt Hillhurst 216 South orange Street Media, PA 19063 Kramer, Gilda L., Esq. Gilda L. Kramer, Attorney at Law 1500 Walnut Street Philadelphia, PA 19107 Sherry, Madeline M., Esq. Hecker, Brown, Sherry & Johnson 1700 Two Logan square 18th & Arch Streets Philadelphia, PA 19103-2769 Forster, Robert S. Jr., Esq. Krusen, Evans & Byrne suite 1100, The curtis Center 601 Walnut Street Philadelphia, PA 19106-3393 Mishkin, Jeremy D., Esq. Montgomery, Mccracken, Walker & Rhoads Three Parkway 20th Floor Philadelphia, PA 19102 Trout, Stephen W., Esq. Murphy, Taylor & Trout, P.C. 1616 Walnut Street suite 1100 Philadelphia, PA 19103 . -Britton, Robert M., Esq. Post & Schell 1800 John F. Kennedy Boulevard 19th Floor Philadelphia, PA 19103 Elkins, S. Gordon, Esq. Stradley, Ronan, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103-7098 Hoffman, Peter J., Esq. McKissock & Hoffman 1700 Market Street suite 3000 Philadelphia, PA 19103 starr, Allan H., Esq. White & Williams Suite 1800 1650 Market Street Philadelphia, PA 19103-7301 Dr. James Yates Grandview corporate Palace 205 Grandview Avenue Camp Hill, PA 17011 , _.~. /.-~.:~\:ii_-' ";;'-nJ:;i/t. , ~;.~<.a,:.~ ~~f~ ~(/.'h~ ,;'4- .. .:1i~ii' ;-l;'~ '-",i- _.,.. ~ . " i.-"-. ~- - -~, '" ,:t~<_1'Y'v1"'t-'l'!"'{~~:Y!'<.r-m_~'__~-~__,~ ,--..- ,;.',;",,:{.': \' ,,'~''-;-<; :-..~-;.'"' . '''.;.- '".....!,.,,- -"...-,..".....,.-,.. . JUL " 2 211 PH '9ij _,V -, ., " ~fTjCE ')F ~;" "l,ION'lM,Y Ct)> >.:< AUD CO!]N, Y ?Lm>S'fL.'/~!t;.~ ,; '.,', ~:j t," , ~.~~'- >'1" I ! /' ,.' .: " j i . / "" .r:'. II, , , , ; .. II' . " ~;.. ..-.- JOSEPHINE M. YFYNA . . COURT OF COMMON PLEAS CUMBERLAND COUNTY MURPHY, TAYLOR & TROUT, P.C. BY: ARTHUR J. MURPHY, JR., ESQUIRE I.D.t: 16412 BY: STEPHEN W. TROUT, ESQUIRE I.D.': 37517 1616 WALNUT STREET SUITE 1100 PHILADELPHIA, PA 19103 IUS) 735-2869 Plaintiff, : NO.: 94-2915 v. WILSHIRE FOAM PRODUCTS, INC. : Defendant. ANSWER AND NEW HATTER OF DEFENDANT WILSHIRE TECHNOLOGIES, INC. f/k/a WILSHIRE FOAM PRODUCTS. INC. TO PLAINTIFF'S SHORT-FORM COMPLAINT NOW COMES defendant, designated by plaintiff as WILSHIRE TECHNOLOGIES, INC. f/k/a WILSHIRE FOAM PRODUCTS, INC., by its attorneys, MURPHY, TAYLOR & TROUT, P.C. and states that it has a full, complete and just defense to any and all claims being made against it in this action and, insofar as it is necessary to set forth those defenses in an Answer, they are as follows: IDENTIFICATION OF PLAINTIFF After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation set forth in plaintiff's Complaint regarding her identity or her residency. Accordingly, these allegations are denied, and strict proof thereof is demanded at the time of trial. DEFENDANT MANUFACTURERS. DISTRIBUTORS. COMPONENT PART SUPPLIERS AND RELATED COMPANIES This pleading is filed on behalf of Wilshire Technologies, Inc. known as Wilshire Foam Products, Inc. from December 6, 1990 through May 7, 1992. This answering defendant is a distinct corporation from an entity incorporated on July 7, 1953 known as Wilshire Foam Products, Inc. It is not denied that wilshire is a California corporation with a principal place of business in california. With respect to the remaining allegations set forth in Paragraphs 2 through and including 68 of the Fourth Amended Master Complaint, said allegations are directed to entities other than Wilshire and consequently no response is required from this defendant. Wilshire denies that it ever designed, manufactured, distributed, labeled, tested, warranted, packaged, or sold silicone breast implants, including those involved in this case. CASE SPECIFIC INFORMATION After reasonable investigation, Wilshire is without knowledge or information sufficient to form a belief as to the truth or falsity of plaintiff's allegations. Accordingly, these allegations are denied, and strict proof thereof is demanded at the time of trial. INJURIES After reasonable investigation, Wilshire is without knowledge or information sufficient to form a belief as to the truth or falsity of plaintiff's allegations regarding the removal or rupture of the subject breast implants and of plaintiff's alleged claims of damages. Accordingly, these allegations are denied and strict proof thereof is demanded at the time of trial. CAUSE OF ACTION with respect to the allegations contained in the Fourth Amended Master Complaint as set forth at Counts I, III, IV, V, VIII, IX, X, XIII and XIX, the allegations in each paragraph and subparagraph thereunder are specifically and generally denied by Wilshire. Moreover, the allegations set forth in said paragraphs of said Counts constitute conclusions of law to which no response is required. To the extent that said paragraphs in said Counts contain factual allegations, after reasonable investigation, Wilshire is without knowledge or information sufficient to form a belief as to the truth or falsity of said allegations, and accordingly these allegations are denied and strict proof thereof is demanded at the time of trial. CLAIMS AGAINST RELATED COMPANIES Plaintiff's allegations with respect to successor liability and alter ego liability are denied as conclusions of law to which no response is required. NEW MATTER Pursuant to, and in accordance with, Case Management Order No.8, the affirmative defenses of assumption of the risk, comparative negligence, contributory negligence and statute of limitations are deemed to be pleaded. Furthermore, Wilshire raises the following additional affirmative defenses by way of New Matter: 1. Plaintiff is barred from recovery by reason of the fact that plaintiff's Complaint fails to state a cause of action against Wilshire. 2. Plaintiff is barred from recovery as to Wilshire in that plaintiff's action is preempted by the Medical Device Amendments to the Federal Food, Drug and Cosmetic Act and the federal regulations promulgated thereunder. 3. The plaintiff I s alleged injuries and/or damages, if any, were not the result of any act or omission on the part of Wilshire, but exist by reason of operation of nature or idiosyncratic reaction, over which answering defendant had no control. 4. Plaintiff is barred from recovery as to Wilshire because at all times relevant to the subject action, plaintiff and/or sophisticated and knowledgeable third parties to whom Wilshire supplied its product, if at all, in bulk, were not using answering defendant's product, if any, for the purpose intended or in the manner intended, and said conduct on the part of plaintiff and/or sophisticated and knowledgeable third parties constituted misuse of the product, if any, which misuse was not in any manner performed by, participated in, consented to, approved by, or within the control of answering defendant or any agent or employee of answering defendant. 5. Wilshire is informed and believes, and on that basis avers, that the alleged injuries and damages complained of, if any, are attributable to a post-distribution modification, alteration or other change in the product, for which plaintiff would seek to hold this defendant allegedly responsible, which modification, alteration or change was performed by a sophisticated and knowledgeable industrial purchaser to whom answering defendant supplied its product, if at all, in bulk, and not in any manner performed by, participated in, consented to, approved by or within the control of answering defendant, or any agent or employee of answering defendant. Accordingly, plaintiff should be barred from recovery against answering defendant. 6. Plaintiff is barred from recovery as to Wilshire because answering defendant sold its component product at issue (Le. foam wipers made out of polyurethane), if at all, in bulk to sophisticated and knowledgeable third parties who had superior, indeed exclusive, knowledge concerning the usage, if any, to which they put answering defendant's component product. 7. To the extent that plaintiff asserts and pursues breach of warranty theories of recovery against wilshire, it is averred that plaintiff is barred from recovery in that plaintiff failed to give the requisite timely notice as to any alleged breach of warranty. 8. Plaintiff's recovery should be denied, or at a minimum diminished, in that the plaintiff failed to mitigate the alleged damages complained of, if any, in that plaintiff failed to use reasonable diligence in caring for the plaintiff's injuries and failed to use reasonable means to prevent aggravation and to accomplish the healing thereof. 9. Plaintiff unreasonably delayed in the bringing of the subject action without good cause, and thereby prejudiced answering defendant, and, as a direct and proximate result of plaintiff's delay, this action is barred by the doctrine of laches. 10. Plaintiff's pleading fails to state facts sufficient, and plaintiff cannot prove facts sufficient, to constitute any viable claim for the recovery of punitive damages against Wilshire. 11. Insofar as plaintiff seeks recovery of punitive damages, plaintiff's claims are barred, in whole or in part, by Article I Section 10, Article IV Section 2 and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States and the Constitution and laws of the Commonwealth of Pennsylvania, on the following separate and several grounds: (a) An award of punitive damages as claimed would violate answering defendant's right to the equal protection of the laws. (b) An award of punitive damages as claimed would violate answering defendant's right to due process; (c) The procedures allowed fail to provide a limit on the amount of the award against answering defendant; (d) The procedures allowed fail to provide specific standards for the amount of the award of punitive damages; (e) The procedures allowed permit the award of punitive damages upon satisfaction of a reduced standard of proof inconsistent with the decisional authority of the United states Supreme Court; (f) The procedures allowed permit multiple awards of punitive damages for the same alleged act or acts; and, (g) The procedures allowed permit the admission of evidence relative to punitive damages in the same proceeding in which liability and compensatory damages are determined. 12. Any and all acts allegedly performed by or on behalf of Wilshire as alleged in plaintiff's complaint, if any there were, were performed in good faith, without malice, or any evil motive whatsoever, and were based upon legally sufficient justification. Plaintiff is, accordingly, barred from any recovery as to answering defendant to the extent that such recovery would require the element(s) of lack of good faith, insufficient justification or the presence of malice or evil motive. 13. Plaintiff has failed to state, and cannot prove, any factual situation attendant to which the recovery of pre-judgment interest would be recoverable against answering defendant. 14. Plaintiff is barred from recovery as to Wilshire in that, at all times mentioned in plaintiff's Complaint, the plaintiff was fully informed and made aware of other medical treatment, care and procedures which were to be and which were in fact performed upon the plaintiff and of the risks involved therein, and of the nature of all equipment to be used in the course of such treatment, and of procedures and all risks attendant to use thereof, and the plaintiff, by way of certain acts or conduct, submitted to such treatment, care and procedures without objection. 15. Plaintiff is barred from recovery in that as to the matters allegedly constituting misrepresentation and fraud, the plaintiff could not have reasonably relied, and in fact did not rely, upon any alleged representations made by or on behalf of Wilshire. 16. Wilshire hereby gives notice that it intends to rely upon any additional affirmative defenses which may become available or apparent during discovery and thus reserves the right to amend this New Matter to assert such additional defenses. WHEREFORE, defendant WILSHIRE denies any and all liability to plaintiff and demands judgment in its favor, plus costs of suit. MURPHY, TAYLOR' TROUT, P.C. Date: '7-11- fit./- By: .~ Jr., Esquire Esquire . CERTIFICATE OF SERVICE I/vt....- , 1994 I served, by I hereby certify that on July First-Class, u.s. Mail, postage pre-paid, true and correct copies of the Answer and New Matter of Defendant Wilshire Technologies, Inc. to Plaintiff's Short-Form Complaint upon the following counsel and/or unrepresented parties: stephen A. Sheller, Esquire Leonard V. Fodera, Esquire SHELLER, LUDWIG , BADEY 3rd Floor 1528 Walnut street Philadelphia, PA 19102 Madeline M. Sherry, Esquire Lauren A. Stevens, Esquire HECKER, BROWN, SHERRY , JOHNSON 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Jeremy Mishkin, Esquire Bruce Biden, Esquire MONTGOMERY, McCRACKEN, WALKER , RHOADS Three Parkway Philadelphia, PA 19102 S. Gordon Elkins, Esquire Donna M. Dever, Esquire STRADLEY, RONON, STEVENS' YOUNG 2600 One Commerce Square 2005 Market Street Philadelphia, PA 19103-7098 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORP, REED , ARMSTRONG ONE RIVERFRONT CENTER Pittsburgh, PA 15222 E. Michael Keating, III, Esquire CLARK, LADNER, FORTENBAUGH , YOUNG ONE COMMERCE SQUARE 2005 Market Street Philadelphia, PA 19103 Angelo L. Scaricamazza, Jr., Esquire NAULTY, SCARICAMAZZA , MCDEVITT suite 1600 ONE PENN CENTER 1617 JFK Boulevard Philadelphia, PA 19103 Robert M. Britton, Esquire POST , SCHELL, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Joseph P. Hafer, Esquire Peter J. Curry, Esquire THOMAS, THOMAS , HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Robert S. Forster, Jr., Esquire KRUSEN, EVANS , BYRNE suite 1100 THE CURTIS CENTER INDEPENDENCE SQUARE WEST 6th and Walnut Streets Philadelphia, PA 19106 Gilda L. Kramer, Esquire suite 1100 1500 Walnut street Philadelphia, PA 19102 Allan H. Starr, Esquire WHITE AND WILLIAMS suite 1800 ONE LIBERTY PLACE 1650 Market Street Philadelphia, PA 19103 James W. Saxton, Esquire BARLEY, SNYDER, SENFT , COHEN 126 East King Street Lancaster, PA 17602-2893 MURPHY, TAYLOR' TROUT, P.C. tJ~ Esquire :_')t.j...r' ,- ,- J 11__....:':..r;..,.,.".< , ~: ,-':~~j:~:'1:"~~:, 'I ,Y ~.,' . ...,~.~' ,1(..".,-', :('. \; ,.. ';;/'rJ"l ~ " , . -. - > ~ .. ' ','. ~ . JUl IS I Z4 PH '9~ ,!:11 flCE I,' ;r..IHOll~11A1.Y :'.i; ",t.!.KU COlJ"T'1 ,~~. "{ s'( L.;,', ~ (A. '\T ! t"<" . , I ~" .' / .. , . II' , ""., ,,-".~- '!' STRADLEY, RONON, STEVENS & YOUNG By: S. Gordon Elkins Donna M. Dever Cathleen M. Stryker 1.0. NGs. 02789/62381/69567 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys for Defendants: AO'lhotoch Corporation, Bri.tol,MVolI Squibb Company. the Cooper Companle., Inc.. Coopor Surgical. Inc.. Modlcal Englnoo,lng CorporaUon. Nalural Y Surgical SpoclalU.., Inc, and Slrod CorporaUon JOSEPHINE M. YEYNA, Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY v. BRISTOL-MYERS SQUIBB COMPANY, et al., 94-2915 Civil Term Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendants, Aesthetech Corporation, Bristol-Myers Squibb Company, the Cooper Companies. Inc.. Cooper Surgical, Inc., Medical Engineering Corporation, Natural Y Surgical Specialties, Inc. and Sirod Corporation in the above-captioned case. ns Donna M. Dever Cathleen M. Stryker STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103 (215) 564-8013 Attorneys for Defendants: Aootholoch Corpo,aUon. Bristol-Myer. Squibb Company. the Cooper Companies, Inc., cooper Surgical. Inc.. Modical Englneoring Corporation, Natural Y Su,gical Spoclalllo., Inc, and SI,od CorporaUon Dated: July 20. 1994 meaa .. \ CERTIFICATE OF SERVICE I, DONNA M. DEVER, hereby certify that on July 21, 1994, I caused a copy 0' the foregoing to be served by United States first class mail, postage pre-paid, upon counsel listed below: Leonard V. Fodera, Esquire Sheller, Ludwig & Badey 1528 Walnut Street Third Floor Philadelphia. PA 19102 Attorneys for Plaintiff Michael J. Trotter, Esquire Baker, Silverberg & Keener 2850 Ocean Park Blvd. Suite 300 Santa Monica, CA 90405 Attorneys for Defendant, HulsAmerica, Inc. Robert S. Forster, Esq. Krusen Evans & Byrne The Curtis Center, Suite 1 100 Independence Square West 6th and Walnut Streets Philadelphia, PA 19106 AttGrneys for Defendants, Dow Corning Corp. and Dow Corning Wright Corp. Madeline M. Sherry, Esquire Hecker Brown Sherry & Johnson 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Attorneys for De'endant, Baxter Healthcare Corporation and Baxter International, Inc. Steven W. Trout, Esq. Murphy, Taylor, Trout & Chestak, P.C. 1616 Walnut Street, Suite 1100 Philadelphia, PA 19103 Attorneys for Defendant, Wilshire Technologies, Inc. C. James Zeszutek, Esquire Thorpe, Reed & Armstrong One Riverfront Center Pittsburgh, PA 15222 Attorneys for Defendants, Cox-Uphoff, INAMED Corp., McGhan Medical Corp., and Minnesota Mining and Manufacturing Company Robert M. Britton, Esquire PGst & Schell, P.C. 1800 JFK Blvd., 19th Floor Philadelphia, PA 19103 Attorneys for Defendants, , 21' International Holdings, Inc.. and Scott Paper Company E. Michael Keating, III. Esquire Clark, Ladner, Fortenbaugh & Young 2100 One Commerce Square Philadelphia, PA 19103 Attorneys for Defendant, General Electric Company Cheryl M. Nicholson, Esquire Dunne, Haase, Sullivan, Mallon, Cherner & Broadt 216 S. Orange Street Media, PA 19063 Attorneys for Defendant, Applied Silicone Corp. Gilda L. Kramer, Esquire 1 500 Walnut Street Suite 1100 Philadelphia, PA 19102 Attorney fGr Defendant, McGhan Nusil Corp. Jeremy Mishkin, Esquire Montgomery. McCracken, Walker & Rhoads Three Parkway, 20th Floor Philadelphia, PA 19103 Attorneys for Defendants, Union Carbide Chemicals & Plastics Co., Inc. and Union Carbide Corp. James W. Saxton, Esquire Barley, Snyder, Senft & Cohen 126 King Street Lancaster, PA 17602 Attorneys for Defendant, York Hospital Holy Spirit Hospital 503 N. 21 st Street Camp Hill, PA 17011 Admiral Materials Corp. nfkla Mentor Polymer Technologies 5425 Hollister Avenue Santa Barbara, CA 93111 Richard Dabb, M.D. 50 Wyntrebrook Drive York. PA 17403 James A. Yates, M.D. Grandview Corporate Place 205 Grandview Avenue Camphlll, PA 17011 York Plastic Surgery Associates 50 WyntrebrGok Drive York, PA 17403 Plastic Surgery Center, Ltd. Grandview CorpGrate Place 205 Grandview Avenue Camp Hill, PA 17011 127ste -2- ,,- 3i~~~;:", ,~:i'~X_" !,f.,.,' <J~~~~' --.;ri~::rt,t~'\:T" '-. ,_'q '~'. _ .''-':'___;<::-:~':~<'7;':~''':7.~~~'i:;'~f~.~i~:t4fi~:a{}l'\~~~;;~~'~ . ' " ~~'~~a'i.'..",,~t. ' t."M; ',' , ';i'~; #_~".'.' "-'-'~"'-- -"'~~~ .' " :_~.-...~.. -~,_, ," ,__-,~.." .~~,~....,_~..-.._'1~~_;>''''''-1.,""""""",,~~~'"J. ~i!..~_~( -,;'\;. ..-,- JuL Z5 11 ..311I'9'1 " F1L1::0-0FFICE . Of 1HE I'ACiTIIOHOTAFtY , CUMBERLAND COUNTY PEKHSYl VAKIA , '.;-~'. ' . tJ.\:_: ~;',. " ~~_.'; ~<,,-,: ~'.-. .j: .- .~. >" f:~~~':: f:i' :-~~ ~ " .T:"7:'''-'::T;.~:~~ ".~.\:0~,'.J,' ~ :I" ,'~~: , , . " :" /" ' , " .' .. .' . , . '. II' -, ~I ~_-......_ " 'I A :~":;.. -~,..,,~ . . DUNN, HAASE. SULLIVAN, MALLON, CHERNER & BROADT BY: Cheryl M. Nicolson, Esquire Attorney 1.0. #57422 216 South Orange Street Hillhurst Media, Pennsylvania 19063 (215) 565-9600 Attorneys for Defendant, Applied Silicone Corporation JOSEPH M. YEYNA :COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PA . . vs. : ADMIRAL MATERIALS CORPORATION and APPLIED SILICONE CORPORATION, et al :NO. 94-2915 ENTRY OF APPEARANCE TO THE PROTHONOTARY'S OFFICE: Kindly enter our Appearance on behalf of Defendant, Applied Silicone Corporation, only, in the above- captioned matter. Defendant demands a jury trial with twelve (12) jurors and two (2) alternates. BY: DUNN, HAASE, SULLIVAN, MALLON, CHERNER & BR -1 I ,,JoJ ~ " DUNN, HAASE, SULLIVAN, MALLON, CHERNER , BROADT BY: cheryl M. Nicolson, Esquire Attorney I.D. #57422 216 South Orange Street Hillhurst Media, pennsylvania 19063 (215) 565-9600 Attorneys for Defendant, Applied Silicone corporation JOSEPH M. YEYNA :COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PA vs. . . ADMIRAL MATERIALS CORPORATION and APPLIED SILICONE CORPORATION, et al :NO. 94-2915 CERTIFICATION OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Entry of Appearance on behalf of Applied silicone corporation was served by First Class, U.S. Mail, postage pre-paid, on the date stated below, upon the following: SEE ATTACHED LIST DUNN, HAASE, SULLIVAN, MALLON, CHERNER , BROADT , , {j/ /i/2-- BY: Dated: 1'1& ill / I ~':~;f~:' .)Z;":_i,-., - ;": ,<~Fr>'<"-"""'-~-~ nif7!;lr~..;:,: ~...~..' ~';i ";-' , (~' ~~ <~ " .,. <~::'f t: -::1 ;-~.~:'~; ':\;4~" ,.r:-t l;' ,,',':1 -.~f-~"';;": ~...~,' n f'1: ''', :~ ii~: ~ b" ::4'~' ' ~~~} ......... ". -~: :!;. , ::~~;.~y:~~' :- ,; ~<~~ ~,."..,~\ ~, ,fC'\,", , ,J .tl:\~,~~ ::f".,~~~jJ .. .,t,',: l ,'_ :~: :.~: ,~,; ,:.\_.;'.-;t~;~,' - '." ic -'fl~"",.. '~~.~l .,;'".- :-."'~~., ,:':, ~,:,F:",~",,'.~,:.~:,~i.~."'Y ",.,-.."'-',~5' ,'- ~~..,. ,~'_ :i.!.l:;. "-,-<~.. ",1-:~ ",;'{'j,:;:!" 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"..,', :,~"'~;;' ;1~it~~;7~.;r;:'~'","':.-' ",,.,_,,~,,,, ,),"';_l".z~",'~-"""I.y",,,,)-T, ;~.~~,,;'_" <.;-';ttci~-~<Mi."" t- --, U;!..;\r',.~ .......l,..,r.;._'. ~J...iJo.;., 'l.'_~~'''~ ~.'.wt- <. ,,' ., "--."-,,,,,,0..''..', ~,.,.,""'~..~.'...,:.....,':;...,: .' '. <',~'~ --,.. __,....."""',_.....,'t '. .. , .,. ,,' ~~. ;.: ,'.:;'~ ~:" t1;.~~: ,> " .. ... -:< '~~ , , #,. ..',; ~ ;~'~ ?! .. J~ , " -::--';"j II' . ,.. " : ~, :.i:; ~"f ,..;: '1_; '.." ;l"'""" C'.',', '.'i :r-)- ~~ .' f' ,.~. 