In the recent case of<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/Short-v.-Pfizer-Inc.pdf">Short v. Pfizer Inc.</a>, </em>the United States District Court for the Eastern District of Pennsylvania held that Under Pennsylvania law, increased “risk of developing cancer does not constitute an injury.” The Defendant Pfizer was the manufacturer and distributer of the drug hydrochlorothiazide (“Hydro”). Plaintiff-Short was prescribed Hydro for almost twenty years, until the drug was recalled due to high-levels of carcinogenic ingredients. Short filed suit alleging Pfizer negligently or intentionally manufactured Hyrdro by adding or including high levels of ingredients or compounds that increased the risk of cancer and other injuries in the human body as a result of ingesting it. Plaintiff argues that because of this he was severely injured with boils, rashes, excessive itching, damage to his heart and kidneys, and the risk of developing cancer in the future.
Pfizer filed a motion to dismiss arguing that Hydro increasing a risk of cancer is not a claim for which relief may be granted under Pennsylvania law. The court explained that for a negligent claim to be plausible on its face, there must be sufficient factual matter, which if accepted as true, would demonstrate, a breach of duty of care which proximately causes recoverable damages. The Court looked at two Pennsylvania precedents; <em>Simmons v. Pacor, Inc.</em>, 674 A.2d 232 (Pa. 1996) (finding that “damages related to the fear of developing cancer are speculative and not recoverable”) and <em>Deleski v. Raymark Indus., Inc.</em>, 819 F.2d 377, 380–81 (3d Cir. 1987) (“finding that Pennsylvania law does not provide recovery for the possibility of future harm caused by a tortious act”). Relying on these two cases, the court determined that even an actual increased risk of developing cancer, is insufficiently concrete to be considered a recoverable damage under Pennsylvania law. Even if it were entirely true that Pfizer was negligent and that this negligence caused an increased risk of cancer, there would still not be a legally cognizable claim, because increased risk of cancer is not a damage from which one may recover under Pennsylvania law.
Thanks to Stephen Kerstein for his assistance with this article. Should you have any questions, please contact <a href="firstname.lastname@example.org">Tom Bracken</a>.