SWEENEY et al v. LAFAYETTE PHARMACEUTICALS, INCORPORATED et al

BRIEF in Opposition

D.N.J.January 16, 2019

LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 (973) 625-0838 Fax (973) 625-5350 gmm@gmeyerslaw.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : JOHN M. SWEENEY and REGINA Case 2:16-cv-04860-ES-MAH SWEENEY, his Wife, : Hon. Esther Salas, U.S.D.J. Plaintiffs, : v. : ALCON LABORATORIES, INC, : EASTMAN KODAK COMPANY, ABC CORPORATIONS 1-10 (a series : of fictitious corporations), and JOHN DOES 1-15 (a series of fictitious names), : Defendants. : PLAINTIFFS’ BRIEF IN OPPOSITION TO SUMMARY JUDGMENT MOTION OF DEFENDANT ALCON LABORATORIES, INC. LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 (973) 625-0838 Fax (973) 625-5350 gmm@gmeyerslaw.com Attorneys for Plaintiffs GARY MARTIN MEYERS, ESQ. On the Brief Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 1 of 51 PageID: 2119 i TABLE OF CONTENTS PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF UNDISPUTED MATERIAL FACTS . . . . . . . . . . . . . . . . . 2 A. Plaintiff John Sweeney’s Initial 1975 Injury And Recovery . . . . . . . . . . 2 B. Fraudulent Concealment Of Pantopaque’s Dangers By Defendant Alcon And Its Predecessors In Interest Until The Mid-1970s At The Earliest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Omission Of The True Dangers Of Pantopaque Myelography From Pantopaque Package Inserts In 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 D. The Truth About Pantopaque Is Finally Revealed . . . . . . . . . . . . . . . . . . . 7 E. Plaintiff John Sweeney’s Progressive Weakness And Disability, Beginning In 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 F. The August 30, 2013 CT Scan Report Which Defendant Claims Triggered The Statute Of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 G. Mr. Sweeney’s Extensive Efforts, From 2009 To 2014, To Learn The Cause Of His Progressive Lower Limb Weakness . . . . . . . . . . . . . . . 15 H. Mr. Sweeney’s Immediate Investigation Of The Syrinx Discovered In His Thoracic Spine In Late August Of 2014 . . . . . . . . . . . . . . . . . . . . . 19 Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 2 of 51 PageID: 2120 ii LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. DEFENDANT ALCON’S SUMMARY JUDGMENT MOTION IS GOVERNED BY THE SPECIALIZED PRINCIPLES OF PENNSYLVANIA LAW APPLICABLE TO THE ACCRUAL OF CLAIMS IN “CREEPING DISEASE” CASES . . . . . . . . . . . . . . . . . . . . 20 1. Pennsylvania’s General “Discovery Rule” Principles . . . . . . . . . . . . . 21 2. The Specialized Principles Of Pennsylvania Law Applicable To “Creeping Disease” Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 a. Plaintiffs In Creeping Disease Cases Are Not Required To Have Greater Knowledge About Their Medical Condition Than Their Physicians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 b. Claims In Creeping Disease Cases Can Be Tolled By Incomplete Or Erroneous Information From Physicians . . . . . . . . . . . . . . . . . . . 23 B. UNDER PENNSYLVANIA LEGAL PRINCIPLES APPLICABLE TO “CREEPING DISEASE” CASES, PLAINTIFFS’ AUGUST 10, 2016 COMPLAINT WAS TIMELY AS A MATTER OF LAW; OR, AT THE VERY LEAST, GENUINE ISSUES OF MATERIAL FACT EXIST AS TO ITS TIMELINESS . . . . . . . . . . . . . . . . . . . . . . . . . 24 1. Mr. Sweeney’s Symptoms Of Progressive Weakness In His Limbs, Beginning in 2007 and Continuing To Worsen Between 2009 and 2014, Did Not By Themselves Trigger A “Duty To Investigate” . . . . . 25 2. Medical Speculation About “Arachnoiditis Ossificans,” And Five Other “Likely Benign” Conditions In The August 30, 2013 CT Scan Report, Did Not Trigger A “Duty To Investigate” Under Pennsylvania Law . . 29 a. The Genuine Fact Issue Of When Plaintiffs Became Aware Of The August 30, 2013 CT Scan Report . . . . . . . . . . . . . . . . . . . . . . . 33 b. The Genuine Fact Issue Of Whether A Reasonable Person In Plaintiffs’ Place Would Have Surmised, in August 2013, That The Words “Arachnoiditis Ossificans” Warranted Investigation, To Learn If They Bespoke An “Injury” Caused By “The Wrong Of Another” . . 36 Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 3 of 51 PageID: 2121 iii 3. Plaintiff John Sweeney Exercised Extraordinary Diligence, Over Seven Years, To Learn The Cause Of (And Proper Treatment For) His Progressive Lower Limb Weakness . . . . . . . . . . . . . . . . . . . . 39 4. Plaintiff John Sweeney, A Physical Therapist, Is Not Chargeable With Knowing The Etiology Of An Unusual Medical Condition (Adhesive Arachnoiditis / Arachnoiditis Ossificans), Nor With Awareness Of A Small Handful Of Lawsuits Nationwide . . . . . . . . . . 42 C. DEFENDANT ALCON’S “PUBLIC POLICY” ARGUMENT IS A THINLY-VEILED PLEA TO BE TREATED AS AN “INNOCENT VICTIM,” WHEN IT IS THE FORMER PANTOPAQUE MYELOGRAPHY PATIENTS WHO ARE THE “INNOCENT VICTIMS” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 4 of 51 PageID: 2122 iv TABLE OF AUTHORITIES Cases: Ayers v. Morgan, 154 397 Pa. 282, A.2d 788 (1959) . . . . . . . . . . . . . . 27 n.7 Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 482 A.2d 1067 (1984) . . . . . . . . . . . . . . . . . . . . . . 26 n.7, 32 n.8 Bohus v. Beloff, 950 F.2d 919 (3d Cir.1991) . . . . . . . . . . . . . . . . . . . . 21 Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, 471 A.2d 493 (1984) . . . . . . . . . . . . . . . . . . . . . 21, 26 n.7, 32 n.8 Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245 (1995) . . . . . . . . . 26 n.7, 28-29, 31 & n.8, 32, 38, 41 Conneen v. Amatek, Inc., 2017 U.S. Dist. LEXIS 299787 (E.D. Pa. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Debiec v. Cabot Co., 352 F.3d 117 (3d Cir. 2003) . . . . . . . . . . . . . . . . 21-22, 23 & n.6, 24, 27 n.7, 28, 29, 31 n.8, 35, 36-37, 38, 44 Fine v. Checchio, 582 Pa. 253, 870 A.2d 850 (Pa. 2005) . . . . . . . . . . . 25, 27 n.7 Joyce v. Boulevard Phys. Ther. & Rehab. Ctr., 694 A.2d 648 (Pa. Super. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Mazur v. Merck & Co., 742 F. Supp. 239 (E.D. Pa. 1990) . . . . . . . . . . 22-23, 43 McCreesh v. City of Phila., 888 A.2d 664, 585 Pa. 211 (2005) . . . . . . 27 n.7 Moyer v. United Dominion Indus., Inc., 473 F.3d 532 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Pocono Intern. Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 n.7 Russo v. Cabot Corp., 2002 WL 31163610 (E.D. Pa. 2002) . . . . . . . . 27 n.7, 31 n.8 Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 5 of 51 PageID: 2123 v Simon v. Wyeth Pharm., Inc., 989 A.2d 356 (Pa. Super. 2009) . . . . . . 25, 26 n.7 Stauffer v. Ebersole, 385 Pa. Super. 306 (Pa. Super. 1989) . . . . . . . . . 22 Trieschock v. Owens-Corning Fiberglas Co., 354 Pa. Super. 263, 511 A.2d 863 (Pa. Super. 1986) . . . . . . . . . . . . 22, 23 & n.6, 28, 43 Vitale v. Buckingham Mfg. Co., 184 Fed. Appx. 156 (3d Cir. 2006) . . 23, 43 Vitalo v. Cabot Co, 399 F.3d at 544 (3d Cir. 2005) . . . . . . . . . . . . . . . 31 n.8 Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354 (2009) . . . . . . . . . . . . 23 n.6, 24, 27 n.7, 28, 31 n.8, 35, 37 Statute: 42 Pa. Cons. Stat. § 5524(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 Regulation: 49 Pa. Code § 40.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 6 of 51 PageID: 2124 1 PRELIMINARY STATEMENT The summary judgment motion of Defendant Alcon, Inc. (“Alcon”), based on statute of limitations grounds, purports to rely on the facts in the record of this case, and the principles of Pennsylvania law applicable to the accrual of Plaintiffs’ products liability claims, arising from Plaintiff John Sweeney’s exposure to a Pantopaque myelogram in November of 1975. In fact, however, Alcon’s motion is based upon numerous misstatements of the relevant facts, and an erroneous analysis of the applicable law. At the outset, Pennsylvania law applies highly specialized principles to so- called “creeping disease” cases, involving injury from diseases or conditions which emerge only years after a plaintiff’s exposure to a product or substance. In its summary judgment motion, Alcon simply ignores these specialized principles of Pennsylvania law. As a result, its legal analysis relating to the accrual of Plaintiffs’ claims in this case is fundamentally flawed in numerous respects. In like manner, Alcon has either distorted, or blatantly misrepresented a number of relevant facts in the record of this case. For example, Alcon falsely claims that labeling sold with Pantopaque in 1975 warned of “arachnoiditis ossificans”, one of the two long-term, insidious illnesses from which Plaintiff now suffers. To the contrary, however, in fifty years of Pantopaque marketing, its labeling never warned of that condition, nor of any other long-term injury. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 7 of 51 PageID: 2125 2 Similarly, Alcon asserts that the August 30, 2013 CT scan it now points to as the “latest possible” point at which Plaintiffs should have discovered their claims, was administered to address Mr. Sweeney’s years-long struggle with the symptoms of lower limb weakness and paralysis underlying this case. That contention is both erroneous, and egregiously misleading. In fact, that CT scan was taken solely to determine whether the prostate cancer Mr. Sweeney was diagnosed with in August of 2013 had metastasized; it fails to even suggest any causal connection between its findings, and the symptoms of lower limb weakness Mr. Sweeney had been suffering from for the prior six years; and it makes no mention of “Pantopaque.” In light of these egregious factual and legal errors, and the others described below, Alcon’s summary judgment motion should be summarily rejected. SUMMARY OF UNDISPUTED MATERIAL FACTS 1 A. Plaintiff John Sweeney’s Initial 1975 Injury And Recovery. In 1975, at age 15, Plaintiff John Sweeney (“Mr. Sweeney,” or “Plaintiff Sweeney”) suffered an injury to his cervical spine while playing football. (Dfdt. Exh. 13; Dfdt. Exh. 53, Sweeney 9/21/18 Dep., Tr. 105:6-106:17). 2 Plaintiff was immediately admitted to Temple University Hospital, where he underwent a closed 1 This is a summary of Plaintiffs’ Counterstatement of Undisputed Material Facts, which appears in full in a separately filed document. 2 “Dfdt. Exh.” refers to exhibits filed with the 12/10/18 Declaration of Aaron Van Nostrand, Esq., for Defendant Alcon Laboratories, Inc. