Full opinion text
OPINION DITTER, District Judge. Plaintiffs Lisa Marie Mazur and her parents, Anthony and Edna Mazur, claim that Lisa contracted subacute sclerosing panen-cephalitis (“SSPE”), a debilitating, terminal disease of the central nervous system, as a result of an inoculation with a measles, mumps, and rubella vaccine manufactured by defendant Merck & Co., Inc. Before me is defendant’s motion for summary judgment and to exclude plaintiffs’ expert testimony. The Mazurs brought this diversity action asserting claims of strict liability and negligence for both design and manufacturing defects and for failure to provide an adequate warning, breach and reckless breach of the implied warranties of merchantability and fitness for a particular purpose, intentional and negligent misrepresentation, and negligent infliction of emotional distress. They seek compensatory and punitive damages. Merck moves for summary judgment and for exclusion of the expert testimony of plaintiffs’ witnesses. It contends that federal regulation of vaccine manufacturing, distributing, and labeling preempts the Ma-zurs’ tort claims in their entirety. Alternatively, Merck maintains that the tort claims of the Mazur parents are barred by the applicable Pennsylvania statute of limitations, 42 Pa.C.S.A. § 5524(2) and (7). It also argues that I should find as a matter of law that it did not breach the duty to warn recipients of the vaccine of its risks. After considering the facts presented by the parties in a light most favorable to the plaintiffs, the motion for partial summary judgment will be denied in part. As I will explain more fully below, I find that Congress did not preempt state tort claims asserted by a victim of an adverse reaction to a Food and Drug Administration-approved vaccine. A reasonable jury could find for either side on the statute of limitations issue. However, I will reserve judgment on the question of whether Merck has shown as a matter of law that it did not breach its duty to warn of the dangers associated with the vaccine. I. FACTS In response to a measles epidemic among school children in Philadelphia in the late 1970’s, the City of Philadelphia, Department of Public Health (“Health Department”) proposed a regulation that would require all children attending any school in Philadelphia to be vaccinated against certain pediatric diseases as a condition of continued school attendance. Affidavit of Robert G. Sharrar, M.D., tí 4, attached as Merck’s exhibit B (“Sharrar aff.”). The School Board of Health adopted the regulation and authorized the Health Department to exclude any student in kindergarten through twelfth grade from any Philadelphia school, public or private, if he or she was not vaccinated against measles, mumps, rubella, polio, diphtheria, and tetanus or had not naturally acquired immunity by having the disease. Sharrar aff. at 11 5. School nurses were instructed to review the health records of approximately 300,-000 students to determine the vaccines each one needed, if any, and to obtain written permission from parents to have their child vaccinated. Id. at 1115. Parents were required to document previous immunizations or prior illnesses. If adequate proof was not forthcoming, the child was considered unimmunized and was later vaccinated. Id. at 1116. The Health Department, through Dr. Sharrar, contacted the United States Center for Disease Control (“CDC”) of the Department of Health and Human Services for assistance in designing a program for the children. Id. at 117. Following a recommendation of the CDC, Dr. Sharrar decided that combined vaccines would be used in the inoculation program. He chose MM-R II (“MMR II”) as the vaccine for the simultaneous immunization against measles, mumps, and rubella. Id. at 1Í 8. MMR II is manufactured by Merck under a license from the Food and Drug Administration (“FDA”). MMR II is a live virus vaccine for immunization against all three childhood diseases. The measles portion of MMR II contains an attenuated line of measles virus, which when injected into the body causes it to generate antibodies to ward off a measles infection. MMR II is packaged in containers which include an insert describing the risks associated with the vaccine’s use. The April, 1981, package insert contained the following pertinent information about the risk of contracting SSPE from the MMR II vaccine: There have been reports of subacute sclerosing panencephalitis (SSPE) in children who did not have a history of natural measles but did receive measles vaccine. Some of these cases may have resulted from unrecognized measles in the first year of life or possibly from the measles vaccination. Based on estimated nationwide measles vaccination distribution, the association of SSPE cases to measles vaccination is about one case per million vaccine doses distributed. This is far less than the association with natural measles, 5-10 cases of SSPE per million cases of measles. The results of a retrospective case-controlled study conducted by the Center for Disease Control suggest that the overall effect of measles vaccine has been to protect against SSPE by preventing measles with its inherent risk of SSPE. According to the package circular, the vaccine is indicated for immunization “in children 15 months of age or older, and adults.” Additionally, it included the following paragraph about revaccination: Based on available evidence, there is no reason to routinely revaccinate children originally vaccinated when 12 months of age or older; however, children vaccinated when younger than 12 months of age should be revaccinated. The decision to revaccinate should be based on evaluation of each individual ease. The FDA approved the package circular before it was included with the vaccine. Affidavit of William B. Freilich, 114, attached as Merck’s exhibit A (“Freilich aff.”). The MMR II vaccines were purchased from Merck by the CDC at Dr. Sharrar’s request. At first, Merck would not sell the vaccines to the CDC. Merck relented when the CDC contractually agreed either to assure that a physician would be present at inoculation or to provide MMR II recipients or their parents with what Merck and it believed to be an adequate warning of the risks associated with MMR II immunization. Freilich aff. at ¶ 15. The CDC drafted an “Important Information Statement” to be sent to all parents of school age children. Id. at ¶ 22 and exhibit 6. The statement was designed to allow parents to weigh the benefits against the known risks of MMR II vaccination in a manner they would ordinarily comprehend. The Important Information Statement was sent home to parents via their children. Merck’s exhibit R at 45. Lisa Mazur, the Mazurs’ fourth child, was born on August 11, 1969. Lisa’s medical history prior to 1982 was for the most part unremarkable. Lisa’s three siblings all had measles and German measles (rubella) prior to Lisa’s birth. Mazurs’ exhibit 2 at 59. On October 11,1973, Lisa received a measles vaccine and a German measles vaccine from her private physician. Prior to February, 1982, Lisa had not received a mumps vaccine and had not naturally acquired immunity to the mumps. From late 1979 through January, 1982, Lisa was treated on a number of occasions for colds, a sore throat, allergies, and pharyngitis. On January 8, 1982, Lisa underwent a tonsillectomy. During