Deepening a recent split among judges in the Eastern District of Pennsylvania, U.S. District Senior Judge Michael Baylson has remanded a case against GlaxoSmithKline over its antidepressant drug Paxil, ruling it should be tried in the Philadelphia Court of Common Pleas. GSK had argued the case belonged in federal court.

The pharmaceutical giant had sought removal of the case, for the second time, after the U.S. Court of Appeals for the Third Circuit’s ruling in June that declared its corporate citizenship lay in Delaware. Arguing that the opinion constitutes an intervening order, it asked to have several suits alleging birth defects caused by Paxil removed to federal court on diversity grounds.

Since the Third Circuit issued its opinion in June, three judges have denied motions to remand in similar actions involving Paxil. Baylson is the second judge to grant the motion for remand.

“The Third Circuit was silent, however, on what effect, if any, its ruling would have on similar cases, such as the one at bar,” Baylson said of the open question as to how trial court judges are to interpret the new precedent.

He concluded that GSK had missed its window for removal and, regardless of the Third Circuit’s recent ruling, would have only one opportunity for it.

“Removal is, by congressional design, a one-time event. Counsel need to move promptly and correctly. The judge only gets one ‘shot’ at the decision,” he said.

The plaintiffs, Theresa Powell, who took Paxil while she was pregnant, and her daughter, Madison Powell, joined the mass torts program in the Philadelphia Court of Common Pleas in June 2011, shortly before GSK removed the case to federal court.

After the cases were consolidated in front of U.S. District Judge Timothy Savage of the Eastern District of Pennsylvania, the judge determined that GSK’s “nerve center” was in Pennsylvania, where it has its principal place of business and thousands of employees. Since that holding defeated diversity jurisdiction, Savage remanded the cases to the Philadelphia Court of Common Pleas, where they have been litigated since then.

The Third Circuit’s decision in June, captioned Johnson v. SmithKline Beecham, found the opposite of Savage and reinvigorated the removal issue.

U.S. District Judge Harvey Bartle III was the first to rule, in July, and U.S. District Judges Mary McLaughlin and Ronald L. Buckwalter followed his reasoning, according to the opinion.

“According to Judge Bartle, the Third Circuit’s decision in Johnson makes Judge Savage’s remand opinion a ‘nullity’ that can be disregarded when assessing the removability of the initial pleading,” Baylson said. “In Judge Bartle’s view, the Paxil cases were ‘initially removable’ at the pleading stage and, as such, are not subject to the one-year time limit on removal.”

Earlier this month, U.S. District Judge John R. Padova parted ways from the other three and remanded a Paxil case to the Philadelphia Court of Common Pleas.

Assessing GSK’s argument that Johnson would allow the court to get around the section of the U.S. Code that prohibits review of initial remands, Baylson said, “Since Johnson did not expressly authorize GSK to remove all similar actions, it is doubtful that Johnson qualifies as an ‘intervening order’ for purposes of Section 1447(d).”

Beyond that, he said, “Even if Johnson qualifies as an ‘intervening order,’ it is doubtful that Johnson justifies a retroactive determination that the case was initially removable. This determination, which would invalidate Judge Savage’s non-reviewable conclusion to the contrary, is neither justified by Doe nor compatible with § 1447(d).” He referred to Doe v. American Red Cross, decided by the Third Circuit in 1993.

“We must remember that the Third Circuit did not reverse Judge Savage’s opinion. Rather, the Third Circuit rendered a different conclusion in a separate appeal of Judge Diamond’s ruling in Johnson,” Baylson said, referring to U.S. District Judge Paul S. Diamond, who had ruled that GSK is a Delaware corporation in the suit that was on appeal to the Third Circuit resulting in the June decision.

“Although all district courts within this circuit are now bound by Johnson‘s holding that GSK is a Delaware citizen, that does not make a prior judicial decision a ‘nullity’ and treating it as such ignores Section 1447(d)’s command that remand orders not be subject to review or reconsideration,” Baylson said.

Neither Carolyn McCormack of Lavin, O’Neil, Ricci, Cedrone & DiSipio, who represented GSK, nor Adam Peavy of Bailey Peavy Bailey in Houston, who represented the Powells, could be reached for comment.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.