0"':1: :;::~:?,; c' ~ '..' ;.; ,~'l .~~ ':';- ,"- ...".:!."; ....'1 .,., I~> ,. / '..-; ,..; ..~~ '.' ..;.:;s: '," " ,'.'. h~ L..~,; .) C '> ~-, ': ... :1 f~ ,,>;..' .. I. ...'.'.l's., ,... . ' . ~ - ' 'j4it '~'St 1"-"'1 ,;~~:r -J.o(-- /~l I . " .~ - . , " " - . '. ':';"{~.>?f-.~~,, ,', ",('.-,, 'c" ... ... ,.;.0 -t' DUNN, HAASE, SULLIVAN. MALLON, CHERNER & BROAD'!' BY: Cheryl M. NicOlson, Esquire Attorney I.D. #57422 216 South orange Street Hillhurst Media, pennsylvania 19063 (215) 565-9600 Attorneys for Defendant, Applied Silicone corporation JOSEPH M. YEYNA :COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PA vs. : ADMIRAL MATERIALS CORPORATION and APPLIED SILICONE CORPORATION, et al :NO. 94-2915 DEFENDANT, APPLIED SILICONE CORPORATION'S, ANSWER TO PLAINTIFF'S SHORT FORM COMPLAINT WITH NEW MA'l"l'ER Answering Defendant, Applied Silicone corporation, by and through its counsel, DUNN, HAASE, SULLIVAN, MALLON, CHERNER & BROADT, P. C., hereby responds to the averments contained in Plaintiff's court approved Short Form Complaint by way of the following: GENERAL DENIAL Pursuant to Case Management Order Number 8, paragraph 4(a), Answering Defendant denies all factual allegations contained in Plaintiff's Complaint. DEFENDANT MANUFACTURERS AND RELATED COMPANIES Pursuant to Case Management Order Number 8 Paragraph 4(b), Answering Defendant responds as follows: Admitted in part; denied in part. Answering Defendant admits that it is a California Corporation with its principal place of business in California. Answering Defendant specifically denies all other allegations specifically stated in Plaintiff's Short Form Complaint or otherwise incorporated therein and further specifically denies that at any time it designed, manufactured, distributed, labeled, tested, packaged and/or sold breast implants. Answering Defendant further denies that any of the other parties to this action were its partner, agent or servant, or subject to Answering Defendant's control or right to control. On the contrary, all other parties were entirely independent of Answering Defendant. By way of further response, Applied Silicone Corporation is in the business of manufacturing and selling raw materials that may be used in the manufacture of silicone gel and silicone elastomer. These raw materials are supplied to purchasers in liquid form, either in glass or plastic bottles or in drums and are remanufactured and fabricated by the purchasers for their own applications. The only domestic United States manufacturers to whom Applied Silicone Corporation has sold raw materials for use in breast implants are Bioplasty Corporation/Bio Manufacturing, Mentor Corporation and Cox Uphoff Corporation. Supply of such raw materials to these manufacturers did not occur before September of 1988. Answering Defendant, Applied Silicone Corporation, further specifically denies that at any time relevant hereto, it manufactured, sold, or otherwise distributed raw materials to any of the Defendant manufacturers against whom Plaintiff alleges a cause of action herein resulting from Plaintiff's use of silicone breast implants. After reasonable investigation, Applied silicone corporation is without sufficient knowledge or information to form a belief as to whether any of its raw materials were used in the silicone breast implants allegedly used in Plaintiff's medical care. CASE SPECIFIC INFORMATION Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information with which to form a belief as to the truth of the averments contained herein. Therefore, said averments are denied, at issue and strict proof of same is demanded at the time of trial. CAUSE OF ACTION Denied. Plaintiff's averments contained herein state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of civil Procedure. Answering Defendant further specifically denies each and every claim contained in the causes of action identified herein as fully set forth in Plaintiff's Fourth Amended Complaint. CLAIMS AGAINST RELATED COMPANIES The averments contained in this paragraph of Plaintiff's Short Form Complaint do not pertain to Answering Defendant. Therefore, no response is required and said averments are deemed denied. EXPRESS WARRANTY CLAIMS Denied. Plaintiff has failed to properly raise an express warranty claim in its failure to provide along with Plaintiff's Short Form Complaint the written express warranty relied upon and/or a description of a specific oral warranty as described by Plaintiff, including the date on which such warranty was made, the person who made the warranty and the express terms of the warranty. Accordingly, it is specifically denied that plaintiff has adequately raised an express warranty claim sufficient to meet the requirements of the Court. ALTERNATIVE LIABILITY Denied. It is specifically denied that Plaintiff has properly raised an alternative liability claim in Plaintiff's Short Form Complaint. Accordingly, all averments contained herein are specifically denied. WHEREFORE, Answering Defendant, Applied Silicone Corporation, respectfully requests judgment be entered in its favor and against Plaintiff. NEW MATTER 1. Plaintiff's Complaint fails to state a claim or cause of action against Defendant, Applied Silicone corporation, upon which relief can be granted. 2. Plaintiff voluntarily and with full knowledge assumed any and all risks associated with the implantation of the subject breast implants. 3. All risks associated with the implantation of the subject breast implants would have and should have been explained to Plaintiff before the surgical procedures described in Plaintiff's Complaint. 4. Plaintiff consented to the implantation of the subject breast implants with full knowledge of any and all risks associated therewith. 5. The causes of action alleged in Plaintiff's Complaint are barred by the applicable rules, laws and regulations related thereto. 6. The causes of action alleged in Plaintiff's Complaint are barred under the Doctrine of Federal Preemption. 7. The damages or injuries, if any, sustained by Plaintiff, were not caused by the conduct of Answering Defendant. 8. Allor part of the injuries, damages and/or losses (if any) sustained by Plaintiff were a direct, proximate and sole result of such Plaintiff's physical and bodily condition on, prior to, and subsequent to events alleged in the complaint, and such Plaintiff is thus barred from any recovery in this action under the doctrine of no liability for an idiosyncratic reaction. 9. The acts and/or omissions of other individuals or entities over whom Answering Defendant had no control, constituted an intervening and superseding cause of the damages alleged to have been sustained by the Plaintiff. 10. Any acts and/or omissions on the part of Answering Defendant alleged to constitute negligence were not substantial causes or factors connected to or relating in any way to Plaintiff's alleged damages. 11. Answering Defendant denios that it was negligent in any manner whatsoever. Should it be determined to the contrary, then the negligence of Plaintiff or others was comparatively greater than that of Answering Defendant causing Plaintiff's claims to be barred and/or reduced pursuant to the Pennsylvania Comparative Negligence Act. 12. The injuries to plaintiff, if any, were proximately caused by the misuse, abuse, alteration and/or failure to properly maintain or care for the subject product by persons other than the Answering Defendant. 13. All raw materials manufactured by Answering Defendant alleged to be at issue herein were manufactured in conformity with the "state of the art" existing at the time of manufacture of such raw materials. 14. Answering Defendant avers that any product or material manufactured, sold and/or otherwise distributed by it was not manufactured, sold or otherwise distributed in a defective condition. 15. Applied Silicone corporation made no warranties of any kind, express or implied, or any representations of any nature whatsoever to Plaintiff herein. If any such warranties were made, whether express or implied, which Applied Silicone specifically denies, then Plaintiff failed to give timely notice of any breach thereof. 16. If it is established at the trial of this matter that any product manufactured, sold or otherwise distributed by Answering Defendant was implanted in Plaintiff in a defective condition, which is specifically denied, Answering Defendant avers that such product had undergone substantial change in condition after leaving the hands of Answering Defendant. 17. If Plaintiff was the recipient of manufactured, sold and/or otherwise distributed any product by Answering Defendant, such product was not the proximate cause of any damages or injuries alleged by Plaintiff. 18 Plaintiff's claims are barred by the applicable statute of Limitations. 19. If Answering Defendant provided raw materials to a manufacturer of implants, then Answering Defendant cannot be held liable to the Plaintiff pursuant to strict liability concepts set forth in the Restatement (Second) of Torts ~402A, because those silicone materials were changed or modified by others before they were used in the Plaintiff's medical care. 20. If Answering Defendant provided raw materials to a manufacturer of implants, then Answering Defendant was not in privity with the Plaintiff and extended no warranties, either express or implied, to her regarding its silicone materials. 21. If Answering Defendant supplied raw materials which have allegedly caused injury to the plaintiff (which casual connection Answering Defendant specifically denies), that silicone was supplied, if at all, to a sophisticated user and, therefore, Answering Defendant cannot be held legally responsible for any lack of information or misinformation provided to plaintiff by others. 22. Persons or entities other than Applied Silicone Corporation, by reason of the warnings and information given to them and their own experience and expertise, were sophisticated users of products supplied to them in bulk by Applied Silicone Corporation, and therefore had a separate and affirmative duty to warn of any alleged potential harmful effect from the use of breast implants made, in part, out of Applied Silicone corporation's products. The failure by each person or entity other than Applied silicone Corporation to discharge said duty to warn directly and proximately caused any and all damages and injuries complained of, if any. 23. plaintiff is precluded from recovery on the causes of actions alleged based upon the doctrine set forth in Comment ilK" of the Restatement (Second) of Torts, ~402A. 24. Plaintiff's Complaint fnils to state facts sufficient to constitute a cause of action against Defendant which would justify the imposition of punitive or exemplary damages under any applicable law. 25. The risks and complications attendant to the use of the subject breast implants, if any, were well known by the medical community, and Answering Defendant, Applied silicone, was not required to provide warnings or instructions with regard to those risks and complications. Further, any cause of action based on any alleged failure of Defendant, Applied Silicone, to provide sufficient warnings to Plaintiff is barred by the Learned Intermediary Doctrine. 26. To the extent that Plaintiff's breast implants may be subject to governmental regulation, they are so regulated by federal laws and statutes and the regulations of federal agencies. 27. Plaintiff's claims are preempted by the federal governmental statutes, standards and regulations applicable to medical device manufacturers and applicable to the design, testing, manufacturer, assembly and sale of medical devices and particularly, to silicone gel breast implants. 28. To the extent that punitive or exemplary damages are sought by Plaintiff, such claim for damages is barred by the Constitution of the Commonwealth of Pennsylvania and the Constitution of the united states. 29. Plaintiff has failed to give Answering Defendant, Applied silicone corporation, timely notice of any claimed breaches of warranty or other alleged defects. 30. To the extent that Plaintiff's expenses have been paid by collateral sources, Defendant, Applied silicone corporation, may be entitled to a set-off of any damages under applicable laws. 31. Answering Defendant, Applied Silicone corpor~tion, reserves its right to object to the venue of this action. 32. The Complaint fails to state with sufficient particularity the circumstances allegedly constituting fraud by Answering Defendant, Applied Silicone Corporation. 33. Any injuries alleged by Plaintiff were not caused by breast implants. 34. The Court in which Plaintiff has brought this action lacks personal jurisdiction over answering Defendant. 35. In the event the Plaintiff requests delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, answering Defendant hereby challenges the applicability and constitutionality of said Rule and places it at issue. WHEREFORE, answering Defendant, Applied Silicone Corporation, demands judgment be entered in its favor and against plaintiff and DUNN, HAASE, SULLIVAN, MALLON, CHERNER " BROADT BY: Cheryl M. Nicolson, Esquire Attorney I.D. #57422 216 South Orange street Hillhurst Media, Pennsylvania 19063 (215) 565-9600 Attorneys for Defendant, Applied Silicone corporation JOSEPH M. YEYNA :COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PA vs. . . . . ADMIRAL MATERIALS CORPORATION and APPLIED SILICONE CORPORATION, et al :NO. 94-2915 . . . . . . CERTIFICATION OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer of Applied Silicone corporation to Plaintiff's Short Form Complaint with New Matter was served by First Class, U.S. Mail, postage pre-paid, on the date stated below, upon the following: SEE ATTACHED LIST DUNN, HAASE, SULLIVAN, MALLON, CHERHER & BROADT BY: 0, I~)'-(/ CHER M. NICO , SQlJIRE Attar ey for Defendant ApplIed Silicone Corporation 1.0. #57422 Dated: 1,;/(/' (III / I Jamie L. Sheller, Esquire 1528 Walnut Street Third Floor Philadelphia, PA 19102 E. Michael Keating, III, Esquire Mary Ann piper, Esquire CLARK, LADNER, FORTENBAUGH & YOUNG One Commerce Square 2005 Market Street philadelphia, PA 19103 Robert S. Forster, Jr., Esquire KRUSEN, EVANS & BYRNE The Curtis Center 601 Walnut Street suite 1100 philadelphia, PA 19106-3393 Robert M. Britton, Esquire POST & SCHELL 1800 J.F.K. Boulevard philadelphia, PA 19103 Gordon S. Elkins, Esquire Donna M. Dever, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7098 stephen W. Trout, Esquire MURPHY, TAYLOR & TROUT, P.C. suite 1100 1616 Walnut Street Philadelphia, PA 19103 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORP, REED & ARMSTRONG One Riverfront Center Pittsburgh, pennsylvania 15222 Jeremy D. Mishkin, Esquire David MacMain, Esquire Kimberly H. Humes, Esquire MOMTGOMERY, McCRACKEN, WALKER & RHOADS Three parkway - 20th Floor Philadelphia, PA 19103 Allan H. starr, Esquire WHITE & WILLIAMS 1650 Market Street suite 1800 Philadelphia, PA 19103-7301 Peter J. Hoffman, Esquire Debra Schwaderer Dunne, Esquire McKISSOCK & HOFFMAN, P.C. 1700 Market Street suite 3000 Philadelphia, PA 19103 Gilda L. Kramer, Esquire 1500 Walnut Street Philadelphia, PA 19107 Huls America, Inc. 80 Centennial Avenue piscataway, NJ 08855-0456 Madeline Sherry, Esquire HECKER, BROWN & SHERRY 1700 Two Logan Square 18th & Arch sts. Philadelphia, PA 19103 Admiral Materials corp. 5425 Hollister Avenue Santa Barbara, CA 93111 Angelo L. scaricamazza, Jr. NAULTY, SCARICAMAZZA & McDEVITT One Penn Center suite 1600 1617 JFK Blvd. Philadelphia, PA 19103 James W. saxton, Esquire BARLEY, SNYDER, SENFT & COHEN 126 East King Street Lancaster, PA 17602-2832 Peter J. curry, Esquire THOMAS, THOMAS & HAFER 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 David kichman, Esquire Colleen F. Coonelly, Esquire PEPPER, HAMILTON & SCHEETZ 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103-2799 , . william J. Taylor TAYLOR & TAYLOR Ten Penn Center Plaza suite 811 1801 Marke~,Street Philadelphi~, PA 19103 John L. McGoldrick, Esquire McCARTER & ENGLISH Four Gateway Center 100 Mulberry Street P.O. Box 652 Newark, NJ 07101-0652 Rachel B. Eisner, Esquire Susan L. Oppenheimer, Esquire DECHERT, PRICE & RHOADS 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103-2793 AUS 08 1994 rLJv' WHITE AND WILLIAMS BY, ALLAN H. STARR, ESQUIRE NANCY L. SIEGEL, ESQUIRE IDENTIFICATION NO.: 04975/40926 One Liberty Place - Suite 1800 1650 Market Street Philadelphia, PA 19103 (215) 864-6219/6223 ATTORNEY FOR DEFENDANT, Holy Spirit Hospital JOSEPHINE M. YEYNA CUMBERLAND COUNTY COURT OF COMMON PLEAS vs. HOLY SPIRIT HOSPITAL, et ale No. 94-2915 ANSWER, NEW MATTER AND PRELIMINARY OBJECTIONS OP HOLY SPIRIT HOSPITAL TO PLAINTIPP'S SHORT PORM COMkLAINT Answering defendant is without personal knowledge concerning the identity of plaintiff except as set forth in the medical records; therefore, these allegations are denied and strict proof is demanded, if material. DEPENDANT MANUFACTURERS AND RELATED COMPANIES The allegations of this paragraph do not pertain to answering defendant and therefore no responsive pleading is required. DEPENDANT HEALTH CARE PROVIDERS Admitted that plaintiff has so alleged. CASE SPECIPIC INFORMATION Answering defendant is unable to admit or deny the accuracy of the implant information including, but not limited to, the identify of the manufacturers, the dates of surgery and the identity of the physicians since the medical records are not yet available for review by answering defendant and its counsel. 200B0413.NPS The allegations of agency and employment as contained herein are denied and strict proof thereof is demanded for the reason that said allegations are not specific enough to allow answering defendant to form a belief as to the truth thereof. It is specifically denied that co- defendants, Dr. Richard oabb or Dr. James A. Yates acted as the agent, servant or employee of answering defendant and to the contrary, it is averred that Ors. Oabb and Yates acted as independent contractors and made independent medical judgments in the care and treatment of the plaintiff. Answering defendant is without sufficient information to form a belief as to the truth of the allegations regarding the removal/rupture of the implants and the claims regarding disabling diseases; therefore, these claims are denied and strict proof is demanded. After reasonable investigation, answering defendant is without sufficient information to form a belief as to the truth of the averments concerning plaintiff's alleged injuries; therefore, same are denied and strict proof is demanded. Answering defendant denies that any act or omission on its part or on the part of its agents, servants or employees caused or contributed to the injuries allegedly sustained by plaintiff. CAUSE OF ACTION Count I - Not directed to answering defendant. Count III - Not directed to answering defendant. Count IV - Not directed to answering defendant. Count V - Not directed to answering defendant. 2008041) . NPS -2- Count VIII All allegations of negligence, carelessness and causation are denied and strict proof is demanded. Count IX - All allegations of negligence, carelessness and causation are denied and strict proof is demanded. It is further denied that answering defendant made any fraudulent or misleading statements as alleged and strict proof is demanded. Count X - Not directed to answering defendant. Count XIII - Denied. After reasonable investigation, answering defendant is without sufficient information to form a belief as to the truth of the averments concerning plaintiff's alleged injuries; therefore, same are denied and strict proof is demanded. Answering defendant denies all allegations of willful, wanton, outrageous or reckless conduct and strict proof thereof is demanded. It is further denied that any act or omission on its part or on the part of its agents, servants or employees caused or contributed to the injuries allegedly sustained by plaintiff. Count XIX - Not directed to answering defendant. CLAIMS AGAINST RELATED COMPANIES Not directed to answering defendant. WHEREFORE, defendant demands judgment against the plaintiff together with costs of this action and reasonable attorney's fees. NEW MATTER 1. Recovery of medical expenses paid by any third party, including an insurance carrier, is barred pursuant to Section 602 of the Health 200B041J,WP5 -3- Care Services Malpractice Act of 1975, as amended (Act of October 15, 1975, P.L. 390, No. 111 (40 P.S. Section 1301.602)). 2. Plaintiff's Complaint does not allege sufficient facts to support a claim for punitive damages. Plaintiff's Complaint, to the extent that it seeks punitive damages, violates defendant's rights to procedural due process under the Fourteenth Amendment of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania, and therefore fails to state a cause of action upon which punitive damages can be awarded. Plaintiff's Complaint, to the extent that it seeks punitive damages, violates the defendant's rights to protection from "excessive fines" as provided in the Eighth Amendment of the United States Constitution and Article I, Section 13 of the constitution of the Commonwealth of Pennsylvania, and violates defendant's rights to procedural and substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania, and therefore fails to state a cause of action supporting the punitive damages claimed. 