that time, she was a student at the Morrison School in Philadelphia. Mrs. Mazur claims that she never received the Important Information Statement or any other warning about the risks of MMR II inoculation. Yet, she admits that she saw two documents apprising her of the immunization program. Mazurs’ exhibit 2 at 106-108. One of the two documents she received was a letter from the School District with an attached student immunization record and parental permission form. Mazurs’ exhibit 10. The letter explains the immunization program and what each parent must do either to allow inoculation or to prevent it. Id. Mrs. Ma-zur states that she read the letter and permission form but refused to sign it or return it unsigned to the school. Mazurs’ exhibit 2 at 109. In any event, upon learning of the immunization program, Mrs. Ma-zur called the school principal and the Board of Education to inform them that Lisa had received a measles vaccine in 1973 and to protest any revaccination. Mazurs’ exhibit 2 at 109-21. As a precaution, Mrs. Mazur kept Lisa out of school for approximately a week before sending her back just prior to the day of the immunization program at Lisa’s school. Id. at 117. Mrs. Mazur claims that she did not provide written or oral permission for Lisa to receive the MMR II vaccination. Nevertheless, Lisa received an MMR II vaccine shot on February 26, 1982. On September 7,1983, Lisa was admitted to St. Christopher’s Hospital for Children in Philadelphia for tests because of “personality changes in the past six months with abnormal movements in the past few weeks.” Mazurs’ exhibit 14. After reviewing Lisa’s electroencephalogram results, one of her doctors stated that SSPE should be “seriously considered]” as a cause of her physical and behavioral problems. Mazurs’ exhibit 14. In late September, 1983, Lisa’s doctors at St. Christopher’s made a “presumptive” diagnosis of SSPE. Mazurs’ exhibit 15. On November 2. 1983, another doctor, who examined Lisa at her parents’ request, agreed with the earlier diagnosis of SSPE. II. PREEMPTION Merck contends that the pervasive scheme of federal regulation governing the production, labeling, and distribution of vaccines impliedly preempts the Mazurs’ Pennsylvania tort claims for breach of the duty to warn recipients of a vaccine of its hazards. The concept of preemption has its roots in the supremacy clause of the Constitution, art. VI, cl. 2. There are two types of preemption: express and implied. Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). Implied preemption may arise in either of two ways. First, Congress may indicate an intent to occupy an entire field of regulation, in which case the states must leave all regulatory activity in that area to the federal government. Fidelity Federal Savings & Loan Assoc. v. De la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Second, Congress may preempt state law to the extent that state law actually conflicts with federal law. Such a conflict arises when compliance with both federal and state law is impossible or when state law frustrates the purposes of federal law. Michigan Canners and Freezers Assoc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984). There is no question that federal regulation of vaccines, such as MMR II, is comprehensive. MMR II is subject to the provisions of the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 eseq, and the Public Health Service Act (“PHSA”), 42 U.S.C. § 215 et seq. Both regulations govern nearly every aspect of vaccine testing, design, production, labeling, and distribution. For example, each vaccine manufacturer must file with the FDA a detailed application for a license to begin testing a new vaccine, inform the FDA of production and distribution plans, and if approved, complete periodic updates containing a broad spectrum of information. 21 C.F.R. § 600 et seq. Similarly, the vaccine label and package circular must receive federal approval. 21 C.F.R. §§ 1, 201. The FDA requires extensive information to be included on the label and package circular, such as the composition of the vaccine, the expiration date, the storage directions, the indications and contraindications of vaccine usage, and the potential adverse reactions. 21 C.F.R. §§ 610.60-610.65. The language of the label and package circular is subject to FDA scrutiny and cannot be changed without FDA authorization. 21 C.F.R. § 601.12. Preemption of state tort law, however, does not automatically follow extensive federal regulation. Hillsborough, 471 U.S. at 715, 105 S.Ct. at 2376. Vaccine regulation, like the regulation of other prescription products, is primarily, but not exclusively, a federal concern. State regulation of these products plays an important and legitimate role and should not be displaced unless exceptional circumstances warrant it. In other words, in the absence of express preemption, there is a strong presumption that Congress did not intend to displace state law. Maryland v. Louisiana, 451 U.S. 725, 726, 101 S.Ct. 2114, 2118, 68 L.Ed.2d 576 (1981). Moreover, this presumption against preemption is even stronger when state regulation of matters related to health and safety is involved, Hillsborough, 471 U.S. at 715, 105 S.Ct. at 2376, and when federal regulation would work to preempt state tort remedies, Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251, 104 S.Ct. 615, 623, 78 L.Ed.2d 443 (1984). Here, if federal regulation of vaccines is exclusive, Pennsylvania’s ability to best protect its citizens from the dangers of vaccine use is severely hampered and it leaves those Pennsylvania citizens harmed by vaccines without a state tort remedy. Hence, I agree with the great majority of courts addressing this issue that Congress did not impliedly preempt state regulation of vaccine manufacture, distribution, and labeling. Merck’s preemption argument is further diluted by the National Childhood Vaccines Injury Act of 1986 (“NCVIA”), 42 U.S.C. §§ 300aa-33. The NCVIA clearly shows that Congress intended state tort remedies to remain in effect despite extensive federal regulations. The NCVIA was enacted to provide an alternative to the courts for the redress of vaccine-related injuries. The NCVIA established a fund from which individuals injured by vaccines may receive compensation if certain statutory requirements are met. The NCVIA does not eliminate, however, the state tort system as an avenue of redress. It has numerous references to the state tort system and expressly provides that “[sjtate law shall apply to a civil action brought for damages for a vaccine-related injury or death.” 