Thomas Paschos and Assoc
January, 2006

I. Condominium Law.

Condominium Association Has Limited Duty to Warn of Known Defects in Personal Property Located in Individual Units that Could Damage Other Units or Become a Common Element.

In Fiddons v. Cook, 2005 WL 3440703 (N.J. Super. 2005), a plaintiff sued for damages to her unit in Country Place Condominium that was flooded by water from a broken dishwasher hose in the unit located directly above her owned by the Cook defendants. Plaintiff alleged that Cook defendants were strictly liable and negligent, and that the Condominium Association owed a duty to warn plaintiff about the potential flooding hazard. The court held that the Cooks were neither strictly liable nor negligent. However, the court held that the Condominium Association did owe plaintiff a duty to warn the unit owners of the potential defect in the dishwashers hoses after it was put on notice of the risk of the defect after three units in the condominium development had experienced some problems with their dishwasher hoses prior to the incident at issue. The court noted that the dishwasher hose is not a common element, and therefore, the by-laws place the responsibility for their inspection maintenance on the unit owners. However, because the Association knew of the potential dangerous condition, and that the condition was not open and obvious to the unit owners, it had a duty to act reasonably to warn the owners of the potential danger.

II.Employment Law.

Former Nurse’s Lawsuit Alleging Discrimination Based on Religion, Retaliation: Hostile Work Environment Based on Religious Discrimination Fails to Survive Summary Judgment.

In El-Fioufi v. St. Peter’s University Hospital, 2005 WL 3543345 (N.J. Super. 12-29-05), plaintiff-nurse, after being terminated for substandard job performance, filed a complaint alleging four counts, which the court defined as assertions of religious discrimination in violation of LAD, N.J.S.A. 10:5-1-42, retaliatory discharge and hostile work environment. Plaintiff relied on three pieces of evidence that she contended was proof that defendants discriminated against her because of her religion. First, she relied on a statement that a former employee attributed to the manager of the OR in 1996, when plaintiff was originally not hired, to the affect that the manager of the OR did not want to hire a Muslim. Second, plaintiff asserted that the denial of her request for a vacation in July of 1999, for the purpose of attending a family wedding, interfered with the practice of a religion because the wedding itself was a religious event. Third, plaintiff argued that the manager of the OR expected that plaintiff would work on Christmas in 1999, which is holiday that plaintiff does not observe, but which is a day when she believed she would not have been asked to work were she not a Muslim. The court rejected the suggestion that any of these incidents supported a finding that defendants discriminated against plaintiff because of her religion. The court addressed the plaintiff’s allegations seritiam. First, even if the manager of the OR uttered the statement about not hiring plaintiff because she was a Muslim, the plaintiff was hired, and the manager of the OR eventually apologized. The court held that a single statement made part of one’s employment cannot support a subsequent discrimination complaint. Second, with regard to the wedding incident, the court cited that the record abundantly demonstrated that plaintiff did not have enough seniority to have a vacation day on the Friday before the Fourth of July weekend. Further, the court rejected the assertion that a wedding amounts to a religious observance deserving of special respect or deference from one’s employer. Third, regarding defendant’s request that plaintiff work on Christmas, the court noted that Christmas was not a religious celebration that plaintiff observed. The court further noted that there was no evidence in the record that plaintiff was denied time off to observe her own religious holidays. The court rejected the notion that asking the plaintiff to work on Christmas, presumably so that others might be permitted to celebrate their religious holiday, in any way, amounts to a discrimination against her because of her Muslim faith.

Further, the court rejected the plaintiff’s allegations of retaliatory discharge, concluding that an unfavorable performance evaluation unaccompanied by any demotion, loss of pay or other similar detriment is, alone, insufficient.

Finally, the court also denied plaintiff’s claim for a hostile work environment, stating that plaintiff had failed set forth any facts that suggested that she was subjected to a hostile work environment, as New Jersey case law defined it.

III.Products Liability Issues.

Under Pennsylvania Law, A Pharmaceutical Manufacturer’s Duty to Warn Runs to Prescribing Physicians, and Not to Patients.

In an unreported decision, Lineberger v. Wyeth, 2005 WL 3547682 (Pa. Super. 12-21-05), the Superior Court affirmed the conclusion by the Philadelphia Complex Litigation Center that under Pennsylvania law, a pharmaceutical manufacturer’s duty to warn runs to the prescribing physicians, and not to patients. This case involved a plaintiff who took Fen-Phen, a prescription drug diet therapy manufactured by Wyeth. Plaintiff received Fen-Phen prescriptions from her physician, Dr. Don Lafferty. In 1996 and 1997, Wyeth issued “Dear Doctor” letters concerning fenfluramines and their potential to produce myocardial infarctions and cardiac arrest. On June 17, 2002, an echocardiogram revealed that plaintiff suffered from moderate mitral valve regurgitation and mild aortic insufficiency. Plaintiff filed a complaint alleging that she had developed the aortic insufficiency and mitral valve regurgitation from her ingestion of Fen-Phen.

Wyeth filed a motion for summary judgment arguing that plaintiff could not establish proximate causation between her injuries and Wyeth’s failure to warn. In the underlying case, Judge Norman C. Ackerman granted summary judgment to Wyeth, stating that, in order to prove liability, a Fen-Phen plaintiff needs to show that his or her doctor would not have prescribed the diet drug if the manufacturer had offered a different warning. In his decision, Judge Ackerman found, and the Superior Court Panel agreed, that Pennsylvania courts have long held that the heeding presumption doctrine applies in strict liability claims, but not pharmaceutical failure to warn actions, in which negligence is the only basis for liability.

According to the deposition testimony of plaintiff’s prescribing doctor, John Lafferty, he would have most likely prescribed the diet drug to Lineberger, even if he had been informed of the associated risk of valvular heart disease. The court stated that plaintiff presented no evidence that a different warning would have changed Dr. Lafferty’s decision to prescribe Fen-Phen to her. “Based on this testimony, a reasonable jury would have to agree that even if a different warning had been issued, Dr. Lafferty would have still prescribed the drug for [plaintiff].”

Copies of the full text of any of the cases discussed in this Newsletter may be obtained by calling our office.  The articles contained in this Newsletter are

for informational purposes only and do not constitute legal advice.

©Thomas Paschos & Associates, P.C. (2006) All Rights Reserved.