3. Plaintiff has failed to state a cause of action upon which relief can be granted. 4. Nothing done or omitted to be done by answering defendant or its agents, servants or employees was the proximate cause of any harm to plaintiff. 5. Plaintiff's injuries, or some of them, were not proximately caused by implantation of the breast implants and/or their removal. 20080413 ,WPS -4- 6. Plaintiff's injuries may have been caused by third persons or parties over whom answering defendant exercised no control nor right of control. 7. Defendant incorporates by reference these affirmative defenses set forth in Case Management Order No.8. 8. If plaintiff has in the past or does in the future, settle some or all of her claims with third parties, the terms and provisions of the release of said claims is a bar to this action against answering defendant. PRELIMINARY OBJECTIONS I . AGENCY Plaintiff's Complaint fails to set forth with specificity those individuals alleged to be the agents, servants or employees of answering defendant. II. INJURIES Plaintiff's Complaint fails to specify which disabling diseases, as defined, the plaintiff-wife has, in fact, suffered, contrary to the intent of the Coordinating Court's prior Case Management Orders. WHITE AND WILLIAMS BY: a'ta~{~I-AI~- ALLAN H. STARR, ESQUIRE NANCY L. SIEGEL, ESQUIRE Attorney for Defendant, Holy Spirit Hospital 2008041J.WPS -5- "........;-..,. VERIFICATION I, Ellen Misiti, representative of defendant in the foregoing matter, hereby verifies that the facts contained in the foregoing Answer to Complaint are true and correct to the best of her knowledge, information and belief. The undersigned makes these statements subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. ~'-I1?A 1:, _{<>-<~ len Misiti DATED, 7 /205"/91./ . Yeyna v. Holy Spirit Hospital, et ale ,-)" '" ,4', "." :_,-~;, ,::+ ;;"~:" < <:',,; ,', .~~J1i~~::1V~-i(~~:~j;~~~~l~:t:t~~f~~~~?'i~' ...:!~". . \ 1 '. ~~_.~.l.,. ~ ,,""~.J-<\ ~~..~';l '- -' -~-......"-- , ~.UG a ~ 22 PH '9~ mEQ~omCE or THE P"vTIIONOTAr,V 'tUMBERLAIlD COUNTY , PENNSYLVANt4 ".~'.'.'-"~-'" --._-.,,~.- .... .- ----.-.--.,-.,..... " . ,'" I~ , , , ;.'-.~ .. . II' "" . 'I ....:.. ..~-' i" . f ~ DUNN, HAASE, SULLIVAN, MALLON, CHERNER Ii BROADT BY: cheryl M. Nicolson, Esquire Attorney 1.0. #57422 216 South Orange Street Hillhurst Media, pennsylvania 19063 (215) 565-9600 Attorneys for Defendant, Applied Silicone corporation JOSEPH M. YEYNA :COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PA vs. ADMIRAL MATERIALS CORPORATION and APPLIED SILICONE CORPORATION, et al :NO. 94-2915 . . . . WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Defendant, Applied Silicone Corporation, in the above captioned matter. DUNN, HAASE, SULLIVAN, MALLON, CHERNER Ii BROADT BY: ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Applied Silicone Corporation, in the above captioned matter. ~.~ h t.:",,'''.'i'''' ,,,,,,,~,-t - . I '-. , . I AUG 29 /2 29 PH '9~ , '1" Of . '.' 'let "I';..' _ .-' t;c~rf"ry .,. ;, ,r._';- A'I .".' ." f' U r.(\.,. ~ I_~ l-i~'" _ ~ -, "f I Y - .1 f l. ',:.~I.l . , , :.I( il j\ ;\ ,I " .) I, t . " .. . " . , . ,J II' .. ...,' . ~-: ,~"r~,. ,'~,' '" ,~,.#" ... . <j~~ , ~:"~';"i,:,j' ,,'_y;<,;~~lIl:'~L:J.....d-<~\"'::'-' ",':'.'i ~;..:.;:;' ' =~_;....:.,......,;.i.mm~ '~~ '1;";;;;;' ' jil,f..':", _".....__... _......~~"""!;<.,..,'...,t"'!"'<r;~ic"""~'-'~_-!"....<~"'!""-""'~"'.~l1_~~ SEP 6 2 50 rK '9'1 n '( ill.lr"ofFICE' ~ Of TIlE FhOlI10NOTt."Y CUMBERLANO COUNTY PENH:.YL"AH'A " ;'. , \ ':'.'~ '.': 2,..,,,-"";\~" '! ;":;. ~ ~ 1', . <~<,'":T:, --'< :~;,]:'".~iY~;1:';;~;{'~' ,''1''';':'"'''' \~_ -,,' ;, ! ,,~: '-.. ~ t 3':<1"~' ;",'.. "m - ,:~>"'';.':;-t;:;/_'~-'''~~"t "~~t";" "t~\~-'_:~~;,,~ ;_~~, ~;r~;-~_ .'. '- --,;,~,"'S?'? ~_,_, ';I; , 'f'., ! "", . ,,>- ,." >'i:<..".l ';:I':,.' ", " '. .. II' ~~..., 'a .;,-.-'-'"',:;..'.... "'.............. ~ 't', MONTGOMERY, MCCRACKEN, WALKER & RHOADS BY: JEREMY D. MISHKIN AND BRUCE H. BIKIN IDENTIFICATION NOS. 30017 AND 22126 THREE PARKWAY, 20TH FLOOR ATTORNEYS FOR DEFENDANTS, PHILADELPHIA, PA 19102 UNION CARBIDE CORPORATION AND (215) 665-7200 UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC., NOW KNOWN AS "UNION CARBIDE CORPORATION" JOSEPHINE M. YEYNA COURT OF COMMON PLEAS CUMBERLAND COUNTY . . v. : TERM ADMIRAL MATERIALS CORPORATION, et a1. NO. 94-2915 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance in the above-captioned matter on behalf of named defendants, Union Carbide corporation and Union Carbide Chemicals and Plastics Company Inc. (collectively "Union Carbide Corporation") who are now known as "Union Carbide corporation." MONTGOMERY, MCCRACKEN, WALKER & RHOADS Date: I cb/9c.J Attorneys for Defendant Union Carbide corporation and Union Carbide Chemicals and Plastics Company Inc., now known as "Union Carbide corporation" .... i .: "..,'.,:::.~>,:-:.-, ~.,--;i\4;'t~,'-I" ::"-~_: .>,' ':.' '" ....,'_......._.t~~...U~.,)lr;i,~:}l:::-kJ-:.flr~.....~l'J;~i . ,,,C': '_': _..' ..~~~:.~,~.~';{;q<':_,tt\!:;._'4,,:_~J ,c. -..'~il~',f- .,.......'.. .*.__.A.__.___-.___~"", OCT II 3 27 PH '9~ ~.. Jr'FlCE U' .1, ,ltHO~~7Ar.y GUI'Ci::,U,HO r.~UHn Pf~k~Y"'.:,"IA r, ....,.,..:<:..... :.:~,~ ".....,-: 0.,.;' ..... ; ..;.o.'.,":>',co" ,',., " - -"o;lJ "_ n i'r:OIi::l'] fi' - ".-"",._.~...,--" ,- '''T~ ..'.... ;;" .' "",,'11' ,~ . "", .; . . " !'..... , . . II' " . v--'" :~_. -::r en >->- ..... ., ". I-__;...t I..I'{"''-'" ~~, :;O:'~ ~..:r:_I;:':- > - I .' ...." ..,.~ , ~} ,., cry -1"'- .~; ~~~~ 'X '.;::> '- ~..:> 0' ,.. ~ u a: :r: (!l < ~t;;~ :::lW"O ~~~~ ~~~~ (!lCl~_ ~uq~c <i:S (!l l a: w (!l ...~= - GERMAN, GALLAGHER & MURTAGH By: Linda Porr Sweeney, Esquire Identification No,: 34811 Attorneys For Defendants, James A, Yates, M.D, and Plastic Surgery Center, Ltd. 40 East Grant Street Lancaster, Pennsylvania 17602 717/293-8070 JOSEPHINE M. YEYNA, CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, No.: 94-2915 vs. ADMIRAL MATERIALS CORPORATION. et al.. Defendants. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance in the above-captioned matter on bebalf of Defendants, James A. Yates, M.D. and Plastic Surgery Center. Ltd, GERMAN, GALLAGHER & MURTAGH Dated: November 3, 1994 By CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe for Entry of Appearance was served by first-class mail, postage prepaid, on the date set forth below, upon the following individuals: Jamie L. Sheller, Esquire Sheller, Ludwig & Badey 1528 Walnut Street, Suite 300 Philadelphia, PA 19102 Attorney for Pluinliff Admiral Materials Corporation nlkla Mentor Polymer Tech. clo Gary Mistlin - Mentor Corp, 5425 Hollister A venue Santa Barbara, CA 93111 Donna M. Dever, Esquire Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, P A 19103 Aesthetech Corporation, Bristol-Meyers Squibb & Co., Cooper Co., Inc., Cooper Surglcul, Inc., Medicul Engineering Corporation, Natural Y Surgical Specialties, Inc., and Slrod Corporation Gilda L Kramer. Esquire 1500 Walnut Street. Suite 1100 Philadelphia, PA 19102 Applied Silicone Corporation Baxter Healthcare Corporation 17201 Redhill Avenue Irvine. CA 92714 Baxter International, Inc, One Baxter Parkway Deerfield, IL 60015 Cox-Uphoff International 1160 Mark Avenue Carplnteria, CA 93013 2 Robert S. Forster. Esquire Krusen, Evans & Byrne The Curtis Center, Suite 1100 6th and Walnut Streets Philadelphia, PA 19106 Dow Corning Corporation, Dow Corning Wright Corporation M, Michael Keating, III, Esquire Clark, Ladner, Fortenbaugh & Young One Commerce Square, 2005 Market Street Philadelphia. PA 19103 General Electric Co. Inamed Corporation McGhan Medical Corporation 1035 Cindy Lane Caprinteria, CA 93013 McGhan Nusil Corporation 1055-B Cindy Lane Caprinteria, CA 93013 Surgitek, Inc, 3037 Mount Pleasant Street Racine, WI 53404 Minnesota Mining and Manufacturing Company, Inc. 3M Center St, Paul, MN 55144 Huls America, Inc. 80 Centennial A venue Piscataway, NJ 08855 Robert M. Britton. Esquire Post & Schell. P.C, 1800 JFK Boulevard, 19th Floor Philadelphia, PA 19103 21 International Holdings, Inc., Knoll International Holdings, Inc., Foamex Products, Inc., General Felt Industries, Inc., Scotfoam Corporation, and Scott Paper Company Jeremy 0, Mishkin, Esquire Bruce H. Bikin, Esquire Montgomery, McCracken. Walker & Rhoades 3 Parkway. Suite 2000 Philadelphia. PA 19102 Union Carbide Corporation and Union Carbide Chemicals & Plastics Company, Inc. 3 Stephen W. Trout, Esquire Murphy, Taylor & Trout, P,C. 1616 Walnut Street, Suite 1100 Philadelphia, PA 19103 Wilshire Technologies, Inc. John J, Snyder, Esquire McDonald & Snyder Two Penn Center Plaza, Suite 526 Philadelphia, PA 19102 Richard Dabb, M.D. nnd York Plnslic Surgery A.~socinle Allan H, Starr. Esquire White & Williams 1650 Market Street, Suite 1800 One Ubeny Place Philadelphia, PA 19103 Holy Spirit Ifospitnl Anne E. Doliner, Esquire Barley, Snyder, Senft & Cohen 126 East King Street Lancaster, P A 17602 York Hospitnl Dated: November 3, 1994 By: 4 , ", , - .... THOMAS. THOMAS & HAFER BY: Peter J. Curry, Esquire IDENTIFICATION NO,: 1 e822 Sarah W. Arosell, Esquire IDENTIFICATION NO.: 58797 305 North F,onl 51"" p,O, Box 999 H."i.bu,g, PA 17108,0999 17171255.7837 JOSEPHINE M. YEYNA, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2915 v. CIVIL ACTION - LAW BAXTER INTERNATIONAL INC., et ale , Defendants JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of the undersigned as attorneys for James A. Yates, M.D. and Plastic Surgery Center, Ltd. in the above matter. THOMAS, TH S' Street \ 17108-0999 Attorneys for Yates, M.D. Center, Ltd. Defendants, James A. and Plastic Surgery DATE: 1// 'fIf cc: All Counsel ." " 'i __:>::~~_:-~:,:~);;: :,~;':{}. ,<~: <.- '1;.f:,;":.~-.,},-~"":~)~.H" ..,r'l-" _T . ,"...l-.:.-'~'!;'-\- y ", ',',. .,t\ .r, .~.:j}' , T '_ ' . ...:... 'I . t ......",.,~..~~l,U..::.~"',.\,,; 1<(B ~~,. j-'",:;t'I'J.jr..,~~,e], -.-._._.~..-.:;.... .,-~-~..."- ~--,-.. ..~. . ~_.-' f 1 .. JAH II 12 ~7 PH '95 .P- vr ,. .',.: t.,~"lJffl('. . I r:~ t- r"', . '.. CUJoihER :'.~ d_CH';rt\~'r UE'I(INYJ'PP";~TY ..'1'-'1'.1 ;" - ",:,",''''-: " .r'. .... '<,' -'.'.' !,,"' . ,~' I " ':. -< /~ "':'>' ''1-( .,~. ,..,," ;"- ,,' ;", " 'j. i" .; ~. I 1 . ,'f ":1- .~ " ... ~ .','- t d"' " ;~.>~:~~::!t:,;. ,'- ",,' \i: ,;" ~;: ,,;,,- ;..:r: te~. · " .: .~"w -,,~' _ i,'" f' ',. . ;-,"-:'-",~-' , . I" .... .' ,. ,.'- . II' " ..:-:-- ,. .' , . . , II. DEFENDANT HEALTH CARE PROVIDERS Admitted that plaintiff has so alleged. III. CASE SPECIFIC INFORMATION The allegations concerning the insertion and/or removal of the implants are admitted based upon information contained in the medical records. By way of further response, Answering Defendants have reason to believe that they are not in possession of all plaintiff'S medical records. Accordingly, the above response is based upon medical records currently in the possession of Answering Defendants. The allegation of agency and employment as contained herein are denied and strict proof thereof is demanded for the reason that said allegations are not specific enough to allow Answering Defendants to form a belief as to the truth thereof. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of the averments concerning plaintiff'S alleged injuries; therefore, same are denied and strict proof is demanded. Answering Defendants deny that any conduct on their part caused or contributed to the injuries allegedly sustained by plaintiff. IV. INJURIES Answering Defendants are without sufficient information to form a belief as to the truth of the allegations regarding the claim of disabling diseases and strict proof is demanded. V. CAUSE OF ACTION Count I Not directed to Answering Defendants. Count III - Not directed to Answering DefendantB. Count IV Not directed to Answering Defendants. Count V Not directed to Answering Defendants. Count VIII - All allegations of negligence, carelessness and causation are denied and strict proof is demanded. Count IX All allegations of negligence, carelessness and causation are denied and strict proof is demanded. It is further denied that Answering Defendants made any fraudulent of misleading statements as alleged and strict proof is demanded. Count X Denied. All allegations pertaining to lack of informed consent against Answering Defendants are specifically denied and strict proof thereof is demanded. Count XII - Not applicable. Count XIII - Denied. Answering Defendants deny all allegations of willful, wanton, outrageous or reckless conduct and strict proof thereof is demanded. It is further denied that any act or omission on their part caused or contributed to the injuries allegedly sustained by plaintiff. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of the averments concerning plaintiff's alleged injuries; therefore, same are denied and strict proof is demanded. Count XIX - Not directed to Answering Defendants. VI. CLAIMS AGAINST RELATED COMPANIES Not directed to Answering Defendants. WHEREFORE, Answering Defendants demand that judgment be entered in their favor. NEW MATTER 1. Recovery of medical expenBes paid by any third party, including an insurance carrier, is barred pursuant to Section 602 of the Health Care Services Malpractice Act of 1975, as amended (Act of October 15, 1975, P.L. 390, No. 111 (40 P.S. Section 1301.602)) . 2. Plaintiff's Complaint does not allege sufficient facts to support a claim for punitive damages. Plaintiff's Complaint, to the extent that it seeks punitive damages, violates Answering Defendants' right to procedural due process under the Fourteenth Amendment of the United St.ates Constitution and the Constitution of the Commonwealth 'of Pennsylvania, and therefore fails to state a cause of action upon which punitive damages can be awarded. Plaintiff's Complaint, to the extent that it seeks punitive damages, violates the Defendants' rights to protection from "excessive fines" as provided in the Eighth Amendment of the United States Constitution and Article I, Section 13 of the Constitution of the Commonwealth of Pennsylvania, and violates Defendants' right to procedural and substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania, and therefore fails to state a cause of action supporting the punitive damages claimed. 3. If the plaintiff sustained injuries and damages, as alleged, said allegations being specifically denied, then said injuries were caused by the plaintiff and/or her agents or failure to exercise reasonable care, under the circumstances, and, therefore, the plaintiff's claims are entirely barred and/or reduced under the provisions of the Pennsylvania Comparative Negligence Statute, 42 Pa. C.S.A. Section 7102 et. seq. 4. Because Defendant disclosed all those facts, risks or alternatives that a reasonable person in the situation in which the Defendant knew to be that of the plaintiff would deem significant in making a decision to undergo the recommended treatment, the plaintiff consented to all procedures performed by the Defendant. S. Plaintiff has failed to state a cause of action upon which relief can be granted. 6. Nothing done or omitted to be done by Answering Defendants or its agents, servants or employees was the proximate cause of any harm to plaintiff. 7. Plaintiff's injuries, or some of them, were not proximately caused by implantation of the breast implants and/or their removal. 8. Plaintiff's injuries may have been caused by third persons or parties over whom Answering Defendants exercised no control nor right of control. 9. Defendants incorporate by reference these affirmative defenses set forth in Case Management Order No.8. 10. If plaintiff has in the past or does in the future, settle some or all of her claims with third parties, the terms and provisions of the release of said claims is a bar to thiB action against Answering Defendants. WHEREFORE, Answering Defendants demand that judgment be entered in their favor. PRELIMINARY OBJECTIONS I. INJURIES Plaintiff'B Complaint fails to specify which disabling diBeases, as defined, the plaintiff has, in fact, suffered, contrary to the intent of the Coordinating Court's prior Case Management Orders. Plaintiff's Complaint is in violation of the Coordinating Court's Memorandum and Order dated September 7, 1993, as well as Case Management Order No. B in that it fails to set forth the requisite facts sufficient to state a cause of action upon which relief can be granted. WHEREFORE, Answering Defendants demand that judgment be . entered in their favor. McDONALD & SNYDER, P.C. BY: 1h',1; , . ~~J 7U(..(;U.:/ JOHN J.ISNYDER, ESQUIRE KRISTEN A. MORRIS, ESQUIRE Attorneys for Defendants, Richard M. Dabb, M.D., and York Plastic Surgery Associates VERIFICATION KRISTEN A. MORRIS, ESQUIRE verifies that the statements set forth in the foregoing Answer, New Matter and Preliminary Objections are true and correct to the best of her knowledge, information and belief. This verification is made subject to the penal ties of 16 Pa. C. S.D. Section 4904 relating to unsworn falsification to the authorities. .:%udin Jl1MMAA.J; KRISTEN ~. MORRIS, ESQUIRE Attorneys for Defendants, Richard M. Dabb, M.D., and York Plastic Surgery Associates . McDONALD & SNYDER, P.C. BY: John J. Snyder, Esquire I .0. No.: 22751 BY: Kristen A. Morris, Esquire I .0. No.: 722 9 9 suite 526, Two Penn Center Plaza Philadelphia, PA 19102 (215) 972-7500 JOSEPHINE M. YEYNA vs. Richard M. Dabb, M.D., and YORK PLASTIC SURGERY ASSOCIATES, ET AL. Attorneys for Defendants, Richard M. Dabb, M.D. and York Plastic Surgery Assoc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 94-2915 CERTIFICATE OF SERVICE We, JOHN J. SNYDER, ESQUIRE and KRISTEN A. MORRIS, ESQUIRE, hereby certify that a true and correct copy of the Answer, New Matter and Preliminary Objections of Defendants, Richard M. Dabb, M.D. and York Plastic Surgery Associates, to Plaintiff's Short Form Complaint, in reference to the above-captioned forwarded on this '3()",/l day of JLU...,Mf"I- matter, was , 199./-' by way of United States First Class Mail, postage pre-paid, addressed as follows: Stephen A. Sheller, Esquire Leonard V. Fodera, Esquire SHELLER, LUDWIG & BADEY Third Floor 1528 Walnut Street Philadelphia, PA 19102 . Angelo L. Scaricamazza, Jr., Esquire NAULTY, SCARICAMAZZA & McDEVITT Suite 1600 One Penn Center 1617 JFK Boulevard Philadelphia, PA 19103 S. Gordon Elkins, Esquire Donna M. Dever, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7098 Robert S. Forster, Jr, Esquire KRUSEN EVANS & BYRNE Suite 1100 Curtis Center Independence Square West Sixth and Walnut Streets Philadelphia, PA 19106 E. Michael Keating, III, Esquire CLARK LADNER FORTENBAUGH & YOUNG One Commerce Square 2005 Market Street Philadelphia, PA 19103 Robert M. Britton, Esquire POST & SCHELL, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Jeremy Mishkin, Esquire Bruce Biken, Esquire MONTGOMERY, McCRACKEN, WALKER Be RHOADS Three Parkway Philadelphia, PA 19102 Joseph P. Hafer, Esquire Peter J. Curry, Esquire THOMAS, THOMAS Be HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Coopersurgical, Inc. Sixth Floor One Bridge Plaza North Fort Lee, NJ 07024-7502 Admiral Materials Corporation c/o Mentor Corporation 600 Pine Avenue Goleta, CA 93117 petrarch Systems, Inc. and Hula America, Inc. 80 Centennial Avenue Piscataway, NJ 08855-0546 Madeline M. Sherry, Esquire Lauren A. Stevens, Esquire 1700 Two Logan Square 18th and Arch Street Philadelphia, PA 19103 BY: C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORP, REED Be ARMSTRONG One Riverfront Center Pittsburgh, PA 15222 Gilda L. Kramer, Esquire Suite 1100 1500 Walnut Street Philadelphia, PA 19102 Arthur J. Murphy, Jr., Esquire Stephen W. Trout, Esquire MURPHY, TAYLOR Be TROUT Suite 1100 1616 Walnut Street Philadelphia, PA 19103 Allan H. Starr, Esquire WHITE AND WILLIAMS Suite 1800 One Liberty Place 1650 Market Street Philadelphia, PA 19103 Cox-Uphoff International 1035 Cindy Lane Carpinteria, CA 93013 Admiral Materials Corporation n/k/a Mentor Polymer Tech. 5425 Hollister Avenue Santa Barbara, CA 39111 James A. Yates, M.D. Grandview Corporate Place 205 Grandview Avenue Camp Hill, PA 17011 York Hospital 1001 South George Street York, PA 17405 McDONALD Be SNYDER, P.C. /!. / J f.,f.,,'/':'J ,;,r1\A,,,u.v' JOHN J ./ SNYDER, ESQUIRE KRISTEN A. MORRIS, ESQUIRE Attorney for Defendants, Richard M. Dabb, M.D., and York Plastic Surgery Associates <.., '-.". .-...... ',"', .;,;';;:t:~.q.t;;~ ':,;>:;;~~" ". ,", ,<"';;ii~i~{:.,::'i';.Y?i""iL~'t,.' " ; "~"-"".;._..,>".,.,...~"",~~~"1.l;..~,,,,,,,,'5'i...}J;;'~'1~"c" <,)~' '~'_:!i ~~!'f;; .~_n-i'-." Iii' ..-'-,.. "" . . . .ft'" . .'~ ." . ~-~ "\ ~:.....y: .' . __" ..U .........-'...... ........ i;. -/, 'JAH 12 8 112 AH '95 "i" ,...~. \;. ,", ~..;'}:;ftr~ Of,' :; ..,,' '''''~T''-Y r.l" . ,,'-I.'... 1\" ,"-' ~ . t:: :,!. ~, l~,."..II.Y ., '/' ~ ,.....,' ..,1 . 41 ~ .....Il.;~ , .~ l.. , . ',. O!\ 'J .J ,-1 ---'f . . *~'; --;'} . ...oj' .' ," . '1 ~, " II' . '" -," McDONALD & SNYDER, P.C. BY: John J. Snyder, Esquire 1.0. No.: 22751 BY: Kristen A. Morris, Esquire 1. D. No.: 72299 Suite 526, Two Penn Center Plaza Philadelphia, PA 19102 (215) 972-7500 Attorneys for Defendants, Richard M. Dabb, M.D. and York Plastic Surgery Assoc. JOSEPHINE M. YEYNA COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA vs. Richard M. Dabb, M.D., and YORK PLASTIC SURGERY ASSOCIATES, ET AL. NO. 94-2915 DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Defendants, Richard M. Dabb, M.D. and York Plastic Surgery Associates, by and through their undersigned counsel, demand a trial by jury of twelve (12) in the above-captioned matter. McDONALD & SNYDER, P.C. BY: 1iuJ;;y,!.h1w,vW4/ . KRISTEN/A. MORRIS, ESQUIRE JOHN J. SNYDER, ESQUIRE Attorney for Defendant Richard M. Dabb, M.D. and York Plastic Surgery Associates DATED: J.r.e ~x;, 117' . .