42 U.S.C. § 300aa-22(a). Similarly, it provides that: [n]o state may establish or enforce a law which prohibits an individual from bringing a civil action against a vaccine manufacturer for damages for a vaccine-related injury or death.... Id. at § 300aa-22(e). These sections certainly manifest Congress’ intent to preserve traditional state tort remedies for redress of injuries related to vaccine use. Merck argues alternatively that even if federal regulations do not preempt state regulation of vaccine labeling generally, I should find that Congress intended to preempt the more narrow field of “state regulation of the information to be provided to the medical community regarding the ... association between the administration of measles vaccine and SSPE.” Merck’s mem. in sppt. at 52. Merck suggests that preemption is intended because during the mid-1970’s the CDC studied the relationship, if any, between measles vaccines and SSPE. The results of the study, published in Morbidity and Mortality Weekly Report, 359-60 and 365 (November 19, 1976), were then sent to Merck by the FDA with the “suggestion] that you review your package circular ... and revise ... [it] ... appropriately to reflect these modifications of earlier recommendations.” Mazurs’ exhibit 54. I have no doubt that because of this prodding by the FDA, Merck’s package circular reads as it does; however, mere compliance with an FDA suggestion, or for that matter, regulation or order, does not mean that state tort law becomes irrelevant. First, compliance with an FDA regulation may establish that the manufacturer met the appropriate minimum standards of due care, but compliance does not necessarily absolve the manufacturer of all liability. See, e.g., Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 658 (1st Cir.1981). Manufacturers must meet state safety requirements, whether codified or embodied in the common law, in addition to satisfying the initial FDA requirements. Second, federal regulation serves a very different purpose than state tort law. Essentially, federal regulation serves a deterrent purpose by limiting the manufacture of inherently dangerous products to those applicants who meet certain stringent safety standards, while state tort law serves the equally important purpose of compensating individuals injured by those very same products. Since compliance with FDA regulations will not ensure that a manufacturer’s products will not cause injury, compliance will not necessarily exempt a manufacturer from liability. When those products do cause injuries, the state tort system provides a means of compensation. State tort law is intended to supplement federal regulation by providing a vehicle for compensation of vaccine-related injuries. Merck also contends that federal regulation of vaccine labels and package circulars would be undermined if state law required that they contain different information than that already approved by the FDA. Merck cites Cippolone v. Liggett, 789 F.2d 181 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), for its two-pronged analysis of when state law so conflicts with federal law as to require that state law yield. The analysis begins with a determination of the purposes of federal law. The court should next determine whether a state law would frustrate the purposes of federal law. Id. at 187. Using this analysis, I once again hold that no finding of preemption is warranted. I accept, for the sake of argument, Merck’s contention that the purpose behind FDA regulation of labeling is uniformity. But if a state jury determines that Merck should have disclosed more information regarding the causal link between SSPE and MMR II, if in fact there is one, see infra at 263, Merck can petition the FDA to allow it to change its package insert. 21 C.F.R. § 601.12. Thus, Merck could meet both federal and state law requirements. Moreover, it makes sense from a policy standpoint to permit civil judgments to supplement federal regulations. As the Court of Appeals for the District of Columbia noted in the related area of herbicide regulation by the Environmental Protection Agency (“EPA”): successful actions of this sort may lead manufacturers to petition EPA to allow more detailed labelling of their products; alternatively, EPA itself may decide that revised labels are required in light of new information that has been brought to its attention through common law suits. In addition, the specter of damage actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from use of their product so as to forestall such actions through product improvement. Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1542-43 (D.C.Cir.), cert. denied 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). Rather than working at odds with each other, federal regulation and state common law acting in concert can improve vaccine safety of existing vaccines and spur the development of improved vaccines. Accordingly, I find Pennsylvania tort law is not preempted by federal regulation of vaccine manufacture, distribution, and labeling, in general, and with respect to SSPE information in the package circular, in particular. Therefore, Merck’s motion for partial summary judgment on this ground will be denied. III. STATUTE OF LIMITATIONS Lisa Mazur received the MMR II vaccination on February 26, 1982. The Mazurs filed this action on October 31, 1985. Merck contends that the tort claims of Lisa’s parents are barred under Pennsylvania’s two year statute of limitations. 42 Pa.C.S.A. § 5524(2) and (7). Ordinarily, the two year statute would be a bar to this action; however, Mr. and Mrs. Mazur may be entitled to invoke the “discovery rule” in order to extend the period of limitations. Urland v. Merrell-Dow Pharmaceuticals, 822 F.2d 1268 (3d Cir.1987). Where an injured person is unable, “despite the exercise of diligence, to determine the injury or its cause,” the discovery rule tolls the running of the statute of limitations. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). The rule provides that the limitations period begins to run when the plaintiff knows or should know: (1) that he has been injured, and (2) the injury has been caused by another party’s conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135-37, 471 A.2d 493, 500 (1984). The proverbial clock starts to tick when the injured party “possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1513, 89 L.Ed.2d 913 (1986). With respect to this case, the salient issues are (1) when did Mr. and Mrs. Mazur know, or when should they have known, that Lisa had SSPE; and, (2) when did they know, or when should they have known, that MMR II was the cause of the disease. As to both questions, on the record before me, I conclude that genuine issues of material fact require resolution at trial. The parties’ submissions create an issue of fact as to when Lisa’s parents knew of the SSPE diagnosis. On the one hand, in late September, 1983, Lisa’s doctors, after reviewing the results of a broad range of diagnostic tests, discharged her from St. Christopher’s with a diagnosis of “presumptive subacute sclerosing panencephali-tis.” Mazurs’ exhibit 15. The consultation reports filled out by the numerous doctors who examined Lisa in September all include SSPE as a possible, if not probable, cause of Lisa’s illness. Id. Additionally, Mrs. Mazur acknowledges in deposition that a Dr. Foley at St. Christopher’s told her at some unspecified time that Lisa had SSPE. Merck’s exhibit D at 141. Each of these facts tends to show that the Mazurs knew or should have known that Lisa had SSPE before October 31, 1983. On the other hand, the discharge summary and many of the consultant’s reports include other possibilities for Lisa’s illness, such as “Leigh’s encephalopathy or seizure disorder.” Ma-zur’s exhibit 15. In his deposition, Lisa’s treating physician, Dr. Warren Grover, stated that the term “presumptive” implied that the diagnosis was not final. Mazurs’ exhibit 52 at 14. At the Mazurs’ request, a second doctor, Samuel H. Tucker, M.D., confirmed the “presumptive” SSPE diagnosis in a letter dictated on October 28, 1983, and dated November 2, 1983. Mazurs’ exhibit 17. It is unclear when the Mazurs were informed of this confirmatory opinion. The discharge summary, dated December 21, 1983, of Lisa’s November visit to St. Christopher’s includes the first unqualified diagnosis of SSPE. Mazurs' exhibit 18. When all the facts are examined, it seems that until then, at best, Lisa’s doctors believed that in all likelihood she had SSPE but they could not make a definite statement to that effect. The Mazurs contend that they cannot be held to a higher standard of knowledge than Lisa’s doctors. They argue that if the medical personnel who saw Lisa could not come to a definitive conclusion about her illness until November, 1983, it would be unfair to presume that the Mazurs, who are not experienced in the medical field, knew or should have known that she had SSPE before October 31, 1983. This argument finds support in the Pennsylvania case of Trieschock v. Owens Corning Fiberglas Company, 354 Pa.Super. 