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 8 of 51 PageID: 2126 3 cervical-dislocation reduction on the date of admission, 11/16/1975. (Dfdt. Exh. 13, at 2). Mr. Sweeney’s surgeon, Dr. Raymond Truex, completed that initial surgery using plain x-ray films. Defendant Alcon’s contention to the contrary notwithstanding, the “Pantopaque” myelogram that forms the basis for this action could not have had any role in any decision made by Dr. Truex concerning that surgery, because it was not performed until 11/17/1975, the day after the surgery of 11/16/75 was completed, and was taken solely to confirm that there was no blockage of the subarachnoid space in the cervical spine following the previous day’s surgery. 3 (Dfdt. Exh. 1). Significantly, that was the only Pantopaque myelogram Plaintiff John Sweeney ever received. (Dfdt. Exh. 2, at 1; Dfdt. Exh. 17; Dfdt. Exh 53, Tr. 79:20-24, 81:12-14, 109:21-25; Dfdt. Exh. 54, Tr. 303:10). On January 28, 1976, Mr. Sweeney underwent a second surgery, an anterior C3-C4 fusion, also without a Pantopaque myelogram. (Dfdt. Exh. 2, at 2, 4). Following this second surgery, Plaintiff showed “a striking improvement in his neurologic function.” (Id.). In the months following the second surgery, his “movement got better and better,” and he eventually regained the ability to move almost normally. (Dfdt. Exh. 53, Tr. 108:19-23). He was discharged from Temple University Hospital, to begin rehabilitation, in April 1976. Thereafter he walked 3 Prior to wide availability of CT and MRI imaging in the 1980s, myelography (X ray with injected radiopaque medium, either air or liquid), was the chief means of visualizing soft-tissue injuries without exploratory surgery. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 9 of 51 PageID: 2127 4 with a slight limp, and experienced minor weakness and numbness, but overall Mr. Sweeney “did well,” and for years after 1976 he received no treatment whatsoever for his 1975 spinal injury. (Dfdt. Exh. 53, Tr. 109:10-25). B. The Fraudulent Concealment Of Pantopaque’s Dangers By Defendant Alcon And Its Predecessors In Interest Until The Mid- 1970s At The Earliest. Spinal myelography has been used since the early 1900’s to facilitate visualization of the spinal cord with X- rays. Initially, it was performed by injecting air into the spinal column. In 1922, iodinized poppy seed oil began to be used, but it was quickly determined that this substance remained permanently encysted in the spinal column, triggering inflammatory reaction with fibrosis. (Declaration of Gary Martin Meyers, Esq., Exhibit A, at 6-7 (“Pltf. Exh. A”)). Experiments with alternative oily iodinated compounds, including ethyl iodophenylundecylate (also known as “Pantopaque”), began in 1936 at the University of Rochester School of Medicine and Dentistry in New York, funded by Defendant Eastman Kodak Company. (Pltf. Exh. A, at 7). Initial studies, performed on dogs and rats, disclosed adverse effects of Pantopaque myelography far worse than anticipated. Significantly, one of the observed effects of injecting Pantopaque into the spinal canal of dogs was a “persistent generalized weakness of the legs with an inability to walk.” (Id. at 8, emphasis supplied). Other deleterious effects, both of a transient and a long-term nature, that were observed by Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 10 of 51 PageID: 2128 5 Pantopaque’s developers, included encysted clusters of oil floating within the spinal cord, acute inflammation, fibrous adhesions, and nerve root involvement. (Pltf. Exh. A, at 9). Notwithstanding these observed adverse effects, some of which were severe and permanent, the developers of Pantopaque appear to have consciously decided, in 1942, to conceal these dangers. (Id. at 11-12). One of the adverse effects noted during these early Pantopaque studies was “an adhesive arachnoiditis” in the subarachnoid space of the spine, a side effect that eventually manifested in thousands of people who were given Pantopaque over the next three decades for spinal myelography. Moreover, even though the initial claims of the product’s “safety” – never definitively shown – relied largely upon hypothetically removing as much Pantopaque as possible after myelography, in practice that proved to be virtually impossible. (Pltf. Exh. A at 19, emphasis supplied). C. Omission Of The True Dangers Of Pantopaque Myelography From Pantopaque Package Inserts In 1975. In pertinent part, the package inserts distributed with Pantopaque in 1975, when Plaintiff John Sweeney received his Pantopaque myelogram, stated as follows: ADVERSE REACTIONS: Clinical reports indicate that the incidence and the severity of the side effects following Pantopaque myelography with aspiration of the medium are but slightly greater than with ordinary lumbar puncture. In 10-30 percent of such cases there may be transient symptomatic reactions Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 11 of 51 PageID: 2129 6 consisting of slight temperature elevation and increase of symptoms referable to a back condition. When the medium is not removed, similar transient side effects occur with a slight elevation of temperature in a greater percent of patients. To reduce the reactions to a minimum, Pantopaque should be removed by aspiration after myelography. Occasional severe arachnoiditis occurs producing headache, fever, meningismus, pains in the back and extremities and elevations in the white blood count and the protein content of the cerebrospinal fluid. The incidence and severity of arachnoiditis are generally increased when active subarachnoid bleeding has been induced by the lumbar puncture. Rare instances of the development of lipoid granulomas, obstruction of the ventricular system and venous intravasation producing pulmonary emboli have been reported. (Dfdt. Exh. 4 at 2, emphasis supplied). Most importantly, despite Defendant’s full knowledge of these dangers, as disclosed in laboratory testing and clinical experience, neither the foregoing warning, nor any other Pantopaque warnings on product package inserts since 1944, ever mentioned any of the long-term effects of its use, such as “chronic” arachnoiditis, “adhesive” arachnoiditis, or “arachnoiditis ossificans” (an “end- stage” condition of “adhesive arachnoiditis,” that occurs when the adhesions in the subarachnoid space of the spine begin to calcify), chemical meningitis, and neurologic injury. (Declaration of Charles V. Burton, M.D., FACS (“Burton Decl.”), ¶ 7; Dfdt. Exh. 4; Pltf. Exh. A, at 8, 9, 14, 29, 32-34, 39-40, 44-45, 74). Also notably absent from every Pantopaque package insert, including the one made available to Mr. Sweeney’s treating physicians in 1975, was any reference to lower limb weakness, paralysis, loss of bowel and bladder function, or the Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 12 of 51 PageID: 2130 7 numerous other long-term symptoms known by Defendants for decades to arise from Pantopaque myelograms. (Pltf. Exh. A, at 9, 39-40, 49-50). D. The Truth About Pantopaque Is Finally Revealed. Not until June 1982 did the truth about Pantopaque’s long-term dangers finally reach the U.S. public and medical community, when a paper appeared in Radiology, p. 699, regarding the use of Pantopaque in monkeys, and a newly- developed water-based contrast medium, Metrizamide (marketed as “Amipaque”), was finally brought to market. Significantly, Metrizamide, a radiographically superior, and much safer alternative to Pantopaque as a neurological contrast medium, became widely available in Europe by 1974, as reported then in peer- reviewed U.S. medical journals. (Burton Decl., ¶ 7 & Exh. B thereto). By the mid-1930s, leading neuroradiologists in Sweden had decided against using Pantopaque and other oil-based contrast media, and from the late 1940s on most radiologists in that country used air, gas or water-based contrast mediums instead. (Burton Decl. ¶ 6 & Exh. B at 1, 2). From these facts, it is clear that if the true dangers of Pantopaque myelography – particularly its tendency to induce adhesive arachnoiditis – had been known to the U.S. scientific and medical community by this period, 1969-1975, in all likelihood Metrizamide would have received FDA approval prior to 1975, and would have been available in the United States by the time of Plaintiff John Sweeney’s cervical myelogram on November Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 13 of 51 PageID: 2131 8 17, 1975. This would have enabled Mr. Sweeney’s physicians to avoid using Pantopaque for that myelogram. (Burton Decl. ¶ 8). Instead, however, as a direct consequence of more than 40 years of Pantopaque use in spinal myelography, both Mr. Sweeney and thousands of others have been left with chronic pain, suffering, and disability in its wake. (Pltf. Exh. A at 57-58). Fortunately, in the late 80’s Alcon responded to growing legal pressures and legal action by quietly withdrawing from the active marketing and manufacture of Pantopaque. Id. E. Plaintiff John Sweeney’s Progressive Weakness And Disability, Beginning In 2007. Beginning around 2007, Plaintiff John Sweeney, who up to then (age 47) could jog a mile, stopped playing basketball and began “slowing down” due to increasing physical weakness. (Dfdt. Exh. 54, Tr. 400:5-401:6). By 2009, Mr. Sweeney’s gradually increasing right arm and left leg weakness, and his bladder issues, convinced him that something other than advancing age might be responsible for his symptoms, and he began to consult physicians in an effort to determine their cause. (Dfdt. Exhs. 7, 8). Between 2009 and 2012, Plaintiff repeatedly complained of difficulty walking, and weakness in his extremities. (Dfdt. Exhs. 13, 15, 16). These symptoms have continued to progress. Mr. Sweeney is now completely unable to work as a physical therapist, and he is confined to a wheelchair. (Dfdt. Exh. 53, Tr. Tr. 15:18-16:3, 49:4-13, 69:10-11). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 14 of 51 PageID: 2132 9 Mr. Sweeney started to seek answers to his worsening symptoms in 2009, when they began to intensify. However, it soon became clear to him that the doctors he consulted “couldn’t seem to find a cause of what was going on.” (Dfdt. Exh. 54, Tr. 402:4-16). But that did not stop him from seeking answers. Even though, by 2011 or 2012, it became clear that he “wasn’t getting anywhere” with the doctors he had consulted up to then, he decided to contact Dr. Raymond Truex, the neurosurgeon who had operated on him in November 1975. (Id.). Toward that end, in a February 2, 2012 letter to Dr. Truex, Plaintiff summarized his ongoing efforts to find the cause of his increasing debility, as follows: (a) cervical MRI in June 2009; (b) follow-up with a cervical-fusion surgeon in June 2009; (c) lumbar MRI in September 2009; (d) additional opinions regarding further cervical surgery at University of Pennsylvania Hospital and elsewhere in August 2009; (e) electrodiagnostic study by a Dr. Herbison (ordered by Dr. Formal at Magee) in October 2010; (f) cervical MRI in January 2012; and (g) visits with family doctor regarding progressive leg and right-arm weakness in 2012. (Dfdt. Exh. 14). In that letter to Dr. Truex, Mr. Sweeney also advised him that: “I recognize that I am getting older, and not working with an intact spinal cord to start with[;] that might be contributing to my increased problems with weakness and fatigue, but especially with my right arm, I feel that perhaps something more than the old injury is contributing to my increasing weakness.” (Id. at 2, emphasis supplied). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 15 of 51 PageID: 2133 10 In response, Dr. Truex performed a lumbar myelogram on Mr. Sweeney in February, 2013 (of course using a water-soluble contrast medium, not Pantopaque, Dfdt. Exh. 17), and a cervical CT scan. Dr. Truex also performed a further discectomy and fusion on Mr. Sweeney’s cervical spine at C5-6 on 3/26/13, at which time Plaintiff also underwent X rays and a CT scan of the cervical spine, and further cervical spine X rays in April, 2013. (Dfdt. Exhs. 18 - 20). F. The August 30, 2013 CT Scan Report Which Defendant Claims Triggered The Statute Of Limitations. On August 13, 2013, Mr. Sweeney was diagnosed with prostate cancer, and later that month he underwent a series of abdominal and pelvic scans solely to screen for metastasis of that cancer, to help his doctors determine the appropriate treatment for it. (Dfdt. Exh. 24). The report of an 8/30/13 pelvic-abdominal CT scan stated, in part: Degenerative changes are noted involving the spine. There is nonspecific curvilinear calcification/hyperdensity along the margin of the posterior thecal sac involving the lower thoracic spine of uncertain clinical significance (for example image one, series 3). Findings are likely benign may be related to renal failure, hyperparathyroidism, arachnoiditis ossificans, prior surgery or infection/inflammation, or myelopathy with low [sic] based contrast agent. (Dfdt. Exh. 21, emphasis supplied). Significantly, nowhere did the 8/30/13 CT scan report suggest a causal connection between these allegedly “degenerative” spinal changes and the upper and lower limb weakness which Mr. Sweeney had been experiencing for six years Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 16 of 51 PageID: 2134 11 up to then, and which had already prompted multiple studies of his upper spine. (Id.; Dfdt. Exh. 26). To the contrary, by describing the “degenerative changes” as “likely benign”, this report makes it clear that Mr. Sweeney’s prostate cancer physicians did not regard these CT findings as an “injury.” In addition, nowhere did the 8/30/13 CT scan report mention “Pantopaque.” (Id.). In fact, none of Mr. Sweeney’s medical records in this matter, other than those related to his Pantopaque myelogram in 1975, mentioned the word “Pantopaque”. (Id.). Mr. Sweeney recalled that he reviewed the results of the August 30, 2013 CT scan with his urologist, Lee Schachter, M.D., on September 3, 2013. (Dfdt. Exh. 23; Dfdt. Exh. 54, Tr. 307:8-10). But he also recalled that, during their September 3 meeting, Dr. Schachter did not discuss with him the 8/30/13 report’s reference to the finding of calcification in his thoracic spine, or “arachnoiditis ossificans.” (Dfdt. Exh. 21; Dfdt. Exh. 54, Tr. 316:18-318:5). Instead, Plaintiff and Dr. Schachter discussed the report’s finding of “intraluminal linear calcification within the left external iliac vein . . . [which] may be related to chronic deep venous thrombosis,” because of its bearing on whether Plaintiff was a candidate for robotic surgery for treatment of his prostate cancer. (Dfdt. Exh. 54, Tr. 309:5-21). Fortunately, the CT scan ruled out metastasis of Mr. Sweeney’s prostate cancer, and of course that subject was discussed, because the entire purpose of the CT scan of 8/30/13 was to rule out metastasis. (Dfdt. Exh. 24, 54, Tr. 306:25-307:7). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 17 of 51 PageID: 2135 12 Mr. Sweeney testified in his deposition that Dr. Schachter had the 8/30/13 CT report in hand at their meeting, and may have given him a copy after that meeting, but “I’m not sure I had this report until 2014.” (Dfdt. Exh. 54, Tr. 317:14-15). He was sure, however, that Dr. Schachter did not show him the report during their meeting. (Dfdt. Exh. 54, Tr. 318:6-10). He also testified that he was unlikely to have obtained the report directly from the CT radiologist, Dr. Agarwal, either. 4 Mr. Sweeney was also clear that neither “arachnoiditis” nor the “nonspecific [thoracic] curvilinear calcification/hyperdensity . . . of uncertain clinical significance,” reported in the 8/30/13 abdominal/pelvic CT results (Dft. Exh. 21), would have struck him as noteworthy, since the purpose of that CT scan was to rule out metastasis of his prostate cancer, his own doctors attached no particular significance to either of those findings, and the CT scan report specifically described as “likely benign.” Id. He explained that: No attempt was made by me to explore this finding, as in comparison to my response when I found out the results of the thoracic spine MRI in August 2014. No significance noted by me or by my physician with the results. Normal response by a patient receiving the results of the abdominal CAT scan being negative for metastasis would be of relief, not looking for another problem with terms that he never heard of before for a – a cervical spine injury that he had 37 or 38 years prior to that. And the physician that 4 Rather, he recalled from his own experience (and understandably, when the subject is cancer), that when a patient brings radiology results to his physician for review, “they don’t give you the report. You get the film right after you’re done, but they won’t give out reports until it’s been cleared by the [ordering] doctor.” (Dfdt. Exh. 54, Tr. 307:23-308:2). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 18 of 51 PageID: 2136 13 provided the reports believing that finding was benign anyhow and did not recommend any correlation. So that was all concerning the CAT scan. (Dfdt. Exh. 54, Tr. 234:13-235:6, emphasis supplied). Indeed, Mr. Sweeney was surprised to learn, in his 11/5/18 deposition, that on 9/20/13 a second review was made of his 8/30/13 CT scan. (Pltf. Exh. C; Dfdt. Exh. 54, Tr. 311:23-25, 313:6-15). Significantly, that second review, although mentioning the “calcification along the posterior aspect of the thecal sac in the lower thoracic spine, likely dystrophic,” made no mention whatsoever of the “arachnoiditis ossificans” speculated on in the first reading of that CT scan. (Pltf. Exh. C, at 2; cf. Dfdt. Exh. 21). Most importantly, the physicians who performed this “second reading” also made no suggestion of a causal connection between Sweeney’s progressive limb weakness and any finding in the August 30, 2013 CT scan report, even though they were clearly aware of those symptoms, nor did they suggest or recommend any follow-up study of Mr. Sweeney’s thoracic spine. (Dfdt. Exh. 54, Tr. 315:21-317:12). 5 Moreover, when Mr. Sweeney was asked in his deposition about the earlier August 30, 2013 CT report, and why he did not ask his subsequent physicians 5 As Defendants repeatedly point out in their moving papers, Mr. Sweeney did not ask his treating doctors about the findings in the 9/20/13 “second-reading” radiology report. (Dfdt. “Statement of Material Undisputed Facts”, ¶¶ 47, 52). The reason for that, however, which Defendants fail to mention, is that he never saw the 9/20/13 “second reading” report until his deposition five years later, in November 2018 – “that’s news to me . . . . That is the first time I’m seeing that, okay?” (Dfdt. Exh. 54, Tr. 311:18-25, 313:6-15, 314:2-9, 315:21-316:3). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 19 of 51 PageID: 2137 14 about “any of the terms, like the arachnoid ossificans that you saw in the August 30 th , 2013 imaging” (Dfdt. Exh. 54, Tr. 316:24-317:4, emphasis supplied), he made it clear that he did not recall seeing the report back then, and he was certain that the physicians treating him for his prostate cancer did not mention “arachnoiditis” to him. (Dfdt. Exh. 54, Tr. 316:22-317:12, emphasis supplied). Further indicating that Mr. Sweeney never saw the August 30, 2013 CT scan report until long after it was issued, is his deposition testimony indicating that “arachnoiditis” is a term which he never heard applied to him until September 10, 2014 (Dfdt. Exh. 54, Tr. 323:17-324:9, 324:14-325:2; Dfdt. Exh. 31). Also supporting that conclusion is a letter he wrote on 9/25/2015 to Sherri Patchen, ARNP, MSN, at the University of Miami, Department of Neurosurgery, in which Mr. Sweeney described the CT scan of August 30, 2013 as follows: CT of Abdomen/Pelvis 08302013: Nonspecific curvilinear calcification/hyperdensity involving the posterior margin of the thecal sac of the lower thoracic spine. (No one mentioned this to me at the time, but in hindsight problem was noted here. Study was done to rule out mets[metastases] for newly diagnosed Prostrate[sic] Cancer.)” (Dfdt. Exh. 26, emphasis supplied). This statement in his September 25, 2015 letter to Nurse Patchen that “No one mentioned this to me at the time” (id., emphasis supplied), as well as the disappearance of the term “arachnoiditis ossificans” in the “second reading” of that Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 20 of 51 PageID: 2138 15 CT scan, both also support the conclusion that Mr. Sweeney’s prostate cancer physicians did not discuss “arachnoiditis ossificans” with him, in the fall of 2013. G. Mr. Sweeney’s Extensive