Daniel v. Wyeth Pharmaceuticals, Inc.

CONCURRING OPINION BY

FITZGERALD, J.:

After a review of the certified record¹ and because of the unique facts, the trial and appellate procedural history, and the issues preserved, raised, and waived on appeal, I concur only in the result reached by the learned majority.

I write separately to note my concern that the majority’s seeming emphasis on where the conduct warranting punitive damages originated shifts the focus away from whether the harmful conduct was directed to the injured plaintiff or to non-parties, such as all “post-menopausal women,” or non-Pennsylvania consumers. See generally Philip Morris USA v. Williams, 549 U.S. 346, 353-55, 127 S.Ct. 1057, 1063-64, 166 L.Ed.2d 940, 948-49 (2007);² State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422, 123 S.Ct. 1513, 1522, 155 L.Ed.2d 585, 604 (2003) (holding, “Lawful out-of-state conduct may be probative when it demonstrates the deliberateness and culpability of the defendant’s action in the State where it is tortious, but that conduct must have a nexus to the specific harm suffered by the plaintiff.”).³ Regardless, I am unaware of any suggestion the conduct at issue was dissimilar to the conduct that harmed Appellants and did not implicate Pennsylvania’s interests “in protecting its own consumers and its own economy.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572, 116 S.Ct. 1589, 1597, 134 L.Ed.2d 809, 825 (1996); see Campbell, 538 U.S. at 422, 123 S.Ct. at 1523, 155 L.Ed.2d at 604. I also express my belief, however, that because this Court is reinstating the award of punitive damages, Appellees retain the ability to challenge the amount of punitive damages.

1 .The certified record — remarkably sparse for a case of this type — did not include, among many other seemingly key documents, the trial exhibits and assorted post-trial motions. “In this regard, our law is the same in both the civil and criminal context because, under the Pennsylvania Rules of Appellate Procedure, any document which is not part of the officially certified record is deemed non-existent — a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record.... Simply put, if a document is not in the certified record, the Superior Court may not consider it." Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa.Super.2006) (en banc) (citations omitted). It is, of course, the appellant's responsibility to ensure the record is complete prior to its transmission to this Court. See generally Commonwealth v. Williams, 552 Pa. 451, 458-60, 715 A.2d 1101, 1104-05 (1998); Kessler v. Broder, 851 A.2d 944, 950 (Pa.Super.2004). The missing documents impeded effective appellate review.

2 . I acknowledge this decision was filed after the jury’s verdict. The United States Supreme Court held, "In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon non-parties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.” Philip Morris USA, 549 U.S. at 353, 127 S.Ct. at 1063, 166 L.Ed.2d at 948.

3 . In determining "Wyeth is a Pennsylvania corporation with its principal place of business in King of Prussia,” the majority cites counsel’s opening statement. Initially, I note that we, as an appellate court, should avoid reaching factual conclusions. See Commonwealth v. Jackson, 464 Pa. 292, 298, 346 A.2d 746, 748 (1975). I am also hesitant to elevate counsel's opening claims into a finding of fact, particularly when the fact-finder had not yet heard any evidence. N.T., 1/9/07, at 6 (court informing jury that "nothing the lawyers say” is evidence); see Pa. Suggested Standard Civil Jury Instructions § 1.36 (3d ed. 2005) (instructing jurors that opening statements by counsel are not evidence). Although I do not join the majority’s rationale, I concur in the result because Appellees had, but declined, the opportunity to challenge Appellants’ contention that the nerve center— where three decades of corporate decisions warranting punitive damages allegedly occurred — was at, for example, Wyeth-Ayerst Pharmaceuticals, Inc., in Collegeville, Pennsylvania, as opposed to, for example, Wyeth, Inc., in Madison, New Jersey.