263, 511 A.2d 863 (1986), alloc. denied, 514 Pa. 617, 521 A.2d 932 (1987). In that case, as part of a routine medical check-up conducted by his employer in March, 1982, Trieschock was told by the company doctor that he was suspected of having asbestosis. On April 8, 1982, that diagnosis was confirmed by an independent specialist. Trieschock filed suit on April 6, 1984. The court opined 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. 354 Pa.Super. at 268, 511 A.2d at 866. Here, it is possible that Lisa’s doctors could not identify her illness with a reasonable degree of certainty until early November, 1983. It may be that upon further examination of the facts at trial, a jury could conclude that the Mazurs knew in September or October, 1983, that Lisa had SSPE. A reasonable jury could also find that the “presumptive” diagnosis of SSPE triggered a duty of diligent investigation as to the cause of Lisa’s illness which went unfulfilled, thereby preventing the application of the discovery rule to toll the running of the limitations period. However, the request that Dr. Tucker examine Lisa to confirm or refute the SSPE diagnosis might satisfy the requirement of diligent investigation. Additionally, on the scant record before me it is unfair to conclude that the Mazurs knew or should have known the nature of Lisa’s ailment before it was ascertained with a reasonable degree of certainty by the medical profession. Even assuming arguendo that Lisa’s parents knew that she had SSPE before October 31, 1983, Merck’s motion for partial summary judgment on the basis that the statute of limitations ran still must be rejected. There is a genuine issue of material fact as to whether Mr. and Mrs. Mazur knew or should have known that Lisa’s SSPE was caused by the MMR II inoculation. As I will discuss in greater detail below, see infra at 263, the causation question is unresolved. Even the so-called experts cannot agree on the cause of Lisa’s illness after six and a half years of investigation. Once again, I will not hold Mr. and Mrs. Mazur accountable to a greater standard of understanding of their daughter’s illness than her doctors. Nonetheless, the contention that the Ma-zurs knew of the relationship between SSPE and measles, and quite possibly, the MMR II vaccine, is not without merit. On September 29, 1983, three days after Lisa was first discharged from St. Christopher’s, Nancy Wasser, Esquire, then associated with the law firm of Sprague and Rubenstone, now Sprague, Higgins, Creamer & Sprague, the Mazurs’ present counsel, contacted the nurse, Jeanette W. Fairorth, at the school where Lisa was enrolled. Affidavit of Jeanette W. Fai-rorth, ¶ 4, attached as Merck’s exhibit Y. (“Fairorth aff.”). On that day, Ms. Fai-rorth entered the following information on Lisa’s health records: T-C from Nancy Wasser “Attorney Spragues’ [sic] office. Wanted info re measles shot date. Apparently Lisa is ill. Conf [with] vice principal Ms. Castle-berry. Lisa’s sister will come in for copy of immunization card. Med record from Creighton not in pocket. Fairorth aff. at H 4 and exhibit A. This exchange certainly shows that someone in the Mazur family thought there might be a relationship between Lisa’s SSPE and her measles shot. Whether this conversation shows that for statute of limitations purposes the Mazurs knew or should have known of the causal link between SSPE and MMR II is an issue that must be left for a jury to decide. It very well may be that upon an examination of the circumstances surrounding this phone call that a reasonable jury could conclude that Mr. and Mrs. Mazur did, in fact, know of the causal relationship between Lisa’s SSPE and the MMR II inoculation. Then again, a reasonable jury could also conclude that the phone call was merely part of the family’s comprehensive efforts to gather information relating to Lisa’s medical history. Because there are genuine issues of material fact relating to Merck’s contention that the Mazur parents’ tort claims are barred by the statute of limitations, I will deny Merck’s motion for partial summary judgment on that ground. IV. DUTY TO WARN A. The Parties’ Contentions The Mazurs charge Merck with failing to warn them of the risks associated with the MMR II vaccine before Lisa was inoculated. They allege that they never received any warning from either Merck or the school before Lisa was vaccinated. The Mazurs assert claims of strict liability and negligence for failure to warn. The Ma-zurs’ duty to warn claims depend on proof of four facts: (1) Merck had a duty to warn Lisa or her parents of the health hazards associated with MMR II use; (2) Merck breached that duty; (8) Merck’s breach proximately caused Lisa’s injuries; and (4) Merck’s breach actually caused Lisa’s injuries. In its defense, Merck argues that it did not have a duty to warn the Mazurs, but it needed to warn only Dr. Sharrar, who decided that the MMR II vaccine would be used, or some other “learned intermediary.” See Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974). It also maintains that the warning it provided to Dr. Sharrar was adequate as a matter of law, so it could not have breached the duty to warn. In the alternative, Merck contends that even if it had a duty to warn the Mazurs directly, that duty was adequately fulfilled by the CDC when it issued the Important Information Statement to parents of potential vaccine recipients. As for proximate causation, Merck posits that Dr. Sharrar’s reliance on a CDC recommendation and on his own research absolves Merck of causal liability. Finally, Merck argues that under no circumstances can the Mazurs prove that MMR II caused Lisa to contract SSPE. After considering the parties’ lengthy briefs on these issues, I find that Merck’s motion for partial summary judgment on the duty to warn claims must be denied. B. The Manufacturer’s Duty to Warn Ordinarily, Pennsylvania follows Section 402A of the Restatement (Second) of Torts which imposes strict liability on the manufacturer of a product sold “in a defective condition unreasonably dangerous to the user or consumer_” Incollingo v. Ewing, 444 Pa. 263, 287, 282 A.2d 206, 219 (1971). The product may be considered in a defective condition if it is sold without a warning of the hazards associated with its use. Incollingo, 282 A.2d at 219. The strict liability rules for prescription