Efforts, From 2009 To 2014, To Learn The Cause Of His Progressive Lower Limb Weakness. As he repeatedly testified in his deposition, from 2009, when Plaintiff’s arm and leg weakness suddenly worsened (Dfdt. Exh. 53, Tr. 27:15-17), to late August, 2014, when he was advised that he had a “syrinx” in his thoracic spine (Dfdt. Exh. 29), Mr. Sweeney consulted a large number of surgeons and medical providers, sometimes outside of insurance coverage and wholly out of pocket, regarding his ongoing symptoms (Dfdt. Exh. 53, Tr. 28:7-8). Those physicians included: (1) Dr. Mario J. Arena, M.D., June 2009 (Philadelphia, PA) (former 1994 cervical spine surgeon; referred Plaintiff for cervical MRI) (Pltf. Exh. D; Dfdt. Exh. 53, Tr. 27:10-28:9); (2) Scott Rushton, M.D., August 2009 (Wynnewood, PA) (recommended further cervical surgery) (Pltf. Exh. D; Dfdt. Exh. 53, Tr. 28:10-22); (3) Alan S. Hilibrand, M.D., September 2009 (Rothman Institute, Philadelphia, PA) (ordered lumbar MRI and x rays which were negative; no further recommendation) (Pltf. Exh. D; Dfdt. Exh. 53, Tr. 29:4-16); (4) Christopher Formal, M.D., March and October, 2010 (Magee Rehabilitation Hospital, Philadelphia, PA) (self-referred by Plaintiff) (Ordered nerve conduction test and tests for low testosterone as possible cause of muscle weakness (tested negative); Pltf. Exh. D; Dfdt. Exh. 53, Tr. 29:24-30:13); (5) G.J. Herbison, M.D., October 2010, Jefferson University Physicians, Philadelphia, PA) (EMG/NCV RUE test, indicating chronic disability) (Pltf. Exh. D; Dfdt. Exh. 53, Tr. 30:2-4); (6) Jerry M. Roth, M.D., Southampton, PA (ongoing consultation regarding disability and referral to Dr. Pritchard) (Pltf. Exh. D; Dfdt. Exh. 53, Tr. 30:14-17); (7) Charles Pritchard, MD, FACP, FACR, February 2012 (offered to order tests, “not likely to show anything”) (Dfdt. Exh. 53, Tr. 30:18-24); Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 21 of 51 PageID: 2139 16 (8) Raymond Truex M.D., February 2012 – February 2015 (spine & brain neurosurgery) (referred plaintiff for EMG/NCV study; Ordered a non- Pantopaque myelogram in February 2013 to rule out cervical spine stenosis; performed further cervical spine surgery, March 2013, after CT seemed to indicate severe cervical stenosis. (Pltf. Exh. D; Dfdt. Exh. 53, Tr. 30:25- 31:24); (9) Paul Brockman, M.D., April 2012, Wyomissing, PA (Physiatrist, referred by Dr. Truex; performed EMG and nerve conduction test, inconclusive) (Dfdt. Exh. 53, Tr. 163:24-164:14); (10) Scott Falci, M.D., through Craig Hospital, July-September, 2014, Englewood, CO (self-referred by Plaintiff, who heard about Craig Hospital and telephoned in July while on vacation in Colorado. (Pltf. Exh. E). Nurse Indeck responded in late July, recommending Thoracic MRI (Pltf. Exh. D at 9-10, 18; Pltf. Exh. E at 2; Pltf. Exh. F; Dfdt. Exh. 53, Tr. 181:11-182:17); (11) Stephen Lewis, M.D., July 2014 (Willow Grove, PA) (self-referred by Plaintiff, to whom Dr. Lewis had previously sent physical therapy patients; ordered 8/19/14 thoracic MRI which finally disclosed syrinx in Plaintiff’s spine). (Pltf. Exh. F; Dfdt. Exh. 29; Dfdt. Exh. 53, Tr. 182:18-20). Significantly, like his prostate cancer physicians, not a single one of these eleven physicians diagnosed Mr. Sweeney to be suffering from arachnoiditis, nor suggested any causal connection whatsoever between his worsening symptoms of lower limb weakness to Pantopaque, or a Pantopaque myelogram. Nevertheless, as the list of physicians above makes clear, Mr. Sweeney’s ongoing efforts to uncover the cause of those progressively worsening symptoms were extraordinary. (Id.). Moreover, almost immediately following recovery from his October 2013 prostate cancer surgery, Mr. Sweeney continued to consult with medical providers regarding his increasing immobility, which began to cause difficulty in performing his work as a physical therapist. (Dfdt. Exh. 53, Tr. 34:12-14). For example, in the beginning of 2014, he called a regional spinal cord center and spoke to “a nurse Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 22 of 51 PageID: 2140 17 who wasn’t really all that helpful.” (Id., Tr. 34:14-16). He then spoke by telephone to a Mary Schmidt, of Magee Rehabilitation Hospital, Philadelphia, in “February or March of 2014”. Ms. Schmidt suggested that Plaintiff see a neurosurgeon, which he had already done many times, and promised to get back to him, but she did not. (Id., Tr. 34:17-35:6). Finally, in early July, 2014, Mr. Sweeney sought out Stephen Lewis, M.D., a neurologist who had previously referred patients to Plaintiff for physical therapy. (Dfdt. Exh. 53, Tr. 35:7-15). Dr. Lewis referred Mr. Sweeney for a lumbar MRI on 7/2/14 and lumbar x rays on 8/18/14. (Pltf. Exh. G). Ironically, however, despite Plaintiff’s extreme diligence in seeking medical answers to his increasing muscle weakness and decreasing mobility in and after 2009, the radiology performed by the numerous doctors he consulted, with respect to those symptoms, did not include a single instance of an X ray, MRI or CT scan specifically targeting his thoracic spine, until August of 2014. (Id.). What finally changed that approach, however, was a fortuitous call by Mr. Sweeney, in June 2014 and still just months post-surgery for his prostate cancer, to the Craig Hospital in Englewood, Colorado, a facility with an excellent reputation as a regional spine center. (Dfdt. Exh. 53, Tr. 35:22-36:2). Nurse Charlotte Indeck, RN, after consulting with Dr. Scott Falci of Craig Hospital, recommended to Mr. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 23 of 51 PageID: 2141 18 Sweeney that, because an MRI of his thoracic spine had never been done, he should have that completed as well. (Dfdt. Exh. 30; Dfdt. Exh. 53, Tr. 36:9-10). Pursuant to Nurse Indeck’s suggestion, Mr. Sweeney was able to persuade his then-treating physician, Stephen Lewis, M.D, to order an MRI of his thoracic spine, and that was completed on August 19, 2014. It was that MRI which revealed the “syrinx” in his thoracic spine, which in turn changed the entire dynamic of Plaintiffs’ investigation. (Dfdt. Exh. 29). Although he is not a physician, Mr. Sweeney, as a physical therapist, had enough knowledge to recognize that finding was extraordinary, because he had no knowledge of ever suffering any prior injury to his thoracic spine. (Dfdt. Exh. 53, Tr. 88:25-89:10). In retrospect, it is now clear that the calcification in Mr. Sweeney’s thoracic spine, not previously identified by any physician he consulted in connection with his symptoms of lower limb weakness, and erroneously termed “likely benign” in the August 30, 2013 CT scan performed for his prostate cancer treatment (Dfdt. Exh. 21), was in fact the outer margin of a dramatic syrinx, found for the first time in the MRI of Mr. Sweeney’s thoracic spine on August 19, 2014, almost a year later. The syrinx detected by that MRI extended vertically for four vertebral segments, was 6 cm (2-1/2 inches) long, and was 8 mm (3/8 inch) thick. (Id.). As noted above, despite Mr. Sweeney’s extraordinary diligence, it was not until August 18, 2014 that any radiological study – even an X ray -- was Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 24 of 51 PageID: 2142 19 specifically directed at Mr. Sweeney’s thoracic spine. But the X ray of August 18, 2014, like the August 30, 2013 CT scan, disclosed only “Mild degenerative changes of the thoracic spine.” (Dfdt. Exh. 28). Yet the MRI taken the very next day made it clear that, if any of Mr. Sweeney’s prostate cancer physicians had recommended an MRI of his thoracic spine to follow up the lower thoracic calcification in his August 30, 2013 pelvic-abdominal CT scan, the extraordinary “syrinx” discovered in his thoracic spine on August 19, 2014, almost a year later, would have been discovered much sooner. (Dfdt. Exh. 29). H. Mr. Sweeney’s Immediate Investigation Of The Syrinx Discovered In His Thoracic Spine In Late August Of 2014. As noted above, because he had never suffered any injury to his thoracic spine, the disclosure of a “syrinx” in Mr. Sweeney’s thoracic spine, in the MRI of August 19, 2014, came as a complete surprise to him. (Dfdt. Exh. 53, Tr. 36:11- 18). For this reason, he immediately began investigating possible causes of this syrinx. (Dfdt. Exh. 53, Tr. 87:13-88:8, 89:18-90:2). Only after he began investigating this newly-diagnosed “syrinx,” by consulting “PubMed” and searching for terms such as “tethering syrinx,” did Plaintiff review the August 30, 2013 CT scan, which he then noticed “in hindsight” (Dfdt. Exh. 26), had mentioned a possibility of “arachnoiditis ossificans.” (Dfdt. Exh. 54, Tr. 327:25- 328:4). But it was the diagnosis of the “syrinx” in his thoracic spine, a reference to it by one of his physicians in early September 2014 as “arachnoiditis”, and in early Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 25 of 51 PageID: 2143 20 October, 2014 as a “tethering” (Pltf. Exh. H), that enabled Mr. Sweeney to discover for the first time, by prompt internet searches, that the cause of his lower limb weakness and numbness, increasing since 2009, was most likely being injected with Pantopaque during his spinal myelogram over 30 years earlier, in November of 1975, at age 15. (Dfdt. Exh. 31; Dfdt. Exh. 53, Tr. 87:13-88:8, 89:18-90:2; id. Exh. 54, Tr. 323:17-324:9, 415:18-416:25). In fact, the progressive weakening of his lower limbs was never attributed to “arachnoiditis” until September 10, 2014, when Dr. James Schuster, a neurologist Plaintiff had been consulting, told Plaintiff there “was no good treatment for arachnoiditis.” (Dfdt. Exh. 54, Tr. 323:17-324:9; Dfdt. Exh. 31). The operative report of Mr. Sweeney’s surgery in early October of 2014 then confirmed that Plaintiff had an advanced “arachnoid adhesion” in his thoracic spine. (Pltf. Exh. H). LEGAL ARGUMENT A. DEFENDANT ALCON’S SUMMARY JUDGMENT MOTION IS GOVERNED BY THE SPECIALIZED PRINCIPLES OF PENNSYLVANIA LAW APPLICABLE TO THE ACCRUAL OF CLAIMS IN “CREEPING DISEASE” CASES. As Defendant Alcon acknowledges in its moving papers, the parties have stipulated that Plaintiffs’ claims are governed by Pennsylvania law. Under Pennsylvania law, products liability claims like those at issue in this case are subject to the two-year statute of limitations for personal injury actions set forth in Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 26 of 51 PageID: 2144 21 42 Pa. Cons. Stat. § 5524(2), and its associated “discovery rule.” However, because the two conditions at issue in this case, “adhesive arachnoiditis,” and “arachnoiditis ossificans,” are “creeping diseases” which develop over a period of years, Plaintiffs’ claims in this case are also governed by the specialized principles of Pennsylvania law applicable to “creeping disease” cases. 