(Photo: Waleed A. Alzuhair.)
A federal judge in Camden, N.J., has remanded to state court 15 suits over birth defects in children born to mothers who took Forest Laboratories’ antidepressants Celexa and Lexapro for lack of subject matter jurisdiction.
U.S. District Judge Robert Kugler rejected the defendants’ assertion that federal jurisdiction is proper because the cases require the court to address questions about the Food and Drug Administration’s labeling of the drugs. Kugler also rejected the defendants’ claims that defendant Forest Research Institute of Jersey City was fraudulently joined as a defendant.
The suits are part of a group of 20 that were filed in state courts in New Jersey and removed to federal court by the defendants. The suits claim women who used the drug gave birth to infants with problems ranging from heart defects to club feet. Some of the infants died as a result of the abnormalities.
Besides Forest Research Institute, the suits name as defendants two related entities, Forest Laboratories, based in New York, and St. Louis-based Forest Pharmaceuticals.
The plaintiffs claim the company knew that its drugs increased the risk of birth defects when used by pregnant women but did not warn users, and promoted use of the drugs in women of child-bearing years. The suits seek compensatory and punitive damages for failure to warn and defective design under the New Jersey Product Liability Act, as well as breach of contract and fraudulent concealment.
The cases were consolidated under the caption In re: Forest Research Institute Cases, 13-cv-1832.
Kugler sent the cases back to the venues where they were filed—nine in Atlantic County and six in Hudson County. The ruling leaves five of the Forest cases still pending before Kugler—four are part of a discovery dispute and in the other, the court is awaiting additional information about the plaintiffs’ residency.
In his rejection of the defendants’ argument for federal question jurisdiction, Kugler said the failure to warn and punitive damages claims do not support a finding that the plaintiffs right to relief under state law requires resolution of substantial questions of federal law.
Kugler also cited Sullivan v. Novartis Pharm. Corp., 575 F. Supp 2d 640, a 2008 case from the District of New Jersey. In that case, the court held that a punitive damages claim for failure to warn does not require the court to address whether the New Jersey Products Liability Act incorporates federal law by requiring a showing of fraud on the FDA.
The judge said the defendants improperly removed some of the cases on diversity grounds before New Jersey-based Forest Research Institute was served. Citing Williams v. Daiichi Sankyo, 14-cv-863, another District of New Jersey case from April of this year, Kugler said that doing so “violates the intention of the forum defendant rule by permitting gamesmanship.”
The defendants said in court papers that about 182 suits have been filed nationwide against Forest Laboratories and its affiliates over birth defects in the children of users. Most of those, roughly 154, were filed in state court in Cole County, Missouri, although none of that group included Forest Research Institute as a defendant. A small group of plaintiffs filed suits in St. Louis, but when those cases were transferred to Cole County, they were voluntarily dismissed by the plaintiffs and re-filed in New Jersey, with Forest Research Institute as a defendant, the plaintiffs said.
The defendants claimed Forest Research Institute, which coordinates regulatory and research activities for parent company Forest Laboratories, was fraudulently joined. Forest Laboratories holds the rights to make Celexa and Lexapro and Forest Pharmaceuticals conducts marketing. But Kugler found there is “a genuine controversy as to whether FRI can be held liable under state law governing products liability” and that it was not fraudulently joined.
Seeger Weiss of New York filed 13 of the New Jersey birth defects cases, and another six were filed by Napoli Bern Ripka Shkolnik, also of New York, while one was filed by Laura Feldman of Feldman & Pinto in Philadelphia.
Plaintiffs counsel did not return calls for comment; nor did defense lawyers from Ulmer & Berne in Cleveland and McCarter & English in Newark.
Celexa and Lexapro are also the subjects of a separate group of six cases that were consolidated in Boston by the Judicial Panel on Multidistrict Litigation, which claims the company improperly marketed the drug for use by minors.
Contact the reporter at email@example.com.