\ \;.... h" "... .'-~ .~i:" K c !,. ;',' , [.' ~:,' ~ '-' ''--.. JAH 12 8 42 AM '95 u ~;, I' ~ '.' ~ fit: F " :.W'liI' I j.~; ~t':' ~ i l ;, I ~ f.' . .~':. " \. . t . I"" . t1 r " .. II' --, 'I. CERTIFICATE OF SERVICE KRISTEN A. MORRIS, ESQUIRE, counsel for defendant, hereby certifies that a true and correct copy of the attached Praecipe to Substitute Verification was served upon the following parties by First Class United States Mail: Stephen A. Sheller, Esquire Leonard V. Fodera, Esquire SHELLER, LUDWIG & BADEY Third Floor 1528 Walnut Street Philadelphia, PA 19102 Angelo L. Scaricamazza, Jr., Esquire NAULTY, SCARlCAMAZZA & McDEVITT Suite 1600 One Penn Center 1617 JFK Boulevard Philadelphia, PA 19103 E. Michael Keating, III, Esquire CLARK LADNER FORTENBAUGH & YOUNG One Commerce Square 2005 Market Street Philadelphia, PA 19103 Robert M. Britton, Esquire POST & SCHELL, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Jeremy Mishkin, Esquire Bruce Biken, Esquire MONTGOMERY, McCRACKEN, WALKER & RHOADS Three Parkway Philadelphia, PA 19102 Joseph P. Hafer, Esquire Peter J. Curry, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 S. Gordon Elkins, Esquire Donna M. Dever, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7098 Robert S. Forster, Jr, Esquire KRUSEN EVANS & BYRNE Suite 1100 Curtis Center Independence Square West Sixth and Walnut Streets Philadelphia, PA 19106 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORP, REED & ARMSTRONG One Riverfront Center Pittsburgh, PA 15222 Gilda L. Kramer, Esquire Suite 1100 1500 Walnut Street Philadelphia, PA 19102 Arthur J. Murphy, Jr., Esquire Stephen W. Trout, Esquire MURPHY, TAYLOR & TROUT Suite 1100 1616 Walnut Street Philadelphia, PA 19103 Allan H. Starr, Esquire WHITE AND WILLIAMS Suite 1800 One Liberty Place 1650 Market Street Philadelphia, PA 19103 ~ Coopersurgical, Inc. sixth Floor One Bridge Plaza North Fort Lee, NJ 07024-7502 Admiral Materials Corporation c/o Mentor Corporation 600 Pine Avenue Goleta, CA 93117 Cox-Uphoff International 1035 Cindy Lane Carpinteria, CA 93013 Admiral Materials Corporation n/k/a Mentor polymer Tech. 5425 Hollister Avenue Santa Barbara, CA 39111 Petrarch Systems, Inc. and Huls America, Inc. 80 Centennial Avenue piscataway, NJ 08855-0546 Madeline M. Sherry, Esquire Lauren A. Stevens, Esquire 1700 Two Logan Square 18th and Arch Street Philadelphia, PA 19103 James A. Yates, M.D. Grandview Corporate Place 205 Grandview Avenue Camp Hill, PA 17011 York Hospital 1001 South George Street York, PA 17405 /1/ . .::IlIA.!. " i/-'1 fi, t-do KRISTEN MORRIS, ESQUIRE Attorney for Defendant, Richard M. Dabb, M.D. DATED: February 8, 1995 .l::'_ - ' -~.. ,., - McDON^Ll> & SNYDER. P.C. PATRICK O. McDONALD JOHN J. SNVDER FREDERICK J. DeROSA KRISTEN A MORRIS. R N' SIMA ZOLOHADRI MICHAEL N CaRR' JANE H RING ATTORNEVS AT LAW SUIH S~(, TWU PENN CliNTER PI.AZA PI lIl.AllHPIIIA, PA IYIll~ (21 '\) ')71.1~(N) I:^X: (;!I)I'J72.71U(, NEW JERSEY O"ICE~ SUITE 201 112 WOODLAND AVENUE SOMER5 POINT. NJ 0124.. 1101' 153,1517 FA)h 1101' 153.1'''0 PLEASE RESPOND TO: PHILADELPHIA OFFICE CHRISTOPHER C. CONDON. JR. 0" COUNStL AU.O ""[""BtR NEW J[RtU:' f1AR February B, 1995 Clerk of Courts CUMBERLAND COUN~Y COUR~HOUSE Three South Hanover Street Carlisle, Pennsylvania 17013 RE: JOSEPHINE M. YEYNA vs. RICHARD M. DABB, M.D., et al. Our File Number : 15-456 Dear Sir/Madam: Enclosed please find an original and one (1) copy of the Praecipe to Substitute Verification with regard to the Answer, New Matter and Preliminary Objections filed on behalf of Defendant, Richard M. Dabb, M.D., with regard to the above. Kindly file the original of record and return the time-stamped copy in the provided postage paid envelope. Thank you. Very truly yours, t / ^ ') ,'" IC.. h'c_! KARL:l\DiCKERSON Legal Assistant to Kristen A. Morris, Esquire /kd Enc. cc: See Attached Counsel List OPPOSING COUNSEL LIST Stephen A. Sheller, Esquire Leonard V. Fodera, Esquire SHELLER, LUDWIG & BADEY Third Floor 1528 Walnut Street Philadelphia, PA 19102 Angelo L. Scaricamazza, Jr., Esquire NAULTY, SCARICAMAZZA & McDEVITT Suite 1600 One Penn Center 1617 JFK Boulevard Philadelphia, PA 19103 E. Michael Keating, III, Esquire CLARK LADNER FORTENDAUGH & YOUNG One Commerce Square 2005 Market Street Philadelphia, PA 19103 Robert M. Britton, Esquire POST & SCHELL, P.C. 19th Floor 1800 JFK Boulevard Philadelphia, PA 19103 Jeremy MiShkin, Esquire Bruce Biken, Esquire MONTGOMERY, McCRACKEN, WALKER & RHOADS Three Parkway Philadelphia, PA 19102 Joseph P. Hafer, Esquire Peter J. Curry, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Coopersurgical, Inc. Sixth Floor One Bridge Plaza North Fort Lee, NJ 07024-7502 S. Gordon Elkins, Esquire Donna M. Dever, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7098 Robert S. Forster, Jr, Esquire KRUSEN EVANS & BYRNE Suite 1100 Curtis Center Independence Square West Sixth and Walnut Streets Philadelphia, PA 19106 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORP, REED & ARMSTRONG One Riverfront Center Pittsburgh, PA 15222 Gilda L. Kramer, Esquire Suite llOO 1500 Walnut Street Philadelphia, PA 19102 Arthur J. Murphy, Jr., Esquire Stephen W. Trout, Esquire MURPHY, TAYLOR & TROUT Suite 1100 1616 Walnut Street Philadelphia, PA 19103 Allan H. Starr, Esquire WHITE AND WILLIAMS Suite 1800 One Liberty Place 1650 Market Street Philadelphia, PA 19103 Cox-Uphoff International 1035 Cindy Lane Carpinteria, CA 93013 ..-, SHELLER, LUDWIG & BADEY By: Jamie L. Sheller, Esquire Identification No. 55722 l528 Walnut Street - Third Floor Philadelphia, PA 19102 (215)546-5510 Attorney for Plaintiff ====================================================================== JOSEPHINE YEYNA COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 94-2915 DOW CORNING CORP., ET AL. AFFIDAVIT OF SERVTt"'H! IcOMMONWEALTH OF PENNSYLVANIA i as icOUNTY OF PHILADELPHIA II Jamie L. Sheller, Esquire hereby certifies that she forwarded l!a true and correct copy of the Plaintiff I s Short-Form Complaint on or Ii !iabout June 4, 1994 by certified mail, return receipt requested upon the 'following defendants: I , ji II I~DMIRAL MATERIALS CORPORATION n/k/a a Mentor Polymer Tech. ~425 Hollister Avenue Santa Barbara, CA 93111 '1,1 and ~STHETECH CORPORATION !I!I3003 Rollie Lakes Paso Robles, CA 93446 ,I i and II Ii Ii II LAW OFFICES SHELLER, LUDWIG. BADEV APPLIED SILICONE CORPORATION 320 West Stanley Avenue Ventura, CA CA 93001 and \BAXTER HEALTHCARE CORPORATION successor in intrest of Heyer - Schulte, American Hospital Supply Corp., American Heyer-Schulte Corporation, Travenol Labs, Inc. 1720l Redhill Avenue Irvine , CA 92714-5627 and BAXTER INTERNATIONAL, INC. One Baxter Parkway !Deerfield, IL 60015-4633 Ii and liTHE COOPER COMPANIES, INC ~ndividually and as successors ilin interest to Natural Y Surgical !specialties, Inc. and Aesthetech ilFomerly known as Coopervision, Inc. 1250 Park Avenue I' rew York, NY 10177 I' and if:OOPER SURGICAL, INC !~ wholly owned subsidiary of the ;Cooper Companies, Inc. , !250 Park Avenue i~ixth Floor ~ew York, NY 10177 I' ,I Ii and ibox-UPHOFF II . ,/k/a CUI Corporat10n il1160 Mark Avenue ~arpinteria, CA 92714-6228 i 'I II II and !I I, ,I Ii !: Ii d 'i LAW OFFICES I, SHELLER. LUDWIG' BADEY i I DOW CORNING CORPORATION 2200 West salzburg street Auburn, MI 48686 and DOW CORNING WRIGHT CORPORATION 5677 Airline Road P.O. Box 100 Arlington, TN 48686-0995 and GENERAL ELECTRIC CO. 3235 eEaston Turnpike Fairfield, CT 06431 and HULS AMERICAN, INC. iF/K/A Petrarach Systems, Inc. 180 Centennial Avenue riscataWay, NJ 08855--0546 I and IINAMED CORPORATION ijl035 Cindy Lane l[arPinteria, CA 93013 I and I cGHAN MEDICAL CORPORATION l~alifornia Corporation) and McGHAN i~EDICAL CORPORATION ( a Delaware !Corporation) l!l035 Cindy Lane iparpinteria, CA 92714-6228 I' lCG~n~SIL CORPORATION F/k/a Nusil Technologies ~16 Huntley Drive rest Hollywood, CA 90063 I, II II and II I' I II il LAW OFFICES !i SHELLER. LUDWIG. BAOEY YORK PLASTIC SURGERY ASSOCIATION 50 Wyntrebrook Drive York, PA 17403 and HOLY SPIRIT HOSPITAL 503 N. 21st Street Camp Hill, PA 17111 !I and iPLASTIC SURGERY CENTER LTD. Grandview Avenue Icorporate Place ,205 Grandview Avenue II Camp Hill, PA 17011 :1 d Ii an Ii :'JAMES YATES, M.D. liGRANDVIEW CORPORATE PLACE 'I 11205 Grandview Avenue iicamp Hill, PA 17011 I, and i: ,'RICHARD DABB, M.D. :150 Wyntrebrook Drive ',York, PA 17403 I, Ii ,I I' I: il , ii !!SWORN AND SUBSCRIBED .LTO 'I~EFORE ME ON THIS 14 rh i DAY OF MARCH, 1995 II I !~ IA a~ ~O~Icr SHELLER, LUDWIG & BADEY BY-:- Ja1-'vtM~/~ -"JAMIE L. SHELLER, ESQUIRE NOTARi.\L SEAL LEONA M DAUER Notal'( PubliC Cny of Phd,1dclt.:n,a PIIII,) Caun!)' M Commr::.!o...)(' (:" 'E:::'~~~_~~.1.I3. 1998 LAW OFFICES SHELLER. LUDWIG" BADEY , '. '. ..... " " ' ,-:,." '.". .' , ' , .:...... ... ~ .. ~ II > l!! II -5 g ... II - II ., 'l5. : ~ Admiral Materials Cb1"poration ell nlkla ~lentor Polymer Tech, III clo Gary Mistlin . Mcntor Corp. l!i 5425 Hollister Avenue ~ Santa Barbara, CA 93111 I 5. Slgn.ture IAddr.....1 m 6. Slgn.ture lAg.ntl SENDER: . Complet. Itlm. 1 .nd/Ot 2 101 .ddition.l ..,."Ic:... . Complet. items 3. and 41 6 b. . Print 'tOUt n.me and add'... on the ,.y.". or thi. fOlm 10 thai WI c:.n ,.rum thit card 10 you. . Atuc;h thi. form to thl front 01 1M mlilpilce. alan lhe blCk if .plce do.. not pennit. . Writ. "Return R.Clipt R.queltld" onthl mlilpleC:1 tMlow IhI,rtle:'- numtMI . The Rlturn ReClipt will thow to whom thI .rtlell WII dllly",d Ind the dltl d,livI"d. I alIa wish to receive the following lervlc.. Itor an extra f..I: 1. 0 Add'....... Addrll. 2. 0 R..trlct.d O.liv.ry Consult oatm..te, for tee. 11.2 4b, Servlc. Typ. o R.gi.ter.d 0 In.ured l;;i{ C.rtlli.d 0 COO b' Exprell M.II 0 R.turn R.c.ipt for 1. 0.1. 01 O.lIv,ry 6. Addre...... Addre.. IOnly II requ..t.d .nd I.. I. p.ldl ~ ':s ".0 ,~ ,; PS Form ,-.. ".~_._.__.__._. .--. ---.------ DOMESTIC RETURN RECEIPT Ii ,.. I~ II " ! II -5 ~ SE DER: . Complll' it.m. 1 and/of 2 for .ddtdontl leMe... . Compllt. it.m. 3. and 4. . b. . Print your n.me .nd ,del,... on thlI NY"" of thi, lorm 10 tNt w. can r'turn thI. (I,d to you. . Anaeft tN, form to the front of the m.i1pl.c., Of on the b.ck If SPIC' doe. not permit. . Write "A.tum Rec.ipt Reque.t.d" on ttM m,iJpiec. below the .rticS. number . The R.tum R'Clipt will.how to whom the .,dele WI' dlllv.r.d ,nd the date d.lI".,~. I It.O wish to recelvl the following IINle.. (for an Ixtr. ,..1: 1. 0 Add........ Add'... 2. Aesthetech 2317 Eaton Racine, WI corporation Lane 53404-1725 I~ 4b. S.rvlc. Type o R.gl.t.red 0 In.ured o C.rtlli.d 0 COD o Expre.. M.II 0 R.turn R.c.ipt lor n i 1. Oat. 01 O.Uv.ry . ~15. ; ~6. , !l o >- .! Slgn.ture IAddr.....1 8. Addressee's Addres. (Only if requested .nd f.. I. p.ldl .J~ ..u.s.0I'0: '.........7'. DOMESTIC RETURN RECEIPT ... II '31 :.. ~ II > l!! II -5 c o ... II i E B ell ell W II: Q Q C I 5. Slgn.ture lAdd......1 ~ ~s ~ :s o >- ,.!! SENDER: . Compl't. l1.m. 1 Indlor 2 fOf addition.1 ,.,...lc... . Compl.t. h.m. 3. and 4. . b. . Ptlnt your n'lM and .ddr... on the rev.,.. 01 tNs fonn 10 that w. Cln "tum this Clnt to you. . Anech this form to the front of thl mlllpitc:e, or on thl b.ck if SpIC. doee not perrntt. . Writ. "R.tum R.ceiPt Reque.ted" on the m.ilptece below the article number . The Retum Receipt will .how to whom the erticle WII delivered Ind the dll' ~. I alia wish to receive the following lervices (for In extra f..I: ,. 0 Add........ Addre.. 2. 0 R..trict.d O.lIv.ry Conlult Ollm..ter for fee. I. Nu be~ J 2.l,p 4b, S.rvic. Typ. o R.gist.r.d ~C'''III'd o Exp.... M.i1 Applied Silicone Corporatior c/o R. Alastair Winn 320 Wcst Stanley Avcnue Ventura, CA 93001 o In.u..d o COD o Return Receipt for M r h n Ie 7, Date of Delivery J. s, 1tMriQuestec DOMESTIC RETURN RECEIPT jlnnAFAA ...nm""'I~d on th. r.v.... .Id.l Z~::.Q.(') "'on:;o ~ "" 0 OJ OJ "...."" ...,S'~o~ ~~::l::r.., .. <~=C/) OJ... C Z'< ~ r- ... '- 'v' (J'Q (') -. ogm::g --..J_=n:- _r:q:..O_ 0....., fj;'o::s ~_:rc:r ~- ... -0 .". :c ;,;. "':: . c if ... ... '< 5!l )> Q, Q, ii .. .. .. !!. !l:' .<:: 5. ... '" !" ~~ Q,Q, ;:"G; ..: ..: 'g .~ ~~ Q, ii .. .. o :> '< :-' o'Ji?o~ ::~~i'cn ii~~ce.G t..!; ~ S. !!. .. S. ~ II .. Q,-< < " .. - ii .0 " .. .. ;; Q, h.nk you for u.lng :; .. " 8. ~~ifiil~~~ l... il~!;- He i fl- ;; ~HI!ll "5::hn" I'" !!2!~ Ii i~lll rl [ h~ l1l!, !!. !!"~ h l 1 i 11 l i [ i1 l ~ i .!" i - . : f B i !" U 1 f 11 l ~ ! r h l H j ; !" i'9:_ ~~O ~ !!. -, .. ~ 0 : ~. S,!;. n .. - .. 0 o 0 il' )> ~ 8: ii" i 3: .. - :: c--i~ ;: ~i~ ~ . '< .. .. .. 0'; ~ n ~ ~, .. .. M - ~:;. .. .. R.turn R.c.lpt S.rvlc.. ro- · SENDER: i . Com~'l' itJm, 1 andIOf 2 'Of addition,1 ..me... i . Complete II.m. 3. and 4a . b. . Print you, n.me .nd addr... on thl "YI'" of IN. lorm 10 that WI Cln rerum tht. Clrd to you. ! . Attach thl. 'onn to thI Iront or the mlilpilce. or on the back ,r 'PI" doe, not pennll. .! . Writ. "RlturnRKlttPtRequelled"'onthemtil__beilowthe.rticlenumbe;t .. . TM R.tum R.clipt will thow 10 whom lhe .me" ow.. d.Uvlt.d Ind the dill g dellwrlNl. ... . i. E II Baxter Healthcare Corporation One Baxter Parkway Deerfield. IL 60015-4633 5. Slgn.lu" (Add"....1 I Ilso wi.h to receive the following service. (for In extra t..I: 1, 0 Add"...... Add,... 2. 0 R..trlcl.d D.liv.ry Con.ult a,lmllte, 'or fee. y cl.N b~'2l J21 4b. Service Type o R.gi.ter.d 'i2l C.rtili.d t:l Exp".. M.II 7. 0.,.01 D.llv. b S, Add"...... Add".. (On .nd t.. I. p.ldl o In.ur.d o COD o Rllum Rec.lpl lor I !I 6. Slgn.tu" (Ag.n~ o ,.. P5 Form .D.c.mber 1991 .u.l.OPO:I--.....114 DOMESTIC RETURN RECEIPT .l! ENDER: . Complttl Itlm. 1 "/01 2 lor Iddlt6oNl1 Hrvieft. . ComP'-'1 It."" 3. and ~ . b. . Print your name .nd add,... on the tI.,.,.. of tNI form 10 thet WI Cln retum this Cltd to you. . Aruth tN. form to the front of the mill... or on the blck If .pIC, doe. not permit. . Writ. "R,tum Receipt Aeque,,~' on the fNilpiKe btlow the attic" numblr . The Altum AKljpt *'iI.how 10 whom me Irtk.. WI' dlliv,rld Ind lhe dltl delNlf,d. .... · SENDER: I . Comple't Ill"" , andlOf 2 for addilional HMC". . Complttl itlm. 3. and 4. . b. ! . Print your n.me and add,... on the rev.,.. of tN, 'orm 10 tMI w, Cln . rttum this Clrd to you. > . Attlich thl, lonn to the Iront of lhe m.llp~c.. or on the b.ck It .pICI ! doe. not ptrmit. . ~ . Wrtt, "Rltum Rtc.ipt R'Qu..t.d" on the mlilptlln below tht .niel. numbef -= . The Return R.UIPl wi. thow 10 whom lhe .rtic'- w.. d.Nv,fed and the dl" g d.h.fed. 1 The Cooper Companies. Inc 1 c/o John L McGoldrick. Esq, II McCarter & English ~ 4 Gateway Center. 100 Mulberry 5t l!i Newark. NJ 07102-4096 ~ ~5. i6. !I o ~ PS Form .!! ro- . :!l . . I! . > ! . -5 c o i i ~ II, u. .. 0: C C Cl ~ 5, Slgn,'u" IAdd"....1 ~6. ~ .; PS Form Baxter Healthcare Corporation One Baxter Parkway Deerfield. IL 60015-4633 .-- I IlIa wllh to recllv. the following IIrvlcl' (for In Ixtr. loel: 1. 0 Add"...... Add".. 2. ~ o In.ured o COD o R.lUm Recolpt lor M 7. Oatl of GJvey 8. Addressee's Address I .nd f.. I. p.ldl DOMESTIC RETURN RECEIPT I also wish to recelvl the following service. (for an extr. f..I: 1. 0 Add"...... Add".. 2. 0 R..,riclld D.IIv.ry Consult ostmast., for f.l. u r , . S.rvicI Type o R.gi.ler.d 0 In.ured C.rtlli.d 0 COD Exp".. M.il 0 ~'Iurn R~.lpl lor 7, 0.1. ot D.IiV.'JuM, e 18114 8, Add"...... Add"u (Only If "qu..I.c .nd I.. i. p.idl .v.s. GPO: 1113-452.714 DOMESTIC RETURN RECElPl CDl> ~c. c.c. ;-j; '"~ ~ -,'" ~.. " . CD~ -'l> !:c. c. ;;; ~~ completed on the rever.e .lde? It. . Ii-'; . . '(I) Co> fid>Hnnm l:o~~hl-n~ ~ :011- __m:a . it" .. , li~H~ H" 1\ ~H ii Ii - i.~ i ....... ... :.- 11 ~ !!. ~!"~ h i i I i1 t ! I it . ~ i . st i : : f ~ . . to' - ~ Ii i i H j ; .,,~\HCl~ ~' ~.l.;Jcg ~ 8: ~[T1Vt~ g = ~ t'T1::"(J) ~ F- ~ m==- e o-~ q :>n< n", -j:;" c -. ... n :>n '"3.0 "'3 n":l OJ :> '< o 0- .. \H - !" :-' O);(o~ cmn:Dcn ClI ~ .. .z at CD iii a.Ii,;! o ~ ::'I --. _tlI!';Q ~ ~ a..... <'!: ~ .. .. -< 000 ~:D n :i' Ill! 0 CIlI ""C 0 c : 3 !. -=Il .. ;'~. '2 ~ - ;;; D c: .. ~ .. c. Thenk you for u.lng !" mOO :-- ~o ~ !!. 5' !l '" ~ ~. ~. ; n .. - ~ 0 o l> c. ~ .. ~ ~ .. .. ..' l> c. c. ;;; .. .. oiii ~ n CD ~. ~ < .. .. M _ :::T CD .. ~ o " .. .. 3 ~ 1: tj' i i -0 5! !!. - <' .. CD !' -< - Return R.c.lpt Service. :-C~;;I;;"jltm. 1 Indlor 4: tOf additlonsl"Nic... . Compte'l 111m. 3. Ind oC. I b. . Print your R.me ,nd ,dd,... on IN rIVI,.1 of this fo.m 10 IMt WI Cln r.tum thl. card to you. . An.ch this form to tM '"M1 or the mlilpllcl. Of on the blck it IPICI do.. not permit. . Writ, "R'tum RIClipt Requ.ltlld" on the m.il~c. below the .rt~l. number. . The Rllum Reclipt WI" thOw to whom the .rticl, w.. cMllv.red and the dati ,..110_ I also WISn to receive the following services Hor an exUe f..): 1. 0 Addressee's Addre.. :sl " i .. .. ~ .. il c: o ... .. ~ .. Q, E II I '" ~ 5. Slgn.tu,. lAdd'.....1 ~ 6. Slgn.tur. IAg.ntL:.I \ ~ " o >- PS Form :! 2, 0 R..trlct.d D.llv.ry Consult cstmaster for fee. ~.r~ II CUI Corporation c/o L. Richard Rawls, Es Palmieri Tyler Wiener. ~a' 26113 Main Street, Suit il Irvine. CA 92714--62 8; :J Insured o COD o R.turn R.c.lpt 10' M r n I of Oelivery ~ ' r ....s Address IOnly If requested ,9" I. p.ldl " /, ,*U.S.OPO: 1113-352-714 DOMESTIC RETURN RECEIPT . December 1991 ... .. SENDER: =B . Compltll it.m. 1 .nd/or 2 for addition.1 IIrvlc:... . . Comptet. It.ml 3. .nd 4. . b. f! . Print your n.me .nd addr... on tM r.v.,.. of thi. form 10 that w. Cln . r.lUm WI c.rd to you. ~ . An.ch ttlll form to the front olth. m.ilpi.c.. or on the b.ck If IpIC. .. dOli not permil. J . Writ. "R.lUm R.c.ipt R.qulltld" on thl mailplae:. below the Irtlel. number ... . The R.lUm Rae.lpt will lhow to whom IhI.rtiel. Wit d.llv.r.d.nd ttl. dll' d.liv.r.d. 3" I alIa wllh to receive thl following servlcel (for an extra leel: 1. 0 Addr....... Addr... 2, 0 R..trlcted D.llvery Consult ostmaster for fel. c: o ... .. ~ .. i5. E II 1Il 1Il w III C C '" ~ 5. ::l ti 0: 6. ~ " o ; PS Form 48686-0995 4P~1& 221 4b. Service Type o R.gl.t.r.d 0 In.u,.d C.rtlfl.d 0 COD o Expr... M.II 0 R.tu,n R.c.lpt for M r h ndi 7. Oat. 01 D.llv.ry r'\I ~ -;;- ,'M" If l"\ i.4'l':' 8. Addressee's Address .COnly If requested and f.. I. p.ldl U(p Gregory G. Thiess, Esquire Litigation Claims & Labor 10w Corning Corporation ':) 1222 dland, MI .u.s.Opo:,~1'4 DOMESTIC RETURN RECEIPT ... .. SENDER: ~ . Compl.1I it.ms 1 Ind/or 2 fo' additional liMe... e . Compl"l hfms 3. .nd ol. & b. r! . Prin, your n.me .nd .ddr... on ttl. r.v.r.. 01 this form 10 that w. c.n G r.lUm ttus card to you. ~ . An.ctl,Ns lorm to the fron' of ttle m.ilpl.c.. or on Ih. b.ek if Iple. .. do.. not permit. .I . Wri,,"R.lUmRfc.lpIRequeltlduonthlmlilpilc.bllowthe.rtlcl.number. 2. 0 Restricted Ollivery - . The R.tum Rec.lp' win lhow '0 whom the .rtlcl. Wit delivered .nd thl d.1I I I C d"IiV.M. Consult Oltmastar or ee. i D~~ Corning Wright f"~lF- ~'2-1 is Gregory G. Thiess, Esquire b. Servlc. Typ. , Litigation Claims & Labor J R.gl.t.'.d;:~ Oln.ur.d . Dow corning Corporation 011 Canili.d ',' 0 COD , , CO 1222 tJ Expreaa Mall 0 R.turn R.cl1pt 10' ~ Merchandise . Midland, MI 48686-0995 7, Oat. al,p,.lIverv ~ dlJIi ~ ~ !~;:<, I 5. Slgn.tur. lAddr.....1 8, Add'....... Add'... 10nly il ,.quest.d ~ and fee is paid) III 6. 51 I also wish to receivI the following servlcls (for an extra la.l: ,. 0 Add'....... Add,... 115 ~ " o >- PS Form :! OU.l,GPO:,___.714 DOMESTIC RETURN RECEIPT !" completed on the reve..e aide? t. . 9-'; . '-(1) folf~d.~innm j!.~!:~h;1H~ z ~hu~ ..;zl . h~HHr u -H"~ i! i'l!l Ii - i:~ i" ! .... ;; 3. !l. ~!"~ h l i 1 ii t 3 [ H ~ ~ i I. R 7 . : I ~ :. ' Ii ~ ! Ii ~ ~ HI; n....:z: 3:3: Plot: eno 11 l,f, Ul n I-' Gl '0 \)1....0 ....::r .... I I-' 11 Ul PI ::s Cl '0 Ul ::s rt' ..,OPl ennenl1 :z: 11 .... 0 PI c., t: ....::s ::r rt'. Ul PI Q.::s en .... -'<0 "31-' I-'nPl nt"OOUln )oPl\Ot:UlO ::s,<::senl1 en Ul rt''O \0 enrt'o u ........ t1 o PI .... Hlt'lrt' w 0 Ul.... 11,c0 ::s :" o)lo!" c mn:D Ql )C ell ~ en m :! ~ _.~ : :; ~ s. 2. " & !! S ~ 3.... ~ ~ " !" ig- :-- ':':" 0 If !!. ~. ~ I: ~. S. ! n " ~ ~ 0 o :D " ~ :: n' :; 0. C ~ o l> 0. 0. ;; ~ ~ .. " .. l> 0. 0. ;; ~ ~ o ~ -< 000 ~:u n 5' o! 0 ~ n S C ... ~:) ! "" 0." :'~. 1a 2' 0"; - n .. 9. ~ < " " " - :: "" .. " - .. .0 C " ~ :; 0. Thank you for u.lng Return Receipt Service. ,.. ~ ENDER: ~ . Complete itlm. 1 end/Of 2 for .ddihon.1 "IVie... · . Complet. Itlm. 3. ,nd .a. . b. ! . P,lnl your name and addr... on 1M 'IV"" 01 this lorm 10 thai WI 'In . 'Iturn this Clrd 10 you. > . An.eh thi, fonn to 1M front of 1M mlllpieCI. or on Ii'll b.ck If IPICI e ~. not permit. J . Wntl "Rlturn Recllpt R,qUllted" on the madpieCl be60w the articl, number .. . The Altum Receipt WId ahow 10 whom thlarttele WII deliv,r,d.nd the dill deliver,d. I 1110 wish to receive the following Ilrvices lto, an I"t,e f..): 1. 0 Addr....... Addr... 2. 