"Mary testified in her deposition that Dr. Huntress gave her a two-and-a-half-month supply of Paxil in sample packaging, which she took from September through November 1996," Strassburger reasoned. "Dean testified in his deposition that Mary took Paxil in the two to two-and-a-half months leading up to her pregnancy with Danielle. This testimony is sufficient to create a genuine issue of material fact requiring a jury to decide whether Mary actually took Paxil. Accordingly, the trial court erred in concluding otherwise and improperly granted summary judgment on this basis."
Daniel J. Siegel, the appellate attorney for the plaintiffs and of the Law Offices of Daniel J. Siegel in Havertown, Pa., did not respond to an email requesting comment.
Halli D. Cohn, GSK's attorney and a partner with King & Spalding in Atlanta who made the oral argument in the Pettit case, said in an email, "We are pleased that the Superior Court affirmed the trial court's order granting summary judgment in favor of GSK."
During oral argument, Siegel said that it is up to a jury to decide which evidence, if any, is the truth.
"That's the jury function," Siegel said, adding that the essence of the jury's role is to judge credibility and the trial court should not have placed itself in the jury box and determined that the testimony on behalf of the plaintiffs was inadequate as a matter of law.
Cohn countered by arguing that Mary Pettit's use of Paxil is not an issue of credibility but one of "speculation."
"The jury would have to speculate and that's not proper," Cohn said.
Amaris Elliott-Engel writes for The Legal Intelligencer, a Daily Report affiliate in Philadelphia.