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DAVID H. SMITH v. ROBERT LINN (08/07/89)

filed: August 7, 1989.

DAVID H. SMITH, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF PATRICIA SMITH, DECEASED, APPELLANT,
v.
ROBERT LINN, D.O., LYLE STUART, INC., DIXON-SHANE, INC., HOWARD ROSENFELD, M.D., ROBARD CORPORATION OF CHERRY HILL, N.J. V. HANCE BROTHERS AND WHITE COMPANY WILSON FOODS CORPORATION, DELARE ASSOCIATES, INC., GENERAL FOODS CORPORATION, U.S. GELATIN, DIVISION OF PETER COOPER CORPORATION



Appeal from the Order in the Court of Common Pleas of Montgomery County, civil Division, No. 79-10524.

COUNSEL

Thomas B. Rutter, Philadelphia, for appellant.

Albert B. Gerber, Philadelphia, for appellees.

Montemuro, Tamilia and Montgomery, JJ.

Author: Tamilia

[ 386 Pa. Super. Page 393]

Appellant David H. Smith, individually and as administrator of the estate of Patricia Smith, deceased, appeals summary

[ 386 Pa. Super. Page 394]

    judgment granted September 30, 1988 in favor of appellee, Lyle Stuart, Inc. Patricia Smith died in July of 1977 allegedly as a result of the sudden onset of complications caused by a liquid protein diet which she was following, as set forth in a book entitled, When Everything Else Fails . . . The Last Chance Diet.

The trial court Opinion explains the appellant brought an action seeking to recover for the death of the decedent against the publisher of the book, Lyle Stuart, Inc., appellee herein, as well as numerous other defendants. The matter was transferred from arbitration*fn1 to Common Pleas Court by an April 11, 1979 Order of court. As a result of dismissals and settlements, Lyle Stuart, Inc., was the only defendant remaining in the case when it filed its motion for summary judgment on January 13, 1988. After entertaining oral argument on the motion, the Court en banc granted summary judgment. Appellant filed a notice of appeal on October 13, 1988.

The trial court states the factual history as follows.

Lyle Stuart initially met Robert Linn, D.O. in 1975 after Lyle Stuart read a magazine article about Dr. Linn's liquid protein dietary program. Lyle Stuart used the diet to lose weight. Lyle Stuart, an experienced publisher, suggested to Dr. Linn that they do a book about the diet. An agreement was reached for Dr. Linn to author, and Lyle Stuart to publish, the book in March of 1976. The book was to be geared to the general public, as opposed to a medical type text.

When the book had gone to galley proofs, Lyle Stuart, president of Lyle Stuart, Inc., approached Dr. George Blackburn of Harvard Medical School, a leading researcher in the field of nutrition to review the book. Blackburn and Lyle Stuart met in June of 1976 to discuss Blackburn's review of the book. ...


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