1. Pennsylvania’s General “Discovery Rule” Principles. Pennsylvania’s general “discovery rule” principles toll the running of the limitations period when “a party, through no fault of his or her own, does not discover her injury until after the statute of limitations normally would have run.” Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 547 (3d Cir. 2007), citing Debiec v. Cabot Co., 352 F.3d 117 (3d Cir. 2003). Application of the “discovery rule” is appropriate, under Pennsylvania law, where an injury is undiscovered (that is, hidden and thus unknown or latent). Where it applies, the time within which to sue does not begin to run until the plaintiff first knows, or reasonably should know, that s/he has been injured and that her/his injury has been caused by another party’s conduct. Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir.1991) (citing Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, 471 A.2d 493, 500 (1984)). In Debiec, 352 F.3d 117 (3d Cir. 2003), the Third Circuit explained that, while “the question whether a plaintiff has exercised reasonable diligence is usually a jury question[,] ... [t]he Pennsylvania Supreme Court has cautioned ... Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 27 of 51 PageID: 2145 22 that where the facts are so clear that reasonable minds cannot differ, the commencement period may be determined as a matter of law.” Id., 352 F.3d at 129 (quotation marks and citation omitted). 2. The Specialized Principles Of Pennsylvania Law Applicable To “Creeping Disease” Cases. The specialized principles of Pennsylvania law applicable to the accrual of claims arising from “creeping diseases,” like the Pantopaque-induced adhesive arachnoiditis and arachnoiditis ossificans at issue in this case, have been extensively analyzed by both State and federal “creeping disease” cases, applying Pennsylvania law. a. Plaintiffs In Pennsylvania “Creeping Disease” Cases Are Not Required To Have Greater Knowledge Than Their Physicians About Their Medical Condition. Trieschock v. Owens-Corning Fiberglas Co., 354 Pa. Super. 263, 268 (Pa. Super. 1986), is one of the first Pennsylvania appellate cases to consider claims arising from a “creeping disease.” In Trieschock, the Pennsylvania Superior court explained that: “A plaintiff in a creeping disease case should not be required to have greater knowledge than his physicians about his medical condition. If those physicians are not reasonably certain as to his diagnosis, then he certainly cannot be bound to have the knowledge necessary to start the statute of limitations running.” Id., quoted in Debiec v. Cabot Co., 352 F.3d 117, 130, 131, emphasis supplied; see also, Stauffer v. Ebersole, 385 Pa. Super. 306, at 311 (Pa. Super. 1989); Mazur v. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 28 of 51 PageID: 2146 23 Merck & Co., 742 F. Supp. 239, 249 (E.D. Pa. 1990); Vitale v. Buckingham Mfg. Co., 184 Fed. Appx. 156, 159 (3d Cir. 2006) (citing Trieschock for this same proposition). 6 b. Claims In Creeping Disease Cases Can Be Tolled By Incomplete Or Erroneous Information From Physicians. Moreover, under Pennsylvania law, when a prospective plaintiff is given erroneous medical advice, such as a doctor’s mistaken assurances that a plaintiff likely is not suffering from a creeping disease, that advice generally will toll the running of the statute of limitations. But as the Debiec court noted: There is indeed some point in time when a patient's own ‘common sense’ should lead her to conclude that it is no longer reasonable to rely on the assurances of her doctor... in ascertaining this point in time, however, we are mindful that to put upon a patient the duty of knowing the nature of her ailment and its relation to her prior treatment before it is ascertained with a degree of certainty by the medical profession is a great burden to impose … Debiec, 352 F.3d at 131-132, internal quotes omitted, emphasis supplied). While it dealt in part with plaintiffs who had been “led astray” by affirmative misdiagnoses, Debiec, and other Pennsylvania cases, also make it clear 6 While the court in Trieschock held that even a “tentative diagnosis” “should be considered to have activated a duty on appellant’s part to determine, with due diligence, whether he did, in fact, have that disease”, 354 Pa. Super. at 268, 511 A.2d at 866, such a rule does not apply where, as here, the medical “suspicion” is presented as just one of several equally “suspected” possibilities. See, e.g., Debiec, 352 F.3d at 126 (duty not triggered where decedent advised her breathing difficulty “could be a form of idiopathic pulmonary fibrosis, berylliosis, sarcoidosis, even bronchiectasis”; Wilson v. El-Daief, 600 Pa. 161, 168, 964 A.2d 354, 358 (2009) (same, for plaintiff searching for cause of post-surgical pain and contractions given four (4) possible causes). See further discussion, infra. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 29 of 51 PageID: 2147 24 that the “creeping disease” discovery rule will toll the statute where the victim’s true illness, while mentioned in medical records or advice, is entangled in a web of competing speculations as to the cause of a plaintiff’s condition. See, e.g., Debiec, 352 F.3d at 126 (reversing summary judgment against decedent who was advised her breathing difficulty “could be a form of idiopathic pulmonary fibrosis, berylliosis [her actual condition, bespeaking man-made cause], sarcoidosis, even bronchiectasis”); Wilson v. El-Daief, 600 Pa. 161, 168, 964 A.2d 354, 358 (2009) (same for plaintiff whose multiple consultations, in search of cause of post-surgical pain and contractions, yielded four (4) possible causes of her pain); cf., John Sweeney’s 8/30/13 CT scan report of 8/30/13, listing renal failure, infection/inflammation, hyperparathyroidism, arachnoiditis ossificans, prior surgery, or myelopathy as possible causes of calcification. (Dfdt. Exh. 21). B. UNDER PENNSYLVANIA LEGAL PRINCIPLES APPLICABLE TO “CREEPING DISEASE” CASES, PLAINTIFFS’ AUGUST 10, 2016 COMPLAINT WAS TIMELY AS A MATTER OF LAW; OR, AT THE VERY LEAST, GENUINE ISSUES OF MATERIAL FACT EXIST AS TO ITS TIMELINESS. In its motion for summary judgment, Defendant Alcon ignores the specialized principles of Pennsylvania law applicable to “creeping disease” cases. That is not surprising, because application of those principles to the facts in this case makes it clear that the Plaintiffs’ August 10, 2016 Complaint was timely as a Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 30 of 51 PageID: 2148 25 matter of law; or, at the very least, that there are genuine issues of material fact which require that Alcon’s motion for summary judgment be denied. 1. Mr. Sweeney’s Symptoms Of Progressive Weakness In His Limbs, Beginning in 2007 and Continuing To Worsen Between 2009 and 2014, Did Not By Themselves Trigger A “Duty To Investigate”. As noted above, Plaintiff John Sweeney, who underwent a Pantopaque myelogram in November 1975, did not begin to experience symptoms of right arm and lower-extremity weakness until more than thirty years later – symptoms never listed as potential side effects in the Pantopaque warnings provided to the physicians ordering and administering that myelogram. (Dfdt. Exh. 4). Defendant Alcon somehow seeks to derive from these facts that Plaintiffs’ claims accrued in 2009, as soon as Mr. Sweeney’s symptoms began to progressively worsen, and “thus” that Plaintiffs’ time to bring this action closed in 2011 or 2012. (Dfdt. Br. at 12-13, 24-26). Then, while reciting that Pennsylvania “discovery rule” principles apply “when an injury or its cause was not known or reasonably knowable” (Dfdt. Br. at 21, quoting Simon v. Wyeth Pharm., Inc., 989 A.2d 356, 365 (Pa. Super. 2009) and Fine v. Checchio, 582 Pa. 253, 870 A.2d 850 (Pa. 2005)), Defendant argues that the mere “emergence” of Plaintiff John Sweeney’s symptoms of lower-extremity numbness and weakness in 2007, and their increasing severity in 2009, “triggered Plaintiff’s duty to investigate the potential Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 31 of 51 PageID: 2149 26 link between those symptoms and his emergency cervical myelogram performed on November 17, 1975.” (id. at 11, 24, emphasis added). This contention is not only nonsensical, it is not even remotely supported by the factual record of this case, or by the applicable law. As noted in Plaintiffs’ Summary of Undisputed Facts, and explained more fully below, until September of 2014, Mr. Sweeney had no diagnosis from any physician, even suggesting a causal link between the symptoms of lower limb weakness he was experiencing, and the Pantopaque-induced arachnoiditis Plaintiffs now know he is suffering from. Alcon’s argument would require Plaintiffs to have greater knowledge than the numerous physicians Plaintiff John Sweeney consulted. Cf., Trieschock , 354 Pa. Super. 263, 268. But in virtually every Pennsylvania “creeping disease” case, including those cited by Defendants, the plaintiffs at least had some diagnosis, even if only a tentative one, before a cause of action was considered to have accrued. None barred a plaintiff from recovery solely on the basis of “symptoms.” 7 7 See, e.g., Cochran v. GAF Corp., 542 Pa. 210, 214, 218, 666 A.2d 245, 247-249 (Pa. 1995) (finding against asbestos victim with firm lung-cancer diagnosis who ignored his known decades-long exposure to commonly known lung toxins, in favor of a personal feeling that cause was tobacco); Berardi v. Johns-Manville Corp., 482 A.2d 1067, 1069-1070, 334 Pa. Super. 36, 40-41 (1984) (plaintiff had a written asbestosis diagnosis, and also expressed strong suspicion of occupational cause, then waited too long to file action); Cathcart v. Keene Ind’l Insul.,471 A.2d 493, 497, 505, 324 Pa. Super. 123, 130, 145-146 (1984) (plaintiffs knew of lung condition and its occupational origin outside limitations period); Simon v. Wyeth Pharm, Inc., 989 A.2d 356, 367 (Pa. Super. 