drug products, such as vaccines, are somewhat different under Pennsylvania law. In Incollingo, the court found that there are some products “which ... [are] ... incapable of being made safe for ... [their] intended use, such as new or experimental drugs, as to which ... there can be no assurance of safety, but ... the marketing and use of the drug notwithstanding a medically recognizable risk” is justified. Id. With respect to those special products, the ordinary, strict liability principles of section 402A do not apply. Id. Rather, “the standard of care required is that set forth in § 388 of the Restatement dealing with the liability of a supplier of a chattel known to be dangerous for its intended use. Under this section, the supplier has a duty to exercise reasonable care to inform those for whose use the article is supplied of the facts which make it likely to be dangerous.” Id. 282 A.2d at 219 n. 9 (emphasis added); see also Baldino v. Castagna, 505 Pa. 239, 244, 478 A.2d 807, 810 (1984). If the manufacturer can show that he has met this standard of care, he cannot be held strictly liable for the injuries which his product causes. With respect to this case, where the Mazurs do not identify any design or manufacturing defect, the focus must be on whether MMR II was distributed with a proper warning. Since the Ma-zurs assert that Merck is both strictly liable and liable for its negligence in failing to warn them of the dangers of MMR II inoculation, a liability analysis under either theory will depend on whether Merck complied with the “duty to exercise reasonable care to inform” the Mazurs of health risks associated with MMR II use. In Pennsylvania, as in most other states, the manufacturer of prescription drugs or vaccines, must meet its informational obligation, in most instances, by providing an adequate warning to a “learned intermediary,” Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974), rather than to the general public or individual consumer. Incollingo, 282 A.2d at 220 (learned intermediary is the prescribing physician); see also Walker v. Merck & Co., Inc., 648 F.Supp. 931 (M.D.Ga.1986), affd without op., 831 F.2d 1069 (11th Cir.1987) (school nurse qualifies as a learned intermediary). The so-called “learned intermediary rule” embodies the practical realities surrounding the dispensation of prescription drugs. In such instances, the choice of which, if any, prescription product to use is: essentially a medical one involving an assessment of medical risks in the light of the physician’s knowledge of his patient’s needs and susceptibilities. Further it is difficult under such circumstances for the manufacturer, by label or direct communication, to reach the consumer with a warning. A warning to the medical profession is in such cases the only effective means by which a warning could help the patient. Davis v. Wyeth Laboratories, 399 F.2d 121, 130 (9th Cir.1968). See also Hoffman v. Sterling Drug, Inc., 485 F.2d 132 (3rd Cir.1973) (Third Circuit adopts the reasoning of Incollingo and Davis to hold that manufacturer of prescription drug need only warn either the prescribing or treating physician.). Since Davis, the focus has been on the extent of the medical professional’s involvement in the decision to administer the drug. The learned intermediary rule has been found to apply in situations where the medical professional exercises his “individual medical judgment bottomed on a knowledge of both patient and palliative.” Reyes, 498 F.2d at 1276. In most but not all of the vaccine cases, the learned intermediary rule has been applied, since a physician or a physician’s aide, such as a nurse, administered the vaccine. However, in Davis, the Ninth Circuit opined that in situations where the vaccine is not dispensed as a prescription drug and is “dispensed to all comers at mass immunization clinics without an individualized balancing by a physician of the risks involved.... It is the responsibility of the manufacturer to see that warnings reach the consumer, either by giving warning itself or by obligating the purchaser to give warning.” 399 F.2d at 131. All of the vaccine cases recognize the theoretical validity of the “mass immunization exception” to the learned intermediary rule, but very few have found situations where its application is warranted. See Petty v. United States, 740 F.2d 1428 (8th Cir.1984) (swine flu vaccine administered in a county health clinic as part of the National Swine Flu Immunization Program); Givens v. Lederle Laboratories, 556 F.2d 1341 (5th Cir.1977) (polio vaccine administered by private physician who testified that the “administration [of the vaccine] in his office ‘really doesn’t differ’ from that of the Public Health Center; ‘not in the administration at all.’ ”); Davis (polio vaccine administered by public health official, a pharmacist, in a community clinic as part of a nationwide immunization program recommended by the Surgeon General of the United States); Reyes (polio vaccine administered by public health official, a registered nurse, in a community clinic as part of a nationwide immunization program recommended by the Surgeon General of the United States). The initial step in determining if Merck must face liability for Mrs. Mazur’s claim that she never received a warning is to decide whether the learned intermediary rule or the mass immunization exception applies. If the learned intermediary rule applies, Merck only need have warned adequately the learned intermediary and the failure to warn Mrs. Mazur is irrelevant. If the mass immunization exception applies, then Merck must have exercised reasonable care to see that the Mazurs, as opposed to a learned intermediary, were adequately warned. Merck chose to rely on the CDC to meet this obligation or to ensure that the learned intermediary rule would apply. It must be determined if Merck acted in accordance with its duty to exercise reasonable care to inform the Mazurs of the health risks of MMR II use when it so contracted with the CDC. This determination will depend on whether Merck foresaw or should have foreseen that its reliance on the CDC was reasonable. 1. The Learned Intermediary Issues Merck contends that Dr. Sharrar, in his position as director of the Health Department, acted as the learned intermediary, so when Merck and the CDC provided warnings to him, it fulfilled its duty to warn the medical professional of the risks of MMR II immunization. This contention is without merit. Dr. Sharrar, in fact, did not perform the necessary individualized balancing required of a learned intermediary. There is no dispute that Dr. Sharrar considered the package circular, the recommendation of the CDC advisory committee, and the results of his own research before he selected the MMR II vaccine. Moreover, there is no dispute that Dr. Sharrar directed school nurses to review the medical records of nearly 300,000 students in the district and that 200,000 children did not receive the vaccines for a variety of reasons. It is also undisputed, however, that he did not review Lisa Mazur’s medical records, consider her particular susceptibilities in light of the risks of MMR II inoculation, and was not even present at the time she was immunized. Merck does not even suggest that he had ever even seen Lisa Mazur, let alone examined her, before February 26, 1982. Dr. Sharrar