0 R..tricted D.liv.ry Conlult ostmeltl' fa, fee. c o ... II -i E II en en w a: Q Q c( il! 5. Sign.tur. IAddr.....1 ~ a: 6. !I o >0 PS Fo,m .!l , ~~~ ~--zJ 101 Huls America. Inc. f/k/a Petrarch Systems KlI Centennial Avenue Piscataway. NJ OK855-0~ 4b. Service Typr... P R.gl.t.r.d '. ~ ~ In.ur.d ~C.rtified 0 COD o Expr... M.i1 0 Return R.c.ipt for M , h n . 7. D.te ol,D.liv.ry 8. ,.. II Jl I II I ~ i ~ I!! I~ I;; I 0 'C C ~ e 5 It It u. a C C Cl ~ 5. Signatu,e (Addressee) ::I .....". tu a: 6. Sign.tur. IAg.ntl ~ :l o >0 PS Fo,m .!l SE DER: . Compl..e Iteml 1 .nd/or 2 for .ddIUon.1 ,.nriCe,. . Compl.u It.rns 3, and oS. . b. . Ptint your neme .nd addre.. on lhe fey.r,e a. Ihi, 'orm '0 Ih.t we e.n rlturn ltu, card to you. . An.eh lhi, 'arm to lhe 'ront of thl m.il~ee, or on the b.ck II ,peel do.. not permit. . Wtill "Rlturn Receipt Reque'ted" on the mtilpiecI below Ihe .rticl. number . ThI R.tum Receipt will ,how to whom the .rtlCII Wit d.livered .nd the dll' d.llyered. I Ilia wish to ,eclive the following Ilrvlces (fa, an e"t,a f..): 1. 0 Addre...... Address 2. 0 R..trlct.d D.liv.ry Consult Oltmalte, fa, fee. c N Inamed Corporation c/o L. Richard Rawls. Esquire Palmieri Tyler Wiener. et al. 2605 Main Street. Suite 1300 Irvine. CA 92714-622K /:" ..' .. ' . '. " '" . D.c.mb.r 1991 ,.. I II SENDER: I ~ . Compllle 111m' 1 .nd/or 2 lor .ddltion.1 1I",ICII. i . . Complete 111m, 3. .nd oSe . b. !! . Print your nem. Ind eddr.., on thl rlVlr.. 01 tN, form '0 thai w. c.n G r.turn thl, clfd to you. = . An.ch this form to the front olthl m.ilpilcl, or on thl b.ck if Sp.CI ... do.. nOI permit. .! . Wrill "Rlturn Rlcllpt Requested" on thl m.ilotKl below thla"icll number ... . Thl Rllum RIClipt will.how to whom lhe articl. WII d.liverld .nd th. d.11 a !!!IiV"ld. ... II -i E o u en en w a: Q Q c( il! 5, Slgn.ture (Addre....) ;:) I also wish to ,eceive the following servicls (fa, an ext,a f..): ,. 0 Add,slI"'s Add,ass l 2, 1/2 McGha~ .Me'~ical Corporation c/o, ' i<.ichard Rawls Esquire ,;'umieri Tyler Wiene;. el al. 26U5 Main Street. Suite 1300.....:J, Irvine. CA 92714-622K /..' t.' o In.ured DCOD o Return Receipt fa, M ,ch n i ;I D.t. 01 D.liv.ry -;; dd,elsee's Address IOnly if ,equestec d fee il paid I a: 6, Sign.ture IAg.ntl ~ " o ,.. PS Form . D.c.mber 1991 .!l *u.s.QPO: 1M3-352-1t4 DOMESTIC RETURN RECEIPT :..,., ); a. a. ;; w w .. ~ \J>J LI .. 0"1'1'-'" COOO... .....01': ... Ul ::l n <n lllH ........'"'3 '1 ::l .......0....... ....... Co 'Ill IllNCo>'1 ... m .:s ::lll'> III :>: Ul :I: .... >< :I: III .... 'tl1ll::lO ...'< "'::l ol"llltrllllll ON C ....... "'1ll'1::l o ::l-:I: tv 0 t'l... UlCo .g .... ::l \Q Ul ~~[;i;;';'~ '3 ~'I~.Z ~:~S!..rli~ ~.~;;n~.;:zl it i! .. ~ :I :::;'.... ;;~o~!~~ a_l30I:.. --3 a2&~- !.. -' . & H' ~ ~~~ i! ~ ::.~ a ~ 2. 8!"~ ~. i ~ ! ~g "_ ii ! i [ !f ~' : : ~ . !' 2. A- I SI : H g i . f! i f i! i S H ~ l i ~ ! ! ir . ! i'g- =- :":" 0 ~ !!. ~! I!. S, ~ n .. ~ w 0 o )> a. a. ;; w w .. .. _ __ fA- 0' ; )> . n i ~ f:! ; i " ..::;0 S- a. .. , nk you for u.lng Return Receipt Service. I . "._---____ __ . __.oJ completed on the rever.e .lde? lit. . i- . ; . . . Cf.l :'....~!.e."nnm ,!' 3, ~,. 3~' ~ ~ Z :!.~'.-h;n~ ~~iz.~..:a 3S~.~',.,... i.i'~~siil it ~H~: ~" · i&~ of " ::. :I.. ~ . ~~ ;; ~ 2. g "It l. i i ~ d . ; i -. · ~ i- '3 " . ! I. ! : : p, ~ 2. ~ I~ ~ i : :: i g . . tf i f i! ~ ; Ii ; l Ii a ; . . ); a. a. ;; w w .. ~ CIl t" "" "" > :-~:!:::!:::l. "'C .. ('j ('j:: ~~~OO :-~a3' , '" -::l r- ~O"'=-:l': Z:l' ::l < '<,< \Jt \Jt CIl " " ~ ~ ~ '< +- +- !" i~- =- :':' 0 ~ !!!. .[a : !. ~~ n .. ~ . 0 ;; <> c .. ut go 8- henk you for u.lng o )> a. a. ;; w w .. .. w' )> a. a. ;; .. .. ~; . n . !!. :J < .. .. M ~ ::=r .. .. - o Return Receipt Service. --~-_... . Completl 111m. 1 ""d/o' 2 la, .ddl!MH\I1 IIrvic... . CompMI1l111ml J. .nd ... 6 b. ! . Pnnt you' n."" .nd Idd,... on lhe rlv"" 01 thil 101m 10 tMt WI Cln = "tum ttnl ufd to you. ... .. . AnlCh tNS lorm to the front 01 the mlilei'~I. or on the blck If IpIC. ... dOli not lMIfmlt. .. . - .! . Wri,,"Rltum Rlc.ipt Rlqullted" on the msilp4CI below IN 1f11c1. number - . The Rllum RICI'PC WI" .how to whom the 'rUCt' WII delr....r.d and th. dill d.il...."d. I also wish to receive the following nrvicOI Hor an uua f..I: 1. 0 AddrelSee's Add".. 2, 0 Reltricted Delivery Consult Oltmalter for fee. Natural Y Surgical ~pecial tie~I~~ m I 0'<1 C/O John L. McGoldr~ck, Esq. S.rvic. Type McCarter & English R.gllt.r.d Dlnlur.d 4 Gateway Center XC.rtifi.d 0 COO 100 Mulberry Street J Expr... M.II 0 R.turn R.c.ipt for Merchandise Newark, NJ 07102-4096 7. O.t. 01 o.lIv.ry -~ 8. Addreslee'. Addr". Only if requested .nd f.. II p.ldl c o " II i is E o u u: u: ... .. C C ct ~ 5. Signature lAddre.seel ;:) Ii; II: 6. ~ " o >- PS Form .!! .u.s. GPO: 1113-352-714 DOMESTIC RETURN RECEIPT ... II SENDER: :s . Complete it.m. 1 .nd/o, 2 for Iddltionllllrvic..: .. . Complet. it.ms 3. Ind 41 . b. I! . Print your nsme .nd Idd,... on the fh"" of thil form 10 thlt WI cln .. rltum thil cltd to you. ~ . Att.ch thil form to the front of the ""ilpilcl. 0' on thl back If .pacI ... do.. not permit. ~ . Writ. "'Rltum Rleeipt R~.tld" on the mlilpilel below the.niell numbe' - . Tht R.1\lm R.e.ipt will show to whom the .l'tk:I. WII d.li...ered and the dll. ~ d.II....r.d. I \'0 wish to receive the following services Hor an extra feel: t. 0 Addr....... Addr... I I I I I I . Scott Paper Company Scott Plaza Industrial Highway & Tinicum Road Philadelphia, PA 2, 0 R.mlcted O.llv.ry Consult ostmaster for fee. ~ICI. NUmbe~ IOu -Ls: ~T eNlce ype R.gllt.r.d 0 Inlur.d X. C.rtlfled 0 COO , 1 Express Mail 0 Return Receipt for Merchandise D.\, of o.lIv.ry 0- ..If e. Addressee.s Address COnly if request eo .nd fee I. p.ldl 19113 ~ 5. Signature tAddressee} ;:) ~ 6. Sign. ~ " o >- PS Form , .. '''': .~ , December 1991 ..u.s. OPO: 111::I-:I52.714 DOMESTIC RETURN RECEIPT . . . . . .. . _. ~ .-_.----- ---~. ... II SENDER: i . Compllt. it.ml 1 .nd/o, 2 fo, Idditton.1 ..,vle... .. . Com pl." it.m. 3. Ind 4. . b. e . Print your n.ml and .ddr... on the flV'''1 01 this form 10 thlt w. Cln CD filum this card to you. ;: . Att.eh ttrl. 'Om'lIO thl I,ont 01 thl m.ilpi.e.. 0' on the b.ek if .pICI ... do.. not Plrmit. .! . Write "R.1\lm Ree.ipt Rlquelled" on the mli1pi1e. be~w the Iniell number - . The R.tum R.clipt will show to whom thl .rtlele WII d.li...er.d.nd thl d.tI g ~.liv.,.d. " II G C. E o u en en w lC Q C ct Z lC ;:) Ii; II: 6. ~ " o >- PS Form -!II' '. , I 81so wish to receive the fallowing services tlor an extra f..l: 1. 0 Addr......s Addr.ss 2. 0 Restrict.d O.llvery Consult Oltmaster for fee. WILSHIRE TECHNOLOGIES, f/k/a Wilshire Foam, C/O Christine Murphy 5922 Farnsworth ct. carlsbad, CA 92006 l' ~Pjtp~'21 4b, S.rvlc. Type . 0 R.glst.r.d 0 In.ured . C.rtlfl.d 0 COD Express M~iI 0 Return Re~eipt for hen t e 08 of 0 Ii ery INC. Inc. 101.,. 6. if requestec ./ 11, o.c.mb.r 1991 .u.s. GPO: 111::I-:I52.714 DOMESTIC RETURN RECEIPT camP/et~d an the rever.e Ilde? -ts r: Q',' 'fol t:;,r;~;~~Kl -i hia=3S'BZ -- C .- ~;t:..-Si-ll~ !i \Jl~"\' ~~ ~nli:~~~ ~ n G'0i h'!sZ!! ; ::t:~ ~ = l! i H ~.i i :=..(j , S\t~ H [ h~ j.!t \l..\ " sa. !!. 8 f'~ ~~ <;:Z h 'i 'i i DO:::: _\:A \.l II i i ~ f .itS H! i I 52.DR 1Jn if j f - ~ tc\ C ~\ ! i r ;; Q,. 1Ir - 1~ '" ! o)fo~ \j: -~ i ! S~l~rl\'b:~:: ! (; ~ ii'~~' .1 ::: ii' ;,rfln a. ... CD 0 03: a..... ~a~ ~ -fj ~ ivJ:~ -0 ;:~ 8 ~ ~ ~~, o nC 0 c: :J :r'" ii i i -< CII:J Q. ~ ~~ 0 i ~ :: !!. ...D c: ~ ~ !It.< ~ -0 - ;; .0 c: .. ~ .. Q, enk you far u.lng o J> a. a. ;; ::: .. .. ..' J> a. a. ;; .. .. ;00- m=- :-:-0 ~ !!!. ~' S .. ~ .. -, < .. _or n .. - .. 0 ~.. - ll: .. !!!. " < .. .. ~!T ;; .. Return Receipt Service. .. ompl'l. 11.m. 3. 1M 4. b. ~ . Pnnt yout n.m. .nd .ddr... on th. ,.v.,.. 01 thi. form 10 INlI w. tin . fltum thlt ",d 10 you. = . An'th thi, fOfm 10 IN "onl 01 1M m.ilpi.c:.. Dr on tht b.ck ., 'Pice ... doe. not permit. ~ . Wrill"R'f\.lmR'CIlPI Rtqullt.d" on the tn'llpllC' tMlow the ,nlel. num~'. .. . ThtI R.tum R.e"Pt Win thow to '#Whom the .t1icle WI' d.liv.r.d.nd IN dill g dllivlred. lollowing services (for an extra t..I: 1, 0 Add'.....'. Add,... I:: 2, 0 R..trlct.d D.liv.ry Consult Oltm..ter lor fee. pic~~r 0 I 4- , t' J1:t:ll'7L 0 . Union carb~de Corpora ~o S.rvlce Type C/O John Dames, Esquire R.gi.t.r.d Dln.u,.d Kelley, Drye & Warren ')(::.rtlfl.d 0 COD JOJ W Madison ste. 14\. :.pr... M.1i D'R.turn R.c.lpt tor . . ' Merchandlle Chicago, Ill~nois 60606 '.t.OlDr;:~ /7'-1 S, Addr.....'. Addr... (Only II r.qu..t.d .nd I.. I. peldl Slgn.tur. IAg.ntl ~ " o >0 PS Form .!! DOMESTIC RETURN RECEIPT .... II SENDER: i . Completl "1m. 1 .nd/Of 2 'Of .dditlon.1 .ervic... ~ . Compll" it.ml 3, .nd 4. II b. :: . Print YOUf nil'" .nd eddrll' on the fl..,I,.. 0' thil lorm 10 tNt w, cln . ftItum Ihl, Clld to yOU. ! . An.ch thll lonn to the rfOnt 01 the mlilplecl. Of on thl b.cllll 'PICI dOli not ~mu1. .! . Wntl "Rltum RecliPt RIQulllld" on the ""ilplec, belOw thllrtlde numbel - . Thl Rltum Rlclipt WIU shOw 10 whOm the Irtk.. Wit dllivtlr~ and lhe d.tl g dlliv"ld. ." 3. Anlcle Addressed to: i~c;~t a5'TtC SlJ'< ~ .f:..':EO c : 50 L,l)f to+r~b ' ~pn~~ _ p-R f,40'3 i 5. Signature tAddresseel ::l ~ 6, 51 n lure IAg.ntl $ -1: o >0 PS Form .!! I alia wllh to recelva the following .ervlce. (for In extra I.el: 1, 0 Add'.....'. Address o In.ur.d OCDD o Return R.c.lpt for n I .ry 7. 6, .u.s. GPO: 1t13-3SZ-714 DOMESTIC RETURN RECEIPT .... II SENDER: ~ . Complltl itlm. 1 Indlof 2 rOf .ddition.1 'Irvlc... . . Complltl Items 3, Ind 4. 8. b. e . Print YOUI n.ml .nd Iddllll on thl rtIVI"1 olthll lonn 10 th'l WI c.n . rtItum thll clfd 10 you. ~ . Att.th thil 101m to thl fronl 01 thl m.ilpIICI. Of on thl blck II Ip.CI .. dOli nOI PI"'llt. .! . Writl "Rltum RIC~pl R'Qulltld" on the m.ilpitcl below lhe In:icll numbsf - . Thl Rllum RIClipt wllllhOw 10 whom lhe .rticle Wit dllivlred.nd Ihl dalt g dlll..,lIld. 'CII 3. Anicle Addressed to: i {-tal,! S'P1 r'" 1+ H- ~ FStJ3 }.-l . 2- ( ~ C; ~ '~? H tll rp~ c , c " <t i 5, ~ 6, SI . ~ " a .; PS Form I also wllh to receive the following .ervlcls (lor an extra f..l: 1. 0 Addr....... Addr... 2, lJ=1' o In.ur.d o COD o Return R.c.lpt lor M r n I liver 7, ~- ......,..,. Slgn.tur. IAddr.....1 6, IAgent) 1. Dec.mb.r 1991 .u.s. GPO: 1tt3-3S2.1t4 DOMESTIC RETURN RECEIPT '.' . :".: ~ '" ... ,..::.:.;:'. .:".:- .... ~ E DER: . . CompAet. IlIms 1 .nd/(M' 2 for addition.. "Mc". !I . CompMtllt.ml 3. .nd q . b. z: . Print your NmI and .ddreu on the tI....rt. of thl. fonn 10 that w. c.n . return tN. Clrd to you. >e . An.ch thl. form to th. front of the mlilplec.. or on the b.ck If .p.c. does not permit. . .! . Writ. "R.tum A.c.lpt RtQUllted" on the mailplec, below the.rtkIt number ... . The A.rum R.ceipt willlhow to whom thII .l'ticle wa. deltnred and the d.t. I g dlll....r.d. ... . ~nlcl., ~d,!l1....d to: :l) nfYl'i.;::>' A '{Pl-<;s; f .Gr0t-J D\L 10.-V C lll~ -Vl~ 2-USGr'ClWd\J1 ~ AJ Ci- CCrYcp 1-1111 't> A ~ ~Oll ill 5. Slgn.ture lAddre....1 S. D Inlured DeOD D Retu,n Rec.lpt fo, I .110 wllh to rec.lv. the lollowlng I.rvlc.. (10' .n .xtr. 1..1: 1, D Add'....... Addrel. 2. 100 *Il.l.CIl'O:'_......714 DOMESTIC RETURN RECEIPT ...... -' ". r".<,~ '. .... · SENDER: ~ . Completl it.m. 1 .nd/or 2 for additlon.1 IIrvlclI. . . Complet. It'lN 3. .nd q . b. ! . Print your neme .nd addre.. on the re....r.. of thl. 'orm 10 that w. c.n .. retum this c.rd to you. ~ . An.ch thl. farm to the front of thl m.ilpIIC.. or on the b.ck If .p.ce .. doe. not ptnnlt. .s . Writ. "R.tum Aec.lpt RIQUlIt.cS" on thl m.ilpitce below the .rtk:1e number 2. 0 Reatticted Delivery . The Anum RIC.lpt wil show to whom the .rdcJt w.. de......M.nd the dll. g dlllv.red. Consult oatmalter for fee. ... 3. Anlcl. Addro.led to: 4., cl. Num f.R I C-hCr ~ J)c-bb fIrlT'\ !' v b V 4b. Servlc. Typ. 8 EO l0\,(kl+rs roo" ,DReglllor.d ]) r; \j'r '/ ,,- I', I""i') B e.nlfled II: v l -c..- '{ Or ~ ,+"'.A D Expre.. M.II ~ 11403 7. 0 '01~9'ry z II: I also wish to receive the following servlc.. (for In extra f..l: 1. D Addre...... Addre.. ,', D Inlured DeOD D Return R.c.lpt 10' S. Addre....'. ddre.1 IOnly If reque.tl' .nd I.. II p.ldl . December 1991 *Il.l.CIl'O:'_......714 DOMESTIC RETURN RECEIP Robert S. Forster, Esquire Attorney I.D. No. 17899 nUSEN EVANS & BYRNE The Curtis Center, Suite 1100 philadelphia, Pa. 19106 (215) 923 -4400 JOSEPHINE M. YEYNA Plaintiffs Attorney for Dow Corning Corporation CUMBERLAND COUNTY COURT OF COMMON PLEAS v. CIVIL ACTION - LAW ADMIRAL MATERIALS CORPORATION n/k/a Mentor Polymer Tech. and AESTHETECH CORPORATION and APPLIED SILICONE CORPORATION and BAXTER HEALTH CARE CORPORATION successor in interest of Heyer-Schulte, American Hospital Supply Corp., American Heyer-Schulte Corporation, : Travenol Labs, Inc. and BAXTER INTERNATIONAL, INC. : and BRISTOL-MEYERS SQUIBB AND CO. f/k/a Bristol-Meyers Co. : and COOPER SURGICAL, INC. a wholly owned subsidiary of the Cooper Companies, Inc. and THE COOPER COMPANIES, INC. indiv. and as successors in interest to Natural Y Surgical Specialties, Inc. and Aesthetech formerly known as Coopervision, Inc. and COX-UPHOFF INTERNATIONAL a/k/a CUI Corporation and DOW CORNING CORPORATION and DOW CORNING WRIGHT CORPORATION and GENERAL ELECTRIC COMPANY and INAMED CORPORATION and NO. 2915 CIVIL 1994 McGHAN MEDICAL CORPORATION (a California corporation> and McGHAN MEDICAL CORPORATION (a Delaware Corporation> and McGHAN NUSIL CORPORATION a/k/a Nusil Technologies : and MEDICAL ENGINEERING CORPORATION d/b/a Surgitek, a wholly owned subsidiary of Bristol Meyers Squibb and MINNESOTA MINING & MANUFACTURING COMPANY, INC., indiv. and as a successor in interest to McGhan Medical Corporation (a California corp.): a/k/a 3M and McGhan Medical Corporation 3M Center and NATURAL Y SURGICAL SPECIALTIES, INC. and HULS AMERICA, INC. f/k/a petrarch Systems, Inc. and SCOTT PAPER COMPANY and SIROD CORPORATION and UNION CARBIDE CORPORATION and UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC. and 21 INTERNATIONAL HOLDINGS, INC. f/k/a Knoll International Holdings, Inc.: f/k/a Foamex Products, Inc. f/k/a Scotfoam Corporation f/k/a General Felt Industries, Inc. f/k/a Eddy Acquisitions now operating under the fictitious name of Foamex, a Division of KIHI and WILSHIRE TECHNOLOGIES, INC. f/k/a Wilshire Foam Products, Inc. and JAMES A. YATES, M.D. and PLASTIC SURGERY CENTER, LTD. and RICHARD DABB, M.D. and YORK PLASTIC SURGERY ASSOCIATES and HOLY SPIRIT HOSPITAL and YORK HOSPITAL Defendants NOTICE OF FILING OF NOTICE OF REMOVAL PLEASE TAKE NOTICE that on 41A..j ~ , 1995, Dow Corning Corporation filed a Notice of Removal in the United States District Court for the Middle District of Pennsylvania, removing the claims identified in the Notice of Removal. A copy of the Notice of Removal is attached hereto and hereby served on you. oJdtl411J11J I Robert S. Forster, Jr., Esquire Attorney for Dow Corning Corporation Dated: (()( $ft j CIVIL ACTION NO. UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPHINE M. YEYNA Plaintiff v. ADMIRAL MATERIALS CORPORATION n/k/a Mentor Polymer Tech. and AESTHETECH CORPORATION 1: and APPLIED SILICONE CORPORATION and BAXTER HEAL THCARE CORPORATION successor in interest of Heyer-Schulte, American Hospital Supply Corp., American Heyer-Schulte Corporation. Travenol Labs, Inc. and BAXTER INTERNATIONAL, INC. and BRISTOL-MEYERS SQUIBB AND CO. flk/a Bristol-Meyers Co. and COOPER SURGICAL, INC.. a wholly owned subsidiary of the Cooper Companies, Inc. and THE COOPER COMPANIES, INC. indiv. and as successors in interest to Natural Y Surgical Specialties, Inc. and Aesthetech formerly known as Coopervision, Inc. and COX-UPHOFF INTERNATIONAL a/k/a CUI Corporation and DOW CORNING CORPORATION and DOW CORNING WRIGHT CORPORATION and GENERAL ELECTRIC COMPANY and CV-95-1284 ~Ol~IOJ A DEPUTy CLERK : g:t~~~ record Mary E. D'Andrea. Clertc p~~~ .. INAMED CORPORATION and McGHAN MEDICAL CORPORATION (a California corporation) and McGHAN MEDICAL CORPORATION (a Delaware Corporation) and McGHAN NUSIL CORPORATION a/k/a Nusil Technologies and MEDICAL ENGINEERING CORPORATION d/b/a Surgitek, a wholly owned subsidiary of Bristol Meyers Squibb and MINNESOTA MINING & MANUFACTURING COMPANY, INC., indiv. and as a successor in interest to McGhan Medical Corporation (a California corp.) a/k/a 3M and McGhan Medical Corporation 3M Center and NATURAL Y SURGICAL SPECIALTIES, INC. and HULS AMERICA, INC. f/k/a Petrarch Systems, Inc. and SCOTT PAPER COMPANY and SIROD CORPORATION and UNION CARBIDE CORPORATION and UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC. and 21 INTERNATIONAL HOLDINGS, INC. f/k/a Knoll International Holdings, Inc.: f/k/a Foamex Products, Inc. f/k/a Scotfoam Corporation f/k/a General Felt Industries, Inc. f/k/a Eddy Acquisitions now operating under the fictitious name of Foamex, a Division of KIHI and WILSHIRE TECHNOLOGIES, INC. f/k/a Wilshire Foam Products, Inc. or silicone gel breast implant products (collectively the "DCC Breast Implant Products") manufactured by DCC. The plaintiff seeks recovery (I) from DCC based on allegations, among others, that the DCC Breast Implant Products are defective, and (iI) from Dow based upon allegations, among others, that Dow participated in the manufacturing, marketing or testing of the DeC Breast Implant Products or otherwise are liable for plaintiff's alleged injuries. 3. This action may be removed to this Court pursuant to 28 U.S.C. ~ 452(a) by reason of the fact that (i) the action is not exempt from removal, and (ii) the Court has jurisdiction over the action under 28 U.S.C. ~ 1334. All claims assertsd are related to the DCC Bankruptcy Case, and the continued prosecution, outcome at trial or other resolution of the claims will have an effect on the administration of the DCC Bankruptcy Case. 4. This removal applies to all claims and causes of action asserted in the Civil Action and specifically includes, but without limitation, claims against The Dow Chemical Company, even though those claims may presently have been dismissed or otherwise ruled upon in the state court. It is the intent of this notice that these claims are also removed to federal court to remain part of this same action in the event that any prior rulings resolving these claims are vacated or reversed. 5. The Civil Action is pending within the district and division of this Court. 6. This Notice of Removal is timely filed under Rule 9027(a)(2). 7. Upon removal of this action, the proceedings with respect thereto are non-core. DCC does not consent to entry of a final order or judgment by the bankruptcy judge (to the extent that the bankruptcy court is authorized to hear or detefmine such claims consistent with 28 U.S.C. ~ 157(b)(5)). 8. Copies of process and pleadings in the Civil Action are attached as Exhibit "A". KRUSEN, EVANS & BYRNE SWEENEY, SHEEHAN & SPENCER, P.C. a By: ' d Robsrt S. Forster, J ., Esquire Attorneys for Dow Corning Corp. By: walbjs IN/1M Walter S. Jenkfns, Esquire Attorneys for The Dow Chemical Company Suite 1100 The Curtis Center 601 Walnut Street Philadelphia, PA 19106-3393 (215) 923-4400 1515 Market Street, 19th Floor Philadelphia, PA 19102 (215) 563-9811 UNITED STATES DISTRICT COURT POR THE MIDDLE DISTRICT OP PENNSYLVANIA JOSEPHINE M. YEYNA Plaintiff v. CIVIL ACTION NO. ADMIRAL MATERIALS CORPORATION n/k/a Mentor Polymer Tech. and AESTHETECH CORPORATION and APPLIED SILICONE CORPORATION and BAXTER HEALTH CARE CORPORATION successor in interest of Heyer-Schulte, American Hospital Supply Corp., American Heyer-Schulte Corporation, Travenol Labs, Inc. and BAXTER INTERNATIONAL, INC. and BRISTOL-MEYERS SQUIBB AND CO. f/k/a Bristol-Meyers Co. and COOPER SURGICAL, INC. a wholly owned subsidiary of the Cooper Companies, Inc. and THE COOPER COMPANIES, INC. indiv. and as successors in interest to Natural Y Surgical Specialties, Inc. and Aesthetech formerly known as Coopervision, Inc. and COX-UPHOFF INTERNATIONAL a/k/a CUI Corporation and DOW CORNING CORPORATION and DOW CORNING WRIGHT CORPORATION and GENERAL ELECTRIC COMPANY and INAMED CORPORATION and 1:c.V" q5-la~Lf McGHAN MEDICAL CORPORATION (a California corporation) and McGHAN MEDICAL CORPORATION (a Delaware Corporation) and McGHAN NUSIL CORPORATION a/k/a Nusil Technologies and MEDICAL ENGINEERING CORPORATION d/b/a Surgitek, a wholly owned subsidiary of Bristol Meyers Squibb and MINNESOTA MINING & MANUFACTURING COMPANY, INC., indiv. and as a successor in interest to McGhan : Medical Corporation (a California corp.): a/k/a 3M and McGhan Medical Corporation 3M Center and NATURAL Y SURGICAL SPECIALTIES, INC. and HULS AMERICA, INC. f/k/a Petrarch Systems, Inc. and SCOTT PAPER COMPANY and SIROD CORPORATION : and UNION CARBIDE CORPORATION and UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC. and 21 INTERNATIONAL HOLDINGS, INC. f/k/a Knoll International Holdings, Inc.: f/k/a Foamex Products, Inc. f/k/a Scotfoam Corporation f/k/a General Felt Industries, Inc. f/k/a Eddy Acquisitions now operating : under the fictitious name of Foamex, a Division of KIHI and WILSHIRE TECHNOLOGIES, INC. f/k/a Wilshire Foam Products, Inc. and JAMES A. YATES, M.D. and PLASTIC SURGERY CENTER, LTD. and RICHARD DABB, M.D. and 2 YORK PLASTIC SURGERY ASSOCIATES and HOLY SPIRIT HOSPITAL and YORK HOSPITAL Defendants SERVICE LIST Jamie L. Sheller, Esquire SHELLER, LUDWIG & BADEY 1528 Walnut Street, 3rd Floor Philadelphia, PA 19102 Josephine M. Yeyna Admiral Materials Corporation n/k/a Mentor Polymer Tech. c/o Gary Mistlin - Mentor Corp. 5425 Hollister Avenue Santa Barbara, CA 39111 Gordon S. Elkins, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7096 Aesthetech Corp. Bristol Meyers Squibb Company Cooper Companies Coopervision, Inc. Medical Engineering Corp. MEC Subsidiary Corp. f/k/a Surgitek, Inc. Natural Y Surgical Specialties, Inc. Sirod Corp. Gilda L. Kramer, Esquire 1500 Walnut Street, Suite 1100 Philadelphia, PA 19102 Applied Silicone Corporation McGhan Nusil Corp. Madeline M. Sherry, Esquire Lauren A. Stevens, Esquire HECKER, BROWN, SHERRY AND JOHNSON 1700 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 Baxter Bealthcare Corp. ~axter International, Inc. 3 C. James Zeszutek, Esquire Kimberly A. Brown, Esquire THORPE, REID & ARMSTRONG 1 Riverfront Center Pittsburgh, PA 15222 McGhan Medical Corp. Minnesota Mining and Manufacturing Company, Inc. INAMED Corp. Cox-Uphoff a/k/a CUI Corporation Robert S. Forster, Jr., Esquire KRUSEN EVANS & BYRNE The Curtis Center, Suite 1100 Philadelphia, PA 19106 Dow Corning Corporation Dow Corning Wright E. Michael Keating, III, Esquire CLARK, LADNER, FORTENBAUGH & YOUNG 2005 Market Street, 21st Floor Philadelphia, PA 19103 General Electric Company Huls America, Inc. f/k/s petrarach Systems, Inc. 80 Centennial Avenue Piscataway, NJ 08855-0456 Robert M. Britton, Esquire POST & SCHELL, P.C. 19th Floor, 1800 JFK Blvd. Philadelphia, PA 19103-7480 Scott Paper Company (Scotfoam Corp., Foamax, L.P., International Holdings) 21 International Holdings, Inc. Jeremy D. Mishkin, Esquire MONTGOMERY, McCRACKEN, WALKER & RHOADS Three Parkway, 20th Floor Philadelphia, PA 19103 Union Carbide Union Carbide Chemicals and Plastics Company, Inc. Arthur Murphy, Jr., Esquire Stephen W. Trout, Esquire MURPHY, TAYLOR & TROUT, P.C. Suite 1100 1616 Walnut Street Philadelphia, PA 19103 Wilshire Technologies, Inc. f/k/a Wilshire Foam Products, Inc. 4 James A. Yates, M.D. Grandview Corporate Place 205 Grandview Avenue Camp Hill, PA 17011 Plastic Surgery Center, Ltd. Grandview Corporate Place 205 Grandview Avenue Camp Hill, PA 17011 Richard Dabb, M.D. 50 Wyntrebrook Drive York, PA 17403 York Plastic Surgery Associates 50 Wyntrebrook Drive York, PA 17403 Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011 York Hospital 1001 S. George Street York, PA 17405 5 ~ !;4!;:~~H .,..