2009) (finding for plaintiff hormone- therapy patient who filed products-liability action more than two years after breast- Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 32 of 51 PageID: 2150 27 Here, Plaintiffs sought to find the cause of Mr. Sweeney’s lower-limb weakness and numbness from the time of its onset in 2007 onward, and proceeded to do so with even greater intensity as soon as those symptoms themselves began to increase in intensity and severity, in 2009. Nevertheless, he had no diagnosis of any specific cause for those symptoms from any physician, despite multiple consults and tests between 2009 and 2014, until an MRI on August 19, 2014 disclosed to his physicians that he had a “syrinx” in his thoracic spine. That diagnosis, as well as its characterization to Plaintiff in early September 2014 as “arachnoiditis”, and in early October, 2014 as a “tethering” (Pltf. Exh. H), enabled Mr. Sweeney to discover for the first time, by prompt internet searches, that the cancer diagnosis, but within two years of National Institutes of Health study and “media blitz” linking hormone replacement to cancer); Wilson v. El-Daief, 964 A.2d 354, 365-367, 600 Pa. 161, 180-182 (2009) (finding for plaintiff whose symptoms, although arising immediately after surgery, were uncommon effects of it and, as here, subsequent multiple consultations in search of its cause were unavailing); Russo v. Cabot Corp., 2002 WL 31163610, at *3 (E.D. Pa. 2002) (finding against plaintiffs who, although aware that their lung ailments likely arose from airborne particulates from nearby plant, and despite firm diagnoses, slept on their rights; overruled as to plaintiff whose possible awareness of cause presented fact issue; Debiec v. Cabot Co., 352 F.3d 117 (3d Cir. 2003), discussed at length herein). Even those of Alcon’s cases clearly inapplicable to a “creeping disease”, support the conclusion that more than “symptoms” is required. See, e.g., Ayers v. Morgan, 154 A.2d 788, 397 Pa. 282 (1959) (finding for plaintiff where sewn-in sponge was not found until years after surgery); Fine v. Checchio, 582 Pa. 253, 272-274, 870 A.2d 850, 861-863 (Pa. 2005) (finding for plaintiff where record contained conflicting dates of causal hints, creating fact issue); McCreesh v. City of Phila., 888 A.2d 664, 585 Pa. 211 (2005) (issue of valid service of process); cf., Pocono Intern. Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 470-472, 503 Pa. 80, 83-86 (1983) (declining to apply discovery rule where plaintiff intentionally sealed damaged tunnel, hiding injury from itself). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 33 of 51 PageID: 2151 28 cause of his lower limb weakness and numbness, increasing since 2009, was most likely being injected with Pantopaque during a spinal myelogram over 30 years earlier, in November of 1975, at age 15. (Dfdt. Exh. 31; Dfdt. Exh. 53, Tr. 87:13- 88:8, 89:18-90:2; id. Exh. 54, Tr. 323:17-324:9, 415:18-416:25). In the face of these circumstances, Plaintiffs’ claims against Defendant Alcon could not have accrued prior to August 19, 2014 at the earliest, when his MRI that day finally disclosed the syrinx in his thoracic spine, and for the first time Plaintiffs had both knowledge of Mr. Sweeney’s symptoms, and a potential diagnosis of the condition likely causing them. See, e.g., Wilson v. El-Daief, 600 Pa. 161, 171-172, 180-181, 964 A.2d at 360 (2009); Debiec v. Cabot Corp., 352 F.3d at 137-138 (3d Cir. 2003); Trieschock v. Owens Corning Fiberglas Co., 354 Pa. Super. 263, 269, 511 A.2d 863, 866 (Pa. Super. 1986). Since their Complaint in this action was filed on August 10, 2016, less than two years after August 19, 2014, Plaintiffs’ claims are timely as a matter of law. (Id.). Defendant Alcon relies on Cochran v. GAF Corp., 542 Pa. 210 (Pa. 1995), for its contrary argument. But Cochran only underscores the fundamental flaw in Alcon’s “symptoms” approach to Pennsylvania “creeping disease” cases. Unlike Plaintiff John Sweeney, the plaintiff in Cochran did not experience six years of unexplained physical symptoms in a vacuum. Rather, from the start the plaintiff in Cochran had a specific diagnosis, lung cancer, not merely inexplicable Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 34 of 51 PageID: 2152 29 “symptoms”. (Id., 542 Pa. at 214, 666 A.2d at 247). In fact, the circumstances here are precisely the opposite of those in Cochran, because Plaintiff John Sweeney spent almost five years seeking a diagnosis, whereas the plaintiff in Cochran, already equipped with a firm diagnosis, and fully aware that the asbestos in which he had been working for decades causes lung disease, spent four years doing nothing. (Id., 542 Pa. at 214). Not surprisingly, Defendant Alcon does not cite a single Pennsylvania case holding that the statute of limitations related to claims arising from a “creeping disease” such as Pantopaque-induced adhesive arachnoiditis, or Pantopaque- induced arachnoiditis ossificans, starts to run before either the plaintiff or his physicians even suspect that exposure to the defendant’s product might be causing his symptoms. (Cf., Debiec, 352 F.3d 117, at 130-132, noting the essential ingredient of a plaintiff’s “suspicions,” and/or those of his physician, in triggering the “duty to investigate,” and/or the running of statute of limitations under Pennsylvania law relating to “creeping disease” cases.). 2. Medical Speculation About “Arachnoiditis Ossificans,” And Five Other “Likely Benign” Conditions In The August 30, 2013 CT Scan Report, Did Not Trigger A “Duty To Investigate” Under Pennsylvania Law. Defendant Alcon’s contention that “the statute of limitations on Plaintiffs’ claims began to run, at the very latest, by August 30, 2013” (Dft. Br. at 26), is equally baseless. As noted above, that is when a CT scan was performed to learn if Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 35 of 51 PageID: 2153 30 Mr. Sweeney’s prostate cancer, diagnosed just a few weeks earlier, had metastasized. (Dfdt. Exh. 21). Alcon’s seven-page argument about that CT scan (Dfdt. Br. at 26-33), rests on both omitting mention of the actual purpose for the CT scan, which was solely to determine whether Mr. Sweeney’s prostate cancer had metastasized (Dfdt. Exh. 21), and then affirmatively misrepresenting it, as “a scan he received following six years of worsening symptoms.” (Dft. Br. at 28) (emphasis supplied). Obviously, by describing the August 30, 2013 CT as a “scan [Mr. Sweeney] received following six years of worsening symptoms,” Defendant Alcon seeks to insinuate that Plaintiff John Sweeney’s progressive right arm and lower limb weakness somehow triggered his physicians’ decision to order, or his request for, that CT scan. But in fact, as noted above, Plaintiff and his physicians had only one purpose in obtaining that CT scan: to learn if Mr. Sweeney’s recently-diagnosed prostate cancer had metastasized to other parts of his body. (Dfdt. Exhs. 21, 27; id. Exh. 54, Tr. 234:13-235:6). Fortunately, this CT scan indicated no metastasis, and enabled Mr. Sweeney’s urologist to proceed with prostate surgery, in a matter of weeks, for his prostate cancer. (Id.; Pltf. Exh. I). By misrepresenting the purpose behind the August 30, 2013 CT scan, Defendant Alcon seeks to draw attention away from the fact that John Sweeney faced a life-and-death cancer diagnosis in the fall of 2013, when (in his words) Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 36 of 51 PageID: 2154 31 “Normal response by a patient receiving the results of the abdominal CAT scan being negative for metastasis would be of relief, not looking for another problem with terms that he never heard of before for a – a cervical spine injury that he had 37 or 38 years prior to that.” (Dfdt. Exh. 54, Tr. 234:13-235:6). These circumstances expose yet another fundamental flaw in Alcon’s reliance on Cochran, because it specifically explains that in Pennsylvania the “reasonable diligence” standard takes into account the circumstances in which it is applied: Despite the objective nature of the reasonable diligence standard, “[i]t is sufficiently flexible, however, to take into account difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” [citation omitted]. Thus…a plaintiff is not under an absolute duty to discover the cause of his illness. Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case. Cochran v. GAF Corp., 542 Pa. at 217 (emphasis supplied). In stark contrast to the prostate cancer setting of Mr. Sweeney’s 8/30/13 CT scan report, in almost every instance where Pennsylvania courts have withheld the benefit of the medical “discovery rule” from plaintiffs, their statute-triggering knowledge of their condition either arose from treatment they received for that very condition, or from symptoms well known to be directly related to it. 8 The 8 See, e.g., Wilson v. El-Daief, 964 A.2d at 358, 600 Pa. at 168-169 (2009) (hand pain related to lacerated nerve); Vitalo v. Cabot Co, 399 F.3d at 544 (3d Cir. 2005) (obstructive lung disease);.Debiec v. Cabot Corp., 352 F.3d 117 (3d Cir. 2003) (same); Russo v. Cabot Corp., 2002 WL 31163610 (E.D. Pa. 2002) (shortness of Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 37 of 51 PageID: 2155 32 contrast between those cases, on the one hand, and Plaintiff John Sweeney’s treatment for prostate cancer entirely unrelated to the right arm and lower limb weakness he had been investigating for years, explains Defendant Alcon’s effort to minimize “the circumstances confronting [Plaintiffs] at the time in question,” in its summary judgment motion. (Cochran, 542 Pa. at 217, emphasis supplied; cf. Dfdt. Exh. 21, 22, 27; id. Exh. 54, Tr. 234:13-235:6). The actual “circumstances confronting” the Plaintiffs in this case, which Alcon seeks to ignore, completely refute its contention that a single, isolated mention of “arachnoiditis ossificans” in the August 30, 2013 CT scan report – even assuming Mr. Sweeney saw it that year -- could possibly be sufficient to start the statute of limitations on his claims under Pennsylvania law, because the mention of that condition was (a) in a list of six (6) “likely benign” possible causes of calcification in his thoracic spine (Dfdt. Exh. 21, at 1); (b) found while searching for (and eliminating, to Plaintiffs’ huge relief) metastatic prostate cancer (id.), unrelated to his limb weakness; (c) ignored by every physician except the radiologist, then and later (Dfdt. Exh. 21, 22, 27; id. Exh. 54, Tr. 234:13-235:6); and (d) attributed to “degenerative changes.” Dfdt. Exh. 54, Tr. 316:22-317:12). In light of these circumstances, no jury could reasonably conclude that Mr. breath); Cochran v. GAF Corp., 542 Pa. at 214, 666 A.2d at 247 (1994) (lung cancer); Berardi v. Johns-Manville Corp., 482 A.2d at 1069, 334 Pa. Super. at 40 (1984) (asbestosis); Cathcart v. Keene Ind’l Insul., 471 A.2d at 502-503, 324 Pa. Super. at 141-143 (1984) (asbestosis). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 38 of 51 PageID: 2156 33 Sweeney’s 8/30/13 CT scan placed Plaintiffs on notice of an “injury” resulting from the “conduct of another.” (Id.). 9 Defendant Alcon’s reference to the September 20, 2013 “second reading” of the 8/30/13 CT scan – which Mr. Sweeney never saw or heard of before the present litigation (Dfdt. Exh. 54, Tr. 311:18-25, 313:6-15, 314:2-9, 315:21-316:3) - - likewise ignores the fact that the “second reading” physician dropped all reference to “arachnoiditis,” even though he was clearly aware of Mr. Sweeney’s symptoms of lower limb weakness. (Pltf. Exh. C). Similarly, the 10/1/13 notes of radiation oncologist Neha Vapiwala, M.D. reviewing the “second look” (which contains the entirety of the 8/30/13 report, Pltf. Exh. C), also omits any mention of his thoracic spine calcification or its possible causes. (Dfdt. Exh. 27, at 4). In short, the record directly supports Mr. Sweeney’s recollection that neither his reviewing urologist nor any other physician treating him for his prostate cancer mentioned “arachnoiditis” or his spinal “hyperdensity,” or considered them to be 9 Still trying to create a “reasonable diligence” issue where none exists, Defendant Alcon contends that, if bare mention of the word “arachnoiditis” in September of 2014 so quickly prompted Plaintiff John Sweeney to look for its origin and, ultimately, uncover the causal link to his 1975 Pantopaque myelogram, then the bare mention in the August 30, 2013 CT report should have led him to the same causal link. (Dfdt. Br. at 12-15). That reasoning’s flaw arises from the enormously different, and greater information available to Mr. Sweeney in August 2014 (diagnosis of thoracic syrinx, spinal-cord adhesion; definitive diagnosis of arachnoiditis, and direct link to his symptoms of lower limb weakness). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 39 of 51 PageID: 2157 34 “injuries.” (Dfdt. Exhs. 21, 22, 27; id. Exh. 53, Tr. 68:13-69:6, 171:19-172:7; id. Exh. 54, Tr. 324:14- 325:2). 10 a. The Genuine Fact Issue Of When Plaintiffs Became Aware Of The August 30, 2013 CT Scan Report. Alcon also fails to mention the genuine fact issue related to when the Plaintiffs first learned of the 8/30/13 CT scan report (or its contents), containing the words “arachnoiditis ossificans.” In fact, there is no indication anywhere in Mr. Sweeney’s medical records that the report of that CT scan was ever provided to either of the Plaintiffs. To the contrary, Mr. Sweeney made it clear in his deposition that he has no recollection of any physicians treating him for his prostate cancer ever mentioning to him this finding of the potential existence of “arachnoiditis ossificans” in his thoracic spine. In fact, he testified that as far as he can recall, the first time any of his physicians mentioned the word “arachnoiditis” to him was in September of 2014 (Dfdt. Exh. 54, Tr. 323:17-324:9, 324:14-325:2), as even Defendant Alcon implicitly concedes (Dfdt. Br. at 28). Thus, even assuming arguendo there was any truth in Alcon’s contention that the 8/30/13 CT report contained “everything [Plaintiffs] needed to discover their putative claims[sic]” (Dfdt. Br. at 27), the genuine issue of material fact as to when Plaintiffs received either the 8/30/13 report, the 9/20/13 “second look” 10 The record shows that John Sweeney also never saw either that report or the 8/30/13 CT films on their way to Dr. Vapiwala’s office; his sister brought them over in his absence (Dfdt. Exh. 54, Tr. 314:13-18, 315:10-18). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 40 of 51 PageID: 2158 35 report, or even the raw 8/30/13 CT films, is for a jury to decide, and also compels rejection of Alcon’s motion for summary judgment. In fact, the Third Circuit Court of Appeals specifically rejected an almost identical defense argument, in a directly analogous factual scenario in Debiec v. Cabot Corp., 352 F.3d 117 (3d Cir. 2003). In Debiec, an issue arose as to when conversations took place between decedent Geneva Bare (whose autopsy indicated exposure to particulate beryllium as cause of death), and one of her physicians, during which it appeared Ms. Bare was likely advised that she might possibly have chronic beryllium disease, or CBD. (Id., 352 F.3d at 126-127). In light of the factual issues arising from the question of when those conversations took place, and the uncertainties regarding precisely which one of four possible conditions was causing her symptoms, the Third Circuit reversed the District Court’s holding granting summary judgment dismissing the claims of Bare’s Estate, noting that because “reasonable minds could differ about whether Bare pursued her claim with reasonable diligence…that question is for a jury to decide.” Debiec v. Cabot Corp., 352 F.3d 117, at 126-127, 137-138 (emphasis supplied); accord, Wilson v. El-Daief, 600 Pa. 161, 168, 964 A.2d 354, 358 (2009) (medical-malpractice plaintiff made multiple consultations to find cause of post-surgical hand pain and limb contractions, yielding four (4) possible causes). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 41 of 51 PageID: 2159 36 Similarly, in this case, where Plaintiff John Sweeney’s physicians never mentioned “arachnoiditis” to him until September 2014 at the earliest, and he likely never saw the 8/30/13 CT report on which Defendant so heavily relies, until a year later, even if there is a fact issue on the question of “reasonable diligence,” it is for the jury to decide. Debiec, 352 F.3d 117, at 126-127 (emphasis supplied). b. The Genuine Fact Issue Whether A Reasonable Person In Plaintiffs’ Place Would Have Surmised, in August 2013, That The Words “Arachnoiditis Ossificans” Warranted Investigation To Learn If They Bespoke An “Injury” Caused By “The Wrong Of Another.” In Debiec, the Third Circuit also added this comment regarding the fact issue presented as to the claim of the Estate of decedent Geneva Bare: We add that, even if that conversation took place more than two years before Reeser filed suit, there is still the possibility that reasonable minds could differ on the question whether Bare exercised due diligence in pursuing her claim. In addition to telling Bare that “he really didn't think [berylliosis] was important to her case,” the doctor advised her that “the test wasn't really accurate.” SA at 199. On the basis of this conversation, a reasonable person in Bare's situation could easily have surmised that further investigation of the possibility that she had berylliosis would be unavailing because the then current testing methodology was inaccurate. This consideration too will have to be explored by a finder of fact. Debiec, 352 F.3d at 138 (emphasis supplied). Here as in Debiec, even if Plaintiffs did have access to the information in the August 30, 2013 CT scan report on which it now relies, “there is still the possibility that reasonable minds could differ on the question whether [Plaintiffs] exercised due diligence in pursuing [their] claim[s]” against Defendant Alcon. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 42 of 51 PageID: 2160 37 (Debiec, at 138). As noted at length above, the August 30, 2013 CT report, although signaling the possibility of “arachnoiditis ossificans” in John Sweeney’s thoracic spine (among numerous other possibilities), also made it clear that the condition was “likely benign,” of “uncertain clinical significance,” was related to “degenerative changes” of the spine (possibly simply from age), and was as likely attributable to five (5) other conditions as to arachnoiditis. (Dfdt. Exh. 21, at 1); cf. Debiec, 352 F.3d 117, at 126 (berylliosis one of five candidates); Wilson, 600 Pa. at 168, 964 A.2d at 358 (nerve laceration just one of four offered possible causes of hand pain). Thus, here as well, a reasonable person “could easily have surmised that further investigation of the possibility” of any of the “likely benign” conditions that CT report listed, was not warranted. (Cf., Debiec, at 138). In fact, in one important respect, the Sweeney’s case is even stronger than the facts surrounding Geneva Bare in Debiec. As the Third Circuit noted, the plaintiffs in Debiec – and particularly decedent Geneva Bare – were all fully aware that they had lived near, or worked in, defendants’ beryllium plant; at least 3 out of 4 had heard or read that particulate Beryllium was dangerous; and at least 3 out of 4 suspected, and asked their doctors and others about, a causal link between beryllium and their breathing difficulties. (Id., 352 F.3d at 121, 124, 125, 126, 137, 143, 145). Here, by contrast, even if they had seen it, the CT scan of August 30, 2013 would have given Plaintiffs no reason to suspect that anyone had Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 43 of 51 PageID: 2161 38 contracted a chronic, dangerous, or debilitating condition from a Pantopaque myelogram, like the one Mr. Sweeney had received almost 38 years before (Dfdt. Exh. 21; Dfdt. Exh. 53, Tr. 36:11-18; Pltf. Exh. C); he had never encountered arachnoiditis, much less as a chronic, debilitating or dangerous disorder, in his physical-therapy practice or anywhere else; (Dfdt. Exh. 53, Tr. 68:13-18) (cf. Dfdt. Exh. 21, “likely benign”); the CT report contained no reference whatsoever to “Pantopaque” (id.); and not a single one of Mr. Sweeney’s physicians ever mentioned “Pantopaque” to him until September of 2014 (Dfdt. Exh. 54, Tr. 317:14-15, 318:6-10, 323:17-324:9, 324:14-325:2). Thus, the case for denial of Alcon’s summary judgment motion is even stronger here than as to the Estate of Geneva Bare in Debiec. In short, when one considers the circumstances surrounding the August 30, as one must (Cochran, 542 Pa. at 217), with respect to the 2013 CT scan which Defendant Alcon by turns misrepresents and simply ignores, it becomes immediately clear that the reference in that report to “arachnoiditis ossificans” can be seen as a piece of the puzzle only “in hindsight.” (Dfdt. Exh. 21). By contrast, as viewed on August 30, 2013, the erroneous description of those findings as “likely benign,” and the failure of John Sweeney’s physicians to recommend any follow-up testing, were entirely consistent with the other erroneous medical advice already given Plaintiffs, mistakenly attempting to link Mr. Sweeney’s worsening Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 44 of 51 PageID: 2162 39 limb weakness to either his cervical or his lumbar spine, not his thoracic spine. (Dfdt. Exh. 26; Pltf. Exh. D, at 16-21; Dfdt. Exh. 29:4-16, 31:7-24, 35:7-12, 92:15- 16, 154:18-24, 164:15-20, 179:6-9; Dfdt. Exh. 54, Tr. 356:25-357:5). 