never acted as Lisa Mazur’s physician. In short, Dr. Shar-rar’s function can be best described as purchasing agent for the Health Department. He determined what was best for the “average” student in the district and purchased enough MMR II to meet the needs of 300,000 “average” students. He did not make an individualized medical judgment about what was best for Lisa Mazur. Dr. Sharrar did not act as a learned intermediary between Merck and Lisa. This conclusion does not lay to rest the learned intermediary issue. Although Merck does not argue the point directly, I find that there is a genuine issue of materia] fact as to whether Ms. Edith B. Frederick, the school nurse, acted as a learned intermediary when she permitted Lisa to receive the MMR II vaccine. Ms. Frederick personally reviewed the medical records of every student, including Lisa Mazur’s records, at the Morrison School and determined what immunization, if any, was needed. Mazurs’ exhibit 11 at 19. She sent out with each child an Important Information Statement and the School District letter with the attached immunization record and the parental permission form, and upon return of the forms made a second determination of which vaccine was necessary. Merck’s exhibit R at 46. She was present in the gym on the day Lisa received the MMR II inoculation. Ms. Frederick also states that one of her jobs was “to be kind of eyeballirig the boys and girls to see whether they looked ill that day or if there was some reason they should not get the vaccine,” and to ask if the children felt “all right.” Id. at 49. Unfortunately, this is all the information that the parties have submitted about Ms. Frederick. Missing are affirmations of fact, such as her familiarity with the package circular or CDC recommendations, her technical training, or her memory of Lisa’s condition at the time the vaccine was administered. These areas may be developed in greater detail at the time of trial. If so, a jury could conclude that she performed the traditional functions of the learned intermediary and if Merck provided her with an adequate warning, it met its burden under Pennsylvania law. The conclusion that under certain circumstances a nurse, as opposed to á physician, can act as a learned intermediary has won some approval, although there is no Pennsylvania case on point. In Walker v. Merck & Co., Inc., 648 F.Supp. 931 (M.D.Ga.1986), aff'd without op., 831 F.2d 1069 (11th Cir.1987), a case involving the administration of the MMR II vaccine to a pregnant high school student as part of a county-wide high school immunization program, the court found that under Georgia law, the learned intermediary exception applied to nurses in general, and, in particular, to the nurse who administered the vaccine. Accord Rohrbough v. Wyeth Laboratories, 719 F.Supp. 470 (N.D.W.Va.1989). In Walker, the plaintiff “received the M-M-RII injection from a licensed practical nurse who was aware of the risks associated with M-M-RII, particularly the risks for pregnant females, and who stated that she had read and understood the circular accompanying the M-M-RII.” Walker, 648 F.Supp. at 934. Here, upon further examination of the facts, it may be that Ms. Frederick had a similar knowledge of the risks of MMR II inoculation as described in the package circular and Lisa Mazur’s particular “needs and susceptibilities,” Davis, 399 F.2d at 130, and she was able to make an individualized, informed medical judgment about whether Lisa should receive the MMR II inoculation. I recognize that an argument can be made that since a Pennsylvania appellate court, Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 523 A.2d 374 (1987), and a Philadelphia Common Pleas court, Coyle v. Richardson-Merrell, Inc., 15 Phila. 389,/1987 Phila.Cty.Rptr. Lexis 80 (Phila.Ct.Com.Pleas April 10, 1987), refused to extend the learned intermediary rule to retail pharmacists, and there is no Pennsylvania case that addresses whether a nurse can act as a learned intermediary, the learned intermediary designation should be limited to physicians. A distinction can be drawn between a nurse and a pharmacist, however. The former often performs tasks similar to a physician, while the latter is more of a technician or a retailer of previously prescribed drugs. The nurse is familiar with the patient’s medical history and current condition, whereas the pharmacist is, in many instances, unfamiliar with his customer. The nurse, as well as the physician, is in a position to know the characteristics of the drug, the amount of the drug which can be safely administered, and most importantly, the individual characteristics of the patient. Makripodis, 523 A.2d at 378. The pharmacist only dispenses those drugs which the learned intermediary has already decided are necessary for the patient. The pharmacist often does not engage in any decision making of the kind ordinarily associated with that of doctors and nurses. Moreover, this close association in function between doctor and nurse has been to some extent recognized by the Pennsylvania legislature in 42 Pa.C.S.A. § 8334(a). Section 8334(a) extends a limited grant of immunity from liability to both physicians and nurses for adverse reactions arising from the use of vaccines administered as part of a “mass immunization project.” This section certainly evidences a legislative view that physicians and nurses often engage in similar activities when administering vaccines on a large-scale basis. I predict that the Pennsylvania courts if presented with the question of whether a nurse can be a learned intermediary would recognize that doctors and nurses perform similar roles when vaccinating patients and would hold that in appropriate circumstances a nurse can act as a learned intermediary. Therefore, the issue of whether Frederick falls within the learned intermediary definition must be resolved at trial, because if so and if Merck provided her with an adequate warning, Merck did not breach the duty to warn. 2. The Mass Immunization Exception Assuming arguendo that Ms. Frederick is not found to be a learned intermediary, the Mazurs still must prove that the mass immunization exception applies to trigger Merck’s duty to warn them directly. They cannot do so, however. In Davis, the Ninth Circuit opined that in situations where the vaccine is not dispensed as a prescription drug and is “dispensed to all comers at mass immunization clinics without an individualized balancing by a physician of the risks involved.... It is the responsibility of the manufacturer to see that warnings reach the consumer,' either by giving warning itself or by obligating the purchaser to give warning.” 