~...-..... '-'<li~~U;f/ . ..:{,l~tr \:- ~. ,', -:' ':. t"",)-,~ ':!"c,>~,!;J":sr'::.:_-:-J4}r>,..':3'_. ,'"' " -"I.;~;.'l_"e~t~:~~~,;t-J"',:!, ~~~~:~:-~.lii~:~'~f'1~~~~~'. ' 1, ",~, ~ , OCT /I 2 43 m '95 f;tr:1.(JFF1C~ N r~2 !i':JIIOI/';jA~Y CUhl 2i:l.\ND CO'J/iTY f EHHSt'LV~'I!~ <;' t '. .'. ';4, ~ t , . '''" . . . .' .. -' ., ,t'.-;'- , ,.,...._, "," >- ,'') .... p; N f:: j,"o: - ltJ~:' ~ :"."J ~ (" .., (..J "_ .,J.: p:~,-' U ...... ..': C; ,- , " .' (~~ ~ . rO') l'cl LJ_;' ('oj ", . r.f .. . , : i . ) - .' I_~ _:0 U (., ,~ u ~ ~ ..l'~E .J < III - ~ ~ ~~~ ~~;z ~i=~ .J"'c.l .J~~ <::Jill :I:::lg! CIl < ~ :: < ::; - '- . ~ . . , MAJlSU.u.Z. FAUl.U.. pc. ,......l'M...,..nut ~~'~I'I. " ... " v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNlY, PENNSYLVANIA NO. 94-2915 JOSEPHINE M. YEYNA, Plaintiff ADMIRAL MATERIALS CORPORATION, : et aI. Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE Please enter the appearance of the undersigned as COWlSel for Defendants, York Hospital and Richard Dabb, M.D., In the above-captioned matter. Respectfully submitted, MARSHAll. & FARRELL, p.e. j 1 Fra:ricls E. arshaIl, Jr., Esquire I.D. No: 2 594 1323 North Front Street Harrisburg, PA 17102 (717) 236-7300 Dated: //1 c /9(0 ~ 4 " CER'l1FICATE OF SERVICE AND NOW, this 22nd day of January, 1996, I, Francis E. Marshall, Jr., Esquire, hereby certify that I served a true and correct copy of the foregoing docwnent on all parties by depositing a copy of same In the United States mall, regular de1lvety, postage prepaid at Hanisburg, Pennsylvania, addressed as follows: Jamie Sheller, Esquire Sheller, Ludwig & Badey 1528 Walnut Street 3rd Floor Philadelphia, PA 19102 Counsel for Plaintiff Madeline M. Sherry, Esquire Hecker, Brown, Sherry and Johnson 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Counsel for Baxter Healthcare Corporation Gilda L. Kramer, Esquire 1500 Walnut Street Suite 1100 Philadelphia, PA 19102 Counsel for Defendant Applied Silicone and McGhan Nusll Corporation Admiral Materials Corp. n/k/a Mentor Corporation c/o Gary M1stlln 5425 Hollister Avenue Santa Barbara, CA 93111 " .!~ " S. Gordon Elldns, Esquire StradIy, Ronon, Stevens & Young 2600 One Commerce Square 2005 Market Street Philadelphia, PA 19103-7098 Counsel for Bristol-Meyers Squibb Co. Cooper Surgical, The Cooper Companies, Medical Engineering, Natural Y Spedaldes and Slrod Corporadon C. James Zeszutek, Esquire Thorpe, Reid & Armstrong 1 Riverfront Center Pittsburgh, PA 15222 Counsel for Cox-Uphoff International Inamed Corporation, McGhan MedIcal Corporadon and Minnesota Mining and Manufacturing Company Robert S. Forester, Jr., Esquire Krusen, Evans & Byrne The Curtis Center 601 Walnut Street Suite 1100 Philadelphia, PA 19106-393 Counsel for Dow Coming Corporadon and Dow Coming Wright E. Michael Keating, III, Esquire Clark, Ladner, Fortenbaugh & Young 2005 Market Street 21 st Floor Philadelphia, PA 19103 Counsel for General Electric Huls America flk/a Petrarach Systems, Inc. 80 Centennial Avenue Piscataway, N J 08855-0456 >- ("') ,- ..-.. <'oJ .' .."~ Il'~~: (-.. ,- C)~. < .... L:~ "-.:' L'., '" "'1 :~.- ," e,;! C') '.i ~ U " (',J <, ; - L, ,:iJ j, . .. ,.:,1- L', .' '-' ,':) ., y-. u u c.: o. S j~~ P'z ~lii-': :>r:~:i <01:; ~e:~ o'di:~ . " t5 "'0'" oJ:>.:::! <~Vi :C~;: <I) '" c( :;: < :2 -, . , M"".....IU!.i.,\; ".U""~ l't;. 1'".....111..'...1'''..' 11."'~I.',"""''''_''''II'''' .;' .... '. CERTIFICATE OF SERVICE AND NOW, this 22nd day of January, 1996, I, Francis E. Marshall, Jr., Esquire, hereby certify that I served a true and correct copy of the foregoing document on all parties by depositing a copy of same In the United States mall, regular delivery, postage prepald at Harrisburg, PelUlSylvanla, addressed as follows: Jamie Sheller, Esquire Sheller, Ludwig & Badey 1528 Walnut Street 3rd Floor Philadelphia, PA 19102 Counsel for Plalntlff Madeline M. Sheny, Esquire Hecker, Brown, Sheny and Johnson 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Counsel for Baxter Healthcare Corporation Gilda L. Kramer, Esquire 1500 Walnut Street Suite 1100 Philadelphia, PA 19102 Counsel for Defendant Applied Silicone and McGhan Nusll Corporation Admiral Materials Corp. nlk/a Mentor Corporation c/o Gary Mlstlln 5425 Hollister Avenue Santa Barbara, CA 93111 ., , ,,~ S. Gordon Elkins, Esquire Stradly, Ronon, Stevens & Young 2600 One Commerce Square 2005 Market Street Philadelphia, PA 19103-7098 Counsel for Bristol-Meyers Squibb Co. Cooper Surgical, The Cooper Companies, Medical Engineering, Natural Y Specialties and Slrod Corporation C. James Zeszutek, Esquire Thorpe, Reid & Armstrong 1 Riverfront Center Pittsburgh, PA 15222 Counsel for Cox-Uphoff International Inamed Corporation, McGhan Medical Corporation and Minnesota Mining and Manufacturing Company Robert S. Forester, Jr., Esquire Krusen, Evans & Byrne The Curtis Center 601 Walnut Street Suite 1100 Philadelphia, PA 19106-393 Counsel for Dow Coming Corporation and Dow Coming Wright E. Michael Keating, III, Esquire Clark, Ladner, Fortenbaugh & Young 2005 Market Street 21st Floor Philadelphia, PA 19103 Counsel for General Electric Huis America flk/a Petrarach Systems, Inc. 80 Centennial Avenue Piscataway, N J 08855-0456 03025-00265/JMW/ MARSHALL, DENHEHEY, WARNER, COLEMAN , GOGGIN By: Joseph M. Walker, Esquire Identification No. 02417 20 East Court street Doylestown, PA 18901 Telephone: (215) 340-5460 Attorney for defendant Holy Spirit Hospital IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY JOSEPH M. YEYNA . . NO.: 94-2915 v. JURY TRIAL DEMANDED OF 12 MBMBERS . . HOLY SPIRIT HOSPITAL, et al . . ENTRY OF APPEARANCE 'TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant, Holy spirit Hospital, in the above-captioned matter. MARSHALL, DENNEHEY, WARNER, COLEMAN AND GOGGIN ~.. ~t~ !,jj,J,,:~_ , JO~~P . WALKER, ESQUIRE~ Attorney for Defendant Holy Spirit Hospital .' . --.... .-.. _...~'"....._.,,_,......>;'!."".~~~:,(.~"'--......,~,.,.~!~.,\.,'" ".*,:>-'~~,t-.""It"-,,~,.,~.."c" ' . RLED-OFF1CE OF iHf: PPOTHONOTARY 96 NOV -8 PII 3: 43 CUMBf:HU.\D COUNlY PENNSYLVi\NIA c" ",' r~' ,~ '. 'Ji<' ',,-,!S,j::>,',. ,'~(:~:-'1t'\" '!,", '~..: -,. -,,;;<. . ;( ! 0"" t ",.;- '-\'::" , . . ;' .' '" " . II , ,I' .. '" . ,,'--_.- WHITE AND WILLIAMS By: Allan H. starr, Esquire Nancy L. Siegel, Esquire Identification No. 04975/40926 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6223/6219 Attorneys for Defendant, Holy Spirit Hospital ------------------------------------ JOSEPHINE M. YEYNA CUMBERLAND COUNTY COURT OF COMMON PLEAS v. NO. 94-2915 HOLY SPIRIT HOSPITAL, ET AL. ------------------------------------ WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Allan H. Starr, Esquire of White and, Williams as attorney for Defendant, Holy Spirit Hospital, in the above matter. WHITE AND WILLIAMS BY: /' , ..j A j r_ {;l.!tc<-u 'rn/-IL Allan H. starr, Esq. Date: le/I,,/75" , ! \ .:: .... 'c.~ 1,", . ,~\i"; ',U. "L~,l;' !;c-~~,~ " -'" ....- ._.,._.,..,,,~~'f..<.!i'~~:'<<"\1"n ~ ",,':"'~ . ,,~ .~ ".. \ Or J~Oi~!f{ 96 NO'l-a ~~\~: "3 CUMiki\v:~0 0iJJai'{ PENNSi\-W.N,^ _'-0"- "' ""'''''.~'''- .."..... - ..._-,.............- --"~-,,,.........,,~~.. !' t'- . f!'lottinlll'il"" n_J''IIlrf''I ;"-' I, \ . I~ .... . 'II . . " 4 .' - I '.. - i,: -:l I C'~ .1 r;" 1Ill ) , ( )' , {' , , .. j C;' , , ~.~l ( t, r,l, 'J i..~ . ,. i ", t..~ () U' ',.J '-! ~ - ~ 0 .~ 0 ., " - " 1. '" ~ ~ - c:J ;: - ~ 0 oCl r-.. ;:; ~ .E .c U1 ~ .c < E -0 ~ U1 M - .c - :;; ::: - .c ~ 0. 0 or. U1 E '- ~ 0 ,~ "l -... . , :. - o. ..... .. JOSEPHINE M. YEYNA, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-2915 ADMIRAL MATERIALS CORPORATION, : AESTHETECH CORPORATION, APPLIED SILICONE CORP., BAXTER HEALTHCARE CORPORATION, AMERICAN HEYER-SCHULTE, AMERICAN HOSPITAL SUPPLY, BAXTER INTERNATIONAL INC., BRISTOL-MEYERS SQUIBB CO., COOPER SURGICAL, INC. THE COOPER COMPANIES, INC., COX- UPHOFF INTERNATIONAL, CUI CORP., DOW CORNING CORPORATION, DOW CORNING WRIGHT, GENERAL ELEcrRIC COMPANY, NAMED CORP., MCGHAN MEDICAL CORPORATION, MCGHAN NUSIL CORPORATION, SURGITEK INC., MINNESOTA MINING AND MANUFAcrURlNG COMPANY, INC., NATURAL Y SURGICAL SPECIALTIES, INC., HULS AMERICA, INC., SCOT[ PAPER COMPANY, SIROD CORPORATION, UNION CARBIDE CORP., UNION CARBIDE CHEMICALS AND PLASTICS CO., INC., 21 INTERNATIONAL HOLDINGS, INC., FOAMEX PRODUcrS, INC., FOAMEX, L.P., SCOTFOAM, WILSHIRE TECHNOLOGIES, INC., WILSHIRE FOAM PRODUCTS, INC., JAMES A. YATES, M.D., PLASTIC SURGERY CENTER, LTD., RICHARD DABB, M.D., YORK PLASTIC SURGERY ASSOCIATES : HOLY SPIRIT HOSPITAL, YORK HOSPITAL AND JOHN/JANE DOE, Defendants ~ . CERTIFICATE OF SERVICE AND NOW, this 10 day of 1t11/"7 1997, I, Fmncis E. Marshall, Jr. Esquire, hereby certify that I served a true and correct copy of the foregoing document on all parties by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Jamie Sheller, Esquire Sheller, Ludwig & Badey 1528 Walnut Street 3rd Floor Philadelphia, PA 19102 Counsel for Plaintiff Madeline M. Sherry, Esquire Hecker, Brown, Sherry and Johnson 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Counsel for Baxter Healthcare Corporation Gilda L. Kramer, Esquire 1500 Walnut Street Suite 1100 Philadelphia, PA 19102 Counsel for Defendant Applied Silicone and McGhan Nusil Corporation Admiral Materials Corp. n/k1a Mentor Corporation c/o Gary Mistlin 5425 Hollister Avenue Santa Barbara, CA 93111 " S. Gordon Elkins, Esquire Stradly, Ronon, Stevens & Young 2600 One Commerce Square 2005 Market Street Philadelphia, PA 19103-7098 Counsel for Bristol-Meyers Squibb Co. Cooper Surgical, The Cooper Companies, Medical Engineering, Natural Y Specialties and Sirod Corporation C. James Zeszutek, Esquire Thorpe, Reid & Armstrong 1 Riverfront Center Pittsburgh, PA 15222 Counsel for Cox-Uphoff International (named Corporation, McGhan Medical Corporation and Minnesota Mining and Manufacturing Company Roben S. Forester, Jr., Esquire Krusen, Evans & Byrne The Cunis Center 601 Walnut Street Suite 1100 Philadelphia, PA 19106-393 Counsel for Dow Coming Corporation and Dow Coming Wright E. Michael Keating, 111, Esquire Clark, Ladner, Fonenbaugh & Young 2005 Market Street 21st Floor Philadelphia, PA 19103 Counsel for General Electric Michael J. Trotter, Esquire Baker, Silverberg & Keener 2850 Ocean Park Blvd. Suite 300 Santa Monica, CA 90405 Robert M. Britton, Esquire Post & Schell, P.C. 1800 JFK Boulevard 19th Floor Philadelphia, PA 19103-7480 Counsel for Scott Paper Company and 21 International Holdings Jeremy D. Mishkin, Esquire Montgomery, McCracken, Walker & Rhoads Three Parkway 20th Floor Philadelphia, PA 19103 Counsel for Union Carbide and Union Carbide Chemicals and Plastics Kimberly A. Hendrix, Esquire STRADLEY, RONaN, STEVENS & YOUNG, LLP 2600 One Commerce Square Philadelphia, PA 19103 Counsel for Wilshire Technologies, Inc. Linda Parr Sweeney, Esquire German, Gallagher & Murtagh 40 East Grant Street Lancaster, PA 17602 Counsel for James Yates, M.D. and Plastic Surgery Center York Plastic Surgery Association 50 Wyntrebrook Drive York, PA 17403 Michael L. Kleiman, Esquire White & Williams One Liberty Place Suite 1800 1650 Market Street Philadelphia, PA 19103-7395 '",' , '" ~." ~,\ . ALED-CFACE 01: T~'r. f,"'WY',}.I(\TArnJ I :1" ',',,:. ......'jlJil 91 liAR 1 3 PII h: I 6 CUMa~r.v,,\,) ,,(;0;', f{ PENNS'I1.VANJ\ j', ..H '}~ .. " ',,; ,.' i' *; "<.~""-"~'~-,-~~.i.l J.":":('IIIiJj '. )'lli1 11 '1" 'OO'~ . .' #" .:--:"--,-~..-. . ! "" . ~~: " " tI , " " .. tI' "' > .--:..- .........-. OFFICE OF TilE CLERK .ji. ~~ICT CO'#' MARY E, D'ANDREA CllTkof Coun UNITED STATES DISTRICT COURT for th, MIDDLE DISTRICT OF PENNSYLVANIA U.S. Comhoult 228 "erlnuI St"", Rm. 1060 P.O. BOlt 983 1I0rmbuI/I, fA 11108.0983 (7/7) 21/.3920 FAX (7/7) 21/.3959 May 5. 1999 Lawrence E. Welker, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle. PA 17013 IN RE: Yeyna vs. Dow Corning Corp., et al. Civil Action No. 1:CV-95-1264 Cumberland County No. 94-2915 Dear Mr. Welker: Please find enclosed a certified copy of the docket entries together with a certified copy of the Order issued by Judge Caldwell entered May 4. 1999. remanding this action back to your court. Kindly acknowledge receipt of the order by signing the copy of this letter. Thank you for your consideration in this matter. Very truly yours. MARY E. D' ANDREA. CLERK (~. ~ ~~rdlle Deputy Clerk R E C E 1 P T Received by: \.) oli.O ('\l\}/\hfffi"J1tcr Date: 1'I\C\.u (g'l" 1m \ I IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPHINE YEYNA ORDER FILED NO. CV_95_12~RRISBURG. PA MAY 4 1999 MARY E, D'ANDREA r.LE Per .~~ UOPUI~ Cle''V I , 1999, upon v. DOW CORNING CORP., et al. AND NOW, this '?I~ day of M~ consideration of Plaintiff's Motion for Remand, and good cause being shown, it is hereby ORDERED and DECREED that Josephine Yeyna v. Admiral Materials Corporation, et al., M.D. Civil Action No. CV-95-1284, be remanded to Cumberland County under Court No. 94-2915. BY THE COURT: ~P(L~-f( LAW OFFICES SHELLER. LUDWIG' eAOEY Fil i=D....:CII'C .._ _.11>.1_ Or: T,." , "',", ,,,. ''"ITlRY I ,.-'~.' ":'.",'~.I,\ul!'\j 991W( -6 Pi.j 2: 27 CU" ,'..., , " , ,.'(', 'l"TY lflw~... ,~ "'. I ,_ ~JV 'i P'-'" '....11/.".. t.j".\~.H .....'~r\.!\ TERMED HBG REMAND u.s. District Court Middle District of Pennsylvania (Harrisburg) ~IVIL DOCKET FOR CASE #: 95-CV-1284 Yeyna, et al v. Dow Corning Corporat, et al Assigned to: Judge William W Caldwell Demand: $50,000 42041 Lead Docket: None Dkt # in AL : is :95-cv-13604 Dkt # in MOL 926 : is :00- -00000 Filed: OS/OS/95 Nature of Suit: 365 Jurisdiction: Federal Question Cause: 2S:1446pl petition for Removal - Product Liability JOSEPHINE M. YEYNA plaintiff Jamie L. Sheller [COR LD NTC] Sheller, Ludwig & Badey 1528 Walnut St. 3rd Floor Philadelphia, PA 19102-2155 215 546-5510 v. ADMIRAL MATERIALS CORPORATION nka Mentor Polymer Tech. defendant Francis E. Marshall, Jr. [COR LD NTC] Marshall Smith & Haddick, P.C. 20 South 36th St. Camp Hill, PA 17011 717-731-4600 Kerry Voss Smith [COR LD NTC] Marshall Smith & Haddick, P.C. 20 South 36th St. Camp Hill, PA 17011 717-731-4600 AESTHETECH CORPORATION defendant Gordon S. Elkins [COR LD NTC] Stradley, Ronon, Stevens & Young 2600 One Commerce Sq. Philadelphia, PA 19103-7098 Francis E. Marshall, Jr. (See above) [COR LD NTC] Docket as of May 5, 1999 4:04 pm Page 1 Proceedings include all events. 1195cv1284 Yeyna, et al v. Dow Corning Corporat, et al APPLIED SILICONE CORPORATION defendant BAXTER HEALTHCARE CORPORATION, as successor in interest of Heyer-Schulte, American Hospital Supply Corp., American Heyer-Schulte Corporation, Travenol Labs, Inc. defendant Docket as of May 5, 1999 4:04 pm TERMED REMAND HBG Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley 215-557-6544 [COR LD NTC] McCarter & English, LLP 2005 Market St. Suite 3600 Philadelphia, PA 19103 215-557-7700 Gilda L. Kramer [COR LD NTC] 1500 Walnut St., Suite 1100 Philaelphia, PA 19102 (215) 732-4055 Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Lauren A. Stevens [COR LD NTC] Hecker, Brown, Sherry and Johnson 1700 Two Logan Square 18th and Arch St. Philadelphia, PA 19103 215-665-0400 Madeline M. Sherry [COR LD NTC] Hecker, Brown, Sherry and Johnson 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 665-0400 Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) Page 2 Proceedings include all events. 1c95cv1264 Yeyna, et al v. Dow Corning Corporat, et al BRISTOL-MEYERS SQUIBB AND CO. defendant COOPER SURGICAL, INC., a wholly owned subsidiary of the Cooper Companies, Inc. defendant COOPER COMPANIES, INC., THE, indiv. and as successors in interest to Natural Y Surgical Specialties, Inc. and Aesthetech formerly known as Coopervision, Inc. defendant Docket as of May 5, 1999 4:04 pm TERMED REMAND HBG [COR LD NTC] Gordon S. Elkins (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley (See above) [COR LD NTC] Gordon S. Elkins (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley (See above) [COR LD NTC] Gordon S. Elkins (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley (See above) [COR LD NTC] Page 3 ProceeAings include all events. 1,95cv1264 Yeyna, et al v. Dow Corning Corporat, et al TERMED REMAND HaG COX-UPHOFF INTERNATIONAL aka CUI Corporation defendant C. James Zeszutek [COR LD NTC] THORP, REED & ARMSTRONG One Riverfront Center Pittsburgh, PA 15222 412-394-2565 Kimberly A. Brown [COR LD NTC] Thorp, Reed & Armstrong One Riverfront Center Pittsburgh, PA 15222 (412) 394-2565 Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] now CORNING CORPORATION defendant [term 02/09/99] Francis E. Marshall, Jr. [term 02/09/99] (See above) [COR LD NTC] Kerry Voss Smith [term 02/09/99] (See above) [COR LD NTC] Robert S. Forster, Jr. [term 02/09/99] [COR LD NTC] Schnader Harrison Segal & Lewis 1600 Market St Suite 3600 Philadelphia, PA 19103 215-751-2205 DOW CORNING WRIGHT CORPORATION defendant [term 02/09/99] Francis E. Marshall, Jr. [term 02/09/99] (See above) [COR LD NTC] Kerry Voss Smith [term 02/09/99] (See above) [COR LD NTC] Robert S. Forster, Jr. Docket as of May 5, 1999 4:04 pm Page 4 Procee~ings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al TERMED REMAND HBG [term 02/09/99] (See above) [COR LD NTC] GENERAL ELECTRIC COMPANY defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] E. Michael Keating, III [COR LD NTC] Hollstein Keating Cattell Johnson & Goldstein, P.C. 1608 Walnut St. Suite 1602 Philadelphia, Pa 19103 215-893-9488 INAMED CORPORATION defendant C. James Zeszutek (See above) [COR LD NTC] Kimberly A. Brown (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] MCGHAN MEDICAL CORPORATION, (a California corporation) defendant C. James Zeszutek (See above) [COR LD NTC] Kimberly A. Brown (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) Docket as of May 5, 1999 4:04 pm Page 5 Proceedings include all events. 1;95cv1284 Yeyna, et al v. Dow Corning Corporat, et al MCGHAN MEDICAL CORPORATION (A DELAWARE CORPORATION) defendant MCGHAN NUSIL CORPORA aka Nusil Technologies defendant MEDICAL ENGINEERING CORPORATION dba Surgitek, a wholly owned subsidiary of Bristol Meyers Squibb defendant MINNESOTA MINING AND MANUFACTURING COMPANY, INC. (3M), indiv. and as a successor in interest to Docket as of May 5, 1999 4:04 pm TERMED REMAND HBG [COR LD NTC] C. James Zeszutek (See above) [COR LD NTC] Kimberly A. Brown (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Gilda L. Kramer (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Gordon S. Elkins (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley (See above) [COR LD NTC] C. James Zeszutek (See above) [COR LD NTC] Page 6 Proceedings include all events. 