3. Plaintiff John Sweeney Exercised Extraordinary Diligence, Over Seven Years, To Learn The Cause Of (And Proper Treatment For) His Progressive Lower Limb Weakness. What remains most important, however, is the indisputable fact that Mr. Sweeney’s diligence from 2007 to 2014 in searching for causes of (and therefore proper treatment for) his progressive weakness was not merely “reasonable”, but extraordinary. Right at the start of Mr. Sweeney’s experience of symptoms in 2007, one of the first physicians he contacted to determine their cause was Dr. Raymond Truex, the same surgeon who actually performed Mr. Sweeney’s November, 1975 neck surgery and who prescribed Mr. Sweeney’s Pantopaque myelogram the day after that surgery. (Dfdt. Exhs. 1, 2). Although Mr. Sweeney saw Dr. Truex numerous times between 2007 and September of 2014, when Mr. Sweeney finally solved the riddle of his ongoing symptoms, Dr. Truex never even suggested to Mr. Sweeney that his symptoms of lower limb weakness might be causally related to the Pantopaque myelogram administered to him in 1975. As noted above, however, Mr. Sweeney went on to consult a total of 10 additional physicians besides Dr. Truex between 2009 and September of 2014. Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 45 of 51 PageID: 2163 40 (Pltf. Exh. D, at 16-21; Dfdt. Exh. 26; Dfdt. Exh. 53, Tr. 27:10-28:22, 29:4-16, 29:24-30:13, 30:2-4, 30:14-31:24, 163:24-164:14, 181:11-182:20). But none of these physicians ever suggested to Mr. Sweeney that his progressive upper and lower limb weakness was a long-term result of Pantopaque myelography, or was adhesive arachnoiditis or arachnoiditis ossificans –conditions that finally came to light for the first time in September 2014. (Pltf. Exh. D at 10, 18-19; Dfdt. Exh. 54, Tr. 323:17-324:9, 324:14-325:2). Moreover, although John Sweeney’s extraordinary diligence only led him down one blind alley after another for years, as soon as he recovered from his prostate cancer surgery at the start of 2014, Mr. Sweeney continued his quest to find the cause of his ongoing limb weakness. In the first six months of 2014, Mr. Sweeney continued to consult medical providers regarding (and despite) his increasing immobility. He returned to work, with increasing difficulty. (Dfdt. Exh. 53, Tr. 34:12-14). He called a regional spinal cord center and spoke to “a nurse who wasn’t really all that helpful.” (Id., Tr. 34:14-16). He then spoke by telephone to a Mary Schmidt, of Magee Rehabilitation Hospital, Philadelphia, in “February or March 2014”, who suggested Plaintiff see a neurosurgeon, which he had already done many times, and promised to get back to him but did not. (Id., Tr. 34:17-35:6). When these efforts only led to further frustration, in July 2014, after hearing about the Craig Hospital, a regional spine center in Colorado, while Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 46 of 51 PageID: 2164 41 on vacation out West, Mr. Sweeney contacted that center and was referred to Scott Falci, M.D. (Dfdt. Exh. 30; Dfdt. Exh. 53, Tr. 35:17-36:10, 194:15-18). Through Dr. Falci’s nurse, Charlotte Indeck, RN, Mr. Sweeney was given the suggestion to have an MRI of his thoracic spine – something that had never been ordered for him. (Pltf. Exh. D at 9-10, 18; Pltf. Exh. E at 2; Pltf . Exh. G; Dfdt. Exh. 53, Tr. 181:11-182:17). Despite the mistaken opinion of all of the physicians Mr. Sweeney had previously consulted, that his symptoms were associated either with his 1975 cervical injury spine, or a problem with his lumbar spine, and the erroneous information in the CT scan of August 30, 2013, describing the findings of calcification in his thoracic spine as “likely benign,” Mr. Sweeney still did not close his mind to the possibility that, in fact, his thoracic spine was the origin of his worsening lower limb weakness. As a result, Mr. Sweeney immediately consulted with Dr. Stephen Lewis, who scheduled an MRI of his thoracic spine for August 19, 2013. In short, in direct contrast to the plaintiff in Cochran, and the plaintiffs in the other cases on which Defendant Alcon relies, Plaintiff John Sweeney never abandoned his ongoing investigation even though, until September of 2014, he had only symptoms, not even a tentative diagnosis, and had been repeatedly told the source of his symptoms simply could not be found. (Dfdt. Exh. 54, Tr. 300:11-12, 301:4-7, 402:5-8). Despite that, Mr. Sweeney never “slept on his rights.” To the Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 47 of 51 PageID: 2165 42 contrary, he embarked upon what can only be described as an ongoing crusade to uncover the cause of his progressively worsening lower limb weakness and numbness (Dfdt. Tr. 54, Tr. 330:19-331:4), seeking advice from numerous physicians for years, even though the only result was ongoing frustration. 4. Plaintiff John Sweeney, A Physical Therapist, Is Not Chargeable With Knowing The Causal Link Between His Symptoms And An Unusual Medical Condition, Before Eleven Physicians Could Uncover It. Clearly grasping at straws, Defendant Alcon also attempts to seize upon Plaintiff’s admission to having “some background in medicine,” by virtue of his education and training as a physical therapist, as evidence of Mr. Sweeney’s failure to exercise “reasonable diligence” in uncovering the link between his worsening symptoms of lower limb weakness, and his Pantopaque myelogram of 1975. (Dfdt. Br. at 11, 25). Apparently, Alcon finds Plaintiff John Sweeney’s background as a physical therapist not just equivalent, but superior to the M.D. degrees of the eleven orthopedists and spine surgeons he consulted. As a threshold matter, John Sweeney is not a physician or osteopath. (Dfdt. Exh. 34; Dfdt. Exh. 53, Tr. 97:22-98:5, 119:9-11). As such, Pennsylvania law bars him from diagnosing medical conditions, even on the basis of tests he himself might be permitted to perform (49 Pa. Code § 40.51). He is “akin to a pharmacist in the eyes of the law” (Joyce v. Boulevard Phys. Ther. & Rehab. Ctr., 694 A.2d 648, 656 (Pa. Super. 1997)). Thus, quite reasonably, at all relevant times Plaintiff Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 48 of 51 PageID: 2166 43 deferred to the expert opinions of his treating physicians, for a diagnosis of his increasing debility. (Dfdt. Exh. 53, Tr. 98:6-12). But Alcon’s pending motion is asking this Court to require Mr. Sweeney to have uncovered, by 2013 “at the latest,” the causal link between his symptoms, the adhesive arachnoiditis, and the arachnoiditis ossificans Plaintiffs now know he has been suffering from, before the eleven physicians he consulted were able to uncover it, despite Plaintiffs’ (and their) relentless, five-year search. 11 Nevertheless, Pennsylvania law is clear in its conclusion that “[a] plaintiff in a creeping disease case should not be required to have greater knowledge than his physicians about his medical condition.” Cf., Trieschock, 354 Pa. Super. at 268 (Pa. Super. 1986) (emphasis supplied); Vitale, 184 Fed. Appx. at 159 (3d Cir. 2006); Mazur, 742 F. Supp. at 249 (E.D. Pa. 1990). Clearly, this well settled principle applies even more strongly in this case. C. DEFENDANT ALCON’S “PUBLIC POLICY” ARGUMENT IS A THINLY-VEILED PLEA TO BE TREATED AS AN “INNOCENT VICTIM,” WHEN IT IS THE FORMER PANTOPAQUE MYELOGRAPHY PATIENTS WHO ARE THE “INNOCENT VICTIMS.” Finally, the Court should reject Defendant Alcon’s hollow plea for sympathy, under the guise of “public policy.” As Plaintiffs will demonstrate at the 11 For much of that time, Plaintiff, already wheelchair-bound, was simply unable to retrieve hard copies of medical records and other materials. (Dfdt. Exh. 53, Tr. 188:9-19, 210:20-23; Dfdt. Exh. 54, Tr. 251:9-14, 253:5-6, 314:15-18). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 49 of 51 PageID: 2167 44 time of trial, Alcon and its predecessors in interest have condemned tens of thousands of Pantopaque myelography patients, like Plaintiff John Sweeney, to lives of pain, paralysis, and disability. The Defendants have known this for decades. (Pltf. Exh. A, at 8-9, 19, 33- 34, 39-40). However, unlike the owners of the Beryllium plant in Debiec, the Defendants in this case succeeded for 50 years in keeping secret from the tens of thousands of injured Pantopaque myelogram patients, in the United States and numerous other countries, the true source of their injuries – not from a “transient” form of “arachnoiditis”, which Defendants disclosed, but from the chronic “adhesive arachnoiditis,” and “arachnoiditis ossificans,” as well as the neurologic injury Pantopaque myelography was capable of producing (Burton Decl., ¶ 7) – the long-term side effects of Pantopaque myelography which were carefully and deliberately kept out of Defendants’ product labeling and inserts (supra, at 4-7), and which are the very conditions which have consigned Plaintiff John Sweeney and so many others to lives of ongoing pain, disability, and paralysis. (Pltf. Exh. A at 57-58). Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 50 of 51 PageID: 2168 45 CONCLUSION For all the foregoing reasons, Plaintiffs respectfully submit that the pending Motion for Summary Judgment of Defendant Alcon Laboratories, Inc. should be denied. Dated: January 16, 2019 By: s/ Gary Martin Meyers GARY MARTIN MEYERS (5833) Case 2:16-cv-04860-ES-MAH Document 91 Filed 01/16/19 Page 51 of 51 PageID: 2169