The Paxil birth-defect litigation in Philadelphia, which once included about 1,000 cases, now has only two left in the city’s court system.
The most recent case was filed in March. However, Complex Litigation Center Director Stanley Thompson said that he does not anticipate any additional filings.
Only two trials have been held in the Paxil litigation, one of which ended in a plaintiffs verdict of $2.5 million in Kilker v. GlaxoSmithKline and one of which ended in a defense win. The Paxil suits, filed against drugmaker GlaxoSmithKline, alleged that heart and other birth defects were caused in children because their mothers took the antidepressant during their pregnancies.
According to Laura Feldman of Philadelphia-based Feldman & Pinto, who served as liaison counsel in the litigation alongside her partner Rosemary Pinto, most of the cases were settled before trial. Those that did not were moved to federal court, after a U.S. Court of Appeals for the Third Circuit decision that recognized GSK as a corporate citizen of Delaware.
“Toward the end of the litigation the company changed its nerve center to Delaware and we had a whole appellate process and a lot of the cases were pulled into federal court,” Jamie Sheller of Sheller P.C. told The Legal.
Sheller handled the bellwether Kilker case and also acted as liaison counsel in the Paxil litigation.
In a 2012 opinion, U.S. District Judge Paul Diamond of the Eastern District of Pennsylvania said GSK’s decisions were made in its Wilmington, Del., office, making that place of business its “nerve center.” The ruling came from a Thalidomide-related case.
However, Diamond’s ruling was contrary to that of his colleagues on the federal bench, who said that GSK’s nerve center rested in Pennsylvania.
Concerned by the contradicting opinions on GSK’s citizenship, Diamond called on the Third Circuit for guidance.
“Although I have ruled that this court has subject-matter jurisdiction, Judges [C. Darnell] Jones and [Joel] Slomsky have ruled that it does not,” he said. “Without guidance from the Third Circuit, judges of this court will undoubtedly continue to disagree in the numerous cases involving the GSK defendants and similarly situated parties. The resulting uncertainty is extremely troubling.”
The Paxil cases that have shifted to federal court in the wake of the Third Circuit’s ruling, according to Feldman, are individual cases and are not grouped together.
Additionally, some of the cases that were not settled in Philadelphia—many of which had been filed by out-of-state plaintiffs—returned to their local jurisdictions, according to Feldman.
Although most of the cases have left Philadelphia’s court system, the Paxil litigation itself is far from over. A significant number of cases still remain across the country, Feldman said, with the highest concentration of cases pending in St. Louis.
The case most recently filed in Philadelphia, Browning v. SmithKline Beecham, is handled by Bob Schwartz of Brent Coon & Associates in Houston.
Schwartz said that, despite GSK’s corporate citizenship in Delaware, the plaintiff did not have to file suit in that state.
“We can file where the litigation was centered,” Schwartz said, adding that the case is still subject to being moved to a different court in the future.
As for the status of Browning, Schwartz explained that there is no indication thus far as to whether the case will settle or go to trial. Schwartz added that he has not heard from GSK regarding any possible negotiations.
The number of Paxil cases in the Complex Litigation Center’s inventory has been declining for some time: The Legal reported in 2011 that there were 20 cases pending in Philadelphia.
Sheller told The Legal in 2011 that causation in the cases was hotly disputed. The plaintiffs argued they had the epidemiology to show, depending upon the length of the time mothers took Paxil during their pregnancies, causation between the drug and the defect.
“The defense argues that [the causes] of 90 percent of birth defects are unknown,” Sheller had said.
GSK had argued in court papers that 65 percent of all birth defects have no known cause and less than 1 percent of all birth defects are attributable to a mother’s exposure to medication during pregnancy.