399 F.2d at 131 (emphasis added). The “mass immunization exception” has not been applied often, because as the court in Stanback v. Parke, Davis & Co., 657 F.2d 642, 647 (4th Cir.1981), stated, the exception “is quite narrow and highly fact specific.” I have found only four such cases, three of which dealt' with nationally sponsored immunization programs: Petty v. United States, 740 F.2d 1428 (8th Cir.1984); Reyes; Davis; and Givens v. Lederle Laboratories, 556 F.2d 1341, 1345 (5th Cir.1977). The mass immunization exception to the learned intermediary rule recognizes that there may be circumstances when by reason of the very size of a program, a manufacturer will know or should know that its product will not be dispensed as a prescription drug; in short, the manufacturer can foresee that there will be no individualized balancing of the medical benefits and risks. As the court in Reyes stated: [w]here there is no physician to make an ‘individualized balancing ... of the risks’, ... the very justification for the prescription drug exception [the learned intermediary rule] evaporates. Thus, as in the case of patent drugs sold over the counter without prescription, the manufacturer of a prescription drug who knows or has reason to know that it will not be dispensed as such a drug must provide the consumer with adequate information so that he can balance the risks and benefits of a given medication himself. Reyes, 498 F.2d at 1276 (quoting Davis, 399 F.2d at 131). In Reyes, the court found that Wyeth “had ample reason to foresee the way in which its vaccine would be distributed,” because “it was common knowledge in the drug industry that a great majority of vaccinees receive their Sabin [polio] vaccines in mass administrations or county clinics manned at least in part by volunteers ... [and] ... these clinics, as Wyeth must be presumed to know, dispense Sabin vaccine to all comers in an ‘assembly line’ fashion.” Id. at 1277 (quoting Davis, at 131). Here, the Mazurs have not presented any facts which tend to show that Merck should have foreseen that the MMR II vaccine would have been dispensed in the Philadelphia school program without individual judgments as to each inoculation. In its contract with Merck, CDC represented and agreed that it would “take all appropriate steps to assure that all vaccine supplied to various locations within the 50 states, ... pursuant to the terms of this contract, shall be administered on the basis of an individualized medical judgment by a physician ...” Freilich aff. at 1117 and exhibits 3, 4, and 5. In fact, individualized judgments were made: two out of three students in the Philadelphia school population were eliminated from the inoculation program. While Ms. Frederick was no physician, she was on hand when Lisa was immunized to make an individualized decision as to each child. Even if she was inadequately trained, inadequately instructed and ultimately made the wrong decision as to Lisa, she was the school district’s response to the obligation imposed on the CDC by its purchase contract with Merck. There has been no suggestion as to any reason why Merck could have or should have foreseen that the MMR II would not be dispensed as a prescription drug. This case is distinguished from Reyes, Davis, Givens, and Petty in that the size of the immunization program here is significantly smaller and does not by its sheer size create a situation where the absence of a learned intermediary is foreseeable. In all of those other cases, the inoculation was provided to the plaintiff as part of a nationwide immunization effort. For example, in Petty, the vaccine was provided to the plaintiff pursuant to the National Swine Flu Immunization Program, which as one might guess from its name, was a national inoculation drive. The recipient pool here was initially some 300,000 students in the Philadelphia school system. The Health Department program, like the program in Walker, was “instituted only to immunize certain ... students who needed the vaccine or who did not have their updated shot records.” Walker, 648 F.Supp. at 935. The Health Department program is simply not, for the lack of a suitable substitute term, “mass” enough to fall within the narrow, highly fact specific exception to the general rule. As the court in Davis described, the polio immunization programs were for “all-comers.” It does not seem that there were any provisions by which potential recipients could choose not to be immunized or by which potential recipients were rejected for some particular reason. It was as if the vaccines were dispensed as over the counter drugs with no means of limiting distribution to a particular individual. Here, the Health Department program allowed parents to exclude their children from the program for religious or medical reasons. See Mazurs’ exhibit 10. Parents, if they could have proved prior immunizations or previous illnesses, could have prevented their children from being vaccinated. Id. As a last resort, parents also could have kept their children out of school for a period of time as a means of avoiding an unwanted immunization, as did Mrs. Mazur. Further, school nurses excluded students by virtue of their past immunization or illness records, id, or by making a judgment that certain students on the day of inoculation did not appear healthy enough to receive the vaccine. Merck’s exhibit R at 49. Apparently, the screening process was highly effective because nearly two-thirds of the eligible students did not receive an MMR II inoculation. In this situation, it cannot be said that the MMR II inoculation was provided to “all-comers”; rather, it was dispensed on an individual basis as needed. Because there is no evidence to suggest that Merck foresaw that no learned intermediary would be present at inoculation, the Health Department program was not large enough to be considered a mass immunization program, and the vaccine was not dispensed to “all-comers,” the mass immunization exception does not apply. 3. Adequacy of the Package Circular In the event Ms. Frederick is found to be a learned intermediary, the Mazurs’ challenge to the adequacy of the warnings contained in the MMR II package circular that should have been provided to Ms. Frederick becomes significant. They have submitted affidavits from two doctors in support of their allegations that the package circular did not reflect accurately the dangers associated with the MMR II vaccine. Specifically, the doctors aver that the package circular substantially increased the risk that Lisa Mazur would receive an unnecessary measles vaccine because it: (1) refers to doses distributed rather than doses actually used, thereby creating the perception that the incidence rates of SSPE and measles are lower than the actual rates for the two diseases; (2) does not include stronger language warning intermediaries of the dangers when the MMR II vaccine is given to children medicated with Depo-Medrol, a corticosteroid; (3) fails to explain the dangers associated with revaccination; (4) states that MMR II is indicated for adult use based upon inadequate testing for adverse reactions by Merck; and (5) “demonstrates that Merck is aware of the possible causal relationship between measles vaccine and SSPE but has not properly involved itself in basic scientific research before it could say that a cause-and-effect relationship has not been determined; and thereby deemphasizes the risks involved in receiving a measles antigen in order to encourage physicians to immunize as many children as possible.” Affidavits of J. Anthony Morris, Ph.D., and Kevin C. Ger-aghty, M.D., respectively, Mazurs’ exhibits 50 and 25. As an initial matter, it should be noted that by receiving FDA approval of its package circular, Merck has at least complied with a minimum standard of adequacy. See Graham v. Wyeth Laboratories, 666 F.Supp. 1483, 1499 (D.Kan.1987). Thus, it becomes incumbent upon the Ma-zurs to identify particular problems with the package circular. Of course, the Ma-zurs must also present