1195cv1284 Yeyna, et al v. Dow Corning Corporat, et al McGhan Medical Corporation (a California corp.) aka 3M Company aka McGhan Medical Corporation 3M Center defendant NATURAL Y SURGICAL SPECIALTIES, INC. defendant HULS AMERICA, INC. fka Petrarch Systems, Inc. defendant SCOTT PAPER COMPANY defendant Docket as of May 5, 1999 4:04 pm TERMED REMAND HBG Kimberly A. Brown (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Gordon S. Elkins (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Robert M. Britton [COR LD NTC] Post & Schell, P.C. 19th Floor 1800 JFK Boulevard Phila, PA 19103 215-587-1051 Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Page 7 Proceedings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al TERMED HBG REMAND SIROD CORPORATION defendant Gordon S. Elkins (See above) [COR LD NTC] Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley (See above) [COR LD NTC] UNION CARBIDE CORPORATION defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Jeremy D. Mishkin 215-772-7620 [COR LD NTC] Montgomery McCracken Walker & Rhoads, LLP 123 South Broad St Philadelphia, PA 19109-1029 215-772-1500 UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC. defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Jeremy D. Mishkin (See above) [COR LD NTC] 21 INTERNATIONAL HOLDINGS, INC. fka Knoll International Holdings, Docket as of May 5, 1999 4:04 pm Robert M. Britton (See above) [COR LD NTC] Page 8 TERMED REMAND Proceedings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al Inc. fka Foamex Products, Inc. fka Scot foam corporation fka General Felt Industries, Inc. fka Eddy Acquisitions now operating under the fictitious name of Foamex, a Division of KIHI defendant WILSHIRE TECHNOLOGIES, INC. fka Wilshire Foam products, Inc. defendant Docket as of May 5, 1999 4:04 pm HBG Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Daniel T. Fitch [COR LD NTC] Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103-7098 215-564-8000 Arthur J. Murphy, Jr. [term 09/30/96] [COR LD NTC] Murphy, Taylor, Trout & Chestek, P.C. 326 Third Ave. Pittsburgh, PA 15222 412-255-0200 S. Gordon Elkins, Esq. [COR LD NTC] Stradley, Ronon, Stevens & Young 2600 One Commerce Square Phila, PA 19103-7096 215-564-8121 Stephen W. Trout [COR LD NTC] Murphy, Taylor & Trout, P.C. Suite 1100 1616 Walnut St. Philadelphia, PA 19103 Kimberly A. Hendrix [COR LD NTC] Stradley, Ronon, Stevensw & Young, LLP 2600 One Commerce Sq. Philadelphia, PA 19103 (215) 564-8000 Page 9 Proceedings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al TERMED REMAND HBG Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Therese M. Keeley (See above) [COR LD NTC] JAMES A. YATES, M.D. defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Linda porr Sweeney [COR LD NTC] 1650 William Penn Way P.O. Box 10696 Lancaster, PA 17605-0696 717-390-3020 PLASTIC SURGERY CENTER, LTD. defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Linda porr Sweeney (See above) [COR LD NTC] RICHARD DABB, M.D. defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] YORK PLASTIC SURGERY Francis E. Marshall, Jr. ASSOCIATES (See above) Docket as of May 5, 1999 4:04 pm Page 10 Proceedings include all events. 1:95cv1264 Yeyna, et al v. Dow Corning Corporat, et al TERMED HBG REMAND defendant [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] HOLY SPIRIT HOSPITAL defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] YORK HOSPITAL defendant Francis E. Marshall, Jr. (See above) [COR LD NTC] Kerry Voss Smith (See above) [COR LD NTC] Docket as of May 5, 1999 4:04 pm Page 11 Proceedings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al TERMED HBG 6/8/95 1 REMAND JOINT NOTICE OF PETITION FOR REMOVAL filed by Dow Corning Corp. & Dow Chemical Co. Copy of orig. cmp. from cumberland Co. Common Pleas Court Case Number: 2915 Civil 1994 attached. $120.00 filing fee paid. R# 111 118351 N/C to cnsl. (js) [Entry date 08/10/95] [Edit date 08/14/95] REMARK- Copy of docket & cmp. to J. Caldwell. Orig. file to Hbg. active file rm. (js) LETTER - dtd. 8/21/95 to patricia Howard, Clerk on MDL from clerk enclosing docket entries, complt. & 2 orders entered in ED of Michigan dtd. 8/10/95 & 8/11/95. (am) LETTER - dated 6/16/95 to Ct. from Atty. Forster o/b/o Dow Corning requesting general stay order pending decision of Judge Hood. (jh) [Entry date 06/28/95] ORDER by Judge Sylvia H. Rambo IT IS ORDERED that the time w/in which the parties to the cases which are the subject of the notices of removal may file their mtns, statements or other responses to the notices of removal is extended to 10 days, calculated in accordance with FRCP 6, after Judge Hood enters an order in response to Dow Corning Corp.'s mtn to transfer. It is further ordered that all proceedings in this Court in those cases subject to the notices of removal are stayed for the same time period following Judge Hood's order. Case stayed (cc: all counsel & Ct.) (jh) [Entry date 06/28/95] 8/14/95 6/23/95 2 8/24/95 3 6/24/95 4 8/29/95 5 8/30/95 6/31/95 7 Statement by plaintiff Josephine M. Yeyna pursuant to Federal Rule of Bankruptcy Procedure 9027(e) in the Notice of Removal (ao) [Entry date 06/30/95] Demand for Trial by Jury by pltf(s) (ao) [Entry date 08/30/95] Remark: Docs #5 & #6 to Judge Caldwell (ao) 8/29/95 6 8/31/95 9/1/95 6 Statement of Minnesota Mining & Manufacturing Co. pursuant to BK Rule 9027(e) (3) and C of S (ls) Remark doc 7 to Caldwell (ls) STATEMENT - of defendants James A. Yates, M.D. and plastic Surgery Center, Ltd., pursuant to BK Rule 9027(e) (3) and c of s. (jh) [Entry date 09/06/95] 10/18/95 9 NOTICE by defendant Dow Corning Corporation that the Prothonotary & all interested parties were served with the Notice of Removal and c of s. (jh) [Entry date 10/20/95] Docket as of May 5, 1999 4:04 pm Page 12 Proceedings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al 10/23/95 10 10/23/95 11 10/31/95 12 11/1/95 13 11/2/95 3/5/96 14 3/5/96 11/19/96 1/10/97 15 1/14/97 6/19/96 16 TERMED HBG REMAND Dow Chemical to by the MDL not rule on any MDL Panel Order LETTER - from Walter Jenkins, Esquire o/b/o Court dated 10/4/95 reI The 9/29/95 ruling Panel states that Courts should not and may pending mtns to remand or dismiss. Copy of attached. (jh) [Entry date 10/25/95] ADMINISTRATIVE ORDER by Judge Sylvia H. Rambo IT IS ORDERED THAT all mtns to transfer and/or to sever currently pending in Silicone Gel Breast Implant Cases filed in this district are stayed until further order of court. (cc: all counsel & Ct.) (jh) [Entry date 10/25/95] [Edit date 10/26/95] Certified copy of CTO #74 making this action part of MDL 926 in reI Silcone Breast Implant Product Liability Litigation. Case transferred to ND of AL under civil #95-P-13604. Cert copies of dkt entries only to ND of AL. Case terminated (ls) Letter from court to all counsel dated 11/1/95 re: transfer of case to NO of AL with address and new case number. (ls) [Entry date 11/02/95] Remark doc 12, 13 to HBG (ls) Acknowledgement Received from ND of AL of cert copies of dkt entries on 11/7/95. (ls) REMARK - doc 14 to CFR (ls) Case file rec'd in SCR & sent to closed file room. (ep) PRAECIPE: by Francis E. Marshall, Jr., Esq., and Kerry Voss Smith, Esq., cnsl. for dfts. to change address as follows: Marshall, Smith & Haddick P.C., 20 South 36th Street, Camp Hill, PA 17011, (717) 731-4600, (717) 731-4803 Fax; CIS. (Atty. Maintenance Form to Scranton) (vg) [Entry date 01/14/97] REMARK - Doc. #15 to Scranton CFR. (vg) NOTICE by Defendants Inamed Corporation, McGhan Medical Corp., McGhan Med Corp (DE), Minnesota Mining & M; of MOL 926 June 2, 1996 Order of Court Provisionally Certifying Mandatory Settlement Class Under Fed.R.Civ.P. 23 (b) (1) (B) Preliminarily Approving Class Settlement and Temporarily Staying Litigation Against INMAED-related Parties; with attached exhibits and cis. (ta) [Entry date 06/23/98] Docket as of May 5, 1999 4:04 pm Page 13 Proceedings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al 2/9/99 17 3/16/99 18 3/19/99 19 3/22/99 20 3/24/99 21 3/26/99 22 3/31/99 23 4/1/99 24 4/2/99 25 TERMED HBG REMAND ORDER #48B REMAND TO TRANSFEROR COURT dated 1/26/99 atht pursuant to Judicial Panel on MDL Order dated 1/21/99, that the case listed on the attached appendix are hereby remanded to the Transferor Court supject to the following terms and conditions listed (a) thru (i) dismissing numberous defts with and w/out prejudcie and giving instructions as to further proceedings in the transferor courts after remand. This order will be fied in the Master file CV92-P-100000-S. PLEASE SEE ORDER FOR COMPLETE DETAILS. (cc: all counsel) (rm) [Entry date 02/19/99] LETTER - from deputy clerk to cnsl. of record dated 3/16/99 reI Submit status report by 3/30/99. (jh) [Entry date 03/17/99] MAIL RETURNED - Letter dated 3/16/99 - cc: Stephen W. Trout, Esq., marked "Undeliverable as Addressed, Forwarding Order Expired." (vg) [Entry date 03/22/99] MAIL RETURNED addressed to Linda Porr Sweeney, Esq., cnsl. for James A. Yates, Plastic Surgery Cent - 3/16/99 letter - marked, "Attempted, Not Known." (vg) [Entry date 03/23/99] WRITTEN STATUS REPORT by atty. James Zeszutek for dfts. Cox-Uphoff International, Inamed Corporation, McGhan Medical Corp., McGhan Med Corp (DE), Minnesota Mining & Manufacturing Company. Pltf's counsel has consented to the dismissal of their claims against 3M; Pltf. and the remaining co-dfts. are enjoined from asserting or pursuing andy claims or cross-claims against McGhan, Inamed or CUI by order of J. Pointer's 2/1/99 order. With c of s. (ma) [Entry date 03/25/99] SUBSTITUTION OF COUNSEL: terminating S. Gordon Elkins, Esq. and substituting attorney Therese M. Keelye. (tm) WRITTEN STATUS REPORT by defendants Baxter Healthcare Corporation and Baxter International Inc. These dfts will move for dismissal and entities improperly sued as American Heyer-Schulte and American Hospital Supply; with cis. (sc) WRITTEN STATUS REPORT by plaintiff Josephine M. Yeyna; pltf will be shortly filing a motion for remand. (pr) [Entry date 04/02/99] [Edit date 05/04/99] LETTER to court from defendants Dow Corning Corporation and Dow Corning Wright Corp. dated 3/31/99 reI All claims against these corporations have been dismissed and they respectfully request that they be excused from further pre-trial matters. (jh) [Entry date 04/05/99] [Edit date 05/04/99] Docket as of May 5, 1999 4:04 pm Page 14 TERMED Proceedings include all events. 1:95cv1284 Yeyna, et al v. Dow Corning Corporat, et al 4/2/99 26 4/7/99 27 4/12/99 28 4/29/99 29 4/29/99 30 4/29/99 5/4/99 31 5/5/99 HBG REMAND LETTER to court from Therese M. Keeley, Esquire o/b/o defendants Aesthetech Corp, Bristol-Meyers Squib, Cooper Surgical Inc., Cooper Companies, Inc., Natural Y Surgical, Medical Engineering, Sirod Corporation and Wilshire Technologies dated 3/30/99 reI Plaintiffs in this case are participants in the Revised Global Settlement Program approved by Judge Pointer in the MDL and have therefore settled with our client. (jh) [Entry date 04/05/99] [Edit date 05/04/99] ORDER by Judge William W. caldwell: Upon consideration of status reports filed by one or more parties, on or before 5/24/99, all parties are ordered to file and serve any mtn. concerning requests for stay, remand, dismissal based on settlement or withdrawal, or for similar matters. Stips. may be substituted for mtn. (cc: Ct., all counsel) (vg) [Entry date 04/06/99] [Edit date 05/04/99] MAIL RETURNED addressed to Atty. Stephen W. Trout on behalf of Wilshire Technologies. Attempted to call atty. Troutman for address verification, phone no longer in service. (ma) [Entry date 04/13/99] [Edit date 05/04/99] MOTION by pltf to remand case to Philadelphia County Court, concurr, verif, exhibits, c of s, proposed 0 (lg) [Edit date 05/04/99] CERTIFICATE of CONCURRENCE of all counsel filed by pltf re pltf's motion for remand (lg) [Edit date 05/04/99] REMARK - docs 30,31 to HBG (lg) ORDER by Judge William W. Caldwell Upon consideration of pltf's mtn for remand, and good cause being shown, IT IS ORDERED that Josephine Yeyna v. Admiral Materials Corp., et al., M.D. Civil Action No. CV-95-1284, be remanded to Cumberland County under Court No. 94-2915. [29-1] remanding case to Cumberland County Court (cc: all counsel, Ct., Cumberland County Court & Security) (jh) [Entry date 05/05/99] REMARK - Case file placed in closed file room in Hbg. (jh) Docket as of May 5, 1999 4:04 pm Page 15 ---- / 1'- I ~ Pcny M.lhi. Clerk UNITED STATES DISTRICT COURT Northern District of Alabama Office of the Clerk Hugo L. Black United States Courthouse Room 140, 1729 5th Avenue North Birmingham, Alabama 35203 (205) 278-1717 /: 9.s-e t/ lol~ f- January 29, 1999 Ms. Mary E. D'Andrea Middle District of Pennsylvania P. O. Box #1148 Scranton, PA 18501-1148 RECEIVEL: SCR.c.~JTO' FEB - 9 1999 ~:~y 10. JLdJ"Q~Crl" ~TY CLERK . Dear Ms. D'Andrea In accordance with the order of this court entered January 26, 1999, the enclosed cases, which are a part of MOL 926, have been remanded from this court to your court for futher litigation. Enclosed is our original court file which contains any original or copied documents you may have transmitted to us when the case was transferred to us by the Judicial Panel. Also enclosed is a certified copy of our docket entries and a certified copy of the order of remand to your court. The number this case proceeded under in your court is listed on the enclosed appendix attached to Order 48B. Sincerely, FILED S~RANTON FEZ ~.!; 1999 PER ~ ;:>< -1c o PUTY CLERK ./ ~ Sharon Harris Chief Deputy Isnh Encl. AI 2,95.04958 CV95'19288 FISH SNIJIL_R LAHCASTER GEN NOSP: SCHAMTZ, JOHN C PAl 2:95.04963 CV95.19Z91 MOTU ZACHU_J THOMAS V: GEN MEDICAL CENTER; LAMANA, JOHH V: MOSER, HANNY H: PROSERPI, SERGIO; PtOSERPI-MOSERPLAS: READI~ NOSP PAl 2:95.04964 cm. I 9292 HEMETH SHELLE_J CHESTER CTY NOSP: SOUSER, ROSLYN PAl 2:95.04970 CV95.14212 SACK SHELLE_J AESTHETECH; IRISTOL'MYERS: IURGET CAPLAN ASSOC: CAPLAN, HOWARD S: COOPERSURGlCAL; JACKSON, PALMER: NEC; NATURAL Y: PAOLI MEMORIAL NOSP PAl 2:95'04983 CV95.19299 OOYLE ZACNU_J FALLICK, HARRY: NERCY HAVER'OID NOSP PAl 2:95.04990 CV95-19304 TAYLOII SNELLE_J COLONIO, JAMES: CROZER-CHESTER MED CTR; DEPRDP~ETls, ESTATE OF NINO; NEDIA PLASTIC SURGICAL ASsac PAl 2,95-OSOO0 CV95' 1 4223 MOOIIET SHELLE_J IEDDINGS, ALEJERDRO; ST MAlY'S HOSP PAl 2:95.05015 CV95.19316 KEIIlUER LEl/IS_GA NOONE, R IARRETT; PLASTIC I RECONS PAl 2,95.05018 CV95-14233 BUSH SHELLE_J NEC; NARDELLA, GUT M JR; RIDOEL NEMORIAL HaSP PAl 2:95-05047 cm - I 4243 RUIENSTEIN IAUE_MI IRISTOL'MYERS; IRYN MAWR HOSP; HOONE, R lAARETT; PEHNsYLVAHIA NOSP; ROYSTER, HENRY P PAl 2:95-05058 CV95-14249 JAMESON SHELLE_J ALTOBELLI, JOHN; LEHIGH VALLET HOSP PAl 2:95'D5063 CY96-10Z92 LEVERETT SHELLE_J AESTHETECH; APPLIED SILICONE; IRISTOL'MYERS: COOPERSURGICAL: COSMETIC SURG INC; MEC: NATURAL Y; SLAVIN, JAMES PAl 2.95.05075 CV95.14259 TEIIENS IIJIlDY_JA IAXTER HEALTHCARE; IAXTER I.T'L; IRYN MAWR HOSP; NOONE, R BARRETT PAl 2:95,05115 CY96-12476 YELLIN ZACHU J NOSP UNIV OF PAl RANOALL, PETER PAl 2:95-05124 CV95.14286 CARUSO ZACHU:J FALLICK, MAARY; MERCY HAVERFOID NOSP PAl 2:95'06127 CV95-1aoo2 CARIONARA SHELLE_J AESTHETECH; SRISTOL-MYERS; COOPERSUROICAL; MEC PAl 2:95-06131 CV95.1ao06 ARTON DAMIEL_R HOSP MED COLLEGE PAl LUNDY, BARBARA; MONTGOMERY HOSP PAl 2:95-06135 CY95' I aooa MCCLAIN lINOU_D DAVIS, THOMAS S PAl 2:95-06149 CV95'1aoI6 RIVERA DANIEL_R AESTHETECH: IAXTER HEALTHCAll; IRISTOL'MYERS; CAPLAH. HOWARD S: CEDRONE, FRANCINE A; cqoPERSURGICAL; MEC: NATURAL Y; PAOLI MEMORIAL HOSP; REPLICON LAB PAl 2:95-06212 CV95 -19348 HERSH ZACHU_J NED COLLEGE PA NOSP; SEITCHIE, ~RAY V PAl 2:95-06298 CV95.19389 KEMPF SHELLE_J IRYN MAWR HOSP; NOONE, R IAlIETT; PLASTIC I RECONS PAl 2:95-06511 CV95- 183DO SINENI SNELLE_J ALlERT EINSTEIN MfO; AACILLA, JOEL; MANSTEIN PLASTIC SUR; MANSTEIN, GEOIIGE PAl 2.95-06514 CV95-194DI PATTISON IAAlE_MI COSMETIC SURGERY CTR; SILBERMAN, DAVID A PAl 2.95-06515 CV95-194D2 ICEIIER ZACHU_J DOOLEY, THOMAS V; LAMANA, JONN V; MOSER, MANNY H; PROSERPI, SERGIO; PROSERPI'MOSERPLAS; READING NOSP PAl 2:95-06518 CV95 - 19403 MACON I SNELLE_J IAXTER HEALTHCARE; IRISTOL-MYERS; COOPERSURGICAL; MEe HATURALY PAl 2:95-06520 CV95-19405 SLOYU ZACHU J IERGERMEISTER, HERMAN PAl 2.95-06523 CV95-194D7 APELT BARUjil DEL VALLET MED CTR; LEIS, SHERMAN PAl 2.95-06525 CV95 - 1 9409 COIINETT SHELLE_J IAXTER HEALTHCARE: CHESTER CTT HOSP; MENTOII; ROILYN C SOUSER MO; SOUSER, ROILYN; SURG CTR CHESTER CiT; VINGATE, GAllY F 2.95-06534 CV95-19415 ~~~~. LEl/IS_GA MAGDISKDOSI; TEIlPLE UIlIV HOSP 1:95.01284 CV95-13604 SHELLE_J DAlI, RICIWlll; PLASTIC SIJIUiDY CONS; YOIIK HOSP PM 1:95-012l19 CY95 - 13607 IIJIlDY_JA GRAHAM, VILLlAM P.; ItOl.Y SPIRIT HOSPITAL FlED. ~ PM 1:95.01299 CY95-13611 Rl!AII ' IIJIlDY_JA HERCEG, STEPHEN; MAARISBIURG HOSPITAL PM 1.95-013011 CY95-13614 9 - !2,.II1-"MN. RElMAA_D DAVIS, ROIERT M; YOIIK PLASTIC SURGERY; MEC; IRISTOL- ~' MYUS: DAIS, UCIWlll V.; CA1AIaETTA, ARTIUl M. PM 1:95'01309 CY95-13615 CIUIlI " t>o'~ RElMAl D APPLIED SILICONE; DAlII, RICllAID V PM 1:95'013" CY95-13616 ELLI. .~ UlMAl) IAXTER HEALTHCAItE; DAVIS, IlllIDT M; YOIIK PLASTIC SURGERY: IAXTER INT'L: AlST.TECH: MEC: IRISTOL-MYER! 1lOf~~ COOPERCOCPANIES; NAlWAL Y; DAIS, RICIWlll PM 1:95-01312 CY95-13617 UlMAA_D DAVIS, ROIERT M; HEC; YOIIK PLASTIC SURGERY; MEC; JOIDNKJ' .9?~ IRISTOL-MYERS; ANGELO, JOHN J.; DAlII, RICIWlll V. PM 1.95'01313 CY95.13618 REI MAl_a APPLIED SILICONE; IlAMD\JCCI, DENNIS RAY; IAXTU ':~.1~~:~ HEALlHCARE; GRAHAM, VILLlAM Pili; _ERS, EIUIEST PM 1:95'01315 CY95-136Z0 UlMAl 0 DAVIS, ROIERT M. PM 1:95-01318 CY95.136Z3 REIMAA-D DAVIS, ROIERT M. PM 1:95.01319 CY95-136Z4 RElMAA:D AESTHETECH; COOPER co'S; DAVIS, ROIERT M: YOIIK PLAST: SURGERY: COOPERCOMPANIES: NATURAL Y: AlSTHETECH; HUS: 1If1l~.~ TECHNOlOGY: OAlll, RICHARD V. PM 1.95-0UZO CY95-13625 RElMAA_D DAII, RICIWlll V: YOIIK PLASTIC SURGERY: MCGHAM NUSIL; TI~tJ.~ DAIS, RICIWlll V. PM 1:95-01321 CY95.13626 REIIWt_D SRISTOL-MYERS: MEC PM 1:95.01322 CV95-13627 1li111119' ~<<- ~'e REIIWt_D CALAIRETTA, ARTI<<JR M; COOPER co'S: YOIIE PLASTIC SURGERY: COOPERCOCPANIES: HAlWAL Y: AESTHETECH: VILT~. e,#.e.u4! MCGHAM NUSIL: DAIS, ROIERT V.: DAVIS, ROIERT M. PM 1:95-01323 CY95-13628 REIMAl_D DAVIS, ROIERT M: YOIIK PLASTIC SURGERY: DAIS, RICHARD V.: ANGELO, JOH. J. ~ 3,94-00799 C'/94- 13892 'LAMMTT ~~J-- RElIW.D BAXTER HEALTHCARE ,All 3,95-01304 CV95 - 13629 GODD U' " iAtt;d<<P PLOEHE.N BOLUS, CIWLU H: HUCT HOSP ,All 4.95-01722 CV95- llIOZ2 J IUIIII' <:::. -??1....it. SHELLE.J GEISINGER KED CTR ' PAil 2:92-00382 CV92- 10244 SCHUlACRU !ALlAR_E BRISTOL-HTERS PAil 2:92-02266 CV93- 10786 fAIDLET !ALlAR.E BAXTER HEALTHCARE: IAXTU INT'L PAil 2:92-02342 CV93'10667 KOVACTK !ALlAR.E BAXTER HEALTHCARE: IAXTER IHT'L: IRISTOL-HTERS: HEC PAil 2:93-00085 CV94-10664 REIECCA STAffORD RlJIAlIO.D HANIIA, OVIGllT PAil 2:93-00251 CV93- "688 POLCHA PUER_AL BAXTER HEALTHCARE PAil 2.93-00324 CV93-1161l9 COlLE !ALlAR.H COOPER CO'S: HEC: IlATUlAL T PAil 2.93-0092B CV93- 1211I1 BOHACH PERER_AL BAXTER HEALTHCARE: BAXTER IHT'L PAil 2:93-01301 CV93-U912 HCQUAIDE PERU.AL BAXTER HEALTHCARE: BAXTER INT'L PAil 2:93-01450 CV93-13913 SCMER PERER.AL BAXTER HEALTHCARE PAil 2:93-01451 CV93- 14395 GAlRIEL !ALlAR)' IRISTOL'MYERS: MEC PAil 2.93-01562 CV93- 13914 fANNIH !ALlAR.E IAXTER HEALTHCARE: IRISTOL-HYERS: HEC PAil 2:93-01671 CV95-10111 fARRIHGER !ALlAR.H AESTHETECH: IRISTOL'HTERS: COOPER CO'S: COOPUSUllGICAL: MEC: HATUlAL T PAil 2.93-01706 CV93- 14103 IEHa: PERER.AL IRISTOL-MYERS: MEC PAil 2.93-01963 CV94.11D36 TARTAGLI OIIE BRlIlHE.P BRISTOL-HYERS PAil 2.93-02123 CV94-12935 HUELSINE PEUR_AL HEC PAil 2.93-02124 CV94-11671 IlAIICXl PEUR_AL BAXTER HEALTHCARE: IAXTER IHT'L PAil 2.94-00290 C'/94- I 1610 HULL I NS !ALlAR.M COOPER CO'S: MEC: NATUlAL T PAil 2:94-00350 CV94-12061 IlAGNER PERER.AL BAXTER HEALTHCARE: IAXTER IHT'L: MEC PAil 2.94-00351 CV94-13520 fRlGUGLIETTI PERU.AL IRISTOL-MYERS: COOPU CO'S; COOPERSURGICAL; MEC PAil 2:94-00477 CV94- I 2931 IAltTLET PERER_AL 3M; MeGHAII WSIL PAil 2.94-007.13 C'/94- 14471 PURAULT PUU.AL IRISTOL-MTERS: MEC PAil 2:95-01601 CY96.12221 HILLER PERER_AL 3M; COllEN, IERHARl) I; MCGHAII MIL II 2:97-01514 CV91' I 1109 PARROTT BRlIlHE_P IRISTOL-HYUS 1:97-00635 CV91- "940 DEANGELIS IIUGO_MIC BAXTER IHT'L: IAXTER HEALTHCARE: IRISTOL-MYERS; MEC; MEC SUlSIDIART: MUSIL TECH 1:97-00641 CV9B- "945 PHELPS IIUGO.MIC IRISTOL-MTERS; MEC; MEC SUlSIDIARl; HUSIL TECH 1:97-00644 CV98-11947 IIILIlI.WN HUGO.MIC 8RISTOL-MTERS: MEC; MEC SUBSIDIART: MUSIL TECH I : 97-l10683 CV98- "957 IlURLET HUGO.MIC BAXTER INT'L: BAXTER HEALTHCARE: IRISTOL-HYERS: MEC; MEC SUlSIDIART; MUSIL TECH 2:93-02334 CV93- 13672 AYAIIT HAHN_ILA 3M; AESTHETECH: BRISTOL-HYERS; COOPER CO'S; COOPERSUllGICAL; MEEC: IlATURAL Y 2,93-02362 CV93- 13675 ACXERIWI lIlELL.CT BAXTER TRAYENOL; 8RISTOL-MTERS; MEC 2:93-02546 CV93-13916 DILL lIlELL.CT 3M; BRISTOL-HYUS: MEC 2:95-02501 CV95-12013 L TEaL T IEL.JAIIf ROPER HOSP 3:93-00603 CV93-112B7 HARRIS SUGGs_a BAXTU HEAL THCARE 3:93-03049 CV94-10206 HEALEY SUGGs_a 3M; MeGHAII IlUS I L 6,93-02341 C'J93-13372 MCCAl.L SIIITH_!A BAXTER HEALTHCARE: BAXTER INT'L TNE 1:92-00238 CV92-10642 COffEY COLVIN.II AESTHETECH; IlARKIWI lIED INT'L; IlATURAL Y THE 2:92-00269 CV92-11017 JOIIES 8OTIl_LOII MEC TNE 2:92-00334 C'J93- 14400 GROGG 8OTIl_LOII 8RISTOL-MTERS: MEC: MEC SUBSIDIARY THE 2:93-00056 C'J93- 13693 T1PTOII 8OTIl_LOII MEC; BRISTOL-MYUS: MEC SUBSIDIARY THE 2:93-00310 C'J93- 13694 HICKOLS IlCAfEE_C BRISTOL-MTERS: MEC: MEC SUlSIDIARY TNE 2:93-0031 I C'J93- 13695 TEII'LETOII IlCAfEE.C IRISTOL-MTERS: MEC: MEC SUBSIDIART THE 2 :93-00480 CV94- 10214 IIJLLlNS BOYD.LOII BAXTER HEAL THCARE TNE 2:96-00390 CY96- 12371 suas IIWCCH_M 8RISTOL-MTERS; MEC TNE 2:96-00497 CY96-12510 RENfRO IlCAfEE_C A BAXTER HEALTHCARE; BAXTER INT'L: 8RISTOL-HYUS: MEl MEC SUlSIDIART TNE 2:97-0031 I CV97-1115B T1PTOII IIWCClt.M 8RISTOL-MTERS; MEC TNE 2:97-00471 CV98.10219 TICHENOR IlAITE_DA 8RISTOL'MTERS; MEC: POllEX TECHNOLOGIES TNE 3:94-00109 CV95-10032 LA* IlAITE.DA POREX TECI TIIII 3:93-00491 C'J93-lm5 G I PSOII COLVIN_II 8RISTOL-MTERS; MEC TIIII 3:93-00732 C'J93- 13404 IRATCHER HAHN_ILA AESTMETECI; BAXTER HEALTHCARE; BAXTER INT'L: IllISTOL' HYERS; COOPER CO'S; COOPERSUllGICAL; MeGHAII IlUSIL: HEe TIOI 3:95-01113 CY96-11928 AlIlEN8ERGER NORTH_PH 8RISTOL-MTERS: JACKSOII, PAUlER: MEC: MENTOR TIOI 3:96-00598 CY96-1ZS" STOll( 8IWCCH_M 8RISTOL-MTERS; MEC TIlII 2:93-02446 C'J93- I 1864 MClRIDE IRJTTOII.M IRISTOL-MTERS: MEC TIlII 2:93-02790 C'J93- 13699 FORTNU HAHN_ILA AESTHETECH: BAXTER HEALTHCARE; BAXTER INT'L; IllISTOL HYERS; COOPER CO'S; COOPUSUIlGlCAI.: MCGHAII MUSIL; ME' TIlII 2:93-02791 C'J93- 13700 SAll'SOII IlADE_8.J AESTHETECH: BAXTER HEALTHCARE; BAXTER IHT'L: IllISTOL HYERS; COOPER CO'S: COOPERSUIlGlCAL: MeGHAII MUSIL: HE TIlII 2:93-02793 C'J93- 13701 ABIlAIIS IlADE_I.J AESTHETECI: BAXTER HEALTHCARE: BAXTER INT'L; IllISTOL MYUS; COOPER CO'S; COOPERSURGlCAI.; MeGHAII MUSIL; HE' TIlII 2,93-02797 C'J93- 13702 H ICIOWl HAHN_ILA AESTHETECN; BAXTER HEALTHCARE; BAXTER INT'L: BRISTOL HYERS; COOPU CO'S; COOPERSURGICAL: MeGHAII MUSIL; HE TIlII 2:93-02820 C'J93- 14108 G11IDU HAHN_8LA AESTHETECI: BAXTER HEALTHCARE: BAXTU INT'L; IllISTOL MTERS; COOPER CO'S: COOPUSURGICAL; MeGHAII MUSIL: HE' IlALLlN, IlART -= I! := \-, . ..,. --. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA Southern Division 99 JAtl26 AM 1\: 00 In re: . ... .. ,:...,. .JL:.=. U,:;). 1..0" ~ eO , .\' I' 0 ~:: ., ...',..... 1. . ," u.... - - . ) ) ) ) ) ) Master File No. CY 92-P-IOOOO-S This document relates to the cases \ t \ identified on the attachediMfERED ()\J SILICONE GEL BREAST IMPLANTS PRODUCTS LIABILITY LITIGATION (MDL 926) ORDER No. 488 Remand to Transferor Courts JAN 2 6 1999 Pursuant to the order of the Judicial Panel on Multidistrict Litigation dated January 21, 1999, the cases listed in the appendix to this order are hereby remanded to the Transferor Courts shown in the appendix subject to the following tenns and conditions: (a) All claims against Cow Coroing Corp. and Cow Coming Wright (including any crossclaims or third-party claims by defendants against Cow Coming Corp, or Cow Coming Wright) are, to the extent not previously dismissed, severed and not remanded. Such claims are, however, administratively closed in this court and dismissed without prejudice to the institution and punuit of such claims in the United States District and Bankruptcy CourtS for the Eastern District of Michigan in accordance with procedures established in those courts. This coun will, however, retain jurisdiction to vacate such dismissals and reopen such claims against Dow Coming on written motion if filed within 30 days after reorganization proceedings of Cow Coming are dismissed or within 30 days after the Eastern District of Michigan detennines that reopening of such cases against Dow Coming is the procedure to be followed in liquidating such claims. (b) All claims by any party against The Dow Chemical Company, Inc. and Dow Holdings Inc. are, to the extent not previously dismissed or transferred, severed and transferred to the United States District Court for the Eastern District of Michigan, Any requests for transfer of such claims to another federal court or for remand of such claims to state court will be detennined by the Eastern District of Michigan. (c) All claims by any party against McGhan Medical Corp., INAMED Corp., CUI Corp., and their subsidiaries and principals are, to the extent not previously dismissed, severed and administratively closed, without prejudice to the pursuit of such claims in a pending class settlement of such claims (and with the same rights under any such settlement as if they still bad a pending lawsuit against such companies and individuals). Moreover, this court retains jurisdiction to vacate such closings and reopen such claims on request if that pending class settlement should not be approved. I' . . (d) All claims against the following companies have been dismissed with prejudice through un- appealed fiDaljudgments: Bioplasty, Inc.; Bio-Manufacturing, Inc.; Cabot ~c;dical Corporation; Corning, Inc.; FoamexProduClS. Inc.; General Electric Co.; General Felt Industries. Inc.; Huls America Inc.; Knoll International Holdings. Inc.; Petrarch Systems, Inc.; Recticel Foam Corporation; Scotfoam Corporation; Scott Paper Company; Surgitek. Inc.; '21' International Holdings. Inc; '21' Foam Company, Inc.; and Uroplasty, Inc. c?6oJJ (0) AlI1isted claims against Mentor Corporation; Mentor Polymer Tec:hnologies, Inc.; Mentor 0&0, Inc.; Mentor HlS,lnc.; Mentor Urology,lnc,; Mentor International, Inc.; and Teknar Corp. re1atingto breast implants implanted before Juno I, 1993, are dismissed with prejudice. (f) All listed claims.against Union Carbide Corporation are, to the extent based OIl its 1990-1992 ownership of McGhan NuSiI Corporation, remanded to the indicated transferor court, butwill be subjec:t to dismissal by such court as to any plaintiff who, though eligible, failed to timely opt out of tho Revised Sett1ement Program. All other claims against Union Carbide Corporation, as well as all claims against Union Carbide Chemicals and Plastics Company, Inc., have been dismissed with prejudice pursuant to Order No. 37. (g) AU claims against Bristol-Myers Squibb Co., Medical Enginccring Corp.. Baxter Healthcare Corp" Baxter International Inc., Minnesota Mining and Manufacturing Co. ("3M"), and theirsubsidiaries are, iflisted in the appendix, remanded to the indicated transferor court, but will be subject to dismissal by such court as to any plaintiff who, though eligible, failed to timely opt out of the Revised Sdl\ement Program. Previously-pending claims against those companies, ifnot 1isted in the appendix, win be di....i.sed (subject to the right to reopen to the extent permitted under the terms of the Revised Settlement Program should a participating defendant default in meeting its financial obligations under that settlement). Counsel should note that pending claims against American Hospital Supply, American Heyer-Schulte and Heyer-Schulte are not shown if there are penclng claims against Baxter Hea\thcare inasmuch as those claims are encompassed within the claims against Baxter Healthcare. (b) All claims against other defendants not described in paragraphs (a) through (g) above are, iflisted in the appendix, remanded to the indicated federal courts, or, if not listed in the appendix, are dismissed. (i) In a few of the listed multi-plaintiff cases, the appendix identifies (in the column listing the defendants against whom claims are to be pUl'S\led) the plaintiffs whose claims are to be mnanded. Where such an indication is provided, the claims of all other plaintiffs in those cases are severed and dismissed or lIdministratively closed in this court and are not remanded. (j) Further proceedings in the transferor courts after remand will be governed, in general and to the extent applicable, by the orders previously entered in MOL 926 and Master File No. CV 92-P-1 OOOO-S. (I) Each plaintiff must, within 60 days after remand, serve upon the defendants in the case a completed questionnaire as previously prescribed by this court. This requirement does not apply if the plaintiff has previously served such a questioMaire on the defendants (or previously answered intmogatories seeking similar information) and such information is accurate and complete. (2) Any motions for transfer under 28 U.S.C. ~ 1404 or ~ 1406, or for remand to state court, will be decided by the transferor court after remand. (3) The provisions of Order No. 30, Order No. 30F, and Order No, 30G will apply to such further proceedings, including paragraph 8 of Order No. 30 which imposes an assessment on recoveries for "common benefit" services and expenses. (4) The deposition testimony of the members of the National Science Panel. appointed under Orders No 31 and 31D. will. when taken. be admissible and usable to the same extent as if taken before remand of the case. \ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPHINE YEYNA. CIVIL DIVISION Plaintiff. No, 94-2915 v. MINNESOTA MINING AND MANUFACTURING COMPANY. et al.. Defendants. ORDER OF COURT DISMISSING MINNESOTA MINING AND MANUFACTURING COMPANY Filed on behalf of Dcfcndant Minncsota Mining and Manufacturing Company Counscl of Record for this Party: C. James Zeszutek, Esq. PA I.D. No. 22071 Kimberly A, Brown, Esq. PA I.D. No. 56200 THORP. REED & ARMSTRONG, LLP One Oxford Centre 301 Grant Strcet. 14th Floor Pittsburgh. PA 15223 (412) 394-2323 o..ljl,)121J , IN THE COURT OF COMI-ION PLEAS OF ALLEGHENY COUNTY. PENNSYLVANIA AS THE COORDINATING COURT FOR SILICONE I:-'IPLANT LITIGATION TIIORI'. REED AND ARMSTRONG. Ll.I' By: C. James Zeszutek 1.0, No, 22071 Killlherly A Brown LD, No, 56200 One Riverfront Cenler ~o Stanwix Street Pittshurgh. PA 15222 (olI2) JlM-iill Attorneys for Defendant Minnesota Mining & Manufacturing - - Company BERNITA FORD. COURT OF COr.lMON PLEAS PHILADELPHIA COUNTY Plaintiff. MARCH TER.J\oI. 1992 vs, NO. 3653 DOW CORNING CORPORATION. et al. Defendants IN RE: SILICONE IMPLANT L1TIGA TION ORDER OF COURT DISMISSING DEFENDANT. i\lINNESOTA i\IININr. ,'I, i\lANUFACTURING COi\IPANY :\ND NOW, this 2.. C day of___.0Rril . 2001. this matter having come h.:lt)re the ('oun upnll the application ofTlwrp. Reed and Annstrong. 1.1.1'. attorneys for defendant ;\linncsota i\lining "" Manufacturing Company (".nl"). for wnsideratioll oflhe , retition for Leave to Discontinue Action against Minnesota Mining (, Manufacturing Company as to Settled Cases, it appearing that 3M has advised thir; court that service has been milde by the manufacturing defendilnts, pursuant to Pa.R.C.P, No. 4'10, on every pilrty that may be affected by this order of court with a notice advising the party to file legal papers setting forth any opposition to the petition fOl" Leave to Discontinue Action as to the lawsuits described in this court order, it appearing that plaintiffs' Steering Committee Counsel does not oppose the entry of a court order dismissing with prejudice 3H as a defendant or an additional defendant (1) in any pending Pennsylvania state court Im~suits of any plaintiffs who did not opt out of the federal settlement and (2) in any pending state court lawsuits of any plaintiffs who opted out of the federal settlement but subsequently settled their claims with 3H, and it appearing that my office has not received legal papers fr0;1', any party opposing the entry of a court order dismissing \~ith prejudice all claims raised by any party against 31-1, it is ORDERED that: 1. All claims and crossclaims raised by any party against 3~1 are dismissed with prejudice in any lil\~suits described in this court order. 2. The remaining co-defendants will be entitled to offer evidence at trial of the settled defendant's liability in accordance with the June II, 1998 Order of the Coordinating Court and \'Jill be ent itled to a reduction of any judgment entered against 2 , them, any reduction to be equal to 3f.l's propoL,tionate share or causal liability, if any, for plaintiff's injuries as determined by the factfinder at trial. 3. This Order of Court dismissing 3f.l will be the only original order issued in these cases. copies of this Order of Court Dismissing Defendant 3f.l shall be filed by 3101 in each case described in this court order and shall serve for purposes of filing as identical to the original and should be accepted as if the original in these cases. BY THE COURT: ! AJ JIv1-;7- ~IE.f<TICK, J. ( 3 . CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing ORDER OF COURT DISMISSING MINNESOTA MINING AND MANUFACTURING COMPANY was served via V,S, First Class Mail. postage prepaid. this 15th day of May, 2001, on the following counsel of record: SEE ATTACHED LIST (/cou 00301262 . YEYNA, JOSEPIIlNE Service List: S/ll/OI 00060084.DOCj 1 Jamie L Sheller. Esq. SHELLER LUDWIG & BADEY 1528 Walnut Street, 3N Floor Philadelphia, PA ]9102 Madeline M. Sherry, Esq, HECKER BROWN SHERRY & JOHNSON 1700 Two Logan Square 18th & Arch Streets Philadelphia, pA 19103-2769 TIlerese M. Keeley, Esq. McCARTER & ENGLISH One Commerce Square 2005 Market Str~'Ct, Suite 3250 Philadelphia, I' A 19103 Robert S, Forster, Jr., Esq. SCHNADER HARRISON SEGAL & LEWIS Suite 3600. 1600 Market Street Philadelphia I' A 19] 03.4252 Peter HotTman, Esq. McKiSSaCK & HOFFMAN 105 North Front Street Suite 205 Harrisburg, P A ] 710] Melissa J. Fassell, Esq. NUSIL TECHNOLOGY ]055-B Cindy Lane Carpenteria, CA 93013 Allan H. Starr, Esq. WHITE & WILLIAMS Suite 1800 1650 Market Street Philadelphia, PA 19]03-730] Gilda L Kramer, Esq, GILDA L KRAMER, ATIORNEY AT LAW 1500 Walnut Street. Suite 1]00 Philadelphia,PA 19102 Francis F. Marshall. Esq. MARSHALL SMITH & HADDICK P,C. 20 South 36'h Street Camp Hill, PA 1701] Dean F. Murtagh, Esq. GERMAN GALLAGHER & MURTAGH TIle Bellevue, Suite 500 200 S. Broad Street Philadelphia, I' A ] 9102 ~ot./~.:-i~~::j~{", , [;/'rii~,'-, . ' @, .... ----_.. .:i ,"_. ".<"'~' . ,'. .i..... .~,\i 1 " -" 1"'''''' ....,.;I'.C F' 1,1 r~ Ji' 1'/.. ." ,;,' "'~ :'" "',r'll" C~ ,...' ,.,',. !-.." I I ..' i)" 01 HAY31 nH 8: 113 . CUM;.;~;riJ;~) COUNTY PENi\S'(Lvt.NiA !J ~'.OO ?c.l 1++4 CJ..I:#- Per}.5..-u p.. -:IL 1/2'J.3 7 u " "....,.~.~., ...., ..i ,': . , f . " . ~' . I' ' " .... , ,/' " . -. . -~,_. " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY JOSEPHINE M. YEYNA, CIVIL DIVISION Plaintiff. No. 94-29]5 v, MEDICAL ENGINEERING CORPORATION. et al.. ORDER OF COURT DISMISSING MEDICAL ENGINEERING CORPORATION Defendants, Filed on bchalfofDefcndant Mcdica] Engineering Corporation Counscl of Record for this Party: Thcrcsc M. Kcelcy, Esq. PA Idcntification No. 408]3 McCARTER & ENGLISH One Commerce Squarc. Suitc 3600 2005 Market Strcct Philadc]phia, PA 19103 (215) 557-7700 1'111; 82827.01 Discontinue Action against Medical Engineering Corporation as to Settled Cases. it appearing that MEC has advised this court that service has been made by the manufacturing defendants. pursuant to Pa.R.C.P. No. 440, on every party that may be affected by this order of court with a notice advising the party to file legal papers setting forth any opposition to the Petition for Leave to Discontinue Action as to the lawsuits described in this court order. it appearing that plaintiffs' Steering Committee Counsel does not oppose the entry of a court order dismissing with prejudice MEC as a defendant or an additional defendant (1) in any pending pennsylvania state court lawsuits of any plaintiffs who did not opt out of the federal settlement and (2) in any pending state court lawsuits of any plaintiffs who opted out of the federal settlement but subsequently settled their claims with MEC. and it appearing that my office has not received legal papers from any party opposing the entry of a court order dismissing with prejudice all claims raised by any party against MEC. it is ORDERED that: 1. All claims and crossclaims raised by any party against MEC are dismissed with prejudice in any lawsuits described in this court order. 2. The remaining co-defendants will be entitled to offer evidence at trial of the settled defendant's liability in accordance with the June 11. 1998 Order of the Coordinating Court and will be entitled to a reduction of any judgment entered against 2 them, any reduction to be equal to MEC's proportionate share of causal liability, if any, for'plaintiff's injuries as determined by the factfinder at trial, 3. This Order of Court dismissing MEC will be the only original order issued in these cases. Copies of this Order of Court Dismissing Defendant MEC shall be filed by MEC in each case described in this court order and shall serve for purposes of filing as identical to the original and should be accepted as if the original in these cases. BY THE COURT: W~J/) WETTICK, J~ 3 EXHIBIT "B" List of MEC defendants: Defendants and Released Parties are defined to mean: BRlSTOL.MYERS SQUIBB COMPANY; BRlSTOL.MYERS SQUIBB CANADA; BRlSTOL.MYERS SQUIBB CANADA; INC.. BRISTOL.MYERS COMPANY; CONVATEC; LINVATEC CORPORATION; COOPER SURGICAL. INC.; THE COOPER COMPANIES. INC.; COOPERVISION.INC.; CV SUB 1987, INC.; AESTHETECH CORPORATION; MEDICAL ENGINEERING CORPORATION; MEDICAL ENGINEERING CORPORATION d/b/a SURGlTEK; INC.. MEC SUBSIDIARY CORPORATION f/kIa SURGITEK. INC.; SURGITEK. INC.; NATURAL Y SURGICAL SPECIALTIES. INC.; SIROD CORPORATION; CVI MERGER CORPORATION; CBI MEDICAL. INC.; CABOT MEDICAL CORPORATION; CBI MEDICAL. INC. nIkIa and/or aIkIa CBI MEDICAL ELECTRONICS. INC.; ROBERT BISHOP; ROBERT 1. HELBLING. MEC SUBSIDIARY. CORPORATION; EDWARD WECK.INC.; EDWARD WECK&COMPANY.INC.; JACQUELINE MARKHAM; HAROLD MARKHAM; LOTTIE MARKHAM; MARKHAM MEDICAL INTERNATIONAL. INC.; MARKHAM SURGICAL SPECIALTIES; MARKHAM MEDICAL ASSOCIATION; MARKIM RESOURCES. INC.; MARKIM SURGICAL; POLY PLASTIC SILICONE PRODUCTS. INC.; REAL LAPPIERE; SUMMIT MEDICAL CORPORATION; DERWOOD FARIES; VICKI GALATI; WILSHIRE FOAM PRODUCTS; INC.. WILSHIRE ADV ANCED MATERIALS. INC.; WILSHIRE TECHNOLOGIES. INC.; ZIMMER INTERNATIONAL; AND ZIMMER. INC., together with their subsidiaries. divisions. subdivisions. sister companies. affiliates. controlled corporations, partners, partnerships. parent corporations. successor and predecessor corporations. officers. .' directors, representatives. agents. servants, employees. and attorneys. and any and all other persons. firms and/or corporation. PHI l510101 CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that a true and correct copy of the foregoing Order of Court Dismissing Medical Engineering Corporation was served via First Class United States Mail, postage prepaid, this 14th day of June, 2001, on the following counsel ofreeord: SEE ATTACHED LIST 1'111: K2K2K.OI Josephine M. Yeyna v. Admiral Materials Corp., et al MDL Northem District of Alabama No. 95-P-13604-S Middle District ofPellnsylvania No. 95-CY-1284 Court of Common Pleas, Cumberland County, No. 1994-2915 Counsel List Jamie L. Sheller, Esq. Sheller, Ludwig & Badey 1528 Walnut Street Third Floor Philadelphia, PA 19102 Attomeys for Plaintiff Robert M. Britton, Esq. Post & Schell, P.C. 1800 JFK Blvd., 19th Floor Philadelphia, PA 19103 Foamex Products, Inc., Foamex, L.P., Knoll Intemational Holding, Inc., '21' Intemational Holdings, Inc., Scott Paper, and Scotfoam Corp. Jeremy Mishkin, Esq. Montgomery, McCracken, Walker & Rhoads, LLP 123 s. Broad Street Philadelphia, PA 19109 Union Carbide Chemicals & Plastics Co., Inc. and Union Carbide Corporation Madeline M. Sherry, Esq. Hecker Brown Sherry and Johnson 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 American Heyer-Schulte Corp., American Hospital Supply Corp., Baxter Healthcare Corporation and Baxter Intemationallnc. E. Michael Keating, lll, Esq. Hollstein Keating Cattell Johnson & Goldstein P.C. 1608 Walnut Street, Suite 1602 Philadelphia, P A 19103 General Electric Company C. James Zeszutek, Esq. Thorp, Reed & Armstrong One Riverfront Center 20 Stanwix Street Pittsburgh, P A 15222 Minnesota Mining and Manufacturing Company Gilda L. Kramer, Esq. 1500 Walnut Street Suite 1100 Philadelphia, P A 19103 Nusil Technology Allan H. Starr, Esq. White & Williams, LLP 1800 One Liberty Place Philadelphia, P A 19103 Holy Spirit Hospital Peter J. Hoffman, Esq. Elizabeth P. Gardner, Esq. McKissock & Hoffman, P.C. 1700 Market Street Suite 3000 Philadelphia, PA 19103 Richard W. Dabb, M.D. and York Plastic Surgery Assoeiates Robert S. Forster, Esq. Schnader, Harrison, Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, P A 19103 Dow Coming Corp. and Dow Coming Wright Corp. Linda Porr Sweeney, Esq. Porr & Associates, P.C. 1850 William Penn Way Suite 209 P.O. Box 10696 Lancaster, PAl 76005-0696 James A. Yates, M.D. and Plastic Surgery Center, Ltd. Francis Marshall, Esq. Marshall, Smith & Haddick 20 South 36th Street Camp Hill, PA 17011 York Hospital Pili: JI4KI>.l1l ..1 , ..... "~;~i:.,..tiaiii,t.~~t.~Jt~~:~;;" .';~; "I;'+Fi4~l;. .~.': . ~'~.~---~"--"''--_.~~. "'.... , _.~___,______-.J ~''''.~_._- " f'LfIt-l):rICE r\F ' I"'; '!I")"''''''N'''t'AOV V I ,-,..{ I t~,. j.....!;J IV\( 01 JOWl8 PH 3: 01 CUMB:RJ,i-iD COUNTY Pi:NNSYI.YAN~ .ts: CO j)cL My (' f"-i/ d.22.i R-II I / 31.2~ ~ l'" ,-,~~,'^""~-,-"",":",,~--~,, X . :., .-,., . - ". , '" " .. '" . 'I ,,"";' .~.~ '1 McKissack & Hoffman, P.C. BY: Elizubeth G, Howard Identification No. 79498 1818 Murket Street 13'h Floor Philudelphiu, PA 19103 Attorneys for Defendant JOSEPHINE YEYNA COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. NO. 94-2915 RICHARD DABB, M.D., et ul. ORDER TO DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above cuptioned mutter discontinued und ended, upon puyment of your costs only, SHELLER, LUDWIG & BADEY BYCV~ ],mi, Sh'""~E>q"im ' Attorneys for the Plaintiff Dated: '1- iU -" 'I '!' ___,; "'" ,_, c',.: .,', ' , .;{:,.':::"/~;>:t~~~...;.\,-,'~_;:;':~r~;*'~",, ' ,::~~<-", -. "':';;'\'0~~ "'\" ,'.,L:'".il.'\f.l}"';'~""''t~:~!l.i.';;';~l.: .~,"'._'..,. .:.;"~'W.<',\.,...~"~.,,,,,",";:JVrli.'~i$-;;.;.,~t!!bo<,~~~'4..ii1' ' " .,..~*'"~wt--..: _'~i,,: . _);-,:t:._.;-.,;,~;-,_~>c; -':~:.- :_j;'.,':-~,;~~~~~":~ {~;-'- FILED-OfHCE OF lHE PROTI-IONOTMY 20011 t1~ Y 12 PH \: 14 3 CUM68iJ:';u cOUNlY PENNSYLW,NlA ., \ t , OF,_' "O'~, .'< ";~; '1::',*,1'0 . -",.,'~. 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