factual support for their claims of inadequacy. Once this threshold burden is met, in ordinary circumstances, the adequacy of the warning is a question of fact for the jury, Incollingo, 444 Pa. at 288-89, 282 A.2d at 220; however, it is not improper for the court to determine that a warning is adequate as a matter of law. Here, I find that except for the revaccination complaint, which creates a genuine issue of material fact for trial, the Merck package circular is otherwise adequate as a matter of law. As it appeared in the April, 1981, MMR II package circular, the revaccination section provided: Revaccination: Based on available evidence, there is no reason to routinely revaccinate children originally vaccinated when 12 months of age or older; however, children vaccinated when younger than 12 months of age should be revacci-nated. The decision to revaccinate should be based on evaluation of each individual case. This statement provides no information about the potential risks associated with revaccination. The Mazurs have presented evidence that revaccination poses a health risk beyond that which is covered in the circular’s general SSPE warnings. Ger-aghty aff., Mazurs’ exhibit 50. The revac-cination statement discusses only the need for revaccination from an immunization standpoint without mentioning that revacci-nation where it is not warranted could, indeed, be harmful. Additionally, Merck fails to distinguish the risk, if any, that may be present where a child who has been inoculated in the past with a measles vaccine, but not with one for mumps, subsequently receives the MMR II vaccine. This was the case with Lisa. She apparently received a measles and a German measles vaccine at the age of four, but never received a separate mumps vaccine. The Ma-zurs argue that the revaccination warning is inadequate because it fails to direct physicians to forego inoculation with MMR II altogether where a child has previously received a measles vaccine, and it fails to recommend that children who have already received one or two of the three viruses contained in MMR II be inoculated with individual vaccines to complete the trio instead of with MMR II. Merck does not address the revaccination issue in its briefs. I can only assume, therefore, that Merck concedes the existence of a genuine issue of material fact as to the adequacy of the revaccination warning in the package circular. The Mazurs have introduced evidence, unrefuted by Merck, from which a reasonable jury could conclude that Merck acted unreasonably by failing to specify that there are potential risks associated with inoculation with MMR II when a child has been inoculated previously with MMR II, or has been inoculated with some other form of either a measles, mumps, or rubella vaccine. Alternatively, a reasonable jury could find that the cautionary language at the end of the revacci-nation statement calling for “an evaluation of each individual case” is adequate to warn the medical profession about the risks, if any, of MMR II revaccination because sufficient information exists from other medical sources which refutes any relationship between revaccination and SSPE. See Recommendation of Immunization Practices Advisory Committee, Morbidity and Mortality Weekly, vol. 31, no. 17, 219-20, 221 (May 7, 1982) (“There is no evidence of enhanced risk from receiving the measles vaccine in persons who have previously received live measles vaccine or had measles. Specifically, there does not appear to be any enhanced risk of SSPE.”). At best, the issues concerning the existence, if any, of a relationship between MMR II revaccination and an enhanced risk of SSPE and the adequacy of Merck’s warnings in this regard in its package circular should be left for the jury to decide. Dr. Geraghty’s accusation that Merck did not engage in sufficient research before it indicated MMR II for adult use is unavailing. I do not see the relevance of this complaint to the facts of this case. On February 26, 1982, Lisa Mazur was only twelve years old. She was not an adult. I fail to understand how the inadequate testing of adults, even if the term is defined as post-pubescent individuals as Dr. Geraghty would have it, placed Lisa Mazur at risk. The Mazurs do not claim that Lisa was even beginning puberty at that time. Dr. Geraghty does not explain why the failure to test the MMR II vaccine on adults put Lisa at risk. Even if he is correct, without an explanation of how that fact would affect Lisa, I cannot conclude that the Ma-zurs have raised a relevant and material issue of fact as to the adequacy of the MMR II package circular. The Mazurs’ remaining complaints about the package circular are also without merit. The first is correct in principle, but wrong in fact. The CDC report on which Merck relied when it drafted the SSPE and encephalitis warnings was based on the results of a study that took into account the discrepancy between doses used and doses distributed in calculating the risk percentages. Morbidity and Mortality Weekly Report, 359-60, 365 (November 19, 1976). As for the complaint that Depo-Medrol should be contraindicated in the package circular, I find that the warning that patients on corticosteroids should not be vaccinated is sufficient. Merck cannot be expected to identify the combined effects of an MMR II vaccine and every single medication that a child might be taking or, in this case, was taking over a month before the vaccine was administered. A reasonably prudent medical professional will understand that when the package circular contraindicates corticosteroids in general, Depo-Medrol, a specific corticosteroid, is also contraindicated. The Mazurs’ claim that Merck did not engage in sufficient research before it could make the statement that a cause-and-effect relationship between SSPE and MMR II has not been determined is also fruitless. First, as can be seen below, Merck does not make a statement that there is no causal relationship between MMR II and SSPE. Rather, its package circular lays out the results of the CDC’s comprehensive examination of the relationship of measles vaccines and SSPE. Second, and most important, is that after over twenty years of study, Merck, as well as the independent researchers, have not been able either to establish or to discount a causal link between SSPE and measles vaccines. See, e.g., Affidavit of Christopher M. Martin, M.D., ¶ 5, attached as Merck’s exhibit I. Merck’s and the CDC’s research efforts on the causal connection between the MMR II vaccine and SSPE adequately support the statements in the package circular without deemphasizing the very real, but extremely small risk of contracting SSPE after inoculation with an MMR II vaccine. 4- Adequacy of the Important Information Statement Because the Mazurs claim that they never received a direct warning of MMR II’s dangers, rather than that they received a warning but found it inadequate in some particular way, see, e.g., Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa.Super. 418, 307 A.2d 449 (1973), the adequacy of the Important Information Statement, as opposed to the adequacy of the package circular, see supra at 257, is not an issue with which I need be concerned. However the Important Information Statement was worded it had no affect on Mrs. Mazur